In Re: Brokers Logistics

• Decision Date: 07 July 2010
• Docket Number: No. 08-09-00086-CV.,08-09-00086-CV.
• Citation: 320 S.W.3d 402
• Parties: In re: BROKERS LOGISTICS, LTD. (f/k/a Brokers Logistics, Inc.) and Brokers Logistics Genpar, L.L.C. (General Partner of Brokers Logistics, Ltd.), Relators.
• Court: Texas Court of Appeals

320 S.W.3d 402

In re: BROKERS LOGISTICS, LTD. (f/k/a Brokers Logistics, Inc.) and Brokers Logistics Genpar, L.L.C. (General Partner of Brokers Logistics, Ltd.), Relators.

No. 08-09-00086-CV.

Court of Appeals of Texas El Paso.

May 19, 2010.

Rehearing Overruled July 7, 2010.

COPYRIGHT MATERIAL OMITTED

Steven L. Hughes, Mounce, Green, Myers, Safi, Paxson & Galatzan, El Paso, TX, for Relator.

John P. Mobbs, Attorney at Law, El Paso, TX, for Real Party in Interest.

Before CHEW, C.J., McCLURE, J., and ANTCLIFF, Judge.

OPINION ON PETITION FOR WRIT OF MANDAMUS

ANN CRAWFORD McCLURE, Justice.

Relators seek a writ of mandamus against the Honorable William E. Moody, Presiding Judge of the 34th District Court of El Paso County, Texas, to compel him to set aside an order striking the designation of Dr. Randy J. Pollet as a responsible third party. We conditionally grant relief.

FACTUAL SUMMARY

The real party in interest, Rafael Martinez, filed suit against Relators alleging he was injured on the premises while making a delivery in the course and scope of his employment with Aeroground. Relators filed a motion for leave to designate Randy Pollet, M.D. as a responsible third party under Section 33.004 of the Civil Practice and Remedies Code, alleging that Dr. Pollet's negligence in treating Martinez's injuries caused Martinez's damages. See Tex.Civ.Prac. & Rem.Code Ann. § 33.004(a)(Vernon 2008). Relators based their designation on an expert report prepared by William Blair, M.D. The trial court granted the motion and designated Dr. Pollet as a responsible third party. As permitted by Section 33.004, Martinez amended his petition within sixty days of the designation to include a negligence claim against Dr. Pollet. ¹ When Martinez did not file an expert report and curriculum vitae within 120 days after filing his claims against Dr. Pollet, Dr. Pollet filed a motion to dismiss pursuant to Section 74.351(b) of the Civil Practice and Remedies Code. Dr. Pollet also filed a motion for summary judgment on the ground that the two-year statute of limitations had expired. During this same time period, Martinez filed a motion to strike the designation of Dr. Pollet on the ground that Relators had not produced sufficient evidence to raise a genuine issue of fact regarding Dr. Pollet's responsibility for Martinez's injuries or damages. Initially, the trial court took Dr. Pollet's motion to dismiss and Martinez's motion to strike the designation under advisement pending discovery. Dr. Pollet challenged the trial court's failure to rule by filing a writ of mandamus and we conditionally granted relief on September 25, 2008. See In re Randy J. Pollet, M.D., 281 S.W.3d 532 (Tex.App.-El Paso 2008, orig. proceeding).

On January 6, 2009, the trial court conducted a hearing on Dr. Pollet's motion to quash the deposition of Dr. Blair. During this hearing, the trial court expressed a number of concerns about the responsible third party designation being unfair to Dr Pollet. First, Dr. Pollet's insurance carrier could take the position it did not have a duty to defend, and if the jury found Dr. Pollet was 90 percent responsible, then Dr. Pollet would have a judgment against him for medical malpractice and the insurance company could raise Dr. Pollet's premiums. Second, Dr. Pollet's medical license could be at risk in the event there was a judgment against him. A few days after this hearing, Martinez filed another motion to strike the designation because “there is no liability or responsibility of Dr. Randy J. Pollet under the Health Care Liability Act.” Echoing what Judge Moody had stated at the previous hearing, Martinez also alleged that permitting Relators to hold Dr. Pollet liable “would subject Dr. Pollet to potential licensure issues without being able to defend himself against his accuser, Dr. Blair.” At the conclusion of a hearing held on February 12, 2009, Judge Moody orally granted Dr. Pollet's motion to dismiss Martinez's suit against him.² Following entry of a written order dismissing Martinez's suit against Dr. Pollet and severing that portion of the case into a new cause number, Martinez filed notice of appeal. The trial court also granted Martinez's motion to strike the designation of Dr. Pollet without specifying the basis for the ruling. Relators filed a mandamus petition to challenge the trial court's order striking the designation. This mandamus proceeding does not concern the dismissal of Martinez's claims against Dr. Pollet.³

RESPONSIBLE THIRD PARTY DESIGNATION

In their sole issue, Relators contend that the trial court abused its discretion by striking the designation of Dr. Pollet as a responsible third party. Because Judge Moody did not specify the basis for his ruling, Relators must show that the ruling cannot be upheld on any ground asserted by Martinez in his motion to strike the designation.

To be entitled to mandamus relief, a relator must meet two requirements. First, it must show the trial court clearly abused its discretion. In re Prudential Insurance Company of America, 148 S.W.3d 124, 135 (Tex.2004). Second, the relator must demonstrate it has no adequate remedy by appeal. Id. at 136.

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 Ford Motor Company, 165 S.W.3d 315, 317 (Tex.2005). When reviewing the trial court's decision for an abuse of discretion, the reviewing court may not substitute its judgment for that of the trial court with respect to resolution of factual issues or matters committed to the trial court's discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985); see Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). Review of the trial court's determination of the legal principles controlling its ruling is much less deferential. Walker, 827 S.W.2d at 840. A trial court has no discretion in determining what the law is or applying the law to the facts, even when the law is unsettled. In re Prudential, 148 S.W.3d at 135. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at 840.

Clear Abuse of Discretion

Chapter 33 sets forth the statutory scheme for the apportionment of responsibility in tort and deceptive trade practice actions. See Tex.Civ.Prac. & Rem.Code Ann. § 33.003. Section 33.004(a) of the Civil Practice and Remedies Code provides:

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. The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date.

Tex.Civ.Prac. & Rem.Code Ann. § 33.004(a). A court is required to grant leave to designate the named person as a responsible third party unless another party files an objection on or before the 15th day after the date the motion is served. Tex.Civ.Prac. & Rem.Code Ann. § 33.004(f). If an objection is timely filed, the court shall grant leave to designate unless the objecting party establishes: (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. Tex.Civ.Prac. & Rem.Code Ann. § 33.004(g). By granting a motion for leave to designate a person as a responsible third party, the person named in the motion is designated as a responsible third party for purposes of the Proportionate Responsibility Chapter of the Civil Practice and Remedies Code without further action by the court or any party. Tex.Civ.Prac. & Rem.Code Ann. § 33.004(h).

After 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 damages. Tex.Civ.Prac. & Rem.Code Ann. § 33.004( l ). 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 damages. Id.

The mandamus record reflects that Martinez filed an untimely objection to Relators' motion for leave to designate Dr. Pollet as a responsible third party.⁴ Thus, the trial court complied with the mandate of Section 33.004(f) by entering an order which designated Dr. Pollet as responsible third party. Once Dr. Pollet was designated as a responsible third party, the only statutory ground for striking the designation is 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 ). Martinez asserted non-statutory grounds in his motion to strike the designation and the trial court certainly expressed concern at various hearings about the potential negative and unfair consequences of permitting the designation to stand. The first issue we must address is whether the statutory ground for striking a designation is the only permissible ground. When construing a statute, we begin with its language. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Our primary objective is to determine the Legislature's intent which, when possible, we discern from the plain meaning of the words chosen. Id.;City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). If the statute is clear and unambiguous, we must apply its words according to their common meaning without resort to rules of construction or extrinsic aids. Shumake, 199 S.W.3d at 284; Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.1999). We may consider other matters in ascertaining legislative intent, including the...