in Re: El Apple, Inc. D/B/A Applebee's Neighborhood Bar and Grill, El Apple, LLC, and Verlander Enterprises, LLC
362 S.W.3d 154
Tex. App.2012Background
- Forester sued El Paso Electric and others for injuries from stepping on a transformer-box platform; Forester’s actions against El Paso Electric were severed following summary judgment; this Court previously affirmed the summary judgment denying Forester’s claims against El Paso Electric; Relators sought leave to designate El Paso Electric as a responsible third party based on Forester’s admissions; Forester moved to withdraw one admission about El Paso Electric’s role, which the trial court denied; the trial court then designated El Paso Electric as a responsible third party and later struck that designation, prompting Relators to seek mandamus relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in striking the designation. | Relators contend designation should stand based on admissions and expert testimony. | Forester argues the designation was improper due to res judicata and prior summary judgment. | No abuse; designation struck properly under statute. |
Key Cases Cited
- Forester v. El Paso Elec. Co., 329 S.W.3d 832 (Tex.App.—El Paso 2010) (summary judgment affirmed against Forester; lack of invitee and evidence)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (abuse of discretion standard for mandamus)
- In re Ford Motor Co., 165 S.W.3d 315 (Tex. 2005) (review of trial court legal conclusions; deference to trial court on law)
- Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (abuse of discretion standard principle)
- In re Brokers Logistics, Ltd., 320 S.W.3d 402 (Tex.App.—El Paso 2010) (whether evidence raises genuine issue of fact after designation)
- TEX.CIV.PRAC. & REM.CODE ANN. § 33.004, (statutory provision) ((statutory)) (designate; strike-after-discovery standard)