IN RE Leonel MOLINA, Relator

No. 05-19-00147-CV

Court of Appeals of Texas, Dallas.

Opinion Filed March 29, 2019 Rehearing Denied April 11, 2019

Opinion by Justice Whitehill

This mandamus proceeding arises from a personal injury lawsuit. Plaintiff and real party in interest Michael Ware alleges that he was injured in a multi-vehicle collision. The defendants designated a responsible third party. The trial court later struck the designation on Ware's motion. Defendant-relator Leonel Molina filed a petition for writ of mandamus asserting in one issue that the trial court abused its discretion by striking the designation.

*79Because Molina adduced some evidence that the designated responsible third party is, at least in part, potentially responsible for Ware's alleged injuries, we conclude that the trial court clearly abused its discretion by striking the designation. We further conclude that mandamus relief is warranted.

**I. BACKGROUND**

In January 2016, there was a multi-vehicle traffic accident on the northbound side of Interstate 45 in Ellis County. Shortly before the accident, police officer Christopher Amos conducted a traffic stop of the eventual responsible third party, Babatunde Shabi. Shabi stopped on the left shoulder. Amos stopped behind him and directed him to move to the right shoulder.

Molina approached the scene driving in the leftmost lane. Seeing the police vehicle, he moved one lane to the right. Then Shabi and Amos crossed the highway in front of Molina at roughly a ninety degree angle. According to Amos, Shabi's vehicle occupied all three lanes at once.

Molina slowed down. A semi-trailer truck driven by Pedro Jose Villalta hit the rear of Molina's van. Then the front right bumper of Villalta's truck hit the driver-side door area of a semi-trailer truck driven by plaintiff Ware.

Ware sued Molina, Villalta, and Villalta's employer for negligently causing personal injuries to him. The defendants designated Shabi as a responsible third party.

A few months later, Ware filed a motion to strike the responsible third party designation, arguing that defendants had no evidence that Shabi was responsible for the accident. Molina responded. The trial court granted the motion to strike.

Molina filed a mandamus petition in this Court challenging the trial court's order granting the motion to strike.

**II. ANALYSIS**

**A. Mandamus Standard**

To obtain mandamus relief, a relator must show that the trial court clearly abused its discretion and that relator has no adequate appellate remedy. *In re Prudential Ins. Co. of Am.* , 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding).

Because the erroneous denial of a motion for leave to designate a responsible third party skews the proceedings, potentially affects the litigation's outcome, and compromises the defense in ways unlikely to be apparent in the appellate record, such an error ordinarily renders the appellate remedy inadequate. *In re Coppola* , 535 S.W.3d 506, 509-10 (Tex. 2017) (orig. proceeding) (per curiam). The same problems arise when a trial court erroneously grants a motion to strike a responsible third party designation. Thus, we conclude, the appellate remedy is also ordinarily inadequate when a trial court commits such an error.

**B. Applicable Law**

Texas law allows a tort defendant to designate a person as a "responsible third party." TEX. CIV. PRAC. & REM. CODE § 33.004(a). The designation's purpose is to have the responsible third party submitted to the trier of fact as a possible cause of the claimant's harm. *See id.* § 33.003. This may reduce the percentage of responsibility attributed to the defendant, thus ultimately reducing its liability to the claimant. *See id.* § 33.013; *Flack v. Hanke* , 334 S.W.3d 251, 262 (Tex. App.-San Antonio 2010, pet. denied) ("[T]he defendant typically would be the party seeking to retain the RTP in the jury charge to diminish *80his potential liability and perhaps eliminate any joint and several liability.").

Once a responsible third party has been designated, and after an adequate time for discovery has passed, a party may move to strike the designation "on the ground that there is no evidence that the designated person is responsible for any portion of the claimant's alleged injury or damage." CIV. PRAC. & REM. § 33.004(*l* ). "The court shall grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person's responsibility for the claimant's injury or damage." *Id.* Thus, the question for the trial court is whether the defendant produced sufficient evidence, more than a scintilla, for a reasonable jury to find the responsible third party responsible for a portion of the claimant's injury or damages. *In re Transit Mix Concrete & Materials Co.* , No. 12-13-00364-CV, 2014 WL 1922724, at *3 (Tex. App.-Tyler May 14, 2014, orig. proceeding) (mem. op.).

The trial court's ruling on a motion to strike presents a legal question. *Ham v. Equity Residential Prop. Mgmt. Servs., Corp.* , 315 S.W.3d 627, 631 (Tex. App.-Dallas 2010, pet. denied). Thus, our review, even under the abuse of discretion mandamus standard, is de novo. *See**In re Labatt Food Serv., L.P.* , 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding) ("Under an abuse of discretion standard, we defer to the trial court's factual determinations if they are supported by evidence, but we review the trial court's legal determinations de novo.").

**C. Does the evidence raise a genuine fact issue regarding Shabi's responsibility for the accident and Ware's injuries?**

Molina argues as a threshold matter that Ware's motion to strike argued only that there was no evidence that Shabi breached a duty of care and thus didn't attack proximate cause. Ware disputes Molina's contention. For purposes of our analysis, we will assume without deciding that Ware's motion challenged both elements. *See**W. Invs., Inc. v. Urena* , 162 S.W.3d 547, 550 (Tex. 2005) (negligence elements are "a duty, a breach of that duty, and damages proximately caused by the breach").

As to the element of breach, Molina needed to produce some evidence that Shabi failed to use ordinary care when he drove straight across three lanes of the highway to reach the right shoulder. *See**Sibai v. Wal-Mart Stores, Inc.* , 986 S.W.2d 702, 707 (Tex. App.-Dallas 1999, no pet.) (" 'Negligence' means doing that which a person of ordinary prudence would not have done ... under the same or similar circumstances."). In responding to Ware's motion to strike, Molina relied on officer Amos's deposition testimony. Amos testified:

> Q. What happened then [after Shabi stopped on the left shoulder]?

> A. Then I got on the speaker and asked him to move to the right side of the roadway, where he should have moved from the beginning.

> Q. Did he move then to the right-hand shoulder?

> A. He did. Yes, sir, yeah. Unfortunately, he took all three lanes at once.

> Q. Did he have a turn signal on at the time?

> A. I don't believe so, no, sir.

> Q. In traveling from the left-hand shoulder to the right-hand shoulder, did he violate any traffic laws?

> A. Oh, plenty, yeah. It was an unsafe lane change. There were several violations issued....

> ....

> *81Q. [W]hy did you cite Mr. Shabi with unsafe lane change?

> A. Just the amount of distance and the crossing three lanes caused a traffic accident by what he did. I mean, it's just-there's a safe way to merge over, and that definitely wasn't the correct way to do it, so ...

> Q. And did he signal when he was changing lanes as well?

> A. No, he just darted. I mean, literally went from the inside shoulder straight across the highway.

Whether conduct amounts to negligence is generally a question for the factfinder. *See**Ray v. Farmers' State Bank of Hart* , 576 S.W.2d 607, 609 (Tex. 1979). Ware's mandamus response does not argue that there is no evidence that Shabi's conduct was negligent. We hold that a reasonable jury could conclude, based on Amos's testimony, that Shabi's conduct in darting directly across a three-lane highway to get from the left shoulder to the right shoulder was negligent, i.e., something an ordinarily prudent person would not have done under the same or similar circumstances.

Next we consider whether Molina adduced some evidence that Shabi's conduct proximately caused the accident. Proximate cause has two sub-elements-cause in fact and foreseeability. *Id.* at 551. Negligence is a cause in fact of an injury if (i) the injury would not have occurred without the negligence and (ii) the negligence is a substantial factor in causing the injury. *Miller v. Lone Star HMA, L.P.* , No. 05-17-00954-CV, 2018 WL 3991191, at *2 (Tex. App.-Dallas Aug. 21, 2018, pet. denied) (mem. op.).

Molina argues that Amos's deposition testimony was some evidence of proximate cause:

> Q. [W]hy did you cite Mr. Shabi with unsafe lane change?

> A. Just the amount of distance and the crossing three lanes caused a traffic accident by what he did....

> ....

> Q. And it's your opinion, as you sit here today, that the Volvo [Shabi's vehicle] caused this wreck?

> [Objection omitted.]

> A. I believe that, yes, because of what the Volvo did, I believe that the van in the center lane [Molina's vehicle] began to slow down. Unit No. 2 [Villalta's truck] struck the rear of him because he couldn't tell what was going on and got tangled up with [Ware's] truck in the right lane.

Ware responds that this testimony is no evidence of proximate causation because (i) it is merely Amos's speculation about why Villalta rear-ended Molina and (ii) although Amos's initial crash report blamed Shabi for the accident, the final version of the crash report did not refer to Shabi at all.

We agree with Molina. The question is whether the accident would not have happened had Shabi not darted almost directly across the highway to reach the right shoulder, simultaneously occupying all three lanes. Based on Amos's testimony, a reasonable juror could conclude that but for Shabi's conduct, Molina would not have slowed down and Villalta's truck would not have hit Molina's van and then Ware's truck.

Even if Amos's testimony about the subjective reason Villalta hit Molina-"because he couldn't tell what was going on"-was speculation, his remaining testimony that Shabi's driving caused Molina to slow down and Villalta to hit Molina was not speculative but rather was rationally *82based on Amos's perception as an eyewitness. *See**Dodson v. Munoz* , No. 04-17-00409-CV, 2018 WL 3747748, at *6-7 (Tex. App.-San Antonio Aug. 8, 2018, no pet.) (mem. op.) (eyewitness opinion testimony about who was responsible for traffic collision was admissible).

As for Ware's argument that the final version of Amos's accident report, unlike his initial report, did not mention Shabi's driving as a cause of the accident, we conclude that any discrepancy in the evidence did not deprive Molina's evidence of probative value. Any conflict in the evidence is for the jury to consider. *Cf.**Byrd v. Delasancha* , 195 S.W.3d 834, 837 (Tex. App.-Dallas 2006, no pet.) ("If there is any conflicting evidence of probative value on any theory of recovery, a directed verdict is improper and the case must be remanded for the jury to determine that issue.").

Like negligence, proximate cause is ordinarily a fact question for the jury. *Caldwell v. Curioni* , 125 S.W.3d 784, 793 (Tex. App.-Dallas 2004, pet. denied). We conclude that Molina's evidence amounted to some evidence, more than a scintilla, that Shabi's conduct was a proximate cause of this accident and Ware's injuries.1

In response to the dissent, we disagree that Shabi's conduct merely furnished a condition that made the accident possible. This situation generally arises when the forces that a person's negligence has set into motion have come to rest and then some new catalyst causes an injury. *See, e.g.* , *Union Pump Co. v. Allbritton* , 898 S.W.2d 773, 776 (Tex. 1995) (where fire had been extinguished two hours earlier and a person slipped and fell on a wet pipe rack, any negligence in causing the fire merely furnished the condition that caused the slip and fall), *abrogated in part on other grounds by**Ford Motor Co. v. Ledesma* , 242 S.W.3d 32, 45-46 (Tex. 2007). Here, according to Amos's testimony, Shabi's conduct almost immediately caused the traffic accident.

Molina's testimony that he had time to slow down and avoid hitting Amos does not defeat causation.2 In fact, he apparently didn't hit Shabi or Amos. The problem is that Shabi's conduct forced Molina to slow down, in turn causing Villalta to hit first Molina and then Ware. So Molina didn't testify that Shabi's conduct wasn't a factor in causing the accident-he testified only that he had time to avoid hitting Amos.

The dissent argues that the trial court is the sole judge of witness credibility. That is true only when the court is sitting as the factfinder, which is not the case here. Whether Molina put on more than a scintilla of evidence of causation is a question of law, not fact. If there was more than a *83scintilla of evidence, the trial court was bound to deny the motion.

Similarly, the dissent argues that under the abuse of discretion standard close calls should go to the trial court. But as we have stated above, this case actually presents a question requiring de novo review. If there is more than a scintilla of evidence of causation, the trial court erred and abused its discretion, no matter how close the question may be.

Because Molina adduced sufficient evidence to raise a genuine fact issue regarding Shabi's negligence and proximate cause, the trial court clearly abused its discretion by granting Ware's motion to strike Shabi's designation as a responsible third party. And Molina's appellate remedy is inadequate. *See**In re Coppola* , 535 S.W.3d at 509-10. Accordingly, we sustain Molina's issue.

**III. CONCLUSION**

We conditionally grant Molina's petition for writ of mandamus and direct the trial court to vacate its October 19, 2018 order on plaintiff's motion to strike responsible third party designation.

The writ of mandamus will issue only if the court fails to do so.

1

Here it is evident that if Shabi's darting directly across the highway caused Molina to slow down, which in turn caused Villalta to hit Molina and Ware, Shabi's conduct was a substantial factor in causing the accident and the accident was a foreseeable consequence of that conduct. *See**Rogers v. Zanetti* , 518 S.W.3d 394, 402 (Tex. 2017) (substantial factor requirement is met if "the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause") (internal quotations and citation omitted); *Brown v. Edwards Transfer Co., Inc.* , 764 S.W.2d 220, 223-24 (Tex. 1988) ("[F]oreseeability does not require that the actor foresee the particular accident or injury which in fact occurs [or] just how the injury will grow out of a particular dangerous situation."). In most cases, like this one, the fact that the negligent act was a substantial factor in causing the injury is easy to see, and the substantial factor component is rarely discussed. *Miller* , 2018 WL 3991191, at *3.

2

Ware purported to quote Molina's deposition in his motion to strike, but the record evidence actually doesn't include that part of Molina's deposition.

Partida -Kipness, J., dissenting

**DISSENTING OPINION**

Dissenting Opinion by Justice Partida -Kipness

The sole issue before this Court is whether the trial court abused its discretion by determining that Molina failed to present a scintilla of evidence to support the responsible third party designation of Shabi. I respectfully dissent because I disagree with the majority's conclusion that the evidence was sufficient to raise a genuine issue of material fact as to whether Shabi's conduct proximately caused the accident and Ware's injuries.

Molina and the majority cite the following testimony from Officer Amos as evidence of proximate causation:

> Q. And it's your opinion, as you sit here today, that the Volvo [Shabi's vehicle] caused this wreck?

> [Objection omitted.]

> A. I believe that, yes, because of what the Volvo did, I believe that the van in the center lane [Molina's vehicle] began to slow down. Unit No. 2 [Villalta's truck] struck the rear of him because he couldn't tell what was going on and got tangled up with [Ware's] truck in the right lane.

This testimony sheds no light on whether Shabi's actions proximately caused Ware's injuries. Amos's opinion provides some evidence that Shabi's actions caused Molina to slow down. It also provides Amos's speculation that Villalta struck Molina because Villalta could not "tell what was going on" and became entangled with Ware's truck. But Amos's testimony is no evidence that Shabi's actions caused Villalta to strike Molina and Ware. At most, Amos's testimony shows that Shabi's actions furnished a condition that made the accident occur and the injuries possible. Such conclusions are not evidence of cause in fact. *See, e.g.* , *Ham v. Equity Residential Prop. Mgmt. Servs., Corp.* , 315 S.W.3d 627, 631-32 (Tex. App.-Dallas 2010, pet. denied) (expert's conclusory statements that injury would not have occurred but for appellee's negligence was no evidence of cause in fact); *see also**In re Transit Mix Concrete & Materials Co.* , No. 12-13-00364-CV, 2014 WL 1922724, at *6 (Tex. App.-Tyler May 14, 2014, orig. proceeding) (mem. op.) (striking designation of general contractor was not an abuse of discretion because evidence the general contractor was in charge of work site safety *84constituted no evidence the company breached a duty owed to claimant or that such breach contributed to claimant's harm).

Further, Molina testified that he did not believe that Shabi's actions caused the accident because Molina "had plenty of time to react and avoid" a collision. Molina presented no evidence that Villalta or Ware saw Shabi or in any way reacted to Shabi's actions. Under this record, I would conclude that the evidence established as a matter of law that Shabi's initial negligence was not a cause-in-fact of the accident or of Ware's injuries because Molina avoided Shabi's vehicle and Shabi's actions no longer actively contributed to the subsequent injuries. *See, e.g.* , *Bell v. Campbell* , 434 S.W.2d 117, 122 (Tex. 1968) (parties to the first accident were not the cause in fact of the appellants' injuries because their negligence merely created a condition); *Green v. GS Roofing Prods. Co.* , 928 S.W.2d 265, 267-68 (Tex. App.-Houston [14th Dist.] 1996, no writ) (disabled truck on shoulder was not cause-in-fact of subsequent accident where truck was not obstructing the roadway when accident occurred and claimant slowed down and avoided contact with the disabled truck prior to subsequent accident). Indeed, the trial judge was persuaded by Molina's testimony, asking how Shabi could be a responsible third party when even Molina stated that Shabi's actions were not a factor in causing the accident.

I also disagree with the majority's application of a de novo standard to its review of the trial court's decision to strike the designation. Once a motion to strike is filed, the trial court "shall grant" the motion "unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person's responsibility for the claimant's injury or damage." TEX. CIV. PRAC. & REM.CODE ANN. § 33.004(l). Under this standard, a defendant has the burden to produce sufficient evidence-that is, more than a scintilla of evidence-for a reasonable jury to hold the third party responsible for at least a portion of the plaintiff's injury or damage. *See**In re Transit Mix Concrete & Materials Co.* , 2014 WL 1922724, at *3. Whether the proof establishes as a matter of law that there is no genuine issue of fact is a question of law reviewed de novo. *Flack v. Hanke* , 334 S.W.3d 251, 261 (Tex. App.-San Antonio 2010, pet. denied). Although this standard is akin to the review of a no evidence motion for summary judgment ruling in a direct appeal, this proceeding is not a direct appeal. It is an original proceeding seeking an extraordinary writ of mandamus. I believe the procedural posture of this case must be taken into consideration when applying the de novo standard. "It is well established Texas law that an appellate court may not deal with disputed areas of fact in an original mandamus proceeding." *In re Angelini* , 186 S.W.3d 558, 560 (Tex. 2006) (orig. proceeding) (quoting *Brady v. Fourteenth Court of Appeals* , 795 S.W.2d 712, 714 (Tex. 1990) ); *In re M.C.W.* , 401 S.W.3d 906, 906-07 (Tex. App.-Amarillo 2013, orig. proceeding) (per curiam). Under an abuse of discretion standard, "close calls must go to the trial court." *Baylor Univ. Med. Ctr. v. Biggs* , 237 S.W.3d 909, 916 (Tex. App.-Dallas 2007, pet. denied). The authorities cited by the majority are not in the context of an original proceeding and do not address how these mandamus standards impact our review on mandamus of orders striking a designation. As a result, the majority impermissibly substitutes its judgment for that of the trial court.

Under this record, I would deny the petition for writ of mandamus because Amos's testimony did not constitute evidence that Shabi's actions were a cause in fact of Ware's injuries. As such, the trial *85judge did not abuse her discretion by striking the designation. Alternatively, this is a close call that should go to the trial court, not be overturned through issuance of an extraordinary writ.