Opinion issued October 17, 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 23
- 00 171
- 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 order s : (1) an October 1 3, 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, L opez 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 show ed 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 par ties under Chapter 33 of the Texas Civil P ractice and Remedies Code.” Lopez therefore requested that th e Court “ conditionally grant his petition for writ of mandamus” and “direct the trial court to vacate its orders” and “instead issue an [o]rder designat ing

. . . 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 den ying Lopez’s motion to designate Gross as a responsible third party without granting him an opportunity to replead ,3

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 1 3, 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 re presented 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 “remov ed 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 164 th District Court of Harris County, Texas, the Honorable C. Elliott Thornton presiding.4

relationship.” After the ribbon cutting ceremony, Burgos “attempted to press criminal charges” against Wilson, alleging that “Wilson removing her hand
constitute d 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 Zapha niah 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 c laim pursuant to the Texas Citizens Participation Act (TCPA) , arguing that their purported statements were protected speech. See T EX
. C IV
. P RAC

. & R EM
. C ODE A NN
. § 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”). P rior to the hearing, Lopez, on behalf of Wilson, “filed three pleadings asking the trial court to allow limited discovery” in connection5

with the motion to dismiss. See id. § 27.006(b) (“On a motion by a party . . . and on a showing of good cause, the [tr ial] 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. Subsequentl y, t he 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, obtain ed new counsel to represent him in the de famation lawsuit. Wilson hired attorney Gross to assist him in resolving the defamation lawsuit

. Gross negotiate d a settlement of th e 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
defamati on 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 sought6

“approximately $35,000. 00. ” The underlying l awsuit against Lopez was filed by Gross on behalf of Wilson

. On September 15, 2022, L opez filed a “Motion to Disqualify Attorney,” requesting that the trial court disqualify Gross from representing Wilson in the underlying litigation. In his motion, Lopez argue d 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 a ssert ed 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 r egarding 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
den ied Lopez’s motion to disqualify Gro ss, without explanation. To the extent that7

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 th at motion, Lopez sought to designate Gross as a responsible third party in the underlying l awsuit , alleging that “Wilson’s hiring of Gross [in the defamation lawsuit] was a new and independent cause which broke the chain of causation

. . . d enying 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 b ears the burden to establish that the trial court8

committed a clear a buse 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 prej udicial 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 perm issible 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 respo nsible 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 h ave 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 inappr opriately denied as there is no adequate remedy on appeal.” In re Columbia Valley Healthcare Sys., L.P. , 320 S.W.3d 819, 82 3 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 witn ess.” 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 Gross should be disqualified because he ha d “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 role s as attorney and witness will cause the party actual prejudice.” Id.10

In his m otion 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 inte nded 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

. ” Lop ez further suggested th at Gross’s testimony was “genuinely needed and [was] material to his suit, relate [d] to contested issues in th [e] [underlying lawsuit] , and [was] n ot merely a formality.” In response to Lopez’s motion to disqualify , Wilson and Gross a ssert e d that Lopez failed to meet his burden to establish (1) that Lopez c ould not obtain testimony on the identified subjects from another s our c e, therefore making Gross’s testimony unnecessary ; and (2) Lopez failed to establish the “actual prejudice” he
would suffer if Gross wa s 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 T EX
. D ISCIPLINARY R.11

P ROF ’ L C ONDUCT 3.08(a); see also I n re Sanders , 153 S.W.3d at 57 ; In re Villasanta , 2011 WL 4398557, at * 2. Further, we conclude that Lopez fail ed 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 establish ing that
the trial court abuse d 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 at torney 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 l aw suit 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 state d 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 re covery of damages [were] sought, whether by negligent act or omission, or by other conduct or activity that violates an applicable12

legal standard.” Lopez then conclude d that “[i]n th [e] [underlying lawsuit] , Keith
Gross [was] a responsible third party bec ause he caused or contributed to the alleged harm for which recovery of damages [were] sought by Wilson.”
Texas Civil Practice and Remedies Code s ec tion 33.004(a) states that a defendant “may seek to designate a person as a responsible third party by filin g a motion for leave to designate that person as a responsible third party.” T EX
. C IV
. P RAC

. & R EM
. C ODE A NN . § 33.004(a). Notably, “the pleading requirements for designating a responsible third party at the outset of a case are not stringent.” In re
Co ok , 629 S.W.3d 591, 596 (Tex. App.

— Dallas 2021, orig. proceeding). A party
meets his pleading require ment by satisfying a “fair notice” standard. See T EX
. R. C IV
. 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

controvers y, 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).
T o this end, t he re 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 T EX
. C IV
. P RAC

. & R EM
. C ODE A NN . § 33.004(a)

. Here, Lopez fi led his motion for leave before the trial court set a trial date , satisfying this requirement

. The statute further states that a party “may not13

designate a person as a responsible third party with respect to [the] claimant’s cause of action after the appl icable 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 object ion to the motion for leave.” Id. § 33.004(f). Wilson file d a “R esponse to Motion for Leave,” opposin g Lopez’s request for leave to designate Gross as a responsible third party

. Assuming Wilson’s response consti tuted 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).
T he 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 a ny hearing on Lopez’s motion . However, the basis for the
denial is of no consequence at this point in these proceedings

. As noted above, t he14

statute provides that the trial court “shall grant leave” to designate a responsible third party unless the objecting party establishe d that the moving party failed to meet the

not ice 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.
T here is no evidence in the mandamus record that the trial court a fforded 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 [re lator] an opportunity to replead. The trial court lacked the discretion to deny the motion without first affording [relator] that opportunity.”); Metro. Transit Auth. o f 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 responsible15

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 Lop ez 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, 202 3 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 “M otion to D isqualify A ttorney ” does not amount to an abuse of discretion16

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.