In Re Hidden Lakes Development Partners, LP v. the State of Texas ( 2023 )

Memorandum Opinion issued June 8, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00152-CV
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IN RE HIDDEN LAKES DEVELOPMENT PARTNERS, LP, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator Hidden Lakes Development Partners, LP (HLDP) filed this original
proceeding to challenge the trial court’s denial of HLDP’s amended motion for leave
to designate responsible third parties. HLDP seeks a writ of mandamus to (1) vacate
the trial court’s August 12, 2021 order denying HLDP’s motion for leave to
designate responsible third parties, and (2) grant HLDP’s amended motion for leave
to designate responsible third parties. We conditionally grant the petition.
Background
This case arises from a wrongful death case filed by real parties in interest
Andre DeRouen, Individually and as Administrator of the Estate of Andre DeRouen,
Jr., and LaTashia DeRouen, Individually and as Next Friend to D.D., a minor child.
On March 23, 2018, Andre DeRouen, Jr. jumped into a pond behind his home in the
Hidden Lakes subdivision to assist his brother who had jumped into the pond first
and appeared to be struggling. His brother survived, but Andre drowned.
Real parties originally filed suit in Galveston County on May 3, 2018, but
almost a year later, they filed a notice of nonsuit without prejudice. On the same
day, real parties refiled suit in Harris County against defendants HLDP, Hidden
Lakes Community Association, Inc., Williams ACMI Ventures, LP (d/b/a “ACMI”),
Gehan Homes, Ltd., Lake Pro, Inc., and Aqua Control, Inc.
On August 3, 2020, HLDP filed a motion for leave to designate responsible
third parties. In this motion, HLDP explained that it was the developer of part of the
Hidden Lakes subdivision and that Galveston County Municipal District No. 45
(“Mud 45”) was the current owner of the property. HLDP stated that the transition
in ownership to Mud 45 began before the drowning occurred. HLDP also stated that
Dannenbaum Engineering Corporation, Lindsey Construction, Inc., and R.
Construction, Inc., designed and constructed the pond. Thus, to the extent real
parties asserted design or construction defects, HLDP argued that Dannenbaum,
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Lindsey, and R. Construction had duties to design and construct the pond with
reasonable care. Accordingly, HLDP asked that the court permit HLDP to designate
Mud 45, Dannenbaum, Lindsey, and R. Construction as responsible third parties.
On August 18, 2020, real parties filed their objections to the motion for leave,
claiming the motion for leave was untimely because more than two years had passed
since the incident and, absent application of the discovery rule, limitations had
expired against the requested designees. Real parties also argued that HLDP had a
duty under Rule 194.2 to disclose the third parties and failed to do so within two
years of the date of the incident. Finally, real parties argued that HLDP failed to
plead sufficient facts about the alleged responsibility of the third parties to satisfy
the pleading requirement of the Texas Rules of Civil Procedure.
Relator states that it never set this motion for submission or hearing. Although
the mandamus record contains no ruling on this original motion to designate, real
parties state that the trial court denied the original motion.
On June 8, 2021, the trial court signed an order resetting trial for the two-week
period beginning on January 17, 2022. On July 9, 2021, HLDP filed an amended
motion for leave to designate responsible third parties. HLDP observed that because
trial was set for September 20, 2021 the amended motion for leave was filed more
than 60 days before trial and was timely under Section 33.004(a). HLDP explained
that Dannenbaum designed the pond and had a duty to act as a reasonable design
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company, and to the extent the pond had an underwater drop-off, unsafe currents, or
lack of signage, Dannenbaum was responsible. HLDP also explained that Lindsey
Construction and R. Construction had a duty to construct the pond using reasonable
care and had a responsibility to appropriately grade the pond, ensure safe and
appropriate water movement, and install appropriate safety and warning signs.
HLDP alleged that Mud 45 was an owner of the pond and was a responsible third
party, together with Dannenbaum, Lindsey, and R. Construction because they
contributed to or caused the harm for which damages were sought by real parties.
HLDP did not respond to real parties’ previous objection concerning limitations.
The trial court signed an order on August 12, 2021, entitled “Order on
Defendant Hidden Lakes Development Partners, LP’s Amended Motion for Leave
to Designate Responsible Third Parties,” denying HLDP’s motion for leave to
designate responsible third parties. The order did not give a reason for denial.
HLDP filed a motion for rehearing of this ruling. During the hearing on this
motion, real parties stated on the record that issues as to timeliness of the motion to
designate had been rectified, and therefore, only argued that the motion for leave
failed to provide sufficient specificity as to the actions of each alleged responsible
third party and how those actions caused the tragedy at issue. HLDP responded that
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the original motion for leave had been denied1 based on a timeliness problem that
had been rectified and that the amended motion for leave contained adequate
specificity concerning the actions of the alleged responsible third parties and how
those actions related to causation. The trial court asked if that specificity was in the
original motion for leave, and HLDP stated that the original motion was more
general, but that the amended motion contained adequate specificity. The trial court
declined to change its ruling.
HLDP then filed this petition for writ of mandamus. While this mandamus
was pending, the parties requested abatement so that they could attempt to reach a
settlement of their differences. We granted the request and abated this proceeding
by order signed on April 5, 2022. On May 4, 2022, real parties in interest filed an
unopposed motion for leave to lift the abatement because, although the parties
reached a proposed agreed order, the trial court rejected that order and signed an
order on April 26, 2022, stating that it “upholds its Order of 1/13/22.”
Standard of Review
To be entitled to mandamus relief, a petitioner must show both that the trial
court abused its discretion and that there is no adequate remedy by appeal. In re
1
The parties seem to agree that the original motion for leave to designate responsible
third parties was denied at some point, but no one states whether this order was oral
or written. If there was a written order denying HLDP’s original motion for leave,
it has not been included in the mandamus record.
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Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004). “[A] clear failure
by the trial court to analyze or apply the law correctly will constitute an abuse of
discretion and may result in appellate reversal by extraordinary writ.” Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992).
Overview of Texas Proportionate Responsibility Statute
Chapter 33 of the Texas Civil Practice and Remedies Code sets out the Texas
proportionate responsibility laws, which permit “a tort defendant to designate as a
responsible third party a person who ‘is alleged to have caused in any way the harm
for which the plaintiff seeks damages.’” In re CVR Energy, Inc., 500 S.W.3d 67, 73
(Tex. App.—Houston [1st Dist.] 2016, orig. proceeding) (quoting Jay Miller &
Sundown, Inc. v. Camp Dresser & McKee Inc., 381 S.W.3d 635, 638–39 (Tex.
App.—San Antonio 2012, no pet.) (referring to predecessor to Section 33.004)).
This statutory scheme allows defendants to introduce evidence regarding a
responsible third party’s fault and have the jury apportion responsibility to the third
party even when that party has not been joined as a party to the suit. See In re
Dawson, 550 S.W.3d 625, 628 (Tex. 2018); see also TEX. CIV. PRAC. & REM.
CODE § 33.004(a).
There are statutory limitations to a defendant’s ability to designate responsible
third parties, including that a motion for leave must be filed on or before the 60th
day before trial unless good cause is shown. TEX. CIV. PRAC. & REM.
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CODE § 33.004(a). Defendants also may not designate responsible third parties
“after the applicable limitations period on the cause of action has expired with
respect to the responsible third party” if the defendant has failed to timely disclose
that the person may be designated as a responsible third party under the Texas Rules
of Civil Procedure.” TEX. CIV. PRAC. & REM. CODE § 33.004(d).
Once a motion for leave has been filed, the trial court shall grant leave “unless
another party files an objection on or before the 15th day after the date the motion is
served.” TEX. CIV. PRAC. & REM. CODE § 33.004(f). Even if there is an objection,
the trial court shall grant leave 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 . . . .” TEX. CIV. PRAC. & REM. CODE § 33.004(g).
1. Timeliness of disclosure
In their objection to HLDP’s motion for leave, real parties claimed the motion
was untimely because more than two years had passed since the date of the incident
and, absent application of the discovery rule, limitations had expired. HLDP asserts
that its motion was timely because it had originally disclosed these alleged
responsible third parties within the two-year limitations period. HLDP asserted both
in its motion for rehearing and in the hearing on the motion for rehearing that it had
made disclosure of the responsible third parties before limitations expired.
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Section 33.004 restricts a defendant’s ability to designate responsible third
parties by precluding the filing of a motion for leave after the applicable limitations
period has run “if the defendant has failed to comply with its obligations, if any, to
timely disclose that the person may be designated as a responsible third party under
the Rules of Civil Procedure.” TEX. CIV. PRAC. & REM. CODE § 33.004(d). This
reference to the Rules of Civil Procedure has been held to refer to the duty to disclose
in response to requests from the plaintiff. See Dawson, 550 S.W.3d at 629
(discussing defendant’s responses to discovery requests for disclosure of responsible
third parties under Texas Rule of Civil Procedure 194.2); CVR, 500 S.W.3d at 74(discussing duty of disclosure under Rule 194.2 in relation to designation of
responsible third parties).
The statute of limitations for a wrongful death action is generally two years.
See TEX. CIV. PRAC. & REM. CODE § 16.003(b); Ruiz v. Guerra, 293 S.W.3d 706,
716 (Tex. App.—San Antonio 2009, no pet.). The date of the drowning was March
23, 2018. Two years from the date of the incident would be March 23, 2020, and
thus, limitations expired before HLDP filed its amended motion for leave.
But HLDP asserts that it complied with the requirement to disclose the
potential responsible third parties as provided under the Rules of Civil Procedure.
See TEX. CIV. PRAC. & REM. CODE § 33.004(d). If a plaintiff has served requests
for disclosure of responsible third parties who may be designated, the courts look to
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see if the defendant adequately responded to those requests such that the failure to
designate the third party after limitations has run is excused under Section 33.004(d).
In In re Dawson, the Texas Supreme Court considered whether a defendant
responded to the plaintiff’s request for disclosure in a way that gave adequate notice
to the plaintiff. 550 S.W.3d at 629. The Court stated that Rule 194.2(l) requires
disclosure of the “name, address, and telephone number of any person who may be
designated as a responsible third party.” Id. (citing to TEX. R. CIV. P. 194.2(l)).
Because the defendant in Dawson stated in its discovery response only the name of
an alleged responsible third party who installed a television and did not disclose that
this third party was an independent contractor and not its agent or employee, the
Court held that this response was insufficient to satisfy its obligation to give the
plaintiff timely notice under the Texas Rules of Civil Procedure. See id. at 629–30.
Unlike the defendant in Dawson, HLDP did sufficiently disclose the potential
responsible third parties. HLDP responded to real parties’ requests for disclosure on
January 22, 2019, while the lawsuit was pending in Galveston County, naming Mud
45, Dannenbaum, Lindsey, and R. Construction as potential responsible third parties.
Real parties do not dispute that HLDP previously disclosed the responsible
third parties to them but argue that this disclosure may not be considered because
the current Harris County lawsuit included different defendants than the Galveston
County case. The parties to this mandamus, however, were parties to both the
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Galveston County suit and the Harris County suit and, regardless of what other
defendants real parties chose to add or drop, HLDP was a party to both suits and real
parties admit that HLDP disclosed these responsible third parties to real parties
within a year of the drowning incident.
Moreover, real parties admitted on the record that there was no issue
concerning timeliness. When HLDP stated that the responsible third parties were
disclosed in the prior Galveston County case and that the parties had “agreed to
continue using that discovery,” real parties’ counsel agreed and stated on the record:
[Counsel for Real Parties:] I agree with Counsel with respect to the
timeliness. I think that issue has been rectified at this juncture. But our
other objection was that the Motion For Leave fails to provide
specificity as required as to what each of these responsible third parties
or alleged responsible third parties did wrong and how that was
causative to this unfortunate tragedy.
These statements by real parties on the record contradict real parties’
timeliness argument and support HLDP’s argument that it complied with its
obligation to timely disclose potential responsible third parties in response to a
discovery request from real parties. See TEX. CIV. PRAC. & REM. CODE § 33.004(d).
Real parties’ counsel admitted on the record that the timeliness argument was no
longer an issue.
Because counsel for real parties admitted on the record in the trial court that
the timeliness argument was a non-issue, HLDP contends that real parties have
waived this argument. HLDP cites to Eagle Oil & Gas Co. v. TRO-X, L.P., 619
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S.W.3d 699 (Tex. 2021) in support of its waiver argument. In Eagle, the Texas
Supreme Court stated that “[w]aiver occurs when a party intentionally relinquishes
a known right or engages in conduct inconsistent with claiming that right.” Id. at
709. Although waiver is generally a fact question, it becomes a question of law
“when the facts and circumstances are admitted or clearly established . . . .”
CrossTex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 394 (Tex. 2014).
By unequivocally stating on the record to the trial court that timeliness of disclosure
of the responsible third parties was not an issue, we find that real parties waived this
argument as a matter of law. To the extent that the trial court denied HLDP’s
amended motion based on the untimeliness of the motion, the trial court abused its
discretion.
2. Sufficiency of facts concerning responsibility of third parties
HLDP asserts that it pleaded sufficient facts concerning the responsibility of
Mud 45, Dannenbaum, Lindsey, and R. Construction. After HLDP filed its original
motion for leave to designate responsible third parties, real parties objected on the
ground that HLDP failed to plead sufficient facts about the alleged responsibility of
the various third parties raised in the motion for leave, and according to the parties,
the trial court denied the original motion at some point. HLDP then filed an amended
motion for leave adding facts concerning the third parties’ responsibilities.
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A plaintiff may object to a motion for leave to designate responsible third
parties on the ground that the defendant failed to plead sufficient facts concerning
the alleged responsibility of the person to satisfy the pleading requirement under the
Texas Rules of Civil Procedure. See TEX. CIV. PRAC. & REM. CODE § 33.004(g)(1).
The Rule of Civil Procedure implicated in Section 33.004(g) is Rule 47, the “notice”
pleading rule. See CVR, 500 S.W.3d at 80 (citing to In re Greyhound Lines, No. 05-
13-01646-CV, 2014 WL 1022329, at *2 (Tex. App.—Dallas Feb. 21, 2014, orig.
proceeding) (mem. op.) (“The standard for designating a potentially responsible
third party is notice pleading under the Texas Rules of Civil Procedure.”)). “Under
the notice-pleading standard, fair notice is achieved ‘if the opposing party can
ascertain from the pleading the nature and basic issues of the controversy, and what
type of evidence might be relevant.’” CVR, 500 S.W.3d at 80. In CVR, this Court
determined that relator met the low threshold by quoting plaintiff’s allegations and
how the responsible third party was responsible for actions that proximately caused
the plaintiff’s death. See id. At this stage of the case, “a court may not consider the
strength or the truth of the allegations” made in the motion for leave. In re Cordish
Co., 617 S.W.3d 909, 915 (Tex. App.—Houston [14th Dist.] 2021, orig.
proceeding).
In its amended motion for leave, HLDP stated that real parties alleged claims
of negligence, gross negligence, and premises liability related to the detention pond
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and alleged that the detention pond constituted a dangerous condition. In relation to
those claims, HLDP set out specific actions of the alleged responsible third parties,
and how their actions related to the claims alleged by real parties. Concerning real
parties’ allegation of a defect in the detention pond, HLDP asserted that
Dannenbaum as designer of the pond had a duty to act as a reasonable designer, and
would be responsible for certain acts alleged by real parties including excessive drop
off, unsafe currents, and failure to provide adequate signage. HLDP added that
Dannenbaum was responsible for appropriate grading of the pond “to ensure safe
and appropriate water movement,” and to “install appropriate safety and warning
signs.”
As for Mud 45, HLDP asserted that this entity took over ownership of the
property and this transition of ownership had begun when the incident occurred.
HLDP asserted that Mud 45, as owner of the property, had constructive control of
the property at the time of the incident with pool maintenance and inspection
obligations. As for Lindsey and R. Construction, who were involved with
construction of the pond, HLDP asserted that they had a duty to construct the pond
using reasonable care, including the responsibility to appropriately grade the pond,
ensure safe and appropriate water movement, and to install appropriate safety and
warning signs.
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These allegations described the acts and duties of the third parties with respect
to the construction and maintenance of the pond and gave fair notice to real parties
under Rule 47 and thus, were sufficiently specific under Section 33.004(g). To the
extent the trial court denied HLDP’s amended motion for leave on the ground that it
failed to plead sufficient facts concerning the alleged responsibility of the
responsible third parties to satisfy the pleading requirement under Rule 47, the trial
court abused its discretion because HLDP’s allegations of the third parties’
responsibility met the notice pleading requirement of showing their duties of care
with respect to the construction and maintenance of the pond and how those duties
related to the allegations raised in real parties’ pleading.
3. Necessity for Second Objection
Although real parties objected to HLDP’s original motion for leave, they did
not object to the amended motion for leave. HLDP contends that this required the
trial court to grant the amended motion. The statute provides that if no objection is
filed on or before the fifteenth day after service of the motion, the trial court shall
grant the request for leave to designate. See TEX. CIV. PRAC. & REM.
CODE § 33.004(f); In re NCS Multistage, LLC, 650 S.W.3d 182, 189 (Tex. App.—
El Paso 2021, orig. proceeding). The statute provides for the filing of an objection
to a motion for leave, but there is no mention of objecting to an amended motion for
leave.
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Although HLDP’s issue raises a question of statutory interpretation, we need
not reach this issue because we have already held that HLDP pleaded sufficient facts
regarding the alleged responsibility of the responsible third parties. Accordingly,
we decline to address whether the trial court abused its discretion by denying the
motion for leave absent an objection to the amended motion. See Garrett v.
Williams, 250 S.W.3d 154, 160 n.4 (Tex. App.—Fort Worth 2008, no pet.) (having
determined trial court appropriately dismissed petition, appellate court held that it
need not address additional issue challenging propriety of dismissal on other
grounds).
No Adequate Remedy by Appeal Exists
Although HLDP has established an abuse of discretion by the trial court, it
must also establish that it lacks an adequate remedy by appeal. See Prudential, 148
S.W.3d at 135. The Texas Supreme Court has held that mandamus relief is available
to correct a trial court’s erroneous denial of a party’s timely motion for leave to
designate responsible third parties. See In re Coppola, 535 S.W.3d 506, 509–10
(Tex. 2017). And an adequate remedy by appeal is generally lacking when the trial
court incorrectly denies a motion for leave to designate responsible third parties
because permitting trial to proceed without responsible third parties “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
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record.” Id. at 509 (quoting CVR, 500 S.W.3d at 81–82). The trial court’s denial of
HLDP’s motion for leave to designate responsible third parties is not a mere
incidental ruling but would deny HLDP the right to allow the jury to determine the
proportionate responsibility of all responsible parties, which is a significant ruling
and “mandamus review will prevent the impairment or loss of this substantive right.”
See CVR, 500 S.W.3d at 83–84. Accordingly, HLDP lacks an adequate remedy by
appeal from the erroneous denial of its motion for leave to designate responsible
third parties.
Conclusion
Because the trial court abused its discretion in denying HLDP’s amended
motion for leave to designate responsible third parties, we grant mandamus relief
and order the trial court to (1) vacate its August 12, 2021 order denying HLDP’s
motion for leave, and (2) grant HLDP’s amended motion for leave. We are confident
the trial court will comply with this order and the writ will issue only if the trial court
fails to do so.
Peter Kelly
Justice
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
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