in Re 7-Eleven, Inc. & Louie's Backyard, Inc.

NUMBER 13-22-00464-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE 7-ELEVEN, INC. AND LOUIE’S BACKYARD, INC.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Memorandum Opinion by Justice Benavides1

By petition for writ of mandamus, relators 7-Eleven, Inc. and Louie’s Backyard, Inc.

contend that the trial court abused its discretion by refusing to grant their motions for leave

to designate responsible third parties.2 See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004.

We conditionally grant the petition for writ of mandamus in part and deny it in part.

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
47.4 (distinguishing opinions and memorandum opinions).
2 This original proceeding arises from trial court cause number 2020-DCL-04283 in the 445th

District Court of Cameron County, Texas, and the respondent is the Honorable Gloria Rincones. See id. R.
52.2.
 I. BACKGROUND

This case arises from a single car automobile accident resulting in severe personal

injury and death. On Sunday, May 17, 2020, sisters Maranda Longoria and Merina

Longoria, and their minor daughters, respectively, J.S.C. and K.L., and Merina’s

boyfriend, Emmanuel Guerra, travelled from McAllen, Texas, to South Padre Island for a

trip to the beach. During the course of the day and evening, the adults consumed alcoholic

beverages during the drive, at the beach, at Louie’s Backyard during dinner, and at a bar

called Laguna Bob’s. They also purchased additional alcohol at a Stripes convenience

store. At some point during the day, they were joined by a friend, Randy Ray Padilla.

In the early morning hours of May 18, 2020, while traveling back home, these

parties were involved in an automobile accident near San Benito, Texas, in which their

car spun out of control and rolled over several times. J.S.C. died as a result of her injuries,

Merina suffered head injuries and paralysis, and K.L. suffered serious bodily injuries.

Maranda, who was driving, was charged with intoxication manslaughter and assault. 3

Yomeida Perez Longoria, who is the mother and grandmother of the females involved in

the crash, filed suit individually and as next friend of Merina and K.L. and as

representative of the estate of J.S.C. (real parties) against Laguna Bob, LLC,4 Louie’s

Backyard, and 7-Eleven5 alleging that they were negligent in their provision of alcohol

3 In separate criminal proceedings, Maranda was convicted of these charges and was sentenced
to thirty years of imprisonment, and her appeal is currently pending in this Court in our appellate cause
number 13-22-00222-CR, Maranda Lizette Longoria a/k/a Maranda Longoria v. State of Texas.

4 The real parties sued Laguna Bob, LLC; however, this entity is identified elsewhere in the record

as Laguna Bob’s, LLC.

5 According to the petition for writ of mandamus, the “Stripes convenience stores and Stripes brand
[are] owned by [7-Eleven].”
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and asserting liability under the Texas Dram Shop Act. See TEX. ALCO. BEV. CODE ANN.

§§ 2.01–.03.

Subsequently, Guerra filed a petition in intervention also raising negligence and

dram shop claims against these same defendants. 7-Eleven filed a third party petition

against Maranda. Robert Cardenas,6 father to decedent J.S.C., also filed a petition in

intervention. The real parties subsequently filed a first amended original petition including

claims against individual employees who worked for the defendants based on respondeat

superior.

During the course of litigation, relators filed various motions for leave to designate

responsible third parties. On August 27, 2021, 7-Eleven filed a motion for leave to

designate Padilla as a responsible third party based generally on Padilla’s provision of

alcohol to Maranda. In its motion, relator alleged:

On Monday May 18, 2020, at around 1:45 a.m., [Maranda], Third Party
Defendant, lost control of the Ford Expedition SUV she was driving on the
public roadways of Cameron County, Texas.

[Maranda] was found to be intoxicated, without the use of her mental
and physical faculties, as she operated the SUV. The rollover incident
caused the SUV’s passengers to be ejected. The incident happened outside
the City of San Benito, Texas.

Prior to the rollover crash, [Maranda], [Merina], [Guerra], [Padilla],
and the daughters of Maranda and Merina, J.S.C. and K.L., respectively,
had spent Sunday, May 17, 2021, hanging out and drinking in South Padre
Island, Texas.

[Padilla], one of the male subjects in the group, bought Maranda and
Merina alcoholic beverages.

6 Robert Cardenas is also identified in the record as Roberto Cardenas.

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 [Padilla] knew or should have known that [Maranda’s] driving
privileges had been revoked by the State of Texas as a result of several
arrests and convictions for DWI offenses.

Despite knowing that [Maranda] had previously been convicted for
DWI and was currently on probation for drug possession, [Padilla]
nevertheless[] bought and provided alcoholic beverages to Maranda and
Merina. Both[] [Padilla] and [Guerra] were also aware that [Maranda] had a
new pending DWI charge in Hidalgo County, Texas, and that Merina had
also been previously convicted of DWI.

[Padilla] willingly, intentionally[,] and knowingly provided Maranda
and Merina with copious amounts of alcohol.

Later in the evening, Guerra, the designated driver in the group,
turned over the SUV to [Maranda] knowing that Maranda was highly
intoxicated from all the alcohol bought and paid for by [Padilla].

As Maranda drove the SUV from South Padre Island to her home in
McAllen, she lost control of the vehicle, causing the Expedition to roll over,
which ultimately resulted in J.S.C., Maranda’s own daughter, being ejected
from the vehicle. J.S.C. died at the scene of the accident.

K.L. and her mother, [Merina], also suffered severe injuries, as did
[Guerra], the purported “designated driver.”

Because [Padilla’s] actions contributed to J.S.C.’s death, and K.L.’s
injuries, [7-Eleven] moves to designate him as a Responsible Third Party.

7-Eleven further alleged that Padilla “purchased and provided many alcoholic beverages

to Maranda and Merina on the night of the incident,” including “Buzz Balls and Budweiser

Beer,” that he was “known to party” with them, and that he knew Maranda was a “known

DWI offender,” and thus “his actions contributed to this tragedy.”

On August 27, 2021, 7-Eleven also filed a motion for leave to designate two drag

racers, John Doe I and John Doe II, as responsible third parties.7 The motion reiterated

the factual underpinnings of the accident, and also stated that:

7 An unknown person designated as a responsible third party under § 33.004(j) is denominated as
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 New evidence obtained through discovery in this case has revealed that
[Maranda] was not only intoxicated while she was driving but she was also
startled as she drove on the fast lane of the highway on the night of the
incident.

Intervenor [Guerra] has detailed in his responses to discovery how
[Maranda] was unable to maintain control of the Ford SUV, because she
was cut off by the (2) two drag racers in pickup trucks that sped past
Maranda’s Ford Expedition SUV on the night in question.

Intervenor [Guerra] has further explained that [Maranda] panicked as
she was cut off by the two drag racers and failed to control the SUV as the
SUV left the expressway, due to Maranda swerving to avoid a collision.

7-Eleven included Guerra’s responses to discovery in its motion for leave to designate

the John Does. In his discovery responses, Guerra alleged that, at the time of the

accident, their vehicle was in the fast lane near San Benito, Texas when two trucks

passed at a high rate of speed and “cut [them] off,” Maranda panicked and “acted

erratically,” and their vehicle “went off the expressway.” 7-Eleven further stated that

Maranda was under the influence of alcohol and lacked a valid driver’s license, but alleged

that “the two drag racers in pickup trucks also bear responsibility for having caused the

conditions which ultimately caused the accident.” According to 7-Eleven, the “criminal

acts of racing on the highway, failing to control speed, failing to keep a proper distance,

and following too closely, were also the proximate cause of the accident and the resulting

injuries made the basis of this lawsuit.”

The real parties filed objections to both motions for leave to designate responsible

third parties. They alleged that the motions were “insufficient” because 7-Eleven “has

“Jane Doe” or “John Doe” until the person’s identity is known. TEX. CIV. PRAC. & REM. CODE ANN.
§ 33.004(k).

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failed to allege or identify sufficient facts to demonstrate” that Padilla or the John Does

should be designated as responsible third parties. According to real parties, 7-Eleven

“has not stated any facts that support the imposition of any duty owed” by Padilla to any

of the [real parties],” and “[a]bsent the existence of any duty owed, there can be no breach

of any duty, nor any causation of damages, and certainly there can be no basis for civil

liability.” They asserted that Padilla was not employed as a server for a commercial

provider of alcohol, and that there is no social duty regarding the provision of alcohol.

Similarly, the real parties argued that 7-Eleven “has not stated sufficient facts to

understand what duties were breached by Two Drag Drivers, how those duties were

breached, and how they proximately caused damages to any of the [real parties].”

According to the real parties, “[t]he facts asserted—that the alleged DRAG RACERS were

speeding—does not explain how that foreseeably injured [real parties].” As with Padilla,

the real parties asserted that the John Does did not have a duty to them, thus there could

not be a basis for the John Does to be liable to the real parties for their damages. They

further argued that the term “cut off” was ambiguous, that relators did not explain how

such an action violated the law, and that “the actions of speeding and cutting off appear

to be incongruous,” and “therefore also fail to give [real parties] any understanding of the

basis of purported liability.”

On December 9, 2021, the trial court denied 7-Eleven’s motion for leave to

designate Padilla as a responsible third party, and, by separate order signed that same

day, denied 7-Eleven’s motion for leave to designate the John Does as responsible third

parties. On or about April 11, 2022, 7-Eleven, Laguna Bob, and Louie’s Backyard filed a

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joint motion for leave re-urging the designation of Padilla as a responsible third party.

Their joint motion for leave adduced additional details regarding Padilla’s actions based

on information obtained during the discovery process.

The trial court held a hearing on August 17, 2022, addressing multiple issues,

including the joint motion for leave re-urging the designation of Padilla as a responsible

third party. On August 23, 2022, the trial court denied the joint motion for leave.

This original proceeding ensued. By one issue, relators contend that the trial court

abused its discretion by denying the motions for leave to designate because “it applied a

liability analysis instead of simply looking at the timeliness and facts pled in the motions.”

II. STANDARD OF REVIEW

“Mandamus relief is warranted when a trial court clearly abuses its discretion and

the relator has no adequate remedy by appeal.” In re YRC Inc., 646 S.W.3d 805, 808

(Tex. 2022) (orig. proceeding) (per curiam). Trial courts have no discretion in determining

what the law is or applying the law to the facts. In re Allstate Indem. Co., 622 S.W.3d 870,

875–76 (Tex. 2021) (orig. proceeding). A party ordinarily lacks an adequate remedy by

appeal when a trial court erroneously denies a party’s motion for leave to designate a

responsible third party. See In re Mobile Mini, Inc., 596 S.W.3d 781, 787–88 (Tex. 2020)

(orig. proceeding) (per curiam); In re Coppola, 535 S.W.3d 506, 509–510 (Tex. 2017)

(orig. proceeding) (per curiam).

III. RESPONSIBLE THIRD PARTY DESIGNATION

A defendant seeking to designate a responsible third party must file a motion for

leave to designate with the trial court. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a).

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The trial “court shall grant leave to designate the named person as a responsible third

party unless another party files an objection to the motion for leave on or before the

[fifteenth] day after the date the motion is served.” Id. § 33.004(f). If an objection is timely

filed, the trial court “shall” grant leave for the designation unless the objecting party

establishes that “the defendant did not plead sufficient facts concerning the alleged

responsibility of the person to satisfy the pleading requirement of the Texas Rules of Civil

Procedure,” and, “after having been granted leave to replead, the defendant failed to

plead sufficient facts concerning the alleged responsibility of the person to satisfy the

pleading requirements of the Texas Rules of Civil Procedure.” Id. § 33.004(g). “This

standard is reminiscent of special exceptions.” In re Eagleridge Operating, LLC, 642

S.W.3d 518, 525 (Tex. 2022) (orig. proceeding). “[T]rial courts have no discretion to deny

a timely filed motion to designate absent a pleading defect and an opportunity to

cure . . . .” Id.

“After adequate time for discovery, a party may move to strike the designation of

a responsible third party on the ground that there is no evidence that the designated

person is responsible for any portion of the claimant’s alleged injury or damage.” TEX. CIV.

PRAC. & REM. CODE ANN. § 33.004(l). The court shall grant the motion to strike unless a

defendant produces sufficient evidence to raise a genuine issue of fact regarding the

designated person’s responsibility for the claimant’s injury or damage.” Id. “Consistent

with the statute’s language, our courts of appeals have described the standard of review

as mirroring a no-evidence summary judgment.” In re Eagleridge Operating, LLC, 642

S.W.3d at 525–26.

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 IV. ANALYSIS

By one issue, relators assert that the trial court abused its discretion when it denied

their motions for leave to designate responsible third parties because it analyzed the

merits of the claims against the third parties rather than focusing on the statutory

directives regarding timeliness and sufficiency of the pleadings. In contrast, real parties

argue that the trial court correctly denied relators’ motions for leave to designate

responsible third parties because a responsible third party must be “legally responsible”

for some or all of the claimed damages and the alleged responsible third parties did not

meet this requirement. The real parties assert that the trial court acted within its discretion

in denying the relators’ motions for leave to designate because it was ruling pursuant to

a § 33.004(l) challenge, which is based on the evidence presented by relators. And,

finally, the real parties further contend that relators did not properly comply with the

statutory requirements to designate the John Does.

A. Designation of the John Does

We first address the real parties’ contention that relators did not meet the timing

and pleading requirements to designate the drag racing John Does as responsible third

parties. Section 33.004(j) provides a specialized procedure for the designation of

unknown parties who are alleged to have committed criminal acts. See TEX. CIV. PRAC. &

REM. CODE ANN. § 33.004(j). This section provides:

Notwithstanding any other provision of this section, if, not later than 60 days
after the filing of the defendant’s original answer, the defendant alleges in
an answer filed with the court that an unknown person committed a criminal
act that was a cause of the loss or injury that is the subject of the lawsuit,
the court shall grant a motion for leave to designate the unknown person as
a responsible third party if:

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 (1) the court determines that the defendant has pleaded facts sufficient
for the court to determine that there is a reasonable probability that
the act of the unknown person was criminal;

(2) the defendant has stated in the answer all identifying characteristics
of the unknown person, known at the time of the answer; and

(3) the allegation satisfies the pleading requirements of the Texas Rules
of Civil Procedure.

Id. Thus, within sixty days of filing its original answer, the defendant must file an answer

including an allegation that an unknown person committed a criminal act that was a cause

of the loss and including all of the known identifying characteristics of the unknown

person. See id.; In re Windstar Trucking, LLC, No. 08-21-00001-CV, 2022 WL 3699963,

at *6 (Tex. App.—El Paso Aug. 26, 2022, orig. proceeding). In considering whether the

defendant has pleaded sufficient facts under this subsection, the trial court may consider

those facts alleged in the answer and in the motion for leave to designate the unknown

person. See In re Windstar Trucking, LLC, 2022 WL 3699963, at *6.

The record reflects that 7-Eleven filed its original answer in this lawsuit on October

2, 2020. The original answer asserted, in relevant part, that the real parties’ damages

were caused by “known and unknown Actors and/or Responsible Third Parties.” The

record does not indicate that 7-Eleven filed any amended answers within sixty days of

October 2, 2020 or otherwise. 7-Eleven did not file its motion for leave to designate the

drag racers as responsible third parties until August 27, 2021.

Relators contend that its motion to designate the drag racers was timely because

it was filed seven months prior to the trial date, which was then set to occur in March of

2022. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a) (requiring a motion for leave to

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designate a person as a responsible third party “on or before the 60th day before the trial

date unless the court finds good cause to allow the motion to be filed at a later date”). We

disagree. “There is a timing difference [between designating known and unknown

responsible third parties] in that an unknown person must be designated within 60 days

of the answer, while a known person might be designated just outside of 60 days from

trial.” In re Windstar Trucking, LLC, 2022 WL 3699963, at *7 (comparing § 33.004(a) and

§ 33.004(j)); see In re Echols, 569 S.W.3d 776, 782–83 (Tex. App.—Dallas 2018, orig.

proceeding) (concluding that the designation of an unknown person whose criminal act

was a cause of the plaintiff’s loss may be made only under subsection (j), and “not later

than 60 days after the filing of the defendant’s original answer”); see In re Unitec Elevator

Servs. Co., 178 S.W.3d 53, 61 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding)

(concluding that the deadline for designating an unknown responsible third party is

governed solely by subsection (j)).

7-Eleven did not file an answer asserting that “an unknown person committed a

criminal act that was a cause of the loss or injury” within sixty days after filing its original

answer. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(j); In re Unitec Elevator Servs.

Co., 178 S.W.3d at 61. We conclude that relators’ attempted designation of the John Does

was neither timely nor included in an answer, and the trial court therefore acted within its

discretion in denying the motion for leave to designate them as responsible third parties.

See In re Gonzales, 619 S.W.3d 259, 262 (Tex. 2021) (orig. proceeding) (per curiam)

(concluding that when a litigant fails to “timely and adequately satisfy” the requirements

of § 33.004(j), the trial court may not grant leave for the designation).

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B. Designation of Padilla

We turn our attention to relators’ motion for leave to designate Padilla as a

responsible third party. The real parties argue that this case is controlled by § 33.004(l),

which requires an evidentiary review, rather than § 33.004(g), which concerns the

timeliness and sufficiency of the pleadings. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 33.004(g), (l). The real parties assert that the orders denying relators’ motions for leave

to designate responsible third parties support this conclusion. They contend that

the orders expressly note that the court considered “Relators’ Motions,”
“Real Parties’ Oppositions,” and “relevant law and argument of counsel.”
The rulings were also made “after adequate time for discovery.” Likewise,
the transcript from the August 17, 2022 hearing confirms that the court
explicitly considered whether [Texas Civil Practice and Remedies Code]
Chapter 33 requires that Relators demonstrate that alleged responsible
party [Padilla] was “legally responsible” for Real Parties’ alleged injuries and
damage.

For these reasons it is undeniable that the trial court orders were
issued incident to a [Texas Civil Practice and Remedies Code] 33.004(l)
challenge, which § 33.004([l]) itself instructs is a factual determination for
the court to be decided based upon the evidence presented by the Relator.

(Record citation omitted).

We disagree. The statute employs a two-tier process by which a party can contest

the designation of a responsible third party. See generally id. § 33.004. First, before the

trial court grants leave for the designation of a responsible third party, a party can file an

objection to the motion for leave. See id. § 33.004(f), (g). Second, if the trial court grants

a motion for leave to designate a responsible third party, a party can later file a motion to

strike the designation on grounds that there is no evidence that the designated person is

responsible for any portion of the claimant’s alleged injury or damage. See id. § 33.004(l);

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In re Cook, 629 S.W.3d 591, 598 (Tex. App.—Dallas 2021, orig. proceeding [mand.

denied]) (stating that the evidentiary inquiry “may be made by motion for summary

judgment, motion to strike the designation, or objection to the non-party’s inclusion in the

jury charge, among other challenges permitted by the rules”).

Based upon the record, we are reviewing the trial court’s rulings at the first step of

the process, not the second. The real parties’ pleadings filed in opposition to the motions

for leave to designate responsible third parties are all self-titled as objections and state

that the real parties object to the potential designations. See Ryland Enter., Inc. v.

Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011) (per curiam) (“[C]ourts should

acknowledge the substance of the relief sought despite the formal styling of the

pleading.”); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (orig.

proceeding) (“We look to the substance of a plea for relief to determine the nature of the

pleading, not merely at the form of title given to it.”); see also TEX. R. CIV. P. 71 (governing

the misnomer of pleadings). The trial court’s orders denying relators’ motion for leave to

designate are titled as such: (1) “Order Denying Defendant 7-Eleven, Inc.’s Motion for

Leave to Designate Responsible Third Party,” (2) “Order Denying Defendant 7-Eleven,

Inc.’s Motion for Leave to Designate Responsible Third Party,” and (3) “Order Denying

Defendants’ Joint Motion for Leave Re-Urging the Designation of [Padilla] as a

Responsible Third Party.” Further, leaving aside their titles, these orders deny relators’

motions for leave to designate responsible third parties in substance, and there is nothing

in the record to indicate that the trial court ever granted a designation of a responsible

third party so as to allow a party to employ the second stage of the process. Thus, we

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apply the standard of review imbedded in the statutory scheme for this stage of the

proceedings; that is, we review the trial court’s rulings based on the sufficiency of the

pleadings as contemplated by § 33.004(f) and (g). See TEX. CIV. PRAC. & REM. CODE ANN.

§ 33.004(f), (g).

As stated previously, relators were required to plead sufficient facts concerning the

alleged responsibility of the person to satisfy the pleading requirements of the Texas

Rules of Civil Procedure.” Id. § 33.004(g). The Texas Rules of Civil Procedure require

pleadings to provide “a short statement of the cause of action sufficient to give fair notice

of the claim involved.” TEX. R. CIV. P. 47(a). “To plead sufficient facts on a motion for leave

to designate a responsible third party under [§] 30.004, a movant must satisfy only this

fair-notice requirement.” In re YRC Inc., 646 S.W.3d at 809. “So long as a party can

ascertain from the pleading the nature, basic issues, and type of evidence that might be

relevant to the controversy, a pleading satisfies the Rule 47(a) standard.” Id. at 809-10.

The real parties assert that relators must establish that the designated parties owe

them a legal duty, and that relators have failed in that regard. However, “[i]n determining

whether to grant a motion for leave to designate a responsible third party, the trial court

is restricted to evaluating the sufficiency of the facts pleaded by the movant and is not

permitted to review the truth of the allegations or consider the strength of the evidence.”

In re Cordish Co., 617 S.W.3d 909, 914 (Tex. App.—Houston [14th Dist.] 2021, orig.

proceeding [mand. denied]) (rejecting the real parties’ contention that relator’s allegations

could not establish legal cause as a matter of law). “Whether there is sufficient evidence

to establish—or even to raise a genuine issue of material fact about—the non-party’s

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liability is not the standard.” In re Cook, 629 S.W.3d at 598; see Galbraith Eng’g

Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 868 (Tex. 2009) (concluding that Chapter

33 does not equate responsibility with liability and stating that “a defendant may designate

a responsible third party even though that party possesses a defense to liability, or cannot

be formally joined as a defendant, or both”).

Based on the foregoing, we reject the real parties’ contention that relators’

pleadings must show that the responsible third parties are “legally responsible” for the

real parties’ injuries at this stage of the litigation. Further, we need not determine whether

the relators pleaded sufficient facts regarding Padilla’s alleged responsibility, because

even if a deficiency existed, the trial court lacked discretion to deny the motion to

designate without affording them an opportunity to replead. See TEX. CIV. PRAC. & REM.

CODE § 33.004(g); In re Coppola, 535 S.W.3d at 508 (declining to consider whether the

pleadings were sufficient in the absence of an opportunity to replead); In re Smith, 366

S.W.3d 282, 288 (Tex. App.—Dallas 2012, orig. proceeding) (“[T]he trial judge was

statutorily required to give relators an opportunity to replead before denying their motion,

regardless of whether they made a specific request for time to replead.”). We conclude

that the trial court erred in denying relators’ motion for leave to designate Padilla as a

responsible third party.

C. Appellate Remedy

As we have already stated, a party ordinarily lacks an adequate remedy by appeal

when a trial court erroneously denies a party’s motion for leave to designate a responsible

third party. See In re Mobile Mini, Inc., 596 S.W.3d at 787–88; In re Coppola, 535 S.W.3d

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at 509–510. Mandamus in this context is generally appropriate because allowing a case

to proceed to trial without a properly requested responsible third party designation skews

the proceedings, potentially affects the outcome of the litigation, and compromises the

defense of the lawsuit in ways that are not likely to appear in the record. See In re Mobile

Mini, Inc., 596 S.W.3d at 787; In re Coppola, 535 S.W.3d at 509. Stated otherwise,

“[a]llowing a case to proceed to trial without the third party would defeat the defendant’s

right to have the jury determine the proportionate responsibility of all potential responsible

parties, requiring a second trial.” In re YRC Inc., 646 S.W.3d at 810. We conclude that

the relators lack an adequate remedy by appeal to address the trial court’s improper

denial of relators’ motions for leave to designate Padilla.

V. CONCLUSION

The Court, having examined and fully considered relators’ petition for writ of

mandamus, the real parties’ response, and the applicable law, is of the opinion that the

petition for writ of mandamus should be granted in part and denied in part. We

conditionally grant relators’ petition for writ of mandamus, in part, regarding relators’

motion for leave to designate Padilla as a responsible third party. We express no opinion

as to whether relators satisfied their pleading burden under § 33.004(g). See TEX. CIV.

PRAC. & REM. CODE § 33.004(g). We likewise express no opinion as to the merits of a

motion to strike, if any, that may be filed after adequate time for discovery. See id.

§ 33.004(l). We hold only that the trial court abused its discretion by denying relators’

motion for leave to designate a responsible third party without granting them an

opportunity to replead. See In re Coppola, 535 S.W.3d at 508; In re Smith, 366 S.W.3d

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at 288. The writ will issue only if the trial court fails to vacate its orders denying relators’

motions for leave to designate Padilla as a responsible third party and to render a new

order either granting relators’ leave to replead facts supporting the designation or granting

the motion for leave to designate.

We deny relators’ petition for writ of mandamus, in part, as to all requested relief

regarding relators’ motion for leave to designate the John Does as responsible third

parties.

GINA M. BENAVIDES
Justice

Delivered and filed on the
20th day of January, 2023.

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