Opinion issued December 10 , 2020

In The



## Court of Appeals

For The



## First District of Texas

————————————

NO. 01

- 20

- 00465

- CV

———————————

IN RE VC PALMSWESTHEIMER

, LLC AND PARAWEST COMMUNITY

DEVEL OP M ENT

, LLC

, Relat or s

Original Proceeding on Pe titi on f or Wr i t of Mandamus

O P I N I O N

Relators, VC Palms Westheimer , LLC ( “ Palms ” ) and Parawest Community

Development, LLC ( “ Parawest ” )

, have filed a petition f or writ of mandamus

,

see ki n g to compel respondent, the Honorable Dar yl Moor e, to vacate an o r der2

denying their motion for leave to designate a responsible third party and to compel

him to enter an order granting the motion

. 1

We co nditionally grant the p eti tion.

Background

On March 6, 2019, r ea l party in interest , Seyedali Par safar, filed his ori g inal

petitio n, a lleg ing that he was assaulted o n the grounds of his apartment complex,

T he Palms on Westheimer, on March 21, 2017. Although Parsafar did not know the

perpetrator o f the assault , the security guard at his ap artment comple x knew t h e

perpetr a t or ’ s identi ty a nd showed Par s a far a photo graph of the perpetrator

immediately af

te r the assault

. Parsafar called law enforcement officers and reported

the assa ult.

Parsafar , acting pro se, sued Palms

, the owner of The Palms on Westheimer

apartmen t compl e x

, Parawest

, the manage ment company for the apartment complex

,

and State Alliance Protective Ser vi ce s, L LC, the security cont r acto r for the

ap artment comp lex

. 2 Parsafar brought claims for negligence, gross negligence,

premises liability, and violations o f the Dece pti ve Trade Practices Act ( “ DTPA ” )

. 3

1 The u nderlying ca se is Se yeda li Par safar v. VC Palms W

estheimer

, LLC, Parawes t

Community Development, LLC, an d State All i a nce P r otective S ervices

, LLC

, C ause

No. 2019

- 166 27 , pendin g in the 333rd Distr ict Court of Harris County, Texas, the

Honora ble D ar yl Moore p residing.

2 State A llia nce Protect ive Service s, LLC is not a party t o this mandamus proceeding

.

3 See T EX

. B US

. & C OM

. C ODE A N N

. §§ 17.41

– .63

.3

Par s a far did not serve any discovery requests on Palms an d Pa rawest with his

original petition.

On April 15, 2019, Palms and Parawest filed separate original answers

,

generally denying the allegations in Par s a far ’ s origin al petition. Inc luded in each

original a nswer was a request for disclosure s

. 4

Par s a far then moved to stay the trial court ’ s proceedings beca use of an

unspecified med ical reason. On June 1 7 , 2019

, t he trial court granted the requested

stay a n d abated the case until A ugust 2, 2019. On June 20, 20 19, the trial cour t

issued a docket control order that included a joinder deadline of August 5, 2019 and

a tr ia l date of April 27, 2 020

. Meanwhile, Parsafar retained co unsel

.

On Au g u st 27, 2019, Pa l ms and Paraw est each filed a first amended answer

that designated Jaeylen Deshawn Turner or “ an unknown individual” as a

responsible third party

. That same day, Palms and Par awest filed a joint motion for

leave to des ig n a te Turner or John Doe as a respon s ible third p arty. The motion for

leave state d in pe rt inent part:

Upon inform ation and belief,

. . . Turner was the individua l w h o

a lle ge d ly assaulted [Parsafar]

. To the extent that it is shown

that

. . . Turner was not involved in the incident in que s tion, the

in dividual who comm itted the crime i n question is

unknown.

. . . T urner or an unknown crimin al, Jo hn Doe

. . . , is

respo nsible for t he cri mi n al acts because he allegedly assaulted

[Parsafar] causing bodily injury.

4 See T EX

. R. C IV

. P. 194.4

In his response to the motio n for leave

, Parsafar objected and assert ed that

Pal ms a nd Parawest ’ s request for leave to designate Turner or Jo hn Doe as a

responsib l e third p a rty was untimely and it failed to conform with the requirements

of Texas Civil Practice and Remedies Code sectio n 33.004

. 5 Parsafar argued that

Turner had not been ti mely designated as a responsible third party because he was

not designated before the statute of l i m itations p e r i o d ran or by the joinder deadline

in the tr ial cou rt ’ s docket c o ntrol order . And Par safar argued th at Jo hn Doe had not

been timely designated as a responsible third party because he was not designated

within sixty days of the date Palms and Pa ra wes t filed their original answers

.

Par safar a lso asserted that the factual allegations in the m otion for leav e about John

Doe were insufficient.

In their reply to Parsafar ’s respon se

, Palms and Parawest asserted that the

d esign ation o f Tu rner as a respons ible third party could not have been made before

the statute of lim i t ati o ns perio d ran b ecause suit was not filed until approximately

two weeks before the l imitati ons period expi red

. Palms and Parawest further

asserted that the sixty

- d ay deadline for designating an unknown responsible thir d

pa rt y should have been tolled while the case was abated at Parsafar ’s reque st

.

Acc ording to Palms and Parawest

, their motion for leave sufficiently explained the

factual basis for designati ng John Doe as a responsible third part y

. Finally, Palms

5 See T EX

. C IV

. P RAC

. & R EM

. C ODE A N N

. § 33.004.5

a nd Parawest s tated that they woul d a gr ee t o exte nd the joinder dead l i ne in th e

do ck e t control order to the extent th at their motion for leave violated it. 6

On October 9, 2019, the trial court denied Palms and Parawest ’ s motion for

leave to desig n a te Turner or John Doe as a responsi ble thir d party

. 7

Palms and Parawes t f

iled a motion for re consideration of the trial court ’ s

denial of their m otion for leave

, 8 which was heard by the tri al court on December

16, 2019. During the hearing on the motion for r econsideration

, the trial court

imp l ied that its p revious ruling was b ased on Pal ms and Parawest ’ s failure to identify

a responsible third part y in their answers. Spe cificall y, during the hearing, the trial

court asked Palms and Parawest why did they not “say in [their] answer that the

i njuries of which [ Parsafar ] com pl a i n [ ed] [were] ca used i n whole or in part by third

party, if [they] knew about [him] ?” T he tria l court continued:

If you knew about the existence of [a responsib le third party] , and you

k new that time is sh ort, without getting into your work pr oduct, the

safe st thing to d o is t o design at e th em and then nonsuit them. Rather

than wait

– you waited until June

– April, May, June, so you had 60

days, and then it’s abated for 45 days and then y ou file your

[responsible

- third

- party] r e quest when?

6 Pa rsafar fi l e d a sur

- reply t o Pa lms and Parawest ’ s reply

. Par safar attac hed his

declaration to his sur

- reply.

7 The mandamus record does not contain any notice of a hearing on Palms and

Para west’s motion for leave or a transcript from a hear ing. But the transcript fro m a hearing on Pa lms and Parawest ’ s motio n for reconsideration of the trial court ’ s

denial of their motion for leave indicates that a prior h earing was held on the motion

f or leave.

8 P arsafar filed a res ponse t o the motion for reconsideration

.6

On April 1, 2020

, t he trial cou rt denied the motion for reconside r a tion

.

On June 23, 2020

, Palms and Parawest filed a petition for writ o f mand am us,

seeking relief from this Cou rt with regard to the trial court ’ s October 9, 2020 order

denyin g their motion for leave to desig nate T urner a s a responsible third pa rty. 9

Standard of R eview

R elator s who seek mandamus relief “ must establ ish that an underlying o rd er

is void or a clear abuse of discretion and that no adequate appellate remedy exists.”

In re Nationwi de Ins. Co. of Am. , 4 94 S

. W.3d 708, 71 2 ( Tex. 2016) (orig.

proceeding) ; In re Prudential Ins. Co.

, 148 S.W.3d 124, 135 (Tex. 2004) (orig.

proceeding) ; see also In re Coppola

, 53 5 S.W.3d 506, 50 8 (Tex. 2017) (o rig.

proceeding)

. The trial cour t abuses its discretion if its r u l i ng is “arb it ra r y and

unreasonable, made without regard for guiding leg al princ iples or supporting

evi dence.” I

n re Nationwide Ins.

, 494 S.W.3d at 712 . A trial co urt also abuses its

discret io n i f it “fails to analyze or apply the law correctl y.” Id. This C ourt mu st

“ defer to the trial court ’ s factual determinations while rev ie w i n g its legal

co n clusions de novo

. ” In re Makris , 217 S.W.3d 521, 523 (Tex. App.

— San Antonio

2006, ori g. p roceeding) . The t rial court ’ s “ clear failure to analyze or apply the law

9 Palms a nd Parawest do no t seek relief related to the trial court’s den ial of their

motion for leave to designate John Doe as a respon sibl e thi rd par ty

.7

correctly is an ab use of discretion. ” In re CVR Energy, Inc. , 500 S.W.3 d 6 7

, 72

– 73

(Tex. A p p.

— Hou ston [1st Dist.] 2016, orig. proceeding )

.

Responsible Third Party

In their first an d secon d iss ues, Palms a nd Parawest argue that the trial court

abused its d iscretio n in denying their motion for leave to designate Turner as a

responsib le third party becaus e they had no obligatio n under the Texas Rules of Civil

Procedure to identify Turn er as a responsible third party before the statute of

limitations ran, they were no t obligated to identify Tu rne r as a responsible third party

given that Parsafar did not serve a request for disclo sures on them, their motion for

leave to designate Turner a s a responsible third party was not untimely based on the

joinder dead line in the t rial court ’ s docket control or der, and t he motio n for leave

was not untimely even though it was filed some four months after the y filed their

original answers.

In response, Parsafar a rgues that the trial court properly denied the motion for

l eave to desig nate Turner as a responsible t hi rd party because, given that it was filed

after the statute of limit ations period ran, Palm s and Parawest did not comply with

their obligatio ns to disclose Turner as a responsible third party

. Parsafar a lso ass erts

that the motion for leave violated the docket con trol order issued by the trial court.

A. Responsible

- Th ir d

- Party Statute8

Texas Civil Practice and Remedies Code chapter 33 governs the designati o n

of a resp o nsi bl e third part y

. “Responsible third par ty” is define d as

any perso n who is alleged to have cau sed or contributed to ca us ing in

any way the harm for wh ich recovery of damages is sought, whether by

negligent act or omission, by any defectiv e o r unrea s ona bl y dangerous

product, by other conduct or activity tha t viol ates an a pplicable legal

standard, or by any combination of t he se.

T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 33.011 (6)

. A motion for leave to designate a

known person a s a responsible thi rd party “ must be filed on or befo re the 60th day

befo re the trial date unless th e court finds goo d cause to allow the motion to be filed

a t a later date

. ” Id. § 33.0 04 ( a ). That person may not be designated as a responsible

third part y

aft er the applica ble [sta tute of] limitations period on the cause o f act i on has expir ed with respe ct to the responsi ble third party if the d efendant

has failed to comply with its obligations, if any , to timely di s c lose tha t

th e p e rson may be designated a s a r esponsible thi rd party under the

Texas Rules of Civil Procedure.

Id. § 33.004 (d). 10 Thus, und er chapter 33, a n i dentifiable responsible third party

generally must be identified at least sixty days before trial and before the statute of

10 As a matter of statutory interpreta tion, Texas Civil Practice and Remedies Code

s ection 33.004 ( d )’s stat ement that the de fendant must “ comply wit h its obli g ations,

if any, to timely dis close that th e person may be de signat ed as a responsib le third

party unde r the T e xas Rules of Civil Proce dure ” m akes sense o nly when the

disclosure refers to a respons e to a disc overy reques t

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 33.004( d) (emphasis added)

. I f the stateme nt required disclosure o f a potential respon sible thir d part y in an answ er

, t h e “if any ” verbia ge woul d b e surplusage

, because all defend ants have an obliga ti on to file a n answe r

. But t he

obligation to respon d to a discovery request only arises under the Texas R u les of

Civil Procedure wh en a discover y request is served on a defendant. A court must9

limitat i o n s period runs on t h a t person

. And i f a motion for leave to designate the

know n indivi dual as a respons i ble third party is filed after the statute of limitat ions

period ra n for that person , the movant must have complied with an y pre viously

existing ob ligations to i dentify that person.

Chapter 33 requires t h e trial cour t t o grant l ea ve to designa te the known

individual as a re sponsible third party unless another party files a n objection to the

motion for leave within fifteen days o f servi ce of the motion. Id. § 33.0 04(f). But a

timely objection o nly prev e n ts the court f r om gr an ting l eave if the objecting party

establishes tha t the defendant s “ did not plead sufficient f acts co ncerning the allege d

responsibility of the person to satisfy t he pleading require ments of th e Texas Rules

of Civil Procedure” after h a v ing been gr an t ed lea ve to r eplead. 11 Id

. § 33. 004(g).

The designation of a respon sible t hird party is autom atic when the trial court grants

a motion fo r leave to designate. Id. § 33.004(h).

“give effect to all the words of a statute an d not treat any

sta t utory lan gu age as su rplusage if possible.” Che vron Corp. v. Redmon, 745

S.W.2d 3 14, 316 (Tex. 1987). T hus, the Texas S uprem e C our t has said that the

ob ligation to identify a responsible third par ty ar ises when “dis co very responses

[are] due.” I

n r e Mobile Mini, I

n c

. , 596 S.W.3d 781, 784 (Tex. 2 020) (orig.

proceeding)

.

11 “Fair notice” u nder the notice

- pleading standa rd “is achieved if the oppos ing party

can ascertain f

ro m the pleading the natur e and basic issues of the c o ntrover sy, and

w h at typ e of evidence mig ht be relevant. A trial court may not review the tr uth of

th e allegations or co nsider the s trength of the def endant ’ s evidence. ” In re CVR

Energy, Inc. , 500 S. W

. 3d 67, 80 (Tex. App.

— Hous ton [1st Dist.] 2 016, orig

.

proce eding) (internal q uotations and cit at ion s omitted )

.10

B. First A mended A ns wers and M otion fo r L eave to D esignate R e sp on s i ble

T hird P ar t y

Palms and Parawest separate ly filed original answ ers on April 15, 201 9

.

T hese answers did n ot refer to the assault or any alleged perpetrators

. Palms and

Parawes t each filed first amended an swers on August 27, 2020, which state d in

pertinent par t :

[ Pal m s /Paraw est ] de signat es

. . . Tu rner or an unknown person as a

respo nsible thi rd par t y within the meanin g of T exas Civil Practice &

Remedi es Code section 33.004(j). Upon information and

belief,

. . . Turner is the individual who co mmitt e d the a ss a ult in

question. Shoul d it b e proved that

. . . Turner did not commit the

assau lt in q uestion, the [perpetrato r ]

, J ohn Doe

. . . , is

unknown.

. . . Turner or John Doe

. . . committed the acts that ca used

the loss or injury that is the subject of this la ws uit. P u rsuant t o Tex as

Pen al Code chapter 22, the allege d acts committed by

. . . Turner or

Joh n Doe

. . . are cri minal.

Palms and Parawest ’ s motion for leave to designate Turner as a responsib le th ird

party

, a l s o filed on A ugust 27, 2020

, state d :

According to Plainti

ff’ s Original Petit i o n , on Ma r ch 2 1 , 2017, an

individual assaulted him at [T] he Palms on Westheimer apartment

complex located at 6425 W e s theime r Road, Houston, Texas

77057

. . . . Upon inf

ormation and belief,

. . . Turner was the

individual wh o allegedly assa u l ted [Pa rsafar]

. To the exte nt that i t is

shown that

. . . Turner was not involved in the incident in question, the

i n dividu al who committed the crime i n question is

unknown.

. . . Turn er or an unknown criminal, John Doe

. . . , is

responsible for t he criminal a ct s becaus e h e a l l egedly assau lted

[Parsafar ] causing bodily injury.

The first amended answers and the motion for leave were filed 134 days after Palms

and Parawest filed t heir o ri g in al answers.11

C. Response to M otion for L eave to Designate Re sponsible Thi rd Party

In h is response to Pa lms and Parawest ’ s motion for leave to designate T urner

as a respo nsible third party

, Parsafar object ed to the designation of Turner because

( 1 ) the designation was not timely as it was not done within the statute of limitatio ns

period

, (2) t he designatio n violate d the joinder deadline established in the trial

court ’ s docket control order

, and (3) the designation’s factual allegations about John

Doe wer e i ns u f

f icient

.

1. Desig nation a n d D isclosure W ithin Time P eriod s C ontemplated by

Chapter 33

Given that the alleged assault of Parsafar occurred on March 2 1, 2017, the

stat ute lim it a t i ons period ran in th is case on March 21, 20 19. 12 Parsafar filed sui t

against P alms and Parawest on March 6, 2019. Citations for Palms a nd Parawest

w ere issued on March 1 3 , 2019

, a nd they were filed with the trial court clerk on

April 1, 2019. The affidavits of servic e s tate that Parsafar ’ s petit ion was delivere d

to Palms on March 19, 201 9 a nd to Parawest on March 20, 2019. Based on thes e

ev ents, i t w ould have been nearly impossible for Pal ms and Parawest t o answer,

much less file a motion for leave to designat e Turner as a responsibl e t h i rd pa rt y

,

12 See , e .g.

, T E X

. B US

. & C OM

. C O D E A NN

. § 17.565 (two

- year statute of limitations

period for DTPA c laim); T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 16.003 (two

- year

statute of limitations period for negligence claim)

.12

before the statute of lim itation s period ran on March 21, 2019

. Palms and Parawe st

timely filed their o riginal ans wers on Apr il 15, 2 019.

The fi ling of a petition near or after the expiration of the statute of limitati ons

does not prevent a d efendant fr om moving for leave to designate a responsi ble third

par ty

. See, e.g.

, In re Bust amante , 510 S.W.3d 732 ( Tex. Ap p.

— San Anton io 2016

,

orig. pro ce ed ing) . In In re Bustam a nte, which stemmed from a car accident that

pinned one of the plaintiff s again s t the building wher e he worked, the plain tiff s filed

suit against the owner of the build ing one day before the st atute of limit at i o ns period

ra n

. 510 S.W .3d at 73 4

. A r equest for disclosure s wa s include d with the petitio n.

Id. at 736. The d efendant did not respo nd to the request for disclosur e s but

, some

three years after fil i ng a timely answer

, he m ove d for leav e to designate two

r esponsible th ir d part i es

. Id. The two responsible third parties wer e the driver of

the car th at struc k the one p laintiff, with whom the plaintiff s had settled, and the one

plaintiff’s employer, from whom he had received w orkers’ compe nsation benefits

.

Id. a t 734.

T he t ri a l cour t d enied the defenda nt’s motion for leave to d esignate two

res ponsibl e thi rd par ti es , wh ich the plaintiff s argued was untimely because it w as

filed after the statute of limitations period ran an d t he defendant had not timely

disclosed the potent ia l responsib le t hird parties. Id. at 734

– 35. The defendant

asserted that he could not have t imely discl os ed the two potential responsible third13

par t ies before the statu te of limitations perio d ran and, the refore, he ha d no duty to

t i mely disclose them. I

d. at 735.

The San Antonio C ourt of A ppeals exp lained that the plai nt i f fs we re

taking the po sition that a defendant loses t he statutory right to de signat e

respon sible third parties if the defendant fails t o respond to a request

for disclosure [s] of poten t ia l responsible third parties within the

deadline cont ain ed in [Texas] Rule [of Civil Procedure] 19 4. 3

. This

[was] inconsistent with Texas Rule of Civil Proced ure 193.6(a) , which

allow [ed] a p ar ty who fail [ed] to respo nd to discovery [requests] to

introdu ce the undiscl osed material or information into evid e nce if the

party show [ed] either (1) good cause existed f or the failur e t o resp ond

to the disco v ery [reque st s ] or (2) the other party [would] no t be unfa irly

su rprise d or un fairly prejudiced by the failu re to timely respond.

Id. at 736

. The court continue d:

To hold as the [plaintiffs] suggest would convert [Texas] R u l e [of Civil

Procedure] 194 .2 (l) into a tech nical trap. A party who fail [ed] t o timely

res pond to a request fo r disc losure [s] of informa tion r egarding a

person who may be designated as a responsibl e third party w o uld lose

the statutory right to designate res ponsible third parties

, w h ile a party

that fail [ed] to respond to a request for di sc losure [s] of the inf ormation

re qu ired b y rules 194.2 (a)

– (k) w ould not face such a penalty. We do

not read [Texas Ci vil Practice and Remedies Code] [s] ection 33.004(d)

so narr o wly. Instead, we read sect ion 33.004(d) to re quire a d efendant

to d is c l ose a p otential resp on sible third party before the ex piratio n of

the sta tute of lim it ations

, if that is possible

.

Id. at 7 3 6

– 3 7 (emphasis added)

. The court further stated that even if the trial c o urt

indulge d in the “ legal fiction” that the plaintiff s did not k no w o f the ex istence of the

two potential responsible th ird parties

, the defendant’s disclos ure obligat io ns wer e

s atisfied by his testimony in a deposition and by his responses to a co

- defendant’s

discove r y request

. Id.14

Here, it is undisputed that P alms a nd Para we s t w ere unable to file a mot ion

for leave to de signate Turner as a respo nsible third party befor e the statute of

limitatio ns period ran. It is also undisputed that Parsafar did not serve his req uest

for disclosures o r any other disc o very reque sts on Palms and Para west with his

original petition and di s covery ha d not yet begun whe n the motion for leave was

file d

. Even so

, the tr ial court c on cluded that Palms and Parawe st breached their duty

to di sclose Turner as a responsible third party by failin g to iden tify hi m in thei r

original answers, which only gener al ly deni ed the allegations in Pars afar ’ s original

petition

.

At the hea ring on Palms an d Parawest ’ s motion for reco nsideration of the trial

c ourt ’ s denial of th e motion for leave, the trial co u r t indicated that its ru ling was

based on Texas Civil Pr a ctice and Remedies Code section 33.004

, w hich requires a

defendant to “ comply with its obl ig a t ions, if any, to timely disclose that the p erson

may be designa ted as a responsible thir d party und er the Texas Rules o f Civil

Procedure

. ” (Emphasis ad ded.) Du ring the hearing, the trial court asked Palms and

Parawest why did they not “say in [their] answe r that the in ju r i es of which [ Parsafar ]

complain [ed ] [wer e] caused in who le or in part by th ird party, if [they] kne w about

[him] ?” The trial court continued:

If you knew about the existence of [a responsibl e third party] , and you

knew that time is short, without getting into your work pro d u c t, the

s afest thing to do is to designate t hem and then nonsui t t hem. Rather

tha n wait

– yo u waited until June

– April, May, June, s o you had 6015

days, and then it’s abated for 45 days and then you file your

[responsible

- third

- pe rson] request when?

Palms and Para w e s t resp onded that the Texas R ules of Civil Procedure do not

require s uc h disclosure when a defenda nt fil es its answ er and P a rsafar w a s no t

prejud iced in any event by the later designation. 13 We agree , f inding support in a

recent Texas Supreme Court d ecision

. See In re Mobile Mini, Inc.

, 596 S.W.3d 781,

784 (T ex. 2020) (or ig. proceeding) ( holding discovery responses that disclo sed

re sponsible thi rd party pr ov ided timely noti ce of potential r esponsible thi r d party

even though responses were served after statute of l i mitatio ns period ran ; rejecti ng

argument “as c ontrary t o th e statute’s plain langua ge” that disclosure of responsible

thi rd party shoul d have been made be fore discov er y responses were due ) ; see also

In re Bustamante , 510 S.W.3d at 736

– 37

.

In In re M

o b ile Mini

, the plaintiff ’s finger was injured at a construction site

when a wind gust caused a tr ailer door to close on his ha nd. 596 S. W. 3 d at 78 3

.

Mobil e Mini

, Inc. ( “ Mobile Min i ” ) ow ned the t railer and l e ased it to Nolana Sel f

13 Pars afar a ss erted at th e hear ing that allowing the de signa tion of Turn er as a responsible third party would cause preju dice because “ [he] could have, maybe,

done s omething d ifferent on [his] e nd internally, wo rk pro duct wise, strategy wise.”

But Pa lms and Par awest confirmed t ha t discove ry had not yet commenc e d at the

t ime they filed the motion for leave. Further, Parsafar neve r asser ted in the trial

court that Turn er was not the perpetrator of the assault

. P arsafar s tated i n h is

dec l aration attache d to his s ur

- reply filed in t he trial court that Pa lms and Parawest

“ ha [d] been aware of the alle ged [ perpetrator ] they [were]

. . . attemptin g to

untim ely disclose since the [assault] occurred.

. . . [ P alms and Pa rawest and their

counsel] were we ll

- info r med regard ing

. . . Turner an d his id entit y.”16

Storage, LLC ( “ No lana ” ) , which o wned the construction s i te. Id. The trail er was

under the exclusive control of Nolana ’s contractor , Anar Co ns tructio n S p ecialists,

LLC ( “ An a r ” )

, when the plaintiff ’ s in jury occurred. Id. The pla in ti ff sued Anar and

Mobil e Mini nineteen days be for e the statute of li mitations period ran , serving his

request f or disclosure s w ith his original petiti on

. Id. He did not su e Nolana

. Id.

Mobi le Mini timely answer ed and served its discovery re sponses , which were due

after the statute of limitations p eriod ran, on the plaintiff

. Id. T he discovery

res ponses ide nti f

ied Nolana as a potential respon sible third p a rty. Id

. The plaintiff

am ended his petition to add Nolana as a defendant within a week of receiving the

discovery respo nses. Id. The next da y, M obile Mini filed a mot ion for leave to

designate Nolana as a r esponsible thi r d party. Id. No party file d an objectio n to the

motion for leave to designate Nolana as a responsible third party

, which was not

ruled on by the tr ial court for nearly t w o y ears

. Id.

Meanwhile, the trial court foun d that th e plaintiff ’ s tort claims ag ai ns t Nolana

were time

- bar

red and granted summary ju dgme nt in favor of No lana on the those

c l aims

. Id. Sub seq uently, the plai ntiff and Nolana filed written objection s to Mobi le

Mini ’ s motion for le ave to d es i gnate a responsibl e third party , asserting that Mobile

Mi ni ’ s designation was i mproper “ because Nolana could not be a resp o nsib le party

once the limitations period had expired. ” Id. Af te r the trial court granted Nolana

s ummary judgment on all cla ims against it , t he trial cour t denied Mo bile Mini ’ s17

r equest to designate Nolan a as a responsibl e third pa rty. Id.

Mobile Mini then filed a petition for writ of mandamus in t he court of appeals

,

seeking to compel the trial court to grant its t imely motion for leave to designate a

responsible third party. The court of appeals denied Mo b i le Mini ’ s request for

mandamus relief but the Texas S upreme C ourt held that the trial court abused its

discretion in denying the motion for leave and Mobi le Min i h ad no adequate remedy

by a ppea l. Id

. at 783

. In doing so, the court explained: “ The crux of the

dispu te here is wheth er Mobile Mini ’ s discovery response [s] d i s closing Nol a na as a

p otenti al [] re s p on s ibl e third party [were] ‘ timely ’ even though [ they were] served

a fter the s ta tute of limi tations ha [d] expired on [th e plaintiff ’ s] tort claims

. ” Id. at

784. Acc ording to the supreme court, “ Mobile Mini ’ s dis closure [of a potential

responsible third par ty] was ti m e ly because under the Texas Rules of Civil

Procedure, it was not oblig ated to d isclose [a] p ote ntial [] respon si b l e third part [y]

unti l its disco ve r

y resp onses were due

. ” Id. (emphas is added). The court stated th at

“ placing the onus on a defendan t to respond befor e the Rules of Civil Proced ure

obligate it to do so not only contra v en es [Texas Civ il Practice and Remed ies Code]

section 33.004(d) ’ s express la ngua ge b ut would also b e unfairly pr ejudicial to

defendants. ” Id. at 7 86. T he supreme court ’ s an alysis of the lan guage in sec tion

33.004( d) in In re M

obile Mini is controlling here

.

We note th at Parsafar , in his response to P alms and Parawest ’ s petition for18

writ of mandamus , relies on In re Melissa Dawson , 550 S.W.3d 625 (Te x . 2 01 8) . In

In re Melissa Dawson , the Texas S upreme C ourt held t hat the trial court abused its

discretion i n allowing a defendan t to d e signat e a responsible t h i rd party that was not

a dequately ident ified in th e defend ant’s discovery res ponses. 550 S .W.3d at 62 9

.

But, in doing so, t he supreme court disagreed that the defendant had put the plainti ff

on not ice t hat i t mi gh t desig nat e a responsibl e third party. Id. In re Melis sa Dawson

is ina pposite here because the plaintiff in In re Melissa Da wson served her discovery

requests on the defendan t with her o ri ginal petiti on and because In re Melissa

Dawson does no t address whe ther the identification of a respo ns ible thi rd party

s h ould or could be made in a defendant’s o r iginal

, or amended

, answer

.

2. Rel evance of J oinder D eadline

In his response to Pal ms and Parawest ’ s moti o n for leave to designate Turner

as a resp o nsible third party, Parsafar a rgued that Palms an d P arawest ’ s motion was

procedurally deficient be cause it was filed th re e weeks after the jo inder deadlin e

identified in the trial court ’ s docket control order. Pa lms and Parawest offered to

ag ree to extend the joinder deadli ne

, but Pars af ar declined

. No ne of the parties cite d

any authorit y i n the trial court or in th is Court that decla res t h a t a violation of a

docket control order’ s joinder deadline is a violation of the T e xa s Rules of Civil

Procedur e that prevents a d e fendant from filing a motion for le ave to designate a

responsible third party

.19

Palms and Pa rawest asser t in their petition for writ of mandamus th at Texas

Civil Pra ctice and Remed ies Code c hapter 33 does not require a motion for leave to

designate a r espons ible third party to be filed b efore a cou rt

- imposed joi nder

d eadline. Th ey cite two cases for the proposition that a trial c ourt’s docket con trol

order c anno t accelerate a sta tu tory deadline. See Spect rum Healthcare Res

., Inc. v.

Mc Dan i el , 306 S.W

. 3d 2 49, 254 (Tex. 2 010 ) (agreed dock et contro l order generally

ineffectiv e to extend statutory deadline f or ex pert reports) ; I

n re United Parcel Serv.,

Inc.

, No. 09

- 18

- 00002

- CV, 2018 WL 753 503, at *4 (Tex. App.

— Beaumont Feb. 8

,

20 18, or ig. pro ceedi ng) ( tri a l court abused its d iscretion by is su in g docket control

order “requiring UPS and it s driver to d esig nate respon sible third parties

app ro ximately six months b efore the initially scheduled t rial, a per io d approximately

thr ee ti mes the statutori ly proscribed s ixty

- day p eriod ”)

. Parsafar does no t pr ovide

opposing authority or address thi s argument in his mandamus respons e. Still yet,

during the he aring on Palms and Parawest ’ s mo tion for reconsider ation of the trial

court ’ s ruling on their m otion for leave

, t he trial court s tated: “I don’t wan t to talk

about joinder. Tha t’s a red herring fr om bot h sides. You don’t need to address i t.”

Thus, Par s af

ar’s j oinder

- deadline argument was not the basi s for th e trial court’s

deci sion to deny th e motio n for leave t o des ignate Turner as a res ponsible third part y

.

3. Sufficiency of F actual A llegations in M oti on fo r L eave20

In addition to the temporal requi rements for desig nating a respon si ble third

p art y

, pleading r equirements can t hwart a mo tio n f o r leav e. A s set forth above,

Palms ’ s a nd Parawest ’ s first amended answers both state d in pertinent part :

[ Palm s/Parawest ] designates

. . . T urner or an u nknown person as a

re sponsible third party within t he meaning of Texas Civil Practice &

Remedies Co de section 3 3 .004(j). U p o n i nf ormation and

beli ef,

. . . T urner is the individu al who committe d the assault in

q uestion. Should it be proved that

. . . Turner did not com mit the assault

in question, t he [ perpetrator] , John Doe

. . . , is unkno wn.

. . . Turne r

or John Doe

. . . co mmi tt e d th e acts that caused the lo ss or injury that i s the subject of this lawsuit. P ursuant to Texas Penal Cod e chapter 22,

the alleg ed a c ts committed by

. . . Turner or John Doe

. . . are crimi na l.

Palms and Parawe st ’ s motion for leave to d es i gnate a T urner as a re sponsible third

party st ate d :

Acco rding t o Plaintiff’s Original Petiti on

, on March 21, 2017, an

individual ass aulted h im at [T] he Pa lms on Westheimer apartment

complex located at 6425 Westheimer Ro ad , Hous ton, Texas 77057

. . . . Upon in fo r ma tion and belief,

. . . T urner wa s the individual who

a l legedly assau lt ed [Parsafar ]

. To the ext ent that it is shown

that

. . . Turner was not involved in the incident in questio n, the

individual w ho committed the crim e in q uestion is

unknown.

. . . Turne r or an unknown cri minal, Jo hn Doe

. . . , is

res ponsi ble for the criminal a cts b ecause he alleged ly assa ulted

[Parsafar] causing bodily injury.

Pa r safar a sserted in the trial cou rt that the first amended answers an d the motion for

leave th at ident if

ied John D o e were not s ufficien t to satisfy t h e ple ading

requirem ents i n the Texas Rules of Civil Procedure. But Pa rsafar did not urge this

argum ent as to Turner.21

Unde r Texas Ci vil Practice and Rem e d i es Code s ection 33. 0 04(g )

, a n

obj ection to a motion for l eave to d esignate a re sponsible third party c an only b e

eff ective i f it is (1) timely filed and (2) t he objection establis hes th at the defend a nt

“did no t plead sufficient facts c oncerning the alleged responsibility of the person to

satisfy the pleading req uirement of th e Texas Rules of Civil Proced u re .” T EX

. C IV

.

P RAC

. & R EM

. C ODE A NN

. § 33.004(g)(1). Pars af ar ’s objection was ti mely filed, bu t

he did not argu e that t he motion for leave was insufficient as to Turner

. Further,

t he re i s no in di cation in the record tha t the trial co urt found the motion for leav e to

designate Turner as a responsible third party insufficie nt to satisfy the Texas Rules

of Civil Procedu r e ’ s pleading r equire me n t

. And P arsafar doe s not a ttempt to m ake

that argument in response to Palms and Par aw est ’ s pe tition for writ of mandam us

.

W e hold that the trial court abu sed his discretion in de n ying Palms and

Parawest ’ s motion for leave to designate Turner as a responsible third party

.

A de q uate Remedy by Appeal

The Texas Supreme Court ha s held that t here is no adequate r em e dy by a ppeal

for a trial court’s improp er refusal to allow the des ign at ion of a responsible third

part y. “ Allowing a case t o p roceed to trial desp ite [the] erroneous denia l of a

res ponsible

- third

- party desig nation ‘ w ou ld skew the proceed ings, potentially aff ec t22

the o u tcome of the litigation, and com promise the presentation of [t he relator s ’ ]

defense in ways u nl ikely to be apparent i n t he appellate record. ’ ” I n re Coppola

,

5 3 5 S .W.3d at 509 (quo ting In re CVR Energy

, 50 0 S.W.3d at 81

– 82 )

. 14 In re

Coppola wa s t he fir st time that the Texas S upreme C ourt address ed the adequacy of

an appellat e remedy in the context o f a responsible

- third

- party des ig nat ion , h olding

th at, “o rdinarily,

. . . relator [s] need onl y establish a tri al court’s abuse of disc retion

to demons tra te entitlement to mandamus relief with regard to a t rial court’s denial

of a timely

- filed sectio n 33.004(a) motion” fo r leave to designate a resp onsible thir d

pa rty. Id. at 509

– 10

.

W e hold that P alms and Parawest have no adequate remedy by app ea l.

We sustain Pal ms and Para we st ’ s firs t and second issue s

.

Conclusion

We conditionally grant Palms and Parawest ’ s petition for writ of mandamus

a nd di re ct respon dent to vacate the order denying Palms and P ar a wes t ’ s motion for

14 T his Cour t has previ ousl y hel d that a rela tor had an adequate remedy by appeal with

respec t to a tr ial court ’ s denial of a moti on for leave to designate a responsibl e third

party. See In re Unitec E levator Servs. Co

. , 178 S .W.3 d 53, 6 6 (Tex . App.

—

Houston [1st Dist .] 2005, orig . proce eding)

. The Te xas Supreme C o urt ’ s decision

in In re Co

ppola

, 53 5 S.W.3d 506 (Tex. 2017) d id not add ress In re Unitec El evato r

Services

, but in In re CVR En ergy , a “complicated wrongf ul d ea th c ase

. . . w it h

mult iple plaintiffs, multiple defendant pa rent a nd sub sidiary companies, and

mul tiple allegations of tortious conduct by the vario us companies ,” this Court

d i stinguishe d In re Unitec E l evator Serv ices

, a “ relatively straightforward per sona l

in jury case

. ” I

n r e CVR Energ y

, 500 S.W.3d at 82

– 83.23

leave to designate Turner as a responsible thi rd party

. A writ of mandamus from

this Court will issue only if respondent doe s n ot comply

.

Julie C o untiss

Just ice

Panel consists of J us tice s Keyes, Hightower , and Co u nt iss.