366 S.W.3d 282
Tex. App.2012Background
- Lewis sued relators for legal malpractice arising from misidentifying the driver Edith Winfrey; Edith was not joined as a defendant.
- Relators amended Lewis's petition to add Kristi McDowell but never joined Edith Winfrey.
- After limitations, Mary Winfrey moved for summary judgment; relators nonsuited Lewis against Mary Winfrey.
- Lewis settled with McDowell and then sued relators for negligent investigation, failure to sue Edith timely, and inadequate compensation.
- Relators sought leave to designate Edith Winfrey as a responsible third party (RTP); Lewis opposed arguing Chapter 33 did not apply and Edith could not be RTP.
- Trial judge denied the motion for leave to designate without allowing replead; mandamus relief sought.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Chapter 33 to the case. | Lewis argues Chapter 33 does not apply. | Smith argues Chapter 33 applies to torts with RTP apportionment. | Chapter 33 applies. |
| Whether the trial court abused discretion by denying leave to designate without repleading. | Relators could replead to address Edith's responsibility. | Judge properly denied without replead; no abuse. | Abuse of discretion; must grant replead opportunity. |
| Was relators’ right to replead waived or futile? | Relators were not barred; futility not proven. | Trial court should have allowed replead; burden on Lewis. | No waiver; relators entitled to replead opportunity. |
| Do relators have an adequate remedy by appeal? | Appeal cannot adequately correct denial. | Mandamus appropriate due to misapplication of law. | Relators have no adequate remedy by appeal; mandamus appropriate. |
Key Cases Cited
- In re Oncor Elec. Delivery Co., LLC, 355 S.W.3d 304 (Tex.App.-Dallas 2011) (trial court must grant replead opportunity before denying RTP designation)
- Willis v. Maverick, 760 S.W.2d 642 (Tex. 1988) (tort nature of legal malpractice)