
                                          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
