                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo

                                            No. 07-19-00278-CV


           IN RE HURST SATURN, LTD.; FORT WORTH SATURN, LTD.;
       ARLINGTON SATURN, LTD.; MICHAEL EDWARDS; JENNI MARSHALL;
                      AND GLEN POLLARD, RELATORS

           OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

                                             November 8, 2019

                                   MEMORANDUM OPINION
                         Before QUINN, C.J.,1 and PIRTLE and PARKER, JJ.


       Relators filed this mandamus proceeding after the trial court issued an order

granting the motion filed by the real party in interest to designate responsible third parties,

pursuant to section 33.004 of the Texas Civil Practice and Remedies Code. We find that

mandamus relief is not warranted and deny the writ.


                                                Background


       This case arises from financial problems at three Metroplex-area car dealerships:

Hurst Saturn, Ltd., Fort Worth Saturn, Ltd., and Arlington Saturn, Ltd. The three entities,


       1   Chief Justice Brian Quinn, not participating.
along with their owners, Michael Edwards, Jenni Marshall, and Glen Pollard, are Relators

herein.


       Relators allege that, between 2010 and 2015, real party in interest Robinson

Burdette Martin & Seright, LLP (“Robinson”) prepared and reviewed financial statements

and tax returns that tended to show that the dealerships were turning a profit. According

to Relators, they relied on the documents and representations from Robinson in making

investment decisions and paying taxes. In 2015-16, however, Relators learned that the

dealerships were not in sound fiscal shape, but were in fact “hemorrhaging money” and

near collapse.   When they investigated this financial downturn, Relators discovered

mismanagement and theft by some of the dealerships’ employees and their associates.

These discoveries led them eventually to file lawsuits against employees, lenders, and

others. In the present case, they sued Robinson, alleging professional negligence,

breach of contract, and negligent misrepresentation. Relators contend that Robinson’s

failures caused them to pour money into failing businesses and pay taxes on nonexistent

profits.


       Robinson moved for leave to designate as responsible third parties several other

entities and individuals, including dealership employees and their affiliates, who Relators

had alleged to be involved in falsifying records, sales fraud, financing fraud, rebate fraud,

audit fraud, and more. Over Relators’ objection, the trial court granted Robinson leave to

designate eighteen responsible third parties.




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       Relators then filed the instant petition for writ of mandamus, in which they argue

that the trial court’s decision was an abuse of discretion and that they have no adequate

remedy by appeal.


                                     Law and Analysis


Standards for Mandamus


       A writ of mandamus will issue only if the trial court clearly abused its discretion and

the relator has no adequate remedy on appeal. In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). “A trial court abuses its discretion if

it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial

error of law . . . .” In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)

(orig. proceeding) (per curiam) (internal quotations omitted). A trial court also abuses its

discretion if it fails to correctly analyze or apply the law, because a trial court has no

discretion in determining what the law is or applying it to the facts. See Prudential, 148

S.W.3d at 135.


No Adequate Remedy by Appeal


       The Texas Supreme Court has held that “[a]llowing a case to proceed to trial

despite [the] 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.” In re Coppola, 535 S.W.3d 506, 509 (Tex. 2017) (orig. proceeding) (per curiam)

(internal quotations omitted). Consequently, the court determined that mandamus may

be appropriate to review an order that either denies or grants a defendant’s motion to

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designate a responsible third party. See In re Dawson, 550 S.W.3d 625, 631 (Tex. 2018)

(orig. proceeding) (per curiam). Therefore, Relators are entitled to mandamus relief if

they establish that the trial court abused its discretion in granting Robinson’s motion to

designate responsible third parties.


The Proportionate Responsibility Statute


       Texas’ proportionate responsibility statutes provide a framework for apportioning

percentages of responsibility among defendants, plaintiffs, settling persons, and

responsible third parties in a lawsuit. TEX. CIV. PRAC. & REM. CODE ANN. § 33.003 (West

2015). 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.


Id. § 33.011(6) (West 2015). The purpose of the statute is to hold each party “responsible

[only] for [the party’s] own conduct causing injury.” MCI Sales & Serv., Inc. v. Hinton, 329

S.W.3d 475, 505 (Tex. 2010) (quoting F.F.P. Operating Partners, L.P. v. Duenez, 237

S.W.3d 680, 690 (Tex. 2007)). A defendant may seek to designate a responsible third

party by filing a motion for leave to designate on or before the sixtieth day before the trial

date. Id. § 33.004(a) (West 2015). Unless another party files a timely objection to the

motion, the trial court must grant leave. Id. § 33.004(f).


       In this case, Relators timely filed an objection to Robinson’s motion. They argued

that the persons and entities designated by Robinson did not meet the definition of

responsible third parties.

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       The question of whether the third parties meet the definition of responsible third

parties under Chapter 33 presents a case of statutory construction, which is a question

of law reviewed de novo. See MCI Sales & Serv., Inc., 329 S.W.3d at 500. The primary

objective in construing a statute is to give effect to the Legislature’s intent. TEX. GOV’T

CODE ANN. §§ 311.021, 312.005 (West 2013); Am. Home Prods. Corp. v. Clark, 38

S.W.3d 92, 95 (Tex. 2000). Under the canons of statutory construction, courts are to

construe a statute according to its plain and common meaning, unless the language is

ambiguous or the interpretation leads to absurd or nonsensical results. City of Rockwall

v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008). A reviewing court should seek to

enforce the statute “as written” and “refrain from rewriting text that lawmakers chose . . . .”

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009).


       Relators contend that the present case turns on the meaning and effect of the

Legislature’s 2003 change to the definition of responsible third party.      Under the 1995

version of the law, a responsible third party was defined as any person who met the

following three characteristics: (1) The court in which the action was filed could exercise

jurisdiction over the person; (2) the person could have been, but was not, sued by the

claimant; and (3) the person is or may be liable to the plaintiff for all or a part of the

damages claimed against the named defendant or defendants. See Act of May 8, 1995,

74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 973 (current version at TEX. CIV.

PRAC. & REM. CODE ANN. § 33.011(6)). In 2003, the Legislature revised the statute,

eliminating the first two requirements and redefining responsible third party as “any

person who is alleged to have caused or contributed to causing in any way the harm for




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which recovery of damages is sought . . . .”         TEX. CIV. PRAC. & REM. CODE ANN.

§ 33.011(6).


       The 2003 change in definition means that a responsible third party must have

caused the same harm—not necessarily the same damages—that the defendant caused.

According to Relators, the harm caused by Robinson differs from the harm caused by the

third parties, although there may be some overlap between the damages they caused.

Relators conclude that because the two harms are different, the trial court erred by

allowing Robinson to designate the third parties as responsible third parties. In their view,

while the third parties might have satisfied the pre-2003 definition of responsible third

party, they do not fit the current version.


       By changing the definition of responsible third party, the Legislature made status

as a responsible third party depend not on whether one contributed to the plaintiff’s

damages, but on whether one contributed to the harm for which damages are sought.

Therefore, we must determine the harm for which Relators seek to recover damages in

their lawsuit.


       The word “harm” is not defined in the statute. Courts give undefined words “their

common, ordinary meaning unless the statute clearly indicates a different result.” Jaster

v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014) (citing Molinet v. Kimbrell, 356

S.W.3d 407, 411 (Tex. 2011)). The plain meaning of “harm” is consistent with a loss or

injury. See Harm, BLACK’S LAW DICTIONARY (9th ed. 2009) (defining harm as, “Injury, loss,

damage; material or tangible detriment”).




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       Relators assert, “Robinson caused the harm of the loss [of] professional services

and accurate accounting/tax records” (emphasis in original).             Relators’ objection to

Robinson’s motion for leave focused on Robinson’s alleged “failure to comply with

SAARS [sic] and GAAP, which resulted in material misstatements on [Relators’] reviewed

financial statements.”2


       Relators do not dispute that the third parties engaged in fraud or conduct that

harmed them, but rather contend that the third parties caused a different and distinct

harm, namely the deprivation “of fiduciary/employee services or theft.”             Specifically,

Relators have claimed that the third parties “orchestrated a pattern of widespread

financial abuse tantamount to criminal fraud.” According to Relators, Robinson has failed

to show how these actions have anything to do with Robinson’s failure to comply with

applicable standards of care for accountants.


       For support, Relators rely on City Nat’l Bank v. Smith, No. 06-15-00013-CV, 2016

Tex. App. LEXIS 4664 (Tex. App.—Texarkana May 4, 2016, pet. denied) (mem. op.).

Smith was a legal malpractice case in which an attorney missed a deadline, failing to file

the plaintiff’s malicious prosecution claim against a bank within the statute of limitations.

Id. at *1. The attorney sought to designate the bank as a responsible third party. Id.

Following a thorough analysis of the amended definition of “responsible third party,” the

Sixth Court of Appeals determined that the harm or injury involved was the loss of the

plaintiff’s cause of action. Id. at *26. Therefore, it concluded, to designate the bank as a

responsible third party, the attorney was required to show that the bank contributed to the



       2   “SSARS” refers to the Statement on Standards for Accounting and Review Services. “GAAP”
refers to generally accepted accounting standards in the United States.

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loss of the plaintiff’s cause of action, e.g., by contributing to missing the filing deadline.

Id. at *27. Because the attorney had not alleged or produced any evidence that the bank

contributed to the failure to timely file suit, the bank was not a responsible third party. Id.

at *29-30.


       Relators also point to another legal malpractice case, DLA Piper LLP (US) v.

Linegar, 539 S.W.3d 512 (Tex. App.—Eastland 2017, pet. denied). There, the Eleventh

Court of Appeals determined that the harm for which damages were sought related to the

failure to timely perfect the security interest in a note. Id. at 517. The law firm sought to

designate two companies as responsible third parties. But because DLA Piper had not

asserted that those entities contributed to the untimely filing of the financing statement,

the court concluded that they were not responsible third parties. Id.


       In its response, Robinson asserts that these outcomes are wrong to suggest that

causing or contributing to cause the “harm” is the same as causing or contributing to

cause the underlying negligent conduct. Robinson maintains that the claimed harm from

Robinson’s supposed failure to detect the fraud is the same as the harm caused by the

third parties’ alleged underlying fraud. Even if the third parties did not cause Robinson’s

supposed negligent conduct, Robinson contends, the third parties indisputably

contributed to the ultimate loss suffered by Relators.


       This is a suit premised on claims of professional negligence, negligent

misrepresentations, and breach of contract.        In their petition for writ of mandamus,

Relators assert that they lost (1) accurate accounting information and (2) accounting

performed under the applicable standards of care. We note that the fact that the third



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parties are not accountants does not necessarily mean they could not have contributed

to the loss of accurate accounting information. In In re Smith, attorneys were sued for

legal malpractice after they failed to sue the driver of a car in an underlying auto accident

case. In re Smith, 366 S.W.3d 282, 284 (Tex. App.—Dallas 2012, orig. proceeding).

When the defendant attorneys sought leave to designate the driver of the car as a

responsible third party, the plaintiff contended that no set of facts could make the driver

a responsible third party in a legal malpractice case. Id. at 285-86. The Fifth Court of

Appeals disagreed, recognizing that if the attorneys alleged that the driver “somehow

tortiously contributed to any error committed” by the attorneys, the driver could properly

be designated as a responsible third party.        Id.   Therefore, the court granted the

defendants an opportunity to replead.


       In this case, if the harm to Relators includes their alleged deprivation of accurate

information about the dealerships’ finances, then any person or entity who contributed to

causing the deprivation of accurate information may properly be designated as a

responsible third party.    Robinson has alleged that the third parties falsified and

manipulated dealership records, conspired to conceal losses, and engaged in other

fraudulent schemes. Relators’ own pleadings in other lawsuits against the third parties

raise similar contentions. Because Robinson has presented pleadings and evidence

indicating that the third parties’ practices caused or contributed to causing Relators’

claimed harm, i.e., the loss of accurate accounting information, we conclude that the trial

court did not err in granting leave to designate them as responsible third parties.




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                                         Conclusion


       We conclude that Relators have failed to show that they are entitled to mandamus

relief. Accordingly, the petition is denied.




                                                      Judy C. Parker
                                                         Justice




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