                                       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,


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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

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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

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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

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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

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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.

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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).




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PETITION CONDITIONALLY GRANTED.


                                                  PER CURIAM

Submitted on October 3, 2019
Opinion Delivered October 31, 2019

Before McKeithen, C.J., Horton and Johnson, JJ.




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