Denied and Opinion Filed April 8, 2019
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00292-CV
IN RE YAMAHA GOLF-CAR COMPANY, Relator
Original Proceeding from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-02698
MEMORANDUM OPINION Before Justices Bridges, Osborne, and Carlyle Opinion by Justice Carlyle The underlying proceeding arises from a golf-car rollover accident in which a nine-year-
old boy was injured. The child’s parents, Tim and Jennifer Siegel, sued relator Yamaha Golf-Car
Company and other defendants. Yamaha joined a co-defendant’s motion to designate Texas Tech
University Medical Center (“UMC”) as a responsible third party based on allegations that UMC
paramedics improperly intubated the child en route to the hospital and the faulty intubation caused
the child to be deprived of oxygen for an extended period and suffer brain damage. The trial court
granted the designation. The Siegels later moved to strike the designation, arguing that Yamaha
was required to provide evidence that the UMC paramedics engaged in willful and wanton
negligence pursuant to Chapter 74 of the civil practice and remedies code but failed to do so. In
this original proceeding, Yamaha complains of the trial court’s order striking the responsible third
party designation. We deny the petition. The Order Striking the Designation
On June 7, 2018 and June 8, 2018, the trial court heard argument on the motion to strike
the responsible third party designation and on other motions at a pre-trial1 hearing. On July 12,
2018, the trial judge sent an e-mail to her court administrator. In the e-mail, the trial judge stated
that she needs “the following orders” and then set out a two-column table listing each motion and
her ruling on each motion. The ruling listed for the motion to strike the designation of UMC as a
responsible third party was “Granted.” The court administrator then forwarded the judge’s e-mail
to all counsel of record and asked the parties to submit appropriate orders approved as to form
pursuant to the judge’s rulings set out in the judge’s e-mail.
The trial judge did not, however, sign a written order granting the motion to strike the
responsible third party designation until February 11, 2019. Yamaha filed this original proceeding
on March 8, 2019. The Siegels filed a “preliminary response” to the mandamus petition, arguing
that the petition is barred by laches.
Mandamus Standard
Mandamus relief is warranted when the trial court clearly abuses its discretion and the
relator has no adequate appellate remedy. In re Coppola, 535 S.W.3d 506, 507–08 (Tex. 2017)
(orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding). Mandamus is a proper remedy when a trial court abuses its discretion by striking a
responsible third party designation. See In re Coppola, 535 S.W.3d at 508; In re Brokers Logistics,
Ltd., 320 S.W.3d 402, 409 (Tex. App.—El Paso 2010, orig. proceeding).
Applicable Law
Section 33.004 of the Texas Civil Practice and Remedies Code permits a tort defendant to
designate a person as a responsible third party. TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a);
1 The June 11, 2018 trial setting was continued to April 1, 2019. –2– The trial court may later strike the designation if, after adequate time for discovery, no legally
sufficient evidence of responsibility exists. Id. § 33.004(l). Once a motion to strike is filed, the
trial court “shall grant” the motion “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. “Under this standard, a defendant has the burden to produce sufficient evidence for
a reasonable jury to hold the third party responsible for at least a portion of the plaintiff’s injury
or damage.” In re Enter. Beaumont Marine W., LP, No. 09-16-00032-CV, 2016 WL 1469085, at
*1 (Tex. App.—Beaumont Apr. 14, 2016, orig. proceeding) (mem. op.) (citing In re Transit Mix
Concrete & Materials Co., No. 12–13–00364–CV, 2014 WL 1922724, at *3 (Tex. App.—Tyler
May 14, 2014, orig. proceeding) (mem. op.)). Once a party is designated as a responsible third
party, the only statutory ground for striking the designation is that “there is no evidence that the
designated person is responsible for any portion of the claimant’s alleged injury or damage.” In re
Brokers Logistics, Ltd., 320 S.W.3d at 406 (quoting TEX. CIV. PRAC. & REM. CODE ANN. §
33.004(l)).
Discussion
This proceeding poses two questions for the Court: whether laches bars mandamus review,
and whether the trial court abused its discretion. Although mandamus is a legal remedy, it is
largely controlled by equitable principles, including the concept that equity aids the diligent and
not those who slumber on their rights. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex.
1993); Rogers v. Ricane Enters., 772 S.W.2d 76, 80 (Tex. 1989). A delay of only a few months
can result in waiver by laches. See Rivera, 858 S.W.2d at 366 (four months); In re Pendragon
Transp. LLC, 423 S.W.3d 537, 540 (Tex. App.—Dallas 2014, orig. proceeding) (six month delay
and filed less than two weeks before trial); In re Saldivar, No. 13-17-00648-CV, 2017 WL
5760319, at *6 (Tex. App.—Corpus Christi-Edinburg Nov. 28, 2017, orig. proceeding) (relators’
–3– four-month delay in seeking relief waived their right to pursue mandamus relief from denial of
motion for leave to designate responsible third party); Bailey v. Baker, 696 S.W.2d 255, 256 (Tex.
App.—Houston [14th Dist.] 1985, orig. proceeding) (four-month delay, no explanation for delay,
and filed two weeks prior to trial).
Here, Yamaha waited eight months after the trial court’s July 12, 2018 e-mail ruling to
seek mandamus relief, filed the petition only three weeks before trial, and initially offered no
explanation for the delay. In its reply brief, Yamaha argues that the e-mail from the court
coordinator was not sufficiently clear and specific to be reviewed by mandamus but was, instead,
simply an expression of future intent to sign a written order. We disagree. The e-mail states
specifically that the judge had granted the motion to strike and, as such, signing an order was
merely a ministerial act. See, e.g., Burnett v. Lunceford, 545 S.W.3d 587, 592–93 (Tex. App.—
El Paso 2016, pet. denied) (“The court’s statements that each motion “is granted” demonstrate an
intent to rule as a present act, and the request for Lundy's counsel to draft an order does not reflect
that the court intended to rule in the future or that its rulings would not be effective until it signed
the order”); see also Greene v.
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Denied and Opinion Filed April 8, 2019
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00292-CV
IN RE YAMAHA GOLF-CAR COMPANY, Relator
Original Proceeding from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-02698
MEMORANDUM OPINION Before Justices Bridges, Osborne, and Carlyle Opinion by Justice Carlyle The underlying proceeding arises from a golf-car rollover accident in which a nine-year-
old boy was injured. The child’s parents, Tim and Jennifer Siegel, sued relator Yamaha Golf-Car
Company and other defendants. Yamaha joined a co-defendant’s motion to designate Texas Tech
University Medical Center (“UMC”) as a responsible third party based on allegations that UMC
paramedics improperly intubated the child en route to the hospital and the faulty intubation caused
the child to be deprived of oxygen for an extended period and suffer brain damage. The trial court
granted the designation. The Siegels later moved to strike the designation, arguing that Yamaha
was required to provide evidence that the UMC paramedics engaged in willful and wanton
negligence pursuant to Chapter 74 of the civil practice and remedies code but failed to do so. In
this original proceeding, Yamaha complains of the trial court’s order striking the responsible third
party designation. We deny the petition. The Order Striking the Designation
On June 7, 2018 and June 8, 2018, the trial court heard argument on the motion to strike
the responsible third party designation and on other motions at a pre-trial1 hearing. On July 12,
2018, the trial judge sent an e-mail to her court administrator. In the e-mail, the trial judge stated
that she needs “the following orders” and then set out a two-column table listing each motion and
her ruling on each motion. The ruling listed for the motion to strike the designation of UMC as a
responsible third party was “Granted.” The court administrator then forwarded the judge’s e-mail
to all counsel of record and asked the parties to submit appropriate orders approved as to form
pursuant to the judge’s rulings set out in the judge’s e-mail.
The trial judge did not, however, sign a written order granting the motion to strike the
responsible third party designation until February 11, 2019. Yamaha filed this original proceeding
on March 8, 2019. The Siegels filed a “preliminary response” to the mandamus petition, arguing
that the petition is barred by laches.
Mandamus Standard
Mandamus relief is warranted when the trial court clearly abuses its discretion and the
relator has no adequate appellate remedy. In re Coppola, 535 S.W.3d 506, 507–08 (Tex. 2017)
(orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding). Mandamus is a proper remedy when a trial court abuses its discretion by striking a
responsible third party designation. See In re Coppola, 535 S.W.3d at 508; In re Brokers Logistics,
Ltd., 320 S.W.3d 402, 409 (Tex. App.—El Paso 2010, orig. proceeding).
Applicable Law
Section 33.004 of the Texas Civil Practice and Remedies Code permits a tort defendant to
designate a person as a responsible third party. TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a);
1 The June 11, 2018 trial setting was continued to April 1, 2019. –2– The trial court may later strike the designation if, after adequate time for discovery, no legally
sufficient evidence of responsibility exists. Id. § 33.004(l). Once a motion to strike is filed, the
trial court “shall grant” the motion “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. “Under this standard, a defendant has the burden to produce sufficient evidence for
a reasonable jury to hold the third party responsible for at least a portion of the plaintiff’s injury
or damage.” In re Enter. Beaumont Marine W., LP, No. 09-16-00032-CV, 2016 WL 1469085, at
*1 (Tex. App.—Beaumont Apr. 14, 2016, orig. proceeding) (mem. op.) (citing In re Transit Mix
Concrete & Materials Co., No. 12–13–00364–CV, 2014 WL 1922724, at *3 (Tex. App.—Tyler
May 14, 2014, orig. proceeding) (mem. op.)). Once a party is designated as a responsible third
party, the only statutory ground for striking the designation is that “there is no evidence that the
designated person is responsible for any portion of the claimant’s alleged injury or damage.” In re
Brokers Logistics, Ltd., 320 S.W.3d at 406 (quoting TEX. CIV. PRAC. & REM. CODE ANN. §
33.004(l)).
Discussion
This proceeding poses two questions for the Court: whether laches bars mandamus review,
and whether the trial court abused its discretion. Although mandamus is a legal remedy, it is
largely controlled by equitable principles, including the concept that equity aids the diligent and
not those who slumber on their rights. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex.
1993); Rogers v. Ricane Enters., 772 S.W.2d 76, 80 (Tex. 1989). A delay of only a few months
can result in waiver by laches. See Rivera, 858 S.W.2d at 366 (four months); In re Pendragon
Transp. LLC, 423 S.W.3d 537, 540 (Tex. App.—Dallas 2014, orig. proceeding) (six month delay
and filed less than two weeks before trial); In re Saldivar, No. 13-17-00648-CV, 2017 WL
5760319, at *6 (Tex. App.—Corpus Christi-Edinburg Nov. 28, 2017, orig. proceeding) (relators’
–3– four-month delay in seeking relief waived their right to pursue mandamus relief from denial of
motion for leave to designate responsible third party); Bailey v. Baker, 696 S.W.2d 255, 256 (Tex.
App.—Houston [14th Dist.] 1985, orig. proceeding) (four-month delay, no explanation for delay,
and filed two weeks prior to trial).
Here, Yamaha waited eight months after the trial court’s July 12, 2018 e-mail ruling to
seek mandamus relief, filed the petition only three weeks before trial, and initially offered no
explanation for the delay. In its reply brief, Yamaha argues that the e-mail from the court
coordinator was not sufficiently clear and specific to be reviewed by mandamus but was, instead,
simply an expression of future intent to sign a written order. We disagree. The e-mail states
specifically that the judge had granted the motion to strike and, as such, signing an order was
merely a ministerial act. See, e.g., Burnett v. Lunceford, 545 S.W.3d 587, 592–93 (Tex. App.—
El Paso 2016, pet. denied) (“The court’s statements that each motion “is granted” demonstrate an
intent to rule as a present act, and the request for Lundy's counsel to draft an order does not reflect
that the court intended to rule in the future or that its rulings would not be effective until it signed
the order”); see also Greene v. State, 324 S.W.3d 276, 282–83 (Tex. App.—Austin 2010, no pet.)
(“The present-tense language of Judge Cooper’s letter, stating that “judgment is rendered,”
indicates her intent to render judgment at that time, rather than at some point in the future once the
form of judgment had been prepared”).
The trial court’s e-mail ruling was sufficiently clear and direct to be reviewed through
mandamus. By waiting eight months after that ruling to seek mandamus relief and filing its
petition three weeks before trial, Yamaha “waived through delay” its right to pursue mandamus
relief of the trial court’s order striking the responsible third party designation. See, e.g., In re
Saldivar, 2017 WL 5760319, at *6.
–4– Further, the underlying legal issue of whether Yamaha was required to present evidence
that UMC engaged in willful and wanton conduct is an issue of first impression not appropriate
for mandamus review. The Siegels argued below that the applicable legal standard for EMS
providers responding to an emergency situation is not to act willfully or wantonly as set out in
section 74.151(a) of the civil practice and remedies code. In contrast, Yamaha maintains that it
was only required to bring forth evidence that the UMC paramedics failed to exercise ordinary
care under Chapter 33 because a responsible third party may only be found responsible in part for
a plaintiff’s injuries and may not be held liable for its conduct. Yamaha relies on a 2015 opinion
from the Houston Fourteenth Court of Appeals to support its argument. ExxonMobil Corp. v.
Pagayon, 467 S.W.3d 36, 49 (Tex. App.—Houston [14th Dist.] 2015), rev’d sub nom. Pagayon v.
Exxon Mobil Corp., 536 S.W.3d 499 (Tex. 2017). In Pagayon, the court held that Chapter 74’s
standard of proof of liability for providers of emergency medical care was inapplicable to a
responsible third party designation because “even if an emergency-room physician has not
deviated from the standard of care sufficiently to make him “liable” for damages, he nevertheless
may have deviated from it sufficiently to make him “responsible.” Id. at 50.
No other court has addressed the question of whether Chapter 74’s or Chapter 33’s
standards apply to a party’s efforts to designate a provider of emergency medical care as a
responsible third party. And the Pagayon opinion was vacated without addressing that question.
Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499 (Tex. 2017). This case, therefore, presented the
trial court with an issue of first impression. “An issue of first impression can qualify for mandamus
relief where the principle of law on which the relator relies is ‘positively commanded and so plainly
prescribed under the law as to be free from doubt.’” In re Collin Cty., 528 S.W.3d 807, 814 (Tex.
App.—Dallas 2017, orig. proceeding) (quoting In re Medina, 475 S.W.3d 291, 298 (Tex. Crim.
App. 2015) (orig. proceeding)); In re Hawk, No. 05-16-00462-CV, 2016 WL 3085673, at *2 (Tex.
–5– App.—Dallas May 31, 2016, orig. proceeding) (“An issue of first impression can qualify for
mandamus relief even though the factual scenario has never been precisely addressed when the
principle of law has been clearly established”). This is not such a case. Mandamus is unwarranted
here because the principle of law Yamaha urged the trial court to follow is neither positively
commanded nor plainly prescribed under the law. As such, the trial court’s ruling is not properly
reviewed through mandamus.
Under this record, we conclude Yamaha waived through delay its right to pursue
mandamus relief and, in any event, the legal issue of first impression urged by Yamaha is not
subject to mandamus review. Accordingly, we deny relator’s petition for writ of mandamus.
/Cory L. Carlyle/ CORY L. CARLYLE JUSTICE
190292F.P05
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