                                   In The

                             Court of Appeals
                  Ninth District of Texas at Beaumont
                           _________________
                            NO. 09-16-00032-CV
                           _________________


     IN RE ENTERPRISE BEAUMONT MARINE WEST, LP F/K/A
    OILTANKING BEAUMONT PARTNERS, LP AND ENTERPRISE
     BEAUMONT MARINE WEST GP, LLC F/K/A OILTANKING
                    BEAUMONT GP, LLC

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                            Original Proceeding
              172nd District Court of Jefferson County, Texas
                        Trial Cause No. E-194,114
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                        MEMORANDUM OPINION

     In this mandamus proceeding, Relators, Enterprise Beaumont Marine West,

LP f/k/a Oiltanking Beaumont Partners, LP and Enterprise Beaumont Marine West

GP, LLC f/k/a Oiltanking Beaumont GP, LLC, contend the judge of the 172nd

District Court of Jefferson County abused its discretion by striking their

responsible-third-party designation of AmSpec Services, LLC, the former




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employer of the plaintiff and Real Party in Interest, Michael Stelly. See Tex. Civ.

Prac. & Rem. Code Ann. § 33.004 (West 2015).

      Stelly worked for AmSpec as an inspector on Oiltanking’s premises. In

August 2012, Stelly injured his right shoulder while gauging samples of a shore

tank. Stelly’s personal physician signed his return to work excuse with the

notation, “Light duty, no climbing[.]” Approximately six weeks later, Stelly

allegedly injured his back and shoulder while traversing a platform that Oiltanking

used as a gangway to connect a barge to the dock. Relators argued to the trial court

that Stelly’s alleged shoulder injury was not caused by the fall. Further, Relators

argued that AmSpec knew Stelly was on medical restrictions and breached its duty

to Stelly by allowing him to work as an inspector on a barge after Stelly’s doctor

restricted him to light duty with no climbing.

      Section 33.004 of the Texas Civil Practice and Remedies Code provides that

“[a]fter an adequate time for discovery, 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.” Tex. Civ. Prac. & Rem. Code Ann. § 33.004(l). Once a motion to strike

is filed, the trial court “shall grant” the motion “unless a defendant produces

sufficient evidence to raise a genuine issue of fact regarding the designated

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person’s responsibility for the claimant’s injury or damage.” Id. Under this

standard, a defendant has the burden to produce sufficient evidence—that is, more

than a scintilla of evidence—for a reasonable jury to hold the third party

responsible for at least a portion of the plaintiff’s injury or damage. See In re

Transit Mix Concrete & Materials Co., No. 12-13-00364-CV, 2014 WL 1922724,

at *3 (Tex. App.—Tyler May 14, 2014, orig. proceeding) (mem. op.).

      Relators argue sufficient evidence raises a genuine issue of fact as to

AmSpec’s responsibility for Stelly’s fall because there is evidence to show that if

AmSpec had assigned Stelly to light duty or restricted him from working as a

petroleum inspector on the date of the accident, Stelly would not have been present

at Oiltanking’s terminal, would not have been on the gangway, and would not have

slipped and fallen in the course of his assignment. Stelly argues that Relators

offered no evidence that allowing Stelly to work was a proximate cause of his

accident, and that the evidence produced by Relators in support of their designation

does no more than furnish a condition that made the injury possible. See IHS

Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex.

2004).

      Having reviewed the petition and the response, including the evidence

presented to the trial court, we conclude that Relators have failed to demonstrate

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that the trial court clearly abused its discretion by striking the responsible third

party designation. We deny the mandamus petition. See Tex. R. App. P. 52.8(a).

      PETITION DENIED.



                                                          PER CURIAM


Submitted on March 9, 2016
Opinion Delivered April 14, 2016

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




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