Opinion issued October 17, 2023

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-23-00171-CV

———————————

IN RE ARMANDO LOPEZ, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

On March 8, 2023, relator Armando Lopez, proceeding pro se, filed a petition 

for a writ of mandamus challenging two trial court orders: (1) an October 13, 2022 

order denying Lopez’s “Motion to Disqualify Attorney” Keith Gross, counsel for 

real party in interest, David Wilson; and (2) a February 1, 2023 order denying 

Lopez’s “Motion for Leave to Designate Responsible Third Party,” in which Lopez

sought to designate Gross as a responsible third party. 
2

In his mandamus petition, Lopez argued that the trial court abused its 

discretion in denying his motion to disqualify Gross because Gross, “by his conduct 

and advice, . . . convinced Wilson to settle his case without first exhausting all 

available remedies and, in the process, . . . bec[a]me a material witness.” Lopez

further argued that the trial court abused its discretion in denying his motion to 

designate Gross as a responsible third party because he “sufficiently pleaded facts” 

that showed that Gross engaged in conduct that “caused or contributed to Wilson’s 

alleged harm” because the trial court “did not provide Lopez an opportunity to 

replead, if necessary” and “nothing in Texas law prevent[ed] attorneys from being 

designated as responsible third parties under Chapter 33 of the Texas Civil Practice 

and Remedies Code.”

Lopez therefore requested that the Court “conditionally grant his petition for 

writ of mandamus” and “direct the trial court to vacate its orders” and “instead issue 

an [o]rder designating . . . Gross as a responsible third party” and an order “granting 

the motion to disqualify . . . Gross as counsel” for Wilson.

After reviewing the petition, response, and the mandamus record, we conclude 

that the trial court abused its discretion by denying Lopez’s motion to designate 

Gross as a responsible third party without granting him an opportunity to replead,
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and we conditionally grant, in part, Lopez’s petition for writ of mandamus.1 We 

further conclude that Lopez failed to establish that he is entitled to mandamus relief 

regarding the trial court’s October 13, 2022 order denying his motion to disqualify 

Gross, and thus, we deny his request for mandamus relief related to the trial court’s 

October 13, 2022 order.

Background

The underlying lawsuit at issue in this original proceeding was initiated by 

Wilson, who asserted a cause of action for negligence against Lopez. Wilson alleged 

that Lopez, who was hired by Wilson to act as his attorney in an earlier defamation 

lawsuit, was negligent in investigating and prosecuting the defamation lawsuit. 

Wilson is represented by Gross in the underlying lawsuit.

The defamation lawsuit arose out of an incident that purportedly occurred 

during a ribbon cutting ceremony at the Houston Community College North Forest 

Campus in August 2019. Wilson, who was a Trustee of Houston Community 

College, attended the ribbon cutting ceremony. According to Wilson’s original 

petition, at the ribbon cutting ceremony, Diana C. Barrero Burgos “approached 

Wilson and greeted him . . . by putting her hand on his forearm.” Wilson then 

“removed her hand from his forearm as the two had always had an adversar[ial] 

1 The underlying case is David Wilson v. Armando Lopez, Cause No. 2022-27346, in 

the 164th District Court of Harris County, Texas, the Honorable C. Elliott Thornton

presiding.
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relationship.” After the ribbon cutting ceremony, Burgos “attempted to press 

criminal charges” against Wilson, alleging that “Wilson removing her hand 

constituted an assault.”

In connection with the alleged incident, Burgos filed a “written document with 

Houston Community College–Office of Institutional Equity,” alleging “various 

accusations against Wilson.” Two other individuals, Monica Flores Richart and 

Zaphaniah David Capo, thereafter “published[] or republished” the statements made 

by Burgos. Wilson hired Lopez to represent him in a potential defamation cause of 

action against these three individuals. According to Wilson, Lopez “represented to 

Wilson that the actions of Burgos, Richart, and Capo were in fact defamatory” and 

Lopez initiated a lawsuit against the three individuals on behalf of Wilson, asserting 

a cause of action for defamation.

Thereafter, on September 21, 2020, the three individuals filed a motion to 

dismiss Wilson’s defamation claim pursuant to the Texas Citizens Participation Act

(TCPA), arguing that their purported statements were protected speech. See TEX.

CIV. PRAC. & REM. CODE ANN. § 27.003. A hearing was set for the trial court to 

consider the motion to dismiss on October 12, 2020. See id. § 27.004(a) (trial court 

must set hearing on TCPA motion to dismiss “not later than the 60th day after the 

date of service of the motion”). Prior to the hearing, Lopez, on behalf of Wilson, 

“filed three pleadings asking the trial court to allow limited discovery” in connection 
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with the motion to dismiss. See id. § 27.006(b) (“On a motion by a party . . . and on 

a showing of good cause, the [trial] court may allow specified and limited discovery 

relevant to the motion.”). According to Lopez, to his “surprise, the [trial] court 

denied” his requests for limited discovery. Lopez did not file a response to the TCPA 

motion to dismiss. 

Subsequently, the trial court granted the TCPA motion to dismiss. After the 

trial court’s ruling on the TCPA motion to dismiss, Wilson, apparently disappointed 

with the outcome and the counsel he was provided by Lopez, obtained new counsel 

to represent him in the defamation lawsuit. Wilson hired attorney Gross to assist 

him in resolving the defamation lawsuit. Gross negotiated a settlement of the

defamation lawsuit without seeking further intervention from the trial court or 

appellate review of the trial court’s ruling.

Then, on May 6, 2022, Wilson initiated the underlying litigation against 

Lopez, alleging that Lopez was negligent in his representation of Wilson in the 

defamation lawsuit. Wilson alleged that Lopez pressed forward with filing the 

defamation lawsuit without fully “investigat[ing] whether Burgos, Richart[,] and 

Capo’s conduct was protected under the First Amendment and advis[ing] Wilson on 

the matter.” Further, Wilson alleged Lopez was negligent in “failing to file a 

substantive response to” the TCPA motion to dismiss. As a result of Lopez’s 

negligent conduct, Wilson alleged that he “suffered damages” and sought
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“approximately $35,000.00.” The underlying lawsuit against Lopez was filed by 

Gross on behalf of Wilson.

On September 15, 2022, Lopez filed a “Motion to Disqualify Attorney,” 

requesting that the trial court disqualify Gross from representing Wilson in the 

underlying litigation. In his motion, Lopez argued that Gross should be disqualified 

because “[a]n attorney is disqualified from acting as an attorney in the case if she 

becomes a witness.” Lopez asserted that Gross “ha[d] personal knowledge of the 

fact that he was hired by Wilson without consultation or notice to Lopez, that he 

entered the case after the court granted [the TCPA] motion[] to dismiss, and that he 

did not file any motion intended to protect Wilson’s interest” in the defamation 

lawsuit, such as a motion for reconsideration, mandamus petition, . . . motion for 

new trial[,] or notice of appeal.

Instead of taking these potential steps, Lopez alleged that Wilson and Gross 

“embarked on a course of conduct intended to end the [defamation lawsuit] by 

immediately entering into settlement discussions.” Therefore, Gross must “be called 

as a witness to provide testimony regarding the foregoing decisions and conduct in 

concluding the” defamation lawsuit, and his testimony will be “genuinely needed 

and . . . material to th[e] [underlying] lawsuit.” On October 13, 2022, the trial court 

denied Lopez’s motion to disqualify Gross, without explanation. To the extent that
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there was a hearing on the motion to disqualify, the mandamus record does not 

provide a transcript of such hearing.

Separately, on October 19, 2022, Lopez filed a “Motion for Leave to 

Designate Responsible Third Party.” In that motion, Lopez sought to designate 

Gross as a responsible third party in the underlying lawsuit, alleging that “Wilson’s 

hiring of Gross [in the defamation lawsuit] was a new and independent cause which 

broke the chain of causation . . . denying Lopez the opportunity to file a motion for 

reconsideration, a writ of mandamus, a substantive motion for new trial or an 

appeal.” 

On February 1, 2023, the trial court denied Lopez’s motion for leave to 

designate Gross as a responsible third party, without explanation. Again, to the 

extent that there was a hearing on the motion for leave to designate a responsible 

third party, the mandamus record does not provide a transcript of the hearing.

Thereafter, Lopez filed his petition for writ of mandamus challenging the trial 

court’s orders. A response was requested, and on March 24, 2023, Wilson filed a 

response to the petition for writ of mandamus.

Standard of Review

Mandamus is an extraordinary remedy that is only available in limited 

circumstances. See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). To be 

entitled to mandamus relief, Lopez bears the burden to establish that the trial court 
8

committed a clear abuse of discretion and that there is no adequate remedy by appeal. 

See In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005). 

A trial court abuses its discretion where “it reaches a decision so arbitrary and 

unreasonable as to amount to a clear and prejudicial error of law” or if it clearly fails 

“to analyze or apply the law correctly.” Walker, 827 S.W.2d at 839–40. 

Accordingly, “[m]andamus relief is only appropriate when the relator[] ha[s]

established that only one outcome in the trial court was permissible under the law.” 

In re Murrin Brothers 1885, Ltd., 603 S.W.3d 53, 56 (Tex. 2019). 

To the extent that Lopez is able to establish an abuse of discretion with respect 

to the trial court’s ruling on his request for leave to designate Gross as a responsible 

third party, mandamus relief may be appropriate. See In re CVR Energy, Inc., 500 

S.W.3d 67, 81 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding) (“Courts of 

appeals that have addressed the adequacy of the remedy by appeal in Chapter 33 

cases have reached different conclusions, but they repeatedly refer to the . . . maxim 

that the decision depends heavily upon the circumstances presented.” (internal 

quotations omitted)). Similarly, “[m]andamus is available where a motion to 

disqualify is inappropriately denied as there is no adequate remedy on appeal.” In 

re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 823 n.2 (Tex. 2010).
9

Motion to Disqualify Attorney

In his mandamus petition, Lopez argued that the “trial court abused its 

discretion by denying [his] motion to disqualify [Gross] because, by his conduct and 

advice to Wilson, Gross convinced Wilson to settle [the defamation lawsuit] without 

first exhausting available remedies and, in the process, . . . bec[a]me a material 

witness.” 

The Texas Supreme Court has concluded that “[d]isqualification is a severe 

remedy.” Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 

1990). Given that, a trial court must “strictly adhere to an exacting standard to 

discourage a party from using the motion as a dilatory tactic.” See In re Villasanta, 

No. 01-11-00474-CV, 2011 WL 4398557, at *1 (Tex. App.—Houston [1st Dist.] 

Sept. 22, 2011, orig. proceeding) (mem. op.). 

Here, Lopez argued that Grossshould be disqualified because he had “become 

a material witness.” However, “[t]he fact that a lawyer serves as both an advocate 

and a witness does not in itself compel disqualification.” In re Sanders, 153 S.W.3d 

54, 57 (Tex. 2004). Instead, “[d]isqualification is only appropriate if the lawyer’s 

testimony is necessary to establish an essential fact.” Id. Importantly, “the party 

requesting disqualification must demonstrate that the opposing lawyer’s dual roles

as attorney and witness will cause the party actual prejudice.” Id.
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In his motion to the trial court, Lopez argued that Gross should be disqualified

because he “ha[d] personal knowledge of the fact that he was hired by Wilson 

without consultation or notice to Lopez, that he entered the case after the [trial] court 

granted [the TCPA] motion[] to dismiss [in the defamation lawsuit], and that he did 

not file any” pleading to challenge that ruling. Instead of challenging the trial court’s 

TCPA order in the defamation lawsuit, “Wilson and [Gross] embarked on a course 

of conduct intended to end the litigation by immediately entering into settlement 

discussions.” Accordingly, Lopez stated that Gross would “be called as a witness to 

provide testimony regarding” those “decisions and conduct in concluding the 

underlying litigation.” Lopez further suggested that Gross’s testimony was

“genuinely needed and [was] material to his suit, relate[d] to contested issues in th[e] 

[underlying lawsuit], and [was] not merely a formality.”

In response to Lopez’s motion to disqualify, Wilson and Gross asserted that 

Lopez failed to meet his burden to establish (1) that Lopez could not obtain 

testimony on the identified subjects from another source, therefore making Gross’s 

testimony unnecessary; and (2) Lopez failed to establish the “actual prejudice” he 

would suffer if Gross was permitted to continue his representation of Wilson.

We conclude that Lopez has failed to establish that Gross’s testimony would 

be “necessary to establish an essential fact” and that such information could not be 

obtained from an alternative source, namely Wilson. See TEX. DISCIPLINARY R.
11

PROF’L CONDUCT 3.08(a); see also In re Sanders, 153 S.W.3d at 57; In re Villasanta, 

2011 WL 4398557, at *2. Further, we conclude that Lopez failed to establish the

prejudice he would be subjected to if Gross was allowed to continue his 

representation of Wilson.

Accordingly, we hold that Lopez has not meet his burden of establishing that 

the trial court abused its discretion by denying his motion to disqualify attorney 

Gross. We therefore deny Lopez’s request for mandamus relief to the extent that 

Lopez seeks a writ of mandamus directing the trial court to vacate its October 13, 

2022 order denying Lopez’s motion to disqualify attorney Gross.

Motion for Leave to Designate Responsible Third Party

In his mandamus petition, Lopez next argued that the trial court abused its 

discretion by denying his motion for leave to designate Gross as a responsible third 

party in the underlying lawsuit because the trial court denied his motion without 

“provid[ing] [him] an opportunity to replead, if necessary.” 

In his motion to the trial court, Lopez argued that Texas Civil Practice and 

Remedies Code section 33.004(a) provides that “a defendant can move for leave to 

designate a person as a responsible third party.” He further stated that a “responsible 

third party [was] a person who [was] alleged to have caused or contributed to causing 

in any way the harm for which recovery of damages [were] sought, whether by 

negligent act or omission, or by other conduct or activity that violates an applicable 
12

legal standard.” Lopez then concluded that “[i]n th[e] [underlying lawsuit], Keith 

Gross [was] a responsible third party because he caused or contributed to the alleged 

harm for which recovery of damages [were] sought by Wilson.”

Texas Civil Practice and Remedies Code section 33.004(a) states 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.” TEX. CIV.

PRAC. & REM. CODE ANN. § 33.004(a). Notably, “the pleading requirements for 

designating a responsible third party at the outset of a case are not stringent.” In re 

Cook, 629 S.W.3d 591, 596 (Tex. App.—Dallas 2021, orig. proceeding). A party 

meets his pleading requirement by satisfying a “fair notice” standard. See TEX. R.

CIV. P. 47(a) (requiring “a short statement of the cause of action sufficient to give 

fair notice of the claim involved”). “So long as a party can ascertain from the 

pleading the nature, basic issues, and type of evidence that might be relevant to the

controversy, a pleading satisfies the [Texas] Rule [of Civil Procedure] 47(a) 

standard.” In re YRC Inc., 646 S.W.3d 805, 809–10 (Tex. 2022).

To this end, there are few limitations for designating responsible third parties. 

First, the statute requires that any motion for leave to designate “be filed on or before 

the [sixtieth] day before the trial date.” See TEX. CIV. PRAC. & REM. CODE ANN. § 

33.004(a). Here, Lopez filed his motion for leave before the trial court set a trial 

date, satisfying this requirement. The statute further states that a party “may not 
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designate a person as a responsible third party with respect to [the] claimant’s cause 

of action after the applicable limitations period on the cause of action has expired.” 

Id. § 33.004(d). Here, there are no limitations concerns at issue.

The statute then states that the trial court “shall grant leave to designate the 

named person as a responsible third party unless another party files an objection to 

the motion for leave.” Id. § 33.004(f). Wilson filed a “Response to Motion for 

Leave,” opposing Lopez’s request for leave to designate Gross as a responsible third 

party. Assuming Wilson’s response constituted an “objection” to the motion for 

leave, the statute provides the next steps for the trial court. Specifically, the statute 

states that that if:

[A]n objection to the motion for leave is timely filed, the [trial] court 

shall grant leave to designate the person as a responsible third party 

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 concerning the alleged responsibility of the 

person to satisfy the pleading requirements of the Texas Rules of Civil 

Procedure.”

Id. § 33.004(g).

The trial court’s order does not state the basis for its denial of Lopez’s “Motion 

for Leave to Designate Responsible Third Party,” and the mandamus record does not 

provide a transcript of any hearing on Lopez’s motion. However, the basis for the 

denial is of no consequence at this point in these proceedings. As noted above, the 
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statute provides that the trial court “shall grant leave” to designate a responsible third 

party unless the objecting party established that the moving party failed to meet the 

notice pleading requirements of the Texas Rules of Civil Procedure, and “after 

having been granted leave to replead,” the moving party was unable to meet the 

notice pleading requirements. Id.

There is no evidence in the mandamus record that the trial court afforded 

Lopez an opportunity to replead prior to denying his motion for leave to designate 

Gross as a responsible third party, as is required by the statute. Id.

A trial court “does not have the discretion to deny a motion for leave to 

designate a responsible third party without first giving the movant an opportunity to 

replead.” See In re Smith, 366 S.W.3d 282, 286 (Tex. App.—Dallas 2012, orig. 

proceeding); see also In re YRC Inc., 646 S.W.3d at 810 (“Moreover, even if the 

motion [for leave to designate responsible third party] had failed to satisfy the[]

pleading requirements, [Texas Civil Practice and Remedies Code section 

33.004(g)(2)] required the trial court to provide [relator] an opportunity to replead. 

The trial court lacked the discretion to deny the motion without first affording 

[relator] that opportunity.”); Metro. Transit Auth. of Harris Cnty. v. Smith, 656 

S.W.3d 867, 882–83 (Tex. App.—Houston [14th Dist.] 2022, orig. proceeding) 

(concluding trial court abused its discretion by failing to afford moving party 

opportunity to replead prior to denying motion for leave to designate responsible 
15

third party). This is true regardless of the merits of a moving party’s motion. See In 

re Smith, 366 S.W.3d at 286 (noting section “33.004 does not contain a futility 

exception to its rule that the movant must be given an opportunity to replead”).

Accordingly, we conclude that the trial court abused its discretion by denying 

Lopez’s motion for leave to designate a responsible third party without affording 

him an opportunity to replead. Because Lopez also lacks and adequate remedy by 

appeal, we hold that Lopez is entitled to mandamus relief from the trial court’s 

February 1, 2023 order.

Conclusion

We conclude that the trial court abused its discretion by denying Lopez’s 

“Motion for Leave to Designate Responsible Third Party” without affording Lopez 

the opportunity to replead. Accordingly, we conditionally grant Lopez’s petition for 

writ of mandamus, in part, and direct the trial court to vacate its February 1, 2023

order denying Lopez’s “Motion for Leave to Designate Responsible Third Party,”

and render a new order affording Lopez an opportunity to replead facts supporting 

the designation. We are confident that the trial court will comply with this Court’s 

ruling, and the writ will issue only if the trial court fails to comply within thirty days 

of the date of this opinion. 

We further conclude that the trial court’s October 13, 2022 order denying 

Lopez’s “Motion to Disqualify Attorney” does not amount to an abuse of discretion 
16

and we deny Lopez’s request for mandamus relief with respect to this order. All 

pending motions are dismissed as moot.

Amparo Guerra

Justice

Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.