In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00311-CV __________________
IN RE VECTOR CONTRACTING, INC. __________________________________________________________________
Original Proceeding 60th District Court of Jefferson County, Texas Trial Cause No. B-203,616 __________________________________________________________________
MEMORANDUM OPINION
Relator Vector Contracting, Inc. (“Vector” or “Relator”) filed a petition for
writ of mandamus, in which it argues that the trial court erred in refusing to allow it
to designate a responsible third party. See Tex. Civ. Prac. & Rem. Code Ann.
§ 33.004. For the reasons explained herein, we conditionally grant Vector’s petition
for writ of mandamus.
BACKGROUND
Vector is the named defendant in a wrongful death lawsuit filed by Timothy
Dwayne Schneider, individually and o/b/o The Estate of Clarissa Deanna Schneider,
1 Deceased, and Karri Scott, James White, and Margaret White (“the Schneiders”).
The lawsuit arises from an automobile accident that occurred when a vehicle driven
by Jairo Avila collided with a vehicle driven by Clarissa Schneider. According to
the petition, Clarissa Schneider was killed in the accident and her husband Timothy
Dwayne Schneider, who was riding in the back seat, was injured in the accident. The
Schneiders sued Vector alleging that Avila was acting in the course and scope of his
employment with Vector at the time of the accident, Avila was negligent and
disregarded a stop sign, Vector is vicariously liable for the negligence of Avila, and
Vector is liable for its own negligence in “its background check, training and
supervision of Avila and in retaining him as an employee when they knew, or should
have known, he had a propensity to drive recklessly.”
According to Vector, Avila’s personal insurance company has settled the case
on behalf of Avila with the Schneiders, and Vector timely filed a motion for leave
to designate Avila as a responsible third party. The Schneiders did not file an
objection to Vector’s motion to designate Avila as a responsible third party. The trial
court denied Vector’s motion and ruled that Avila’s percentage of fault would be
submitted to the jury as a settling party. In its Petition for Mandamus, Vector asserts
that because the language of section 33.004 of the Texas Civil Practice and Remedies
Code is mandatory and the Schneiders did not file an objection, the trial judge abused
2 his discretion by denying Vector’s motion for leave to designate Avila as a
responsible third party. Vector contends that section 33.004 of the Texas Civil
Practice and Remedies Code imposes a mandatory duty on the trial court to grant a
timely request to designate a responsible third party when another party does not file
an objection. See Tex. Civ. Prac. & Rem. Code Ann. § 33.004. Vector argues that
simply because Avila may also be a settling party under section 33.003 of the Texas
Civil Practice and Remedies Code does not render section 33.004 superfluous. See
Tex. Civ. Prac. & Rem. Code Ann. §§ 33.003, 33.004.
In response to Vector’s Petition for Mandamus, Schneider argues that the
question of whether Avila is called a “settling person” or “responsible third party[]”
“is a distinction without a difference[.]” According to Schneider, the Legislature
provided two mechanisms for submitting a non-party’s responsibility to the trier of
fact: sections 33.003 and 33.004 of the Texas Civil Practice and Remedies Code.
Specifically, Schneider contends that while section 33.003 requires the trial court to
submit a settling person’s responsibility to the jury, section 33.004 governs
responsible third parties and it “allows a designation that can later be stricken if there
is insufficient evidence to establish liability and does not create a mandatory
submission of responsibility to the jury.” According to Schneider, once a person has
been determined to be a settling person, “any further efforts to force or prevent
3 submission of the settled person to the jury are moot.” Schneider characterizes this
proceeding as “solely a dispute about nomenclature” and notes that the issue of
Avila’s proportionate responsibility will be submitted to the jury because Avila is a
settling party. Schneider also argues that Vector has failed to show that it lacks an
adequate remedy on appeal.
Vector argued in its Petition for Mandamus that Avila was not acting in the
course and scope of his employment at the time of the accident, and Vector argues
that the facts in the underlying suit will establish that Vector has no vicarious liability
for the negligence, if any, of Avila. Vector contends that the Schneiders “apparently
believe a designation of Mr. Avila as a responsible third party may have some
bearing at trial or on appeal after a trial on the determination of potential vicarious
liability for Relator[]” and therefore “it is necessary for Relator to obtain a
designation of Mr. Avila as a responsible third party under § 33.004.”1
ANALYSIS
To prevail on its petition for writ of mandamus, Vector must demonstrate that
the trial court clearly abused its discretion and that it has no adequate appellate
1 The Schneiders do not address this specific allegation in their response. But, the Schneiders state in their response that in the end “it makes no difference whether the trier of fact determines [Avila’s] percentage of responsibility as a settling party or responsible third party.” 4 remedy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding). The trial court abuses its discretion if it fails to analyze or apply the law
correctly. In re Sw. Bell Tel. Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007) (orig.
proceeding). A trial court abuses its discretion when its ruling is “‘so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.’” In re CSX Corp.,
124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam) (quoting CSR Ltd.
v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (orig. proceeding)).
We find In re Coppola, 535 S.W.3d 506 (Tex. 2017) (orig. proceeding) (per
curiam) to be instructive. In re Coppola was a mandamus case concerning a trial
court’s denial of the defendant’s attempt to designate a responsible third party. Id. at
507. Therein, the Supreme Court concluded the trial court abused its discretion in
denying the motion and it also held the defendant lacked an adequate remedy by
appeal. Id. at 508, 510. The Supreme Court stated that “[a]llowing a case to proceed
to trial despite erroneous denial of a responsible-third-party designation ‘would skew
the proceedings, potentially affect the outcome of the litigation, and compromise the
presentation of [the relator’s] defense in ways unlikely to be apparent in the appellate
record.’” Id. at 509 (second alteration in original) (quoting In re CVR Energy, Inc.,
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In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00311-CV __________________
IN RE VECTOR CONTRACTING, INC. __________________________________________________________________
Original Proceeding 60th District Court of Jefferson County, Texas Trial Cause No. B-203,616 __________________________________________________________________
MEMORANDUM OPINION
Relator Vector Contracting, Inc. (“Vector” or “Relator”) filed a petition for
writ of mandamus, in which it argues that the trial court erred in refusing to allow it
to designate a responsible third party. See Tex. Civ. Prac. & Rem. Code Ann.
§ 33.004. For the reasons explained herein, we conditionally grant Vector’s petition
for writ of mandamus.
BACKGROUND
Vector is the named defendant in a wrongful death lawsuit filed by Timothy
Dwayne Schneider, individually and o/b/o The Estate of Clarissa Deanna Schneider,
1 Deceased, and Karri Scott, James White, and Margaret White (“the Schneiders”).
The lawsuit arises from an automobile accident that occurred when a vehicle driven
by Jairo Avila collided with a vehicle driven by Clarissa Schneider. According to
the petition, Clarissa Schneider was killed in the accident and her husband Timothy
Dwayne Schneider, who was riding in the back seat, was injured in the accident. The
Schneiders sued Vector alleging that Avila was acting in the course and scope of his
employment with Vector at the time of the accident, Avila was negligent and
disregarded a stop sign, Vector is vicariously liable for the negligence of Avila, and
Vector is liable for its own negligence in “its background check, training and
supervision of Avila and in retaining him as an employee when they knew, or should
have known, he had a propensity to drive recklessly.”
According to Vector, Avila’s personal insurance company has settled the case
on behalf of Avila with the Schneiders, and Vector timely filed a motion for leave
to designate Avila as a responsible third party. The Schneiders did not file an
objection to Vector’s motion to designate Avila as a responsible third party. The trial
court denied Vector’s motion and ruled that Avila’s percentage of fault would be
submitted to the jury as a settling party. In its Petition for Mandamus, Vector asserts
that because the language of section 33.004 of the Texas Civil Practice and Remedies
Code is mandatory and the Schneiders did not file an objection, the trial judge abused
2 his discretion by denying Vector’s motion for leave to designate Avila as a
responsible third party. Vector contends that section 33.004 of the Texas Civil
Practice and Remedies Code imposes a mandatory duty on the trial court to grant a
timely request to designate a responsible third party when another party does not file
an objection. See Tex. Civ. Prac. & Rem. Code Ann. § 33.004. Vector argues that
simply because Avila may also be a settling party under section 33.003 of the Texas
Civil Practice and Remedies Code does not render section 33.004 superfluous. See
Tex. Civ. Prac. & Rem. Code Ann. §§ 33.003, 33.004.
In response to Vector’s Petition for Mandamus, Schneider argues that the
question of whether Avila is called a “settling person” or “responsible third party[]”
“is a distinction without a difference[.]” According to Schneider, the Legislature
provided two mechanisms for submitting a non-party’s responsibility to the trier of
fact: sections 33.003 and 33.004 of the Texas Civil Practice and Remedies Code.
Specifically, Schneider contends that while section 33.003 requires the trial court to
submit a settling person’s responsibility to the jury, section 33.004 governs
responsible third parties and it “allows a designation that can later be stricken if there
is insufficient evidence to establish liability and does not create a mandatory
submission of responsibility to the jury.” According to Schneider, once a person has
been determined to be a settling person, “any further efforts to force or prevent
3 submission of the settled person to the jury are moot.” Schneider characterizes this
proceeding as “solely a dispute about nomenclature” and notes that the issue of
Avila’s proportionate responsibility will be submitted to the jury because Avila is a
settling party. Schneider also argues that Vector has failed to show that it lacks an
adequate remedy on appeal.
Vector argued in its Petition for Mandamus that Avila was not acting in the
course and scope of his employment at the time of the accident, and Vector argues
that the facts in the underlying suit will establish that Vector has no vicarious liability
for the negligence, if any, of Avila. Vector contends that the Schneiders “apparently
believe a designation of Mr. Avila as a responsible third party may have some
bearing at trial or on appeal after a trial on the determination of potential vicarious
liability for Relator[]” and therefore “it is necessary for Relator to obtain a
designation of Mr. Avila as a responsible third party under § 33.004.”1
ANALYSIS
To prevail on its petition for writ of mandamus, Vector must demonstrate that
the trial court clearly abused its discretion and that it has no adequate appellate
1 The Schneiders do not address this specific allegation in their response. But, the Schneiders state in their response that in the end “it makes no difference whether the trier of fact determines [Avila’s] percentage of responsibility as a settling party or responsible third party.” 4 remedy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding). The trial court abuses its discretion if it fails to analyze or apply the law
correctly. In re Sw. Bell Tel. Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007) (orig.
proceeding). A trial court abuses its discretion when its ruling is “‘so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.’” In re CSX Corp.,
124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam) (quoting CSR Ltd.
v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (orig. proceeding)).
We find In re Coppola, 535 S.W.3d 506 (Tex. 2017) (orig. proceeding) (per
curiam) to be instructive. In re Coppola was a mandamus case concerning a trial
court’s denial of the defendant’s attempt to designate a responsible third party. Id. at
507. Therein, the Supreme Court concluded the trial court abused its discretion in
denying the motion and it also held the defendant lacked an adequate remedy by
appeal. Id. at 508, 510. The Supreme Court stated that “[a]llowing a case to proceed
to trial despite erroneous denial of a responsible-third-party designation ‘would skew
the proceedings, potentially affect the outcome of the litigation, and compromise the
presentation of [the relator’s] defense in ways unlikely to be apparent in the appellate
record.’” Id. at 509 (second alteration in original) (quoting In re CVR Energy, Inc.,
500 S.W.3d 67, 81-82 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding) (op.
on reh’g). The Court held that “ordinarily, a relator need only establish a trial court’s
5 abuse of discretion to demonstrate entitlement to mandamus relief with regard to a
trial court’s denial of a timely-filed section 33.004(a) motion.” Id. at 510; see also
In re Dawson, 550 S.W.3d 625, 630-31 (Tex. 2018) (orig. proceeding).
Section 33.003 of the Texas Civil Practice and Remedies Code provides that
the trier of fact shall determine the percentage of responsibility for each claimant,
each defendant, each settling person, and each responsible third party who has been
designated under section 33.004. Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a). A
“settling person” is defined as “a person who has, at any time, paid or promised to
pay money or anything of monetary value to a claimant in consideration of potential
liability with respect to the personal injury . . . or other harm for which recovery of
damages is sought.” Id. § 33.011(5). A “responsible third party” is defined as
any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these.
Id. § 33.011(6). Under section 33.004(a), a defendant may seek to designate a person
as a responsible third party by filing a motion for leave to do so on or before the
sixtieth day before trial, unless the trial court finds good cause for allowing it to be
filed at a later date. Id. § 33.004(a). Section 33.004(f) states that “[a] court shall grant
leave to designate the named person as a responsible third party unless another party
6 files an objection to the motion for leave on or before the 15th day after the date the
motion is served.” Id. § 33.004(f). The language of section 33.004 “imposes a
mandatory duty requiring a court to grant a motion for leave to designate responsible
third parties if the request is filed at least sixty days before the trial date.” In re
United Parcel Serv., Inc., No. 09-18-00002-CV, 2018 WL 753503, at *5 (Tex.
App.—Beaumont Feb. 8, 2018, orig. proceeding) (per curiam) (mem. op.); see also
Tex. Gov’t Code Ann. § 311.016(2) (providing that the word “shall” in a statute
imposes a duty). According to the record before us, the Schneiders did not file a
written objection to the motion to designate Avila as a responsible third party. 2
The definition of a “responsible third party” does not by its plain terms
exclude a “settling party” from being named as a “responsible third party.” If the
Texas Legislature had intended to exclude a “settling party” from being designated
as a “responsible third party” it could have included language within the definition
2 A party may also file a challenge to the sufficiency of the evidence to support the designation of a responsible third party after there has been adequate time for discovery in a case. Tex. Civ. Prac. & Rem. Code Ann. § 33.004(l). Specifically, “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.” Id. The trial court is required to 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.
7 of a “responsible third party” to exclude a “settling party” or it could have included
similar exclusionary language or exceptions in section 33.004. “[T]here is nothing
logically inconsistent with a person being both a settling person and responsible third
party.” In re CVR, 500 S.W.3d at 78 n.11; see also Tex. Gov’t Code Ann.
§ 311.021(2) (providing that courts presume that in enacting a statute, the
Legislature intended the entire statute to be effective). “A person could potentially
fall within the definitions of both settling person and responsible third party, and the
Legislature included no language in Chapter 33 indicating otherwise.” MCI Sales
and Serv., Inc. v. Hinton, 329 S.W.3d 475, 503 (Tex. 2010).
We conclude the trial court abused its discretion in denying Vector’s motion
to designate Avila as a responsible third party. Ordinarily, a defendant is entitled to
mandamus relief when a trial court erroneously prevents it from designating a
responsible third party. See In re Coppola, 535 S.W.3d at 510. On the record now
before us, we conclude that Vector has presented adequate grounds for relief by
mandamus. Accordingly, without hearing oral arguments, we conditionally grant the
writ. It shall issue only if the trial court fails to comply with this opinion. See Tex.
R. App. P. 52.8(c).
8 PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on October 3, 2019 Opinion Delivered October 31, 2019
Before McKeithen, C.J., Horton and Johnson, JJ.