                                                                                      ACCEPTED
                                                                                  01-15-00877-CV
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                            11/13/2015 4:57:57 PM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK

                        NO. 01-15-00877-CV
______________________________________________________________
                                                         FILED IN
                                                   1st COURT OF APPEALS
                    IN THE COURT OF APPEALS            HOUSTON, TEXAS
               FOR THE FIRST DISTRICT OF TEXAS11/13/2015 4:57:57 PM
                         HOUSTON, TEXAS            CHRISTOPHER A. PRINE
                                                           Clerk
______________________________________________________________

 IN RE CVR ENERGY, INC., CVR PARTNERS, LP, CVR REFINING, LP,
            GARY-WILLIAMS ENERGY COMPANY, LLC
                            RELATORS
______________________________________________________________
                             Original Proceeding
       From the 434th Judicial District Court of Fort Bend County, Texas
                        Cause No. 2013-DCV-209679
                The Honorable James H. Shoemake, Presiding
______________________________________________________________

    REPLY IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS
______________________________________________________________
                               Phillip D. Sharp
                           State Bar No. 18118680
                 MARTIN, DISIERE, JEFFERSON & WISDOM, LLP
                            808 Travis, 20th Floor
                            Houston, Texas 77002
                        (713) 632-1700 – Telephone
                         (713) 222-0101 – Facsimile
                            sharp@mdjwlaw.com

                             Lee M. Smithyman
                        Kansas State Bar No. 09391
                    SMITHYMAN & ZAKOURA, CHARTERED
                      750 Commerce Plaza II Building
                           7400 West 110th Street
                     Overland Park, Kansas 66210-2362
                        (913) 661-9800 – Telephone
                         (913) 661-9861 – Facsimile
                            lee@smizak-law.com
                                         TABLE OF CONTENTS

                                                                                                                PAGE

TABLE OF CONTENTS ...........................................................................................i

TABLE OF AUTHORITIES ................................................................................... ii
I.       THE PARTIES ARE IN AGREEMENT THAT THE ISSUES ARE
         RIPE FOR REVIEW BY MANDAMUS. ......................................................2

II.      THE RECORD ESTABLISHES THE RELATORS COMPLIED
         WITH THEIR OBLIGATIONS UNDER THE TEXAS CIVIL
         PRACTICE AND REMEDIES CODE AND THE TEXAS
         DISCOVERY RULES. ...................................................................................3

         A.       Relators Owed No Obligation To Disclose That Wynnewood
                  May Be Designated As A Responsible Third Party While
                  Wynnewood Was A Party Defendant. .................................................3

         B.       Disclosure Of A Responsible Third Party Need Not Occur
                  Before The Statute Of Limitations Has Run To Be Timely. ............... 7

III.     REAL PARTIES IGNORE THE FACT THAT THE STATUTE OF
         LIMITATIONS HAS NOT EXPIRED ON ROGAN SMITH’S
         CLAIMS. ........................................................................................................9

IV.      THE RELATORS’ RECORD INCLUDES ALL DOCUMENTS
         NECESSARY AND MATERIAL TO THE RELATORS’ CLAIMS
         FOR RELIEF. ...............................................................................................11

V.       RELATORS’ INTERPRETATION OF SECTION 33.004(d)
         PROMOTES THE LEGISLATURE’S INTENT, PURPOSE, AND
         OBJECTIVES. ..............................................................................................13

PRAYER .................................................................................................................17
CERTIFICATE OF COMPLIANCE ......................................................................19

CERTIFICATE OF SERVICE ...............................................................................19




                                                            i
                                       TABLE OF AUTHORITIES

                                                                                                                   PAGE

Cases
Avila v. St. Luke's Lutheran Hosp.,
  948 S.W.2d 841 (Tex. App.—San Antonio 1997,
  writ denied)..........................................................................................................10
Fitzgerald v. Advanced Spine Fixation Sys., Inc.,
  996 S.W.2d 864 (Tex. 1999) .................................................................................6
Flack v. Hanke,
  334 S.W.3d 251 (Tex. App.—San Antonio 2010,
  pet. denied) ..................................................................................................3, 5, 15

Hernandez v. Bumbo (Pty.) Ltd.,
 2014 WL 924238 (N.D. Tex. Mar. 10, 2014) .....................................................16

In re Taymax Fitness, LLC,
  2014 WL 1831100 (Tex. App.—San Antonio, May 7, 2014,
  orig. proceeding) ...................................................................................................6
Lehmann v. Har-Con Corp.,
  39 S.W.3d 191 (Tex. 2001) .................................................................................13
Phi Van Cao v. Hardy,
  352 S.W.3d 218 (Tex. App.—Houston [14th Dist.] 2011,
  no pet.) .............................................................................................................2, 13

Spencer v. BMW of N. Am., LLC,
  2015 WL 1529773 (W.D. Tex. April 2, 2015) .................................................7, 9

Tex. Health Enters., Inc. v. Geisler,
  9 S.W.3d 163 (Tex. App.—Fort Worth, pet. dism’d) .........................................10

Villarreal v. Wells Fargo Brokers Svcs., LLC,
  315 S.W.3d 109 (Tex. 2010) .................................................................................8


                                                             ii
Withers v. Schneider Nat'l Carriers, Inc.,
 13 F. Supp. 3d 686 (E.D. Tex. 2014) ................................................................7, 8

Statutes
OKLA. STAT. ANN. TIT. 85A,
 § 5 ........................................................................................................................16
TEX. CIV. PRAC. & REM. CODE
  § 33.003 ...............................................................................................................14

TEX. CIV. PRAC. & REM. CODE
  § 33.004 .................................................................................................................5

TEX. CIV. PRAC. & REM. CODE
  33.003(a)(1) .........................................................................................................11

TEX. CIV. PRAC. & REM. CODE
  § 33.004(a).............................................................................................................5

Other Authorities
BLACK’S LAW DICTIONARY,
  706 (2d Pocket Ed. 2001) ......................................................................................6

Rules
TEX. R. APP. P.
  52.7 ......................................................................................................................11

TEX. R. APP. P.
  52.7(b) .................................................................................................................12

TEX. R. CIV. P.
  193.5(b) .................................................................................................................9
TEX. R. CIV. P.
  194.2 ................................................................................................................4, 11

TEX. R. CIV. P.
  194.2(l) ..............................................................................................................4, 6

TEX. R. CIV. P.
  194.4 ......................................................................................................................7
                                                              iii
TO THE HONORABLE COURT OF APPEALS:

      The trial court should have granted Relators’ motion to designate

Wynnewood Refining Company, LLC ("Wynnewood") as a responsible third party

because the motion and the identification of Wynnewood as a responsible third

party were timely. The motion and designation were made 26 days after the

nonsuit of Wynnewood as a defendant by the Real Parties in Interest (“Real

Parties”) and more than 60 days prior to trial in this matter. The only reasonable

interpretation of section 33.004(d) in the context of the Texas Proportionate

Responsibility Act (TEX. CIV. PRAC. & REM. CODE § 33.001, et seq.) is that a

defendant party owes no obligation to disclose in discovery that co-defendant

parties may be designated as responsible third parties. One is either a party or a

third party – it is impossible to be both simultaneously.         This interpretation

conforms to the history and intent of the Proportionate Responsibility Act. It

conforms to simple common sense, and it eliminates the present gamesmanship of

nonsuiting Wynnewood after the statute of limitations expired, while complaining

26 days later of Wynnewood's responsible third party designation because the

statute of limitations would protect Wynnewood from legal liability if it were

renamed as a defendant.

      Real Parties certainly understood at the time of the nonsuit that the statute of

limitations had run to effectively bar resumption of Wynnewood as a party

                                          1
defendant. Having nonsuited Wynnewood some six months after the statute of

limitations ran and nineteen months after Wynnewood was named as a defendant

in their Original Petition, Real Parties should not be heard to complain when

Relators named Wynnewood as a responsible third party 26 days later. To argue

that the motion to designate should be denied due to the statute of limitations is to

indulge in the very “gamesmanship and chicanery” of which Real Parties

complain. Response at 34. The fact that Wynnewood was at all times immune by

operation of the Oklahoma Workers' Compensation Act -- from Real Parties'

institution of suit on September 30, 2013 through present -- highlights the

gamesmanship at issue. The trial court’s failure to sustain the Relators’ third party

designation motion was an abuse of discretion because it contravened section

33.004(d) as a matter of law.

I.    THE PARTIES ARE IN AGREEMENT THAT THE ISSUES ARE
      RIPE FOR REVIEW BY MANDAMUS.
      The Real Parties recognize that the issue presented by Relators’ petition to

this court is subject to mandamus review. See Response at 12-13. Further, the

parties agree that the trial court's legal conclusion regarding the motion for leave is

subject to a de novo review by this Court. Response at p. 13; see also Phi Van Cao

v. Hardy, 352 S.W.3d 218, 220 (Tex. App.—Houston [14th Dist.] 2011, no pet.)

(holding legal issues are subject to de novo review).



                                          2
      However, the Real Parties state that “this is a case of first impression.”

Response at p. 11. It is not. The San Antonio court of appeals has addressed the

dispositive issue in this matter holding that a party defendant cannot be, under the

plain meaning of the terms, simultaneously a party defendant and a responsible

third party. See Flack v. Hanke, 334 S.W.3d 251, 262 (Tex. App.—San Antonio

2010, pet. denied). Under the holding in Flack the trial court clearly abused its

discretion. See id.

II.   THE RECORD ESTABLISHES THE RELATORS COMPLIED WITH
      THEIR OBLIGATIONS UNDER THE TEXAS CIVIL PRACTICE
      AND REMEDIES CODE AND THE TEXAS DISCOVERY RULES.
      A.     Relators Owed No Obligation To Disclose That Wynnewood May
             Be Designated As A Responsible Third Party While Wynnewood
             Was A Party Defendant.
      The Real Parties’ primary contention is that the trial court properly denied

Relators’ motion for leave because, they argue, the Relators failed to comply with

their obligation under section 33.004(d) of the Texas Civil Practice and Remedies

Code to disclose that Wynnewood may be a potentially responsible third party

before the statute of limitations had run as to some, but not all, of the wrongful

death beneficiaries in the underlying lawsuit. See Response at 16-18. That is

simply incorrect.

      Section 33.004(d) of the Texas Civil Practice & Remedies Code provides:

      A defendant may not designate a person as a responsible third party
      with respect to a claimant's cause of action after the applicable

                                         3
         limitations period on the cause of action has expired with respect to
         the responsible third party if the defendant has failed to comply
         with its obligations, if any, to timely disclose that the person may
         be designated as a responsible third party under the Texas Rules
         of Civil Procedure.
TEX. CIV. PRAC. & REM. CODE § 33.004(d) (emphasis added). Thus, the issue is

whether the Relators owed any “obligation” to disclose that Wynnewood “may be

designated as a responsible third party” prior to May 19, 2015, the date the

Relators supplemented their disclosures. See. R.R. Tab 11 at Ex. A. They did

not. 1

         Under rule 194.2 of the Texas Rules of Civil Procedure, a party is required

to provide, upon request, “the name, address, and telephone number of any person

who may be designated as a responsible third party.” TEX. R. CIV. P. 194.2(l). So,

further distilled, the issue is whether Wynnewood was a “responsible third party”

that the Relators were required to disclose prior to the Real Parties’ non-suit of




1
        The evidence in the record shows that the Real Parties, in their original petition,
requested that Relators (and Wynnewood, which the Real Parties were suing at that time),
“disclose the information or material described in Texas Rule of Civil Procedure 194.2(a)
through (l). On December 30, 2013, while Wynnewood was a party defendant in the underlying
lawsuit, the Relators served their responses to the request for disclosure, advising, relative to
responsible third parties, that they were aware of “[n]one at this time.” Supp. R.R. Tab 18 at
Plaintiff’s Ex. 4. Approximately sixteen months later, on April 22, 2015, the Real Parties non-
suited and dismissed their claims against Wynnewood. R.R. Tab 14. Less than one month later,
on May 19, 2015, the Relators amended their responses to the Real Parties request for disclosure
and advised that Wynnewood may be designated as a responsible third party. R.R. Tab 11,
Ex. A.

                                               4
their claims against Wynnewood. It was not and no disclosure was required at that

time.

        Under the Texas Civil Practice and Remedies Code, in every tort case the

jury is to determine the percentage responsibility for:

        (1)   each claimant;
        (2)   each defendant;
        (3)   each settling person; and
        (4)   each responsible third party who has been designated under Section
              33.004.

TEX. CIV. PRAC. & REM. CODE § 33.004(a).           Texas courts recognize that each

category (“claimant,” “defendant,” “settling person,” and “responsible third party”)

is mutually exclusive, and a person may not be both a “defendant” and a

“responsible third party.” Flack v. Hanke, 334 S.W.3d 251, 262 (Tex. App.—San

Antonio 2010, pet. denied). Indeed, in Flack the San Antonio court of appeals was

asked to consider the precise issue of whether a defendant may be simultaneously a

defendant and responsible third party. Id. It held that one could not be, noting:

        At the time Langley & Ranack filed its motion to strike itself as an
        RTP, it was a defendant in the lawsuit and therefore a party. But
        Langley & Banack was no longer an RTP . . . Langley & Banack
        cannot use its status as a defendant to strike its former designation as
        an RTP. Such a theory would require Langley & Banack to define
        itself as both a defendant and an RTP at the same time. This
        interpretation of the statute conflicts with its plain wording and
        renders the statute unworkable.
Id. (emphasis added).       A person simply cannot simultaneously be both a

“defendant” and a “responsible third party.”         See id.   Accordingly, a party

                                           5
responding to requests for disclosure can have no obligation under the rules of civil

procedure to identify a currently named defendant as a “responsible third party”

pursuant to rule 194.2(l). See id.2

       Moreover, such an interpretation comports with the plain meaning of the

term “third party.” Black’s Law Dictionary defines the term “third party” to mean

“One who is not a party to a lawsuit, agreement, or other transaction but who is

somehow involved in the transaction; someone other than the principal parties.”

BLACK’S LAW DICTIONARY, 706 (2d Pocket Ed. 2001) (emphasis added); see also

http://www.merriam-webster.com/dictionary/third%20party (defining “third party”

as “someone who is not one of the two main people involved in a legal agreement

but who is still affected by it in some way.”) To hold that a party defendant is also

a “responsible third party” renders the term “third party” meaningless which makes

it an unreasonable construction of the statutory language.                   See Fitzgerald v.

Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999) (“it is

cardinal law in Texas that a court construes a statute, ‘first, by looking to the plain

and common meaning of the statute's words.’). Accordingly, the Relators could


2
       After Flack was decided, the San Antonio court of appeals decided In re Taymax Fitness,
LLC, 2014 WL 1831100 (Tex. App.—San Antonio, May 7, 2014, orig. proceeding), which held
that a trial court did not abuse its discretion by denying a motion for leave to designate a
defendant as a responsible third party. In dissent, Justice Karen Angelini, who sat on the Flack
panel but did not author the opinion, noted that she did not understand Flack to hold that a
named defendant could never also be a responsible third party. Id. at * 3 (Angelini, J. dissenting)
However, the majority did not agree; Flack has not been overruled.

                                                6
have owed no obligation to disclose that Wynnewood “may be designated as a

responsible third party” under rules 194 while Wynnewood was still a party to the

lawsuit.

      B.     Disclosure Of A Responsible Third Party Need Not Occur Before
             The Statute Of Limitations Has Run To Be Timely.
      While the purpose of section 33.004(d) is “to afford the plaintiff an

opportunity to name the responsible third party as a defendant in the suit” (Spencer

v. BMW of N. Am., LLC, 2015 WL 1529773 at * 2, n. 4 (W.D. Tex. April 2, 2015),

citing Withers v. Schneider Nat'l Carriers, Inc., 13 F. Supp. 3d 686, 687 (E.D. Tex.

2014)), courts recognize that section 33.004(d) does not preclude designation of

undisclosed responsible third parties where circumstances show the designating

party owed no obligation under the discovery rules to disclose the party’s identity

prior to the time the statute of limitation ran. For example, the Spencer court

determined that the defendant’s designation was timely even though it was after

the limitations period expired, because the plaintiff filed her litigation only 8 days

before that expiration. Id. In such a circumstance, the responding party could

have owed no obligation under the Texas Rules of Civil Procedure to disclose the

identity of the potentially responsible third party before the statute of limitations

expired. See TEX. R. CIV. P. 194.4 (requiring responding parties to serve responses

to requests for disclosure within 30 days after service of the request or 50 days if

served before an answer is due). Likewise, in Withers, the court specifically
                                          7
declined to hold that all disclosures made after the applicable statute of limitation

had expired must be deemed untimely for the purpose of § 33.004(d). Withers, 13

F. Supp.3d at 691. The court recognized instead that “33.004(d) must be applied in

those circumstances as the facts of each case require.” Id.

      The above decisions are built upon the Texas Supreme Court determination

that a defendant need not necessarily designate a responsible third party prior to the

running of the applicable statute of limitations. The court stated in Villarreal v.

Wells Fargo Brokers Svcs., LLC, 315 S.W.3d 109, 122 (Tex. 2010):

      Here, we can ascertain no legislative intent from the statutory scheme
      that the legislature meant to preclude the joinder of a responsible third
      party, which had a valid limitations defense when the suit was filed.

The Villarreal holding also supports the argument that there is no reason to

preclude the joinder of a responsible third party that already enjoys a specific

immunity. There is nothing within the statutory scheme and nothing within section

33.004(d) to preclude the naming of Wynnewood as a responsible third party 26

days following the nonsuit.

      Indeed, the Relators’ obligation, if any, to disclose that Wynnewood may be

designated as a responsible third party could have arisen only after the Real Parties

non-suited their claims against Wynnewood, which nonsuit occurred after the

statute of limitations had run as to some, but not all, of the wrongful death

beneficiaries. R.R. Tab 14.      As discussed above, there was no need for the

                                          8
Relators to identify Wynnewood—a named defendant—as a potential responsible

third party. The Relators met any discovery obligation of disclosure arising upon

the Real Parties non-suit because they supplemented their responses to the Real

Parties’ request for disclosures within a month (26 days) of the non-suit changing

Wynnewood’s status from party to third party. See TEX. R. CIV. P. 193.5(b)

(providing that discovery responses must be supplemented “reasonably promptly”

after a party discovered the necessity for such a response). Moreover, it is clear

that the Real Parties never needed “an opportunity to name the responsible third

party as a defendant in the suit” (Spencer, 2015 WL 1529773 at * 2) as the Real

Parties: (1) knew of Wynnewood’s identity and possible culpability all along,

(2) sued Wynnewood, (3) determined to nonsuit their claim against Wynnewood,

(4) yet continued to allege that Wynnewood’s acts and omissions proximately

caused their damages until weeks before the then scheduled trial. See R.R. Tab 8.

Because the Relators complied with all their disclosure obligations under the Texas

Civil Practice and Remedies Code and the Texas Rules of Civil Procedure, the trial

court abused its discretion by denying their motion for leave. See Spencer, 2015

WL 1529773 at * 2, n. 4.

III.   REAL PARTIES IGNORE THE FACT THAT THE STATUTE OF
       LIMITATIONS HAS NOT EXPIRED ON ROGAN SMITH’S
       CLAIMS.




                                        9
      The Real Parties’ Response addresses the statute of limitations issue as it

relates to Rogan Smith with one sentence -- a sentence that is incorrect on its face.

See Response at 8. The Real Parties state, “Also on April 22, 2015, the minor

child, Rogan, filed a nonsuit of all of his claims against all defendants thereby

removing himself from the case (Tab 15).” Id. That statement is wrong. Rogan

Smith’s filing occurred on the eve of the then scheduled trial, September 22, 2015

(see Doc. 145). The error is significant. First, the dismissal without prejudice

occurred less than one month prior to the scheduled trial and four months after the

motion to designate Wynnewood as a responsible third party.             Second, the

dismissal without prejudice did not affect or impair Rogan Smith’s right to bring

suit throughout the period of his minority plus two years. His potential future

cause of action against Wynnewood was in no way barred by the dismissal.

Moreover, for the trial court to sign an enforceable judgment in the underlying

lawsuit, Rogan Smith’s interests are required to be represented in the underlying

lawsuit. See Avila v. St. Luke's Lutheran Hosp., 948 S.W.2d 841, 850 (Tex.

App.—San Antonio 1997, writ denied) (holding that all of a deceased individual’s

wrongful death beneficiaries are required to present their claims in a single

lawsuit); Tex. Health Enters., Inc. v. Geisler, 9 S.W.3d 163, 169 (Tex. App.—Fort

Worth, pet. dism’d) (holding a judgment “cannot stand” where the record shows

that all statutory beneficiaries are not parties to the lawsuit, or that the wrongful

                                         10
death claims have not been brought for the benefit of all the statutory

beneficiaries).

      The Rogan Smith claim was asserted on May 29, 2015 (Doc. 116; Plaintiffs'

First Supplemental Original Petition). That Petition was in effect and Rogan

Smith’s claim was being actively pursued from May 29, 2015 through September

22, 2015, during which time the Relators’ amended their disclosures to identify

Wynnewood as a potential responsible third party and moved for leave to designate

Wynnewood as a responsible third party. R.R. Tab 9; Tab 11, ex. A. The Relators

clearly complied with their obligation to disclose Wynnewood as a potentially

responsible third party prior to the expiration of the statute of limitations associated

with Rogan Smith’s claim. Whether or not Rogan Smith subsequently dismissed

his cause of action is irrelevant to the issue of whether the Relators’ complied with

any discovery obligation. See TEX. R. CIV. P. 194.2. Thus, the trial court abused

its discretion by denying the motion for leave for this additional and independent

reason as the applicable statute of limitations had not run as to a named section

33.003(a)(1) "claimant" at the time of the designation.

IV.   THE RELATORS’ RECORD INCLUDES ALL DOCUMENTS
      NECESSARY AND MATERIAL TO THE RELATORS’ CLAIMS
      FOR RELIEF.
      In addition to their substantive arguments, and even though the record

includes all documents that are material to the Relators’ claim for relief as required


                                          11
by Rule 52.7 of the Texas Rules of Appellate Procedure, the Real Parties assert

two procedural complaints regarding the record: (1) that Relators failed to include

a number of documents submitted to the trial court as exhibits during the hearing

on the motion for leave to designate Wynnewood, and (2) that a document that was

not provided to the trial court was included in the record. See Brief at 15.

       The trial exhibits were omitted because they (1) were not material to the

Relators’ claims for relief and (2) are not relevant to any issue presented in this

petition for writ of mandamus. However, the Relators have supplemented the

mandamus record to include these exhibits and mollify the Real Parties’ concern.

See Supplement to Relators’ Record.3 Accordingly, the Relators have cured any

complaint regarding the absence of these exhibits from the record as permitted by

the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 52.7(b).

       With respect to the complaint that a document that was not provided to the

trial court was included in the record, the Real Parties are referring to Tab 1 of the

record, entitled “Formal Incident Investigation Report.” The Relators intended to

omit that document from the Relators’ Record and to delete any reference to it

from the petition for writ of mandamus before filing. In the Relators' haste to




3
       TEX. R. APP. P. 52.7(b) (“Supplementation Permitted. After the record is filed, relator or
any other party to the proceeding may file additional materials for inclusion in the record.”)
(emphasis in original).

                                               12
prepare their petition for writ of mandamus and their emergency motion to stay,

which the Court granted, a version of the brief and record containing the document

was submitted to the Court. That document is not material to the relief requested

in the petition, and the Relators ask the Court to simply ignore the document and

any reference to it in the petition. To the extent necessary, the Relators would

agree to strike the document from the Relators’ Record.           Regardless, as the

document is immaterial to the relief requested, the Real Parties’ procedural

complaint provides no proper basis to deny the petition for writ of mandamus. See

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 211 (Tex. 2001) (noting that Texas

courts should not elevate form over substance in such a manner that hinders

parties’ rights to have the merits of their claims considered).

V.    RELATORS’   INTERPRETATION OF  SECTION 33.004(d)
      PROMOTES THE LEGISLATURE’S INTENT, PURPOSE, AND
      OBJECTIVES.
      In Phi Van Cao v. Hardy, 352 S.W.3d 218, 220 (Tex. App.—Houston [14th

Dist.] 2011, no pet.), the Court of Appeals addressed the statutory review of

responsible third party issues, stating:

      When construing [the responsible third party designation] statute, we
      begin with its language. Our primary objective is to determine the
      legislature's intent which, when possible, we discern from the plain
      meaning of the words chosen. We presume the legislature included
      each word in the statute for a purpose, and that words not included
      were purposefully omitted. We may not add language that is not
      implicitly contained in the language of the statute. However, we may
      consider other matters in ascertaining legislative intent, including
                                           13
      the objective of the law, its history, and the consequences of a
      particular construction.
(internal citations omitted).

      In the preceding sections, the Relators discussed how their interpretation of

the plain meaning of the words within § 33.004(d) is consistent with designation of

a nonsuited defendant as a responsible third party 26 days after filing of that

nonsuit. Due to the mutually exclusive nature of the categories “defendant” and

“responsible third party” within the proportionate responsibility act, there is no

obligation to designate an existing defendant as a responsible third party until the

defendant is dismissed or nonsuited. This interpretation complies with the wording

of the statute.    See TEX. CIV. PRAC. & REM. CODE § 33.001 et seq.             This

interpretation complies with the intent of the legislature and the objectives of

allocating proportionate responsibility among all contributors to tort damages. See

TEX. CIV. PRAC. & REM. CODE § 33.003.

      The Real Parties suggest that Relators’ interpretation of the statute

“encourages gamesmanship and chicanery, and overly complicates the law.”

Response, at p. 34. Actually, the exact opposite is true.   The Real Parties argue

that each existing defendant within a case should also name each other existing

defendant as a responsible third party, for fear that if the statute of limitation

expires, a nonsuit in the weeks prior to trial would eliminate the right to apportion



                                         14
responsibility to that nonsuited defendant.           This argument “encourages

gamesmanship and chicanery.” This argument “overly complicates the law.”

      Real Parties suggest that this Court endorse such gamesmanship to eliminate

a prior named defendant -- a defendant who enjoyed a statutory immunity under

Oklahoma Workers’ Compensation law -- who the Real Parties continued to assert

caused their damages even after non-suiting it (R.R. Tab 8), as a party to which the

trier of fact could allocate responsibility. While the Real Parties certainly had the

right to nonsuit their claims against Wynnewood, they do not have the right to

eliminate the trier of fact’s ability to properly allocate responsibility to

Wynnewood as intended by Texas’s proportionate responsibility law. Real Parties

suggest this result upon the unreasonable argument that section 33.004(d) imposes

a duty to name existing party defendants as responsible third parties. Notably

absent from the Real Parties’ response, however, is any citation to court opinion or

other authority suggesting that their interpretation is reasonable or that it has been

adopted. The only court to have addressed this issue of which Relators are aware

holds to the contrary. See Flack, 334 S.W.3d at 262.

      The Real Parties argue that allowing designation of Wynnewood 26 days

after the nonsuit was unfair because Relators “had a duty to disclose and the

limitations period has expired, thereby prejudicing Real Parties in Interest by now

being barred by limitations from pursuing a case against Wynnewood Refining.”

                                         15
Response at 36. Again, there was no duty to disclose Wynnewood prior the time

the statute of limitations ran for the reasons noted above. Moreover, such a

statement makes no sense here because Wynnewood would be immune from legal

liability to the Real Parties pursuant to the Oklahoma Workers’ Compensation

laws.    See OKLA. STAT. ANN.       TIT.   85A, § 5.   Texas courts recognize that

designation of parties, even when those parties are immune from liability, provides

the only means by which such parties’ negligence can be compared.            See, e.g.

Hernandez v. Bumbo (Pty.) Ltd., 2014 WL 924238, at *5 (N.D. Tex. Mar. 10,

2014) (allowing designation of Mrs. Hernandez as a responsible third party despite

her legal protection from liability under the parental immunity doctrine which

rendered any claim against her as "legally untenable"). In fact, the Hernandez

court concluded that designation of an immune party “would facilitate the goals

behind the 2003 amendments . . . by allowing pursuit of the only mechanism by

which such alleged fault could be considered.” Id.

        The Real Parties’ arguments and the trial court’s decision are clearly at odds

with the wording of the Texas statute, the intent of the Texas legislature, and the

statutory history of proportionate responsibility allocation. Real Parties’ argument

and the trial court’s decision are in direct opposition to the statutory intent to

compare each claimant, each defendant, each settling party and each responsible

third party.      Real Parties’ argument would encourage unnecessary and

                                           16
counterproductive finger pointing by litigation defendants and claimants. Real

Parties’ argument would encourage the last minute gamesmanship seen by these

plaintiffs, on the eve of trial, to “control” the responsible parties and thereby skew

and distort the proportionate responsibility allocation to be obtained from the trier

of fact.      Real Parties' interpretation promotes and encourages the very

“gamesmanship and chicanery” which the Texas legislature has been attempting to

eliminate through the 20 years of statutory change. There was no basis under the

plain meaning of the relevant statutory language or the relevant Texas discovery

rules to deny the Relators’ motion for leave. Denial of the motion for leave under

such circumstances violated the public policy set by the Legislature and courts.

Thus, the trial court clearly abused its discretion by denying the Relator’s motion

for leave to designate Wynnewood as a responsible third party.

                                     PRAYER
       WHEREFORE, the Relators pray that this Court issue a Writ of Mandamus

requiring the District Court of Fort Bend County, Texas to vacate its Order

denying Relators' Motion for Leave to Designate Responsible Third Party and

order the trial court to grant leave for Wynnewood to be designated as a

Responsible Third Party, such that Wynnewood’s fault, if any, might be compared

at the time of trial.




                                         17
Respectfully submitted,

MARTIN, DISIERE, JEFFERSON &
 WISDOM, L.L.P.

By: /s/ Philip D. Sharp
    Phillip D. Sharp
    Texas State Bar No. 18118680
808 Travis, 20th Floor
Houston, TX 77002
Telephone: (713) 632-1700
Facsimile: (713) 222-0101
Email: sharp@mdjwlaw.com

By: /s/ Lee M. Smithyman
    Lee M. Smithyman
    Kansas State Bar No. 09391
SMITHYMAN & ZAKOURA, CHARTERED
750 Commerce Plaza II Building
7400 West 110th Street
Overland Park, Kansas 66210-2362
(913) 661-9800 – Telephone
(913) 661-9861 – Facsimile
lee@smizak-law.com

ATTORNEYS FOR RELATORS




 18
                     CERTIFICATE OF COMPLIANCE
      This is to certify that this computer-generated Reply in Support of Petition
for Writ of Mandamus contains 4,282 words.


                                   /s/ Philip D. Sharp
                                   Philip D. Sharp
                                   Dated: November 13, 2015


                        CERTIFICATE OF SERVICE
      I hereby certify that on this November 13, 2015, a true and correct copy of
the foregoing instrument was sent by the method indicated to the following
individuals:

Gary M. Riebschlager
THE RIEBSCHLAGER LAW FIRM
801 Congress, Suite 250
Houston, TX 77002
gary@riebschlagerlaw.com
cecilia@riebschlagerlaw.com
(via e-File and e-Mail)

Timothy A. Hootman
2402 Pease St
Houston, TX 77003
thootman2000@yahoo.com
(via e-File and e-Mail)

Richard L. Tate
TATE, MOERER & KING, LLP
206 South Second Street
Richmond, TX 77469
rltate@tate-law.com
(via e-File and e-Mail)




                                       19
Sidney F. Robert
BRENT COON & ASSOCIATES
300 Fannin, Suite 200
Houston, TX 77002
sidney.robert@bcoonlaw.com
belinda@bcoonlaw.com
(via e-File and e-Mail)

David M. Medina
THE MEDINA LAW FIRM
5800 Memorial Drive, Suite 890
Houston, TX 77007
davidmedina@justicedavidmedina.com
(via e-File and e-Mail)

The Honorable James H. Shoemake
434th JUDICIAL DISTRICT COURT
Fort Bend County Justice Center
1422 Eugene Heimann Circle
Courtroom: Room 3I
Telephone: 281-341-4409
via e-filing

                                  /s/ Philip D. Sharp
                                  Philip D. Sharp




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