In re Unitec Elevator Services Co.

• Decision Date: 02 June 2005
• Docket Number: No. 01-05-00005-CV.,01-05-00005-CV.
• Citation: 178 S.W.3d 53
• Parties: In re UNITEC ELEVATOR SERVICES COMPANY d/b/a VTM Elevator Company, VTM Elevator Company, Naes Central, Inc., Naes Central, Inc., formerly known as Unitec Elevator Services, and Naes Central, Inc., d/b/a VTM Elevator Company, Relators.
• Court: Texas Supreme Court

178 S.W.3d 53

In re UNITEC ELEVATOR SERVICES COMPANY d/b/a VTM Elevator Company, VTM Elevator Company, Naes Central, Inc., Naes Central, Inc., formerly known as Unitec Elevator Services, and Naes Central, Inc., d/b/a VTM Elevator Company, Relators.

No. 01-05-00005-CV.

Court of Appeals of Texas, Houston (1st Dist.).

June 2, 2005.

Christopher Charles Rosas, Evelyn Ailts Derrington, Neal David Kieval, Lynne M.

Jurek, Phillips & Akers, P.C., Houston, TX, for Appellant.

Daryl L. Moore, Storey, Moore & McCally, P.C., Jonathan Sol Harris, Schecter, McElwee & Shaffer, L.L.P., Melissa Ann Nance, Christopher Keith Harshbarger, Kelly, Smith & Murrah, P.C., Jonathon Bruce Smith, Baker Botts L.L.P., Gordon Blaine Morgan, Houston, TX, for Appellee.

Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.

OPINION

TERRY JENNINGS, Justice.

By petition for writ of mandamus, relators, Unitec Elevator Services Company d/b/a VTM Elevator Company, VTM Elevator Company, NAES Central, Inc., NAES Central, Inc., formerly known as Unitec Elevator Services, and NAES Central, Inc., d/b/a VTM Elevator Company, challenge the trial court's orders of April 5, 2004 and December 20, 2004, denying relators' motions for leave to designate responsible third parties in the underlying lawsuit.¹ See Tex. Civ. Prac. & REM.CODE ANN. § 33.004 (Vernon Supp.2004-2005). In their sole issue, relators contend that the trial court clearly abused its discretion in denying their first, second, and third motions for leave to designate responsible third parties in the underlying lawsuit.

We deny the petition.

Factual and Procedural Background

In the underlying lawsuit, real parties in interest Mary Theresa Bryant and Anna Menses, allege that, on November 1, 2001, while working for Southwestern Bell Telephone Company ("Southwestern Bell") at a building located on 3303 Weslayan Street in Houston, they sustained personal injuries when the elevator in which they were riding fell three stories. Plaintiffs further allege that, although the relators were responsible for the maintenance of the elevator and had knowledge that the elevator was having mechanical failures, relators returned the elevator to service before the accident without ensuring that it was in a safe working condition. Plaintiffs have brought claims of negligence and gross negligence against relators and seek actual and punitive damages.

David Trujillo and Rawle Frank have intervened in the lawsuit, alleging that they too were passengers in an elevator located at the Southwestern Bell building on 3303 Weslayan and, following a loss of power, the elevator in which they were riding fell three floors, causing them personal injuries. Trujillo and Frank have brought claims of negligence and malice against relators, and seek actual and punitive damages.²

Southwestern Bell Telephone Company

The case was originally set for trial on June 1, 2004. On March 25, 2004, relators filed a motion for leave to designate Southwestern Bell as a responsible third party alleging that (1) plaintiffs and intervenors were employees of Southwestern Bell at the time of the incident; (2) Southwestern Bell was the owner of the building in which the elevators were located; (3) Southwestern Bell had the right of control over the building, its elevators, and its electrical power; and (4) Southwestern Bell's conduct was the sole cause of the incident. Plaintiffs, on March 30, 2004, filed an objection to relators' motion, asserting that the building was owned by SBC Communications, a parent company of Southwestern Bell. In their objection, plaintiffs also assert that relators had failed to plead sufficient facts to support their allegations that Southwestern Bell was the owner of the building and was responsible for the incident. On April 5, 2004, the trial court entered an order sustaining plaintiffs' objection to relators' motion for leave to designate Southwestern Bell as a responsible third party, and denying relators' motion "as presented."

On November 10, 2004, relators filed a request for reconsideration and an amended motion for leave to designate Southwestern Bell as a responsible third party, alleging that the construction of the Southwestern Bell building as well as the defective design and manufacture of the elevator may have contributed to the incident. Relators also allege that Southwestern Bell was responsible for the unreasonably dangerous condition, had a duty to warn of such a condition, and was responsible for placing the allegedly defective elevator into the stream of commerce. Plaintiffs filed an objection to relators' request for reconsideration and amended motion on November 17, 2004, renewing their argument that relators failed to plead sufficient facts to support their allegations concerning Southwestern Bell's responsibility for plaintiffs' and intervenors' injuries. The request for reconsideration and amended motion remains pending before the trial court.³

Unknown vandals

Relators, on December 1, 2004, filed a second motion for leave to designate unknown vandals as responsible third parties, alleging that the incident was the result of a power surge caused by a fault at an off-site transformer, and that this fault was caused by unknown vandals who damaged the transformer. Relators assert that deposition testimony from employees and experts of "Centerpoint Energy," another named defendant, support these allegations. Plaintiffs filed an objection to this second motion on December 8, 2004, arguing that the "vandal theory" was mere speculation and that relators did not plead sufficient facts to support their allegation that unknown vandals were responsible for the incident. On December 20, 2004, the trial court entered an order sustaining "at this time" plaintiffs' objection to relators second motion for leave to designate unknown vandals as responsible third parties, and denying relators' motion "as presented."

Centerpoint Energy Houston Electric, L.L.C.

Plaintiffs originally sued a number of other defendants, including Centerpoint Energy Houston Electric, L.L.C. ("Centerpoint"). Plaintiffs alleged that Centerpoint negligently caused a power surge which may have caused the elevator on which the plaintiffs were riding to suddenly and unexpectedly drop three stories. Plaintiffs also alleged that Centerpoint negligently created an unreasonably dangerous condition, failed to correct a dangerous condition, failed to exercise reasonable and ordinary care to reduce or eliminate the risk of a power surge, and failed to warn of a dangerous condition. Intervenors made similar allegations against Centerpoint. Centerpoint filed a motion for summary judgment on November 8, 2004, arguing that plaintiffs' and intervenors' claims were precluded as a matter of law because there was no evidence that Centerpoint was negligent or that Centerpoint's negligence caused plaintiffs' and intervenors' injuries. Plaintiffs nonsuited their claims against Centerpoint on December 27, 2004, and intervenors' claims against Centerpoint were dismissed when the trial court granted Centerpoint's summary judgment motion on January 3, 2005.

On January 5, 2005, relators filed a third motion for leave to designate Centerpoint as a responsible third party, alleging that the incident was the result of a power surge from a fault at an off-site transformer and that Centerpoint supplied the electricity and controlled the electrical equipment which contributed to the incident. Relators acknowledge that their third motion for leave was filed beyond the statutorily prescribed deadline, but argued that, because all claims against Centerpoint had been recently dismissed or resolved, good cause existed to permit them to designate Centerpoint. Plaintiffs filed an objection to this third motion on January 12, 2005, explaining that they had dismissed their claims against Centerpoint because Centerpoint's summary judgment motion appeared to have merit, there was no evidence to support the allegations against Centerpoint, and there was no basis for Centerpoint to be submitted as a responsible third party. In their objection, plaintiffs assert that relators had not pleaded sufficient facts to support their allegation that Centerpoint was responsible for the incident and that the motion was untimely and made without a showing of good cause to permit the designation of Centerpoint as a responsible third party within sixty days of trial. On January 17, 2005, the trial court entered an order sustaining "at this time" plaintiffs' objection to relators' third motion and denying relators' motion "as presented."

The case was reset for trial on February 7, 2005, and on January 26, 2005, we granted relators' motion for temporary relief and stayed all further proceedings in the trial court to consider their petition.

Standard of Review

Mandamus is an extraordinary remedy, which is available only when (1) a trial court clearly abuses its discretion and (2) there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004); In re Supportkids, Inc., 124 S.W.3d 804, 807 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). With respect to a trial court's determination of legal principles, "a trial court has no `discretion' in determining what the law is or applying the law to facts." In re Prudential, 148 S.W.3d at 135 (quoting Walker, 827 S.W.2d at 840). Thus, a trial court's failure to analyze or apply the law correctly will constitute an abuse of discretion and may result in a reversal by extraordinary writ. Walker, 827 S.W.2d at 840.

The requirement that persons seeking mandamus relief establish the lack of an adequate remedy by appeal is a "fundamental tenet" of mandamus practice. Id. The writ will issue "only...