In re Bustamante
2016 Tex. App. LEXIS 12506
| Tex. App. | 2016Background
- On Sept. 22, 2010, Roberto Fernandez (employee) was injured when a vehicle driven by Irasma Estrada Riojas struck him at premises owned by relator Cleo Bustamante; Fernandez previously settled with Riojas pre-suit.
- Plaintiffs sued various defendants on Sept. 21, 2012 (one day before limitations expired) but did not name Riojas or Cleo Bustamante Enterprises, Inc. (CBE); Bustamante answered Oct. 4, 2012.
- Bustamante moved on Oct. 26, 2015 for leave to designate Riojas and CBE as responsible third parties under Tex. Civ. Prac. & Rem. Code § 33.004; plaintiffs objected arguing untimeliness and failure to disclose.
- At the April 20, 2016 hearing plaintiffs relied on Bustamante’s missed Rule 194 responses; Bustamante countered plaintiffs already knew of Riojas/CBE from other discovery and that he could not have disclosed before limitations ran.
- Trial court denied leave to designate; Bustamante petitioned for mandamus. The court granted conditional mandamus directing the trial court to grant leave to designate, finding an abuse of discretion and that appeal is inadequate. The court did not decide Bustamante’s separate complaint about summary judgment scheduling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bustamante timely complied with any Rule-based disclosure so §33.004(d) does not bar post‑limitations RTP designation | Bustamante failed to timely respond to plaintiffs’ requests for disclosure and thus did not timely disclose Riojas/CBE | It was impossible to disclose before limitations expired (suit filed one day before lapse); plaintiffs already knew via other discovery; disclosure obligations satisfied | Held for Bustamante: §33.004(d) requires disclosure before limitations if possible; here disclosure was impossible and plaintiffs were aware, so Bustamante complied |
| Whether the motion for leave pleaded sufficient facts under Tex. R. Civ. P. (fair‑notice pleading) | Objection argued procedural/untimeliness grounds, not insufficiency of pleading | Motion alleged Riojas struck plaintiff and CBE had contracting/design responsibility over premises; pleads facts giving fair notice | Held for Bustamante: pleadings satisfied fair‑notice; plaintiffs did not establish insufficiency, so court should have granted leave under §33.004(g) |
| Whether the trial court abused discretion in denying leave to designate RTPs | Denial justified by untimeliness/disclosure failures | Denial was arbitrary given pleading sufficiency and inability to disclose pre‑limitations; statutory §33.004(g) uses mandatory "shall" grant language absent pleading failure | Held the trial court abused its discretion; mandamus conditionally granted directing grant of leave |
| Whether mandamus is available (i.e., whether appeal is an adequate remedy) | Appellate review after final judgment is adequate (per some prior panels) | Mandamus is warranted because denial skews procedural dynamics, risks wasted trial resources, and appeal is inadequate under Prudential balancing | Held for Bustamante: appeal is inadequate in this context; mandamus relief is appropriate (court overruled prior panel decisions to the contrary) |
Key Cases Cited
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (mandamus standard and balancing test for adequacy of appellate remedy)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus standard and limits)
- In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (Tex. 2005) (abuse of discretion standard)
- Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863 (Tex. 2009) (scope of who may be designated as responsible third parties)
- Low v. Henry, 221 S.W.3d 609 (Tex. 2007) (fair‑notice pleading standard)
- In re J.B. Hunt Transp., Inc., 492 S.W.3d 287 (Tex. 2016) (application of Prudential principles)