in Re Lewis Casing Crews, Inc. ( 2014 )


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  • Opinion filed July 10, 2014
    In The
    Eleventh Court of Appeals
    __________
    No. 11-14-00137-CV
    __________
    IN RE LEWIS CASING CREWS, INC.
    Original Mandamus Proceeding
    MEMORANDUM OPINION
    Relator, Lewis Casing Crews, Inc., filed this mandamus proceeding after the
    trial court issued an order denying its motion for designation of Diamond D
    Slickline Service Company, Inc. as a responsible third party pursuant to
    Section 33.004 of the Texas Civil Practice and Remedies Code. See TEX. CIV.
    PRAC. & REM. CODE ANN. § 33.004 (West Supp. 2013). We conditionally grant
    relief.
    This is a personal injury case brought by Real Party in Interest, David G.
    Tinnie, arising from an incident that occurred on a drilling rig.        Tinnie was
    employed by Diamond D, and he allegedly was acting in the course and scope of
    his employment at the drilling rig when the incident occurred. Tinnie alleged that
    he was injured when a “winch line with an attached lifting hook” was dropped or
    fell off the rig and struck him. Tinnie sued Lewis Casing; Viking Drilling, L.L.C.;
    BNB Consulting & Services, Inc.; Energen Resources Corporation; and
    Schlumberger Limited. Tinnie alleged negligence and gross negligence claims
    against the defendants, and he sought to recover damages in excess of $1,000,000.
    Lewis Casing filed a motion for designation of responsible third party in
    which it sought leave to designate Tinnie’s employer, Diamond D, as a responsible
    third party. Lewis Casing alleged that Diamond D’s negligence was the cause or a
    contributing cause of any alleged harm to Tinnie. Tinnie filed a timely objection to
    the motion for designation. He asserted that the trial court should deny the motion
    on the ground that Lewis Casing “ha[d] not pled sufficient facts concerning the
    alleged responsibility of [Diamond D] to satisfy the pleading requirements of the
    Texas Rules of Civil Procedure.”
    Lewis Casing filed a supplement to its motion for designation.              The
    supplement included additional allegations related to Diamond D’s alleged
    responsibility for the accident. The trial court conducted a hearing on Lewis
    Casing’s motion. At the hearing, Tinnie’s counsel asserted that the motion to
    designate was “premature” because the case was in its early stage with a lack of
    discovery. After hearing the arguments from counsel, the trial court stated, “No, I
    think the motion is premature. Your motion is denied.” The trial court entered a
    written order denying the motion. The trial court did not grant Lewis Casing leave
    to replead.
    Lewis Casing filed a motion in which it requested the trial court to
    reconsider its ruling. Alternatively, Lewis Casing requested leave to replead. The
    trial court entered an order denying the motion to reconsider.
    Lewis Casing has filed a petition for writ of mandamus to challenge the trial
    court’s order denying Lewis Casing’s motion for designation of Diamond D as a
    responsible third party. In its sole issue, Lewis Casing contends that the trial court
    2
    clearly abused its discretion by denying the motion, and Lewis Casing also
    contends that it has no adequate remedy by appeal.
    To obtain mandamus relief, a relator must show both a clear abuse of
    discretion by the trial court and the lack of an adequate remedy by appeal. In re
    Prudential Ins. Co. of Am., 
    148 S.W.3d 124
    , 135–36 (Tex. 2004) (orig.
    proceeding). Walker v. Packer, 
    827 S.W.2d 833
    , 839–40 (Tex. 1992). A court
    abuses its discretion when it acts in an arbitrary or unreasonable manner without
    reference to any guiding rules or principles. In re NITLA S.A. de C.V., 
    92 S.W.3d 419
    , 422 (Tex. 2002) (orig. proceeding). Whether a remedy by appeal is adequate
    depends heavily on the circumstances presented. 
    Prudential, 148 S.W.3d at 136
    –
    37; In re Estate of Hutchins, 
    391 S.W.3d 578
    , 583 (Tex. App.—Dallas 2012, orig.
    proceeding). An appellate remedy is not inadequate merely because it may involve
    more cost or delay than obtaining mandamus relief. 
    Walker, 827 S.W.2d at 842
    .
    Under the Texas proportionate responsibility statute, a responsible third
    party is “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.”
    CIV. PRAC. & REM. § 33.011(6) (West 2008). The proportionate responsibility
    statute provides a framework for apportioning percentages of responsibility in the
    calculation of damages in any case in which more than one person, including the
    plaintiff, is alleged to have caused or contributed to cause the harm for which
    recovery of damages is sought. 
    Id. § 33.003;
    Challenger Gaming Solutions, Inc. v.
    Earp, 
    402 S.W.3d 290
    , 292–93 (Tex. App.—Dallas 2013, no pet.).
    Section 33.004(a) of the Civil Practice and Remedies Code provides that
    “[a] defendant may seek to designate a person as a responsible third party by filing
    a motion for leave to designate that person as a responsible third party.” CIV.
    3
    PRAC. & REM. § 33.004(a). The defendant must file the motion at least sixty days
    before the trial date unless the court finds that good cause exists to allow the
    motion to be filed later. 
    Id. A court
    must grant the motion unless another party
    files an objection within fifteen days after the date the motion is served. 
    Id. § 33.004(f).
            Where, as in this case, an objection to the motion is timely filed, the court is
    required to grant leave to designate the party named in the motion as a third party,
    unless the objecting party establishes the following: “(1) 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 (2) 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).
             In
    determining whether to grant a motion for leave to designate a responsible third
    party, a trial court is restricted to evaluating the sufficiency of the facts pleaded by
    the movant and is not permitted to engage in an analysis of the truth of the
    allegations or consider evidence on the third party’s ultimate liability. 1 In re
    Unitec Elevator Servs. Co., 
    178 S.W.3d 53
    , 62 (Tex. App.—Houston [1st Dist.]
    2005, orig. proceeding).
    Lewis Casing contends that it pleaded sufficient facts concerning the alleged
    responsibility of Diamond D and that, therefore, the trial court clearly abused its
    discretion when it denied the motion.                    Tinnie contends that Lewis Casing’s
    1
    A party may challenge 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. CIV. PRAC. & REM. § 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 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. 4 allegations
    were insufficient to satisfy Section 33.004(g). Accordingly, Tinnie
    contends that the trial court did not abuse its discretion when it denied the motion.
    The issue before the trial court at the hearing on Lewis Casing’s motion for
    designation was whether Lewis Casing had pleaded “sufficient facts concerning
    the alleged responsibility of [Diamond D] to satisfy the pleading requirement of
    the Texas Rules of Civil Procedure.” CIV. PRAC. & REM. § 33.004(g)(1). Texas
    follows a “fair notice” standard for pleading. Low v. Henry, 
    221 S.W.3d 609
    , 612
    (Tex. 2007). Rules 45 and 47 of the Texas Rules of Civil Procedure require that
    pleadings give fair notice of the claim asserted. Paramount Pipe & Supply Co. v.
    Muhr, 
    749 S.W.2d 491
    , 494 (Tex. 1988). The “fair notice” standard for pleading is
    satisfied if the opposing party can ascertain from the pleading the nature, the basic
    issues, and the type of evidence that might be relevant to the controversy. 
    Low, 221 S.W.3d at 612
    . A petition is sufficient if a cause of action or defense may be
    reasonably inferred from what is specifically stated. McGraw v. Brown Realty Co.,
    
    195 S.W.3d 271
    , 275 (Tex. App.—Dallas 2006, no pet.).
    Tinnie alleged in his petition that each of the defendants committed acts and
    omissions that constituted negligence and gross negligence and that those acts and
    omissions were a proximate cause of the incident in question and the injuries and
    damages that he sustained and suffered. Lewis Casing alleged in its motion for
    designation that Diamond D failed to provide adequate safety training, equipment,
    and employee supervision and that Diamond D failed to create and maintain a safe
    work environment for Tinnie. Lewis Casing also alleged that “[Diamond D’s]
    negligence was the cause or contributing cause of any alleged harm to [Tinnie].”
    Lewis Casing alleged in its supplemental motion that Diamond D failed to exercise
    ordinary care and that Diamond D’s failure to exercise ordinary care was a
    proximate cause of the accident in question. Additionally, Lewis Casing alleged
    that, under the doctrine of respondeat superior, Diamond D was vicariously liable
    5
    for the negligent acts and omissions of its supervisors. Lewis Casing alleged that
    the supervisors and Tinnie were negligent in a number of respects, including that
    they failed to follow instructions that they had been given; that, contrary to
    instructions, they did not wait to begin their work until all work above them on the
    rig was concluded; that they failed to keep a proper lookout; that they failed to
    delay or stop their work until it could proceed safely; and that they failed to
    sufficiently communicate with other workers on site in an effort to ensure that
    Diamond D’s work could proceed in an orderly and safe sequence.
    Lewis Casing specifically alleged that Diamond D’s negligence caused or
    contributed to cause the harm for which Tinnie sought recovery of damages. We
    conclude that Lewis Casing’s allegations concerning the alleged responsibility of
    Diamond D are sufficient to satisfy the fair-notice pleading requirement; an
    opposing party can ascertain from the allegations the nature and basic issues of the
    controversy and what type of evidence might be relevant.              The trial court
    apparently denied Lewis Casing’s motion to designate Diamond D as a responsible
    third party on the ground that the motion was “premature.”            However, “pre-
    maturity” is not a proper ground to deny a motion to designate a responsible third
    party. Instead, a motion to designate a responsible third party may be denied only
    if a defendant fails to plead sufficient facts after the defendant has been granted
    leave to replead.    CIV. PRAC. & REM. § 33.004(g).         Because Lewis Casing’s
    allegations provided fair notice of its claim, we conclude that the trial court clearly
    abused its discretion when it denied Lewis Casing’s motion for designation of
    Diamond D as a responsible third party.
    We next address whether Lewis Casing has an adequate remedy by appeal.
    Texas intermediate appellate courts have reached different conclusions on the issue
    of whether there is an adequate remedy by appeal from a trial court’s erroneous
    denial of a motion for leave to designate a responsible third party. Several courts
    6
    have granted mandamus relief from a trial court’s erroneous ruling on an issue
    related to the designation of a responsible third party. See, e.g., In re Smith, 
    366 S.W.3d 282
    , 288–89 (Tex. App.—Dallas 2012, orig. proceeding); In re Brokers
    Logistics, Ltd., 
    320 S.W.3d 402
    , 408–09 (Tex. App.—El Paso 2010, orig.
    proceeding); In re Arthur Andersen LLP, 
    121 S.W.3d 471
    , 485–86 (Tex. App.—
    Houston [14th Dist.] 2003, orig. proceeding). Other courts have denied mandamus
    relief based on the conclusion that the relators failed to show the lack of an
    adequate remedy by appeal. See, e.g., Unitec 
    Elevator, 178 S.W.3d at 63
    –66; In re
    Martin, 
    147 S.W.3d 453
    , 460 (Tex. App.—Beaumont 2004, orig. proceeding).
    Based on our analysis, and as discussed below, we agree with the sound reasoning
    of those courts that have concluded that there is no adequate remedy by appeal in
    such cases. See Brokers 
    Logistics, 320 S.W.3d at 408
    –09; 
    Andersen, 121 S.W.3d at 485
    –86.
    Tinnie argues that mandamus relief should be granted from a trial court’s
    erroneous denial of a motion to designate a responsible third party only in “rare,
    highly complex” cases that involve the type of “extraordinary circumstances” that
    were present in Andersen, which involved the “enormity of the facts surrounding
    the collapse” of Enron. 
    Andersen, 121 S.W.3d at 486
    . Tinnie relies on Unitec
    Elevator to support his argument. In Unitec Elevator, the court characterized the
    case before it as a “relatively straightforward personal injury action.” Unitec
    
    Elevator, 178 S.W.3d at 65
    .      Because the case did not present extraordinary
    circumstances such as those that were presented in Andersen, the Unitec Elevator
    court concluded that the relators had an adequate remedy by appeal. 
    Id. at 65–66.
          Tinnie contends that, unlike Andersen, this case does not involve
    extraordinary circumstances because “[t]he case at bar is a straightforward
    negligence matter” and “is not an overly complex case.”            Based on these
    contentions, Tinnie asserts that Lewis Casing has an adequate remedy by appeal.
    7
    We disagree with Tinnie’s assertion that mandamus relief should be limited to
    those cases that involve circumstances similar to those involved in Andersen.
    Courts have not limited grants of mandamus relief to such cases. 
    Smith, 366 S.W.3d at 288
    –89; Brokers 
    Logistics, 320 S.W.3d at 408
    –09.              Additionally,
    although Tinnie contends that this case is a straightforward negligence matter, the
    record shows that he has sued five sophisticated business defendants, and he seeks
    to recover in excess of $1,000,000 in damages. The case will involve extensive
    discovery; the liability and damages issues likely will be hotly contested; a trial
    would be lengthy; and if the case goes to trial, the trier of fact will be asked to
    apportion liability, if any, among the parties.
    The adequacy of an appellate remedy must be determined by balancing the
    benefits of mandamus review against the detriments. In re Team Rocket, L.P., 
    256 S.W.3d 257
    , 262 (Tex. 2008) (orig. proceeding).        In evaluating benefits and
    detriments, we consider whether mandamus review will preserve important
    substantive and procedural rights from impairment or loss.        
    Id. Under the
    proportionate responsibility statute, Lewis Casing has the right to have one jury
    apportion liability among all responsible parties.      See CIV. PRAC. & REM.
    § 33.003(a); Brokers 
    Logistics, 320 S.W.3d at 408
    ; 
    Andersen, 121 S.W.3d at 485
    –
    86. A grant of mandamus relief would preserve Lewis Casing’s valuable right to
    have the trier of fact determine Diamond D’s percentage of responsibility for
    Tinnie’s injuries and damages. Brokers 
    Logistics, 320 S.W.3d at 408
    .
    This case is distinguishable from Martin, in which the Beaumont Court held
    that an adequate appellate remedy existed. See 
    Martin, 147 S.W.3d at 459
    –60. In
    that case, the court noted that, based on the facts before it, “a separate post-
    judgment lawsuit for contribution is an available remedy.” 
    Id. at 459.
    Here, Lewis
    Casing does not have the ability to seek contribution from Tinnie’s employer,
    Diamond D, because Diamond D has provided Tinnie with workers’ compensation
    8
    benefits. 2 TEX. LAB. CODE ANN. § 408.001 (West 2006); Lee Lewis Constr., Inc. v.
    Harrison, 
    64 S.W.3d 1
    , 19 (Tex. App.—Amarillo 1999), aff’d, 
    70 S.W.3d 778
    (Tex. 2001).
    In addition to impairment of rights, we consider whether mandamus will
    “allow the appellate courts to give needed and helpful direction to the law that
    would otherwise prove elusive in appeals from final judgments.” Team 
    Rocket, 256 S.W.3d at 262
    (quoting 
    Prudential, 148 S.W.3d at 136
    ). In this case, the trial
    court’s ruling could be reviewed on appeal if Lewis Casing receives an adverse
    judgment. However, in order to obtain a reversal, Lewis Casing would be required
    to show that the trial court’s error probably caused the rendition of an improper
    judgment or probably prevented it from properly presenting the case to the court of
    appeals. See TEX. R. APP. P. 44.1(a). The denial of Lewis Casing’s right to
    designate Diamond D as a responsible third party “would skew the proceedings,
    potentially affect the outcome of the litigation, and compromise the presentation of
    [Lewis Casing’s] defense in ways unlikely to be apparent in the appellate record.”
    Brokers 
    Logistics, 320 S.W.3d at 408
    ; see also In re Oncor Elec. Delivery Co., 
    355 S.W.3d 304
    , 306 (Tex. App.—Dallas 2011, orig. proceeding).                        On such an
    appellate record, it is possible that Lewis Casing would be unable to obtain relief
    on direct appeal from the trial court’s clearly erroneous ruling. Brokers 
    Logistics, 320 S.W.3d at 408
    . Thus, the trial court’s error may not be adequately addressed
    by an appeal. 
    Oncor, 355 S.W.3d at 305
    .
    We must also consider whether mandamus will spare the litigants and the
    public “the time and money utterly wasted enduring eventual reversal of
    improperly conducted proceedings.” Team 
    Rocket, 256 S.W.3d at 262
    (quoting
    
    Prudential, 148 S.W.3d at 136
    ). There will be a substantial waste of the litigants’
    2
    An employer that is a subscriber to workers’ compensation insurance may be designated as a
    responsible third party under Section 33.004 of the Civil Practice and Remedies Code. See Unitec
    
    Elevator, 178 S.W.3d at 58
    n.5.
    9
    time and money if they proceed to trial without the trial court’s error being
    corrected, proceed through a direct appeal only to have the judgment reversed, and
    then retry the entire case with Diamond D designated as a responsible third party.
    We recognize that the additional time and expense of participating in a second trial
    does not, standing alone, justify the issuance of a writ of mandamus. 
    Walker, 827 S.W.2d at 842
    . However, when a trial court’s error will cause a waste of judicial
    resources, an appellate court may properly consider that factor in determining the
    adequacy of a remedy by appeal. 
    Id. at 843;
    Brokers 
    Logistics, 320 S.W.3d at 409
    .
    In this case, the potential waste of resources, when combined with the possibility
    that Lewis Casing may be unable to successfully prosecute an appeal from an
    adverse judgment, supports the conclusion that Lewis Casing does not have an
    adequate remedy by appeal. See Brokers 
    Logistics, 320 S.W.3d at 409
    . Therefore,
    we conclude that Lewis Casing lacks an adequate remedy by appeal.
    Because the trial court clearly abused its discretion when it denied Lewis
    Casing’s motion for designation of Diamond D as a responsible third party and
    because Lewis Casing lacks an adequate remedy by appeal, we sustain the sole
    issue presented by Lewis Casing in its petition for writ of mandamus.
    Accordingly, we conditionally grant Lewis Casing’s petition for writ of
    mandamus.       The trial court is directed to vacate its March 17, 2014 “Order
    Denying Defendant Lewis Casing Crews, Inc.’s Motion for Designation of
    Responsible Third Party” and to enter a new order granting the motion for
    designation. The writ of mandamus will issue only if the trial court fails to act by
    July 30, 2014.
    July 10, 2014                                             JIM R. WRIGHT
    Panel consists of: Wright, C.J.,                          JUSTICE
    Willson, J., and Bailey, J.
    10