Opinion filed July 10, 2014




                                        In The


           Eleventh Court of Appeals
                                      __________

                                 No. 11-14-00137-CV
                                     __________

                    IN RE LEWIS CASING CREWS, INC.


                              Original Mandamus Proceeding


                        MEMORANDUM OPINION
          Relator, Lewis Casing Crews, Inc., filed this mandamus proceeding after the
trial court issued an order denying its motion for designation of Diamond D
Slickline Service Company, Inc. as a responsible third party pursuant to
Section 33.004 of the Texas Civil Practice and Remedies Code. See TEX. CIV.
PRAC. & REM. CODE ANN. § 33.004 (West Supp. 2013). We conditionally grant
relief.
          This is a personal injury case brought by Real Party in Interest, David G.
Tinnie, arising from an incident that occurred on a drilling rig.        Tinnie was
employed by Diamond D, and he allegedly was acting in the course and scope of
his employment at the drilling rig when the incident occurred. Tinnie alleged that
he was injured when a “winch line with an attached lifting hook” was dropped or
fell off the rig and struck him. Tinnie sued Lewis Casing; Viking Drilling, L.L.C.;
BNB Consulting & Services, Inc.; Energen Resources Corporation; and
Schlumberger Limited. Tinnie alleged negligence and gross negligence claims
against the defendants, and he sought to recover damages in excess of $1,000,000.
      Lewis Casing filed a motion for designation of responsible third party in
which it sought leave to designate Tinnie’s employer, Diamond D, as a responsible
third party. Lewis Casing alleged that Diamond D’s negligence was the cause or a
contributing cause of any alleged harm to Tinnie. Tinnie filed a timely objection to
the motion for designation. He asserted that the trial court should deny the motion
on the ground that Lewis Casing “ha[d] not pled sufficient facts concerning the
alleged responsibility of [Diamond D] to satisfy the pleading requirements of the
Texas Rules of Civil Procedure.”
      Lewis Casing filed a supplement to its motion for designation.              The
supplement included additional allegations related to Diamond D’s alleged
responsibility for the accident. The trial court conducted a hearing on Lewis
Casing’s motion. At the hearing, Tinnie’s counsel asserted that the motion to
designate was “premature” because the case was in its early stage with a lack of
discovery. After hearing the arguments from counsel, the trial court stated, “No, I
think the motion is premature. Your motion is denied.” The trial court entered a
written order denying the motion. The trial court did not grant Lewis Casing leave
to replead.
      Lewis Casing filed a motion in which it requested the trial court to
reconsider its ruling. Alternatively, Lewis Casing requested leave to replead. The
trial court entered an order denying the motion to reconsider.
      Lewis Casing has filed a petition for writ of mandamus to challenge the trial
court’s order denying Lewis Casing’s motion for designation of Diamond D as a
responsible third party. In its sole issue, Lewis Casing contends that the trial court
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clearly abused its discretion by denying the motion, and Lewis Casing also
contends that it has no adequate remedy by appeal.
      To obtain mandamus relief, a relator must show both a clear abuse of
discretion by the trial court and the lack of an adequate remedy by appeal. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). A court
abuses its discretion when it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles. In re NITLA S.A. de C.V., 92 S.W.3d
419, 422 (Tex. 2002) (orig. proceeding). Whether a remedy by appeal is adequate
depends heavily on the circumstances presented. Prudential, 148 S.W.3d at 136–
37; In re Estate of Hutchins, 391 S.W.3d 578, 583 (Tex. App.—Dallas 2012, orig.
proceeding). An appellate remedy is not inadequate merely because it may involve
more cost or delay than obtaining mandamus relief. Walker, 827 S.W.2d at 842.
      Under the Texas proportionate responsibility statute, 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.”
CIV. PRAC. & REM. § 33.011(6) (West 2008). The proportionate responsibility
statute provides a framework for apportioning percentages of responsibility in the
calculation of damages in any case in which more than one person, including the
plaintiff, is alleged to have caused or contributed to cause the harm for which
recovery of damages is sought. Id. § 33.003; Challenger Gaming Solutions, Inc. v.
Earp, 402 S.W.3d 290, 292–93 (Tex. App.—Dallas 2013, no pet.).
      Section 33.004(a) of the Civil Practice and Remedies Code provides that
“[a] defendant may seek to designate a person as a responsible third party by filing
a motion for leave to designate that person as a responsible third party.” CIV.
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PRAC. & REM. § 33.004(a). The defendant must file the motion at least sixty days
before the trial date unless the court finds that good cause exists to allow the
motion to be filed later. Id. A court must grant the motion unless another party
files an objection within fifteen days after the date the motion is served. Id.
§ 33.004(f).
        Where, as in this case, an objection to the motion is timely filed, the court is
required to grant leave to designate the party named in the motion as a third party,
unless the objecting party establishes the following: “(1) the defendant did not
plead sufficient facts concerning the alleged responsibility of the person to satisfy
the pleading requirement of the Texas Rules of Civil Procedure; and (2) after
having been granted leave to replead, the defendant failed to plead sufficient facts
concerning the alleged responsibility of the person to satisfy the pleading
requirements of the Texas Rules of Civil Procedure.”                            Id. § 33.004(g).          In
determining whether to grant a motion for leave to designate a responsible third
party, a trial court is restricted to evaluating the sufficiency of the facts pleaded by
the movant and is not permitted to engage in an analysis of the truth of the
allegations or consider evidence on the third party’s ultimate liability. 1 In re
Unitec Elevator Servs. Co., 178 S.W.3d 53, 62 (Tex. App.—Houston [1st Dist.]
2005, orig. proceeding).
        Lewis Casing contends that it pleaded sufficient facts concerning the alleged
responsibility of Diamond D and that, therefore, the trial court clearly abused its
discretion when it denied the motion.                    Tinnie contends that Lewis Casing’s

        1
         A party may challenge 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. CIV. PRAC. & REM. § 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 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.

                                                     4
allegations were insufficient to satisfy Section 33.004(g). Accordingly, Tinnie
contends that the trial court did not abuse its discretion when it denied the motion.
      The issue before the trial court at the hearing on Lewis Casing’s motion for
designation was whether Lewis Casing had pleaded “sufficient facts concerning
the alleged responsibility of [Diamond D] to satisfy the pleading requirement of
the Texas Rules of Civil Procedure.” CIV. PRAC. & REM. § 33.004(g)(1). Texas
follows a “fair notice” standard for pleading. Low v. Henry, 221 S.W.3d 609, 612
(Tex. 2007). Rules 45 and 47 of the Texas Rules of Civil Procedure require that
pleadings give fair notice of the claim asserted. Paramount Pipe & Supply Co. v.
Muhr, 749 S.W.2d 491, 494 (Tex. 1988). The “fair notice” standard for pleading is
satisfied if the opposing party can ascertain from the pleading the nature, the basic
issues, and the type of evidence that might be relevant to the controversy. Low,
221 S.W.3d at 612. A petition is sufficient if a cause of action or defense may be
reasonably inferred from what is specifically stated. McGraw v. Brown Realty Co.,
195 S.W.3d 271, 275 (Tex. App.—Dallas 2006, no pet.).
      Tinnie alleged in his petition that each of the defendants committed acts and
omissions that constituted negligence and gross negligence and that those acts and
omissions were a proximate cause of the incident in question and the injuries and
damages that he sustained and suffered. Lewis Casing alleged in its motion for
designation that Diamond D failed to provide adequate safety training, equipment,
and employee supervision and that Diamond D failed to create and maintain a safe
work environment for Tinnie. Lewis Casing also alleged that “[Diamond D’s]
negligence was the cause or contributing cause of any alleged harm to [Tinnie].”
Lewis Casing alleged in its supplemental motion that Diamond D failed to exercise
ordinary care and that Diamond D’s failure to exercise ordinary care was a
proximate cause of the accident in question. Additionally, Lewis Casing alleged
that, under the doctrine of respondeat superior, Diamond D was vicariously liable
                                          5
for the negligent acts and omissions of its supervisors. Lewis Casing alleged that
the supervisors and Tinnie were negligent in a number of respects, including that
they failed to follow instructions that they had been given; that, contrary to
instructions, they did not wait to begin their work until all work above them on the
rig was concluded; that they failed to keep a proper lookout; that they failed to
delay or stop their work until it could proceed safely; and that they failed to
sufficiently communicate with other workers on site in an effort to ensure that
Diamond D’s work could proceed in an orderly and safe sequence.
       Lewis Casing specifically alleged that Diamond D’s negligence caused or
contributed to cause the harm for which Tinnie sought recovery of damages. We
conclude that Lewis Casing’s allegations concerning the alleged responsibility of
Diamond D are sufficient to satisfy the fair-notice pleading requirement; an
opposing party can ascertain from the allegations the nature and basic issues of the
controversy and what type of evidence might be relevant.              The trial court
apparently denied Lewis Casing’s motion to designate Diamond D as a responsible
third party on the ground that the motion was “premature.”            However, “pre-
maturity” is not a proper ground to deny a motion to designate a responsible third
party. Instead, a motion to designate a responsible third party may be denied only
if a defendant fails to plead sufficient facts after the defendant has been granted
leave to replead.    CIV. PRAC. & REM. § 33.004(g).         Because Lewis Casing’s
allegations provided fair notice of its claim, we conclude that the trial court clearly
abused its discretion when it denied Lewis Casing’s motion for designation of
Diamond D as a responsible third party.
      We next address whether Lewis Casing has an adequate remedy by appeal.
Texas intermediate appellate courts have reached different conclusions on the issue
of whether there is an adequate remedy by appeal from a trial court’s erroneous
denial of a motion for leave to designate a responsible third party. Several courts
                                          6
have granted mandamus relief from a trial court’s erroneous ruling on an issue
related to the designation of a responsible third party. See, e.g., In re Smith, 366
S.W.3d 282, 288–89 (Tex. App.—Dallas 2012, orig. proceeding); In re Brokers
Logistics, Ltd., 320 S.W.3d 402, 408–09 (Tex. App.—El Paso 2010, orig.
proceeding); In re Arthur Andersen LLP, 121 S.W.3d 471, 485–86 (Tex. App.—
Houston [14th Dist.] 2003, orig. proceeding). Other courts have denied mandamus
relief based on the conclusion that the relators failed to show the lack of an
adequate remedy by appeal. See, e.g., Unitec Elevator, 178 S.W.3d at 63–66; In re
Martin, 147 S.W.3d 453, 460 (Tex. App.—Beaumont 2004, orig. proceeding).
Based on our analysis, and as discussed below, we agree with the sound reasoning
of those courts that have concluded that there is no adequate remedy by appeal in
such cases. See Brokers Logistics, 320 S.W.3d at 408–09; Andersen, 121 S.W.3d
at 485–86.
      Tinnie argues that mandamus relief should be granted from a trial court’s
erroneous denial of a motion to designate a responsible third party only in “rare,
highly complex” cases that involve the type of “extraordinary circumstances” that
were present in Andersen, which involved the “enormity of the facts surrounding
the collapse” of Enron. Andersen, 121 S.W.3d at 486. Tinnie relies on Unitec
Elevator to support his argument. In Unitec Elevator, the court characterized the
case before it as a “relatively straightforward personal injury action.” Unitec
Elevator, 178 S.W.3d at 65.      Because the case did not present extraordinary
circumstances such as those that were presented in Andersen, the Unitec Elevator
court concluded that the relators had an adequate remedy by appeal. Id. at 65–66.
      Tinnie contends that, unlike Andersen, this case does not involve
extraordinary circumstances because “[t]he case at bar is a straightforward
negligence matter” and “is not an overly complex case.”            Based on these
contentions, Tinnie asserts that Lewis Casing has an adequate remedy by appeal.
                                         7
We disagree with Tinnie’s assertion that mandamus relief should be limited to
those cases that involve circumstances similar to those involved in Andersen.
Courts have not limited grants of mandamus relief to such cases. Smith, 366
S.W.3d at 288–89; Brokers Logistics, 320 S.W.3d at 408–09.              Additionally,
although Tinnie contends that this case is a straightforward negligence matter, the
record shows that he has sued five sophisticated business defendants, and he seeks
to recover in excess of $1,000,000 in damages. The case will involve extensive
discovery; the liability and damages issues likely will be hotly contested; a trial
would be lengthy; and if the case goes to trial, the trier of fact will be asked to
apportion liability, if any, among the parties.
       The adequacy of an appellate remedy must be determined by balancing the
benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256
S.W.3d 257, 262 (Tex. 2008) (orig. proceeding).        In evaluating benefits and
detriments, we consider whether mandamus review will preserve important
substantive and procedural rights from impairment or loss.        Id.     Under the
proportionate responsibility statute, Lewis Casing has the right to have one jury
apportion liability among all responsible parties.      See CIV. PRAC. & REM.
§ 33.003(a); Brokers Logistics, 320 S.W.3d at 408; Andersen, 121 S.W.3d at 485–
86. A grant of mandamus relief would preserve Lewis Casing’s valuable right to
have the trier of fact determine Diamond D’s percentage of responsibility for
Tinnie’s injuries and damages. Brokers Logistics, 320 S.W.3d at 408.
      This case is distinguishable from Martin, in which the Beaumont Court held
that an adequate appellate remedy existed. See Martin, 147 S.W.3d at 459–60. In
that case, the court noted that, based on the facts before it, “a separate post-
judgment lawsuit for contribution is an available remedy.” Id. at 459. Here, Lewis
Casing does not have the ability to seek contribution from Tinnie’s employer,
Diamond D, because Diamond D has provided Tinnie with workers’ compensation
                                           8
benefits. 2 TEX. LAB. CODE ANN. § 408.001 (West 2006); Lee Lewis Constr., Inc. v.
Harrison, 64 S.W.3d 1, 19 (Tex. App.—Amarillo 1999), aff’d, 70 S.W.3d 778
(Tex. 2001).
       In addition to impairment of rights, we consider whether mandamus will
“allow the appellate courts to give needed and helpful direction to the law that
would otherwise prove elusive in appeals from final judgments.” Team Rocket,
256 S.W.3d at 262 (quoting Prudential, 148 S.W.3d at 136). In this case, the trial
court’s ruling could be reviewed on appeal if Lewis Casing receives an adverse
judgment. However, in order to obtain a reversal, Lewis Casing would be required
to show that the trial court’s error probably caused the rendition of an improper
judgment or probably prevented it from properly presenting the case to the court of
appeals. See TEX. R. APP. P. 44.1(a). The denial of Lewis Casing’s right to
designate Diamond D as a responsible third party “would skew the proceedings,
potentially affect the outcome of the litigation, and compromise the presentation of
[Lewis Casing’s] defense in ways unlikely to be apparent in the appellate record.”
Brokers Logistics, 320 S.W.3d at 408; see also In re Oncor Elec. Delivery Co., 355
S.W.3d 304, 306 (Tex. App.—Dallas 2011, orig. proceeding).                        On such an
appellate record, it is possible that Lewis Casing would be unable to obtain relief
on direct appeal from the trial court’s clearly erroneous ruling. Brokers Logistics,
320 S.W.3d at 408. Thus, the trial court’s error may not be adequately addressed
by an appeal. Oncor, 355 S.W.3d at 305.
       We must also consider whether mandamus will spare the litigants and the
public “the time and money utterly wasted enduring eventual reversal of
improperly conducted proceedings.” Team Rocket, 256 S.W.3d at 262 (quoting
Prudential, 148 S.W.3d at 136). There will be a substantial waste of the litigants’

       2
        An employer that is a subscriber to workers’ compensation insurance may be designated as a
responsible third party under Section 33.004 of the Civil Practice and Remedies Code. See Unitec
Elevator, 178 S.W.3d at 58 n.5.
                                                 9
time and money if they proceed to trial without the trial court’s error being
corrected, proceed through a direct appeal only to have the judgment reversed, and
then retry the entire case with Diamond D designated as a responsible third party.
We recognize that the additional time and expense of participating in a second trial
does not, standing alone, justify the issuance of a writ of mandamus. Walker, 827
S.W.2d at 842. However, when a trial court’s error will cause a waste of judicial
resources, an appellate court may properly consider that factor in determining the
adequacy of a remedy by appeal. Id. at 843; Brokers Logistics, 320 S.W.3d at 409.
In this case, the potential waste of resources, when combined with the possibility
that Lewis Casing may be unable to successfully prosecute an appeal from an
adverse judgment, supports the conclusion that Lewis Casing does not have an
adequate remedy by appeal. See Brokers Logistics, 320 S.W.3d at 409. Therefore,
we conclude that Lewis Casing lacks an adequate remedy by appeal.
      Because the trial court clearly abused its discretion when it denied Lewis
Casing’s motion for designation of Diamond D as a responsible third party and
because Lewis Casing lacks an adequate remedy by appeal, we sustain the sole
issue presented by Lewis Casing in its petition for writ of mandamus.
Accordingly, we conditionally grant Lewis Casing’s petition for writ of
mandamus.       The trial court is directed to vacate its March 17, 2014 “Order
Denying Defendant Lewis Casing Crews, Inc.’s Motion for Designation of
Responsible Third Party” and to enter a new order granting the motion for
designation. The writ of mandamus will issue only if the trial court fails to act by
July 30, 2014.


July 10, 2014                                             JIM R. WRIGHT
Panel consists of: Wright, C.J.,                          JUSTICE
Willson, J., and Bailey, J.

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