                                   NO. 07-11-0014-CV

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                     MARCH 8, 2011


                         In re KOBELT MANUFACTURING, LTD.


                              Memorandum Opinion on
                            Original Proceeding for Writ of
                                      Mandamus


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Pending before this court is the Petition for Writ of Mandamus filed by Kobelt

Manufacturing, Ltd. (Kobelt), asking that we order the Hon. Kelly G. Moore, District

Judge, 121st Judicial District, to “vacate its order denying Kobelt’s motion for leave to

designate Basic Energy as a responsible third party.” We deny the petition for the

reason stated below.

       It is beyond doubt that one seeking extraordinary relief like that sought here must

prove his entitlement thereto. This truism imposed upon Kobelt the obligation of proving

that the trial court clearly abused its discretion when it denied the request to designate a

responsible third party. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (stating

that one seeking a writ of mandamus has the burden of establishing that the trial court

clearly abused its discretion). Leave was sought by Kobelt to so designate a third party

on September 27, 2010. However, Kobelt, via its attorney, signed a “Second Amended
Agreed Scheduling Order” wherein it expressly “agreed” to setting June 11, 2010, as the

applicable deadline by which to make such designations. And, while statute says that a

motion seeking leave to designate responsible third parties “must be filed on or before

the 60th day before the trial date,” TEX. CIV. PRAC. & REM. CODE ANN. §33.004(a) (Vernon

2008), nothing in the proviso expressly prohibits the litigants from agreeing to a different

timeline, so long as the trial court also agrees. Nor does Kobelt attempt to explain, in its

petition for relief here, why such deadlines cannot be the stuff of Rule 11 agreements.

See TEX. R. CIV. P. 11 (authorizing litigants to execute agreements touching upon

pending suits). So, Kobelt failed to establish that the trial court abused its discretion by

refusing to deviate from deadlines to which it and all other litigants expressly agreed in

writing.

       The petition is denied.


                                                 Brian Quinn
                                                 Chief Justice




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