IN RE MOBILE MINI, INC., RELATOR
No. 18-1200
IN THE SUPREME COURT OF TEXAS
OPINION DELIVERED: March 13, 2020
ON PETITION FOR WRIT OF MANDAMUS
Mobile Mini, Inc. seeks mandamus relief compelling the trial court to grant its timely filed motion to designate a responsible third party in a construction worker‘s personal-injury suit. See
Luis Covarrubias‘s pinky finger was injured when a wind gust blew the door of a construction trailer closed on his hand. Mobile Mini owned the trailer, but had leased it to Nolana Self Storage, LLC, the owner of the construction site. When Covarrubias was injured, the trailler was under the exclusive control of Nolana‘s contractor, Anar Construction Specialists, LLC.
In the interim, the trial court ruled that Covarrubias‘s tort claims against Nolana were time-barred and, based on that ruling, rendered summary judgment in Nolana‘s favor on those claims and Mobile Mini‘s derivative cross-claim for contribution. After the tort claims against Nolana were dismissed with prejudice, Covarrubias and Nolana filed written objections to Mobile Mini‘s motion to designate, asserting the designation was not proper because Nolana could not be a responsible party once the limitations period had expired. Nolana ultimately secured summary judgment on all claims and was no longer a party to the proceedings when the trial court denied Mobile Mini‘s request to designate Nolana as a responsible third party.
The court of appeals denied Mobile Mini‘s mandamus petition without substantive comment, but we hold that Mobile Mini is entitled to mandamus relief because the trial court abused its
Subject to an exception not applicable here, a “responsible third party” is “any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought[.]”
Even so, when the defendant‘s motion is timely but filed “after the applicable limitations period on the cause of action has expired with respect to the responsible third party,” the defendant may not designate the person as a responsible third party “if the defendant has failed to comply with its obligations, if any, to timely disclose that the person may be designated as a responsible third party under the Texas Rules of Civil Procedure.”
We recently struck down a trial court order granting leave to designate a responsible third party after the statute of limitations expired, but the circumstances in that case were materially different. Unlike here, the defendant‘s discovery responses in In re Dawson were due before the plaintiff‘s claims against the third party were time-barred. 550 S.W.3d 625, 627 (Tex. 2018).
In Dawson, the plaintiff was injured when a television fell from a wall in a restaurant. Shortly after the limitations period expired, the defendant sought to designate the television installer as a responsible third party. Id. The plaintiff opposed the designation on the basis that the defendant had not complied with discovery rules requiring timely identification of “any person who may be designated as a responsible third party.” See id. (citing
When the plaintiff was no longer in a position to sue the person the defendant had belatedly identified as causing or contributing to the plaintiff‘s injuries, the defendant sought to ameliorate or reduce its own liability by shifting responsibility to an “empty chair.” The plaintiff complained that section 33.004(d) is designed to prevent this type of procedural gamesmanship, but the trial court allowed the designation, and the court of appeals denied the plaintiff‘s request for mandamus relief. Id. at 628.
We held the defendant‘s incomplete responses, failure to supplement before limitations expired, and failure to adequately supplement after limitations had expired did not satisfy section 33.004(d)‘s timely disclosure requirement or Rule 194.2(l)‘s requirement that the responding party disclose the name, address, and telephone number of any potentially responsible third party. Id. at 629-30;
Unlike Dawson, the circumstances presented here do not invoke the gamesmanship concerns section 33.004(d) operates to prevent. Mobile Mini identified Nolana as a responsible third party in its initial response to Covarrubias‘s initial request for disclosures and that response was timely
In Molinet v. Kimbrell, we considered the potential imbalance that can occur under section 33.004‘s proportionate-responsibility framework when expiration of the statute of limitations precludes a plaintiff from seeking recovery from a responsible third party. 356 S.W.3d 407, 417 (Tex. 2011). In doing so, we analyzed section 33.004(d)‘s progenitor—the now repealed section 33.004(e), which provided that a plaintiff “is not barred by limitations from seeking to join [a responsible third party],” if joinder was accomplished within sixty days after the defendant‘s responsible-third-party designation. Id. at 411; see Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 4.04, 2003 Tex. Gen. Laws 847, 856, repealed by Act of May 30, 2011, 82d Leg., R.S., ch. 203, §§ 5.01-.02, 2011 Tex. Gen. Laws 757, 759. Molinet involved a conflict between former section 33.004(e), which allowed a limited-time opportunity to resurrect a time-barred claim, and a statute-of-limitations provision in the health-care-liability statute, which did not. We held the latter prevailed over the former, so despite the plaintiff‘s compliance with former section 33.004(e), the plaintiff could not join the named responsible third parties after limitations had expired. Molinet, 356 S.W.3d at 415-16.
Covarrubias‘s other arguments are equally unpersuasive. First, Covarrubias argues Nolana did not meet the statutory definition of a “responsible third party” because Nolana was already a named party in the litigation when Mobile Mini filed its responsible-third-party designation. But Nolana was not a party when the trial court considered and denied Mobile Mini‘s motion to designate because all of Covarrubias‘s claims against Nolana had been dismissed from the suit almost seven months prior. Indeed, Nolana‘s status as a party may explain the trial court‘s delay in ruling on the motion to designate, because it was unnecessary to rule while Nolana was already a party to the suit.
Second, Covarrubias argues Mobile Mini could not designate Nolana after Nolana was “substantively” dismissed from the suit, because Nolana then could not be “liable” on the merits. But the tort claims against Nolana could not have been dismissed on substantive grounds as none were raised in Nolana‘s motions for summary judgment. In Texas, statutes of limitations are considered procedural rather than substantive bars to bringing an action. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 347 (Tex. 1992). And even if Nolana could not be “liable” due to some substantive defense, we have previously recognized that a “defendant may designate a responsible third party even though that party possesses a defense to liability, or cannot be formally joined as a defendant, or both.” Galbraith Eng‘g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 868-69
Finally, we reject Covarrubias‘s arguments that (1) Mobile Mini failed to preserve its claim that Nolana‘s summary judgment was granted only on limitations grounds by failing to make that argument in the trial court and (2) mandamus relief should be denied because Mobile Mini waited three months after the trial court denied its motion to designate to seek mandamus relief in the court of appeals. A three-month delay does not preclude mandamus relief under the circumstances presented, and Mobile Mini‘s response to Covarrubias‘s and Nolana‘s objections adequately preserved the arguments presented here.
A writ of mandamus will not issue unless an adequate appellate remedy is lacking, but as we recently held in In re Coppola, mandamus relief is available to rectify the erroneous denial of a party‘s timely filed motion to designate a responsible third party. 535 S.W.3d at 507-09. In such cases, an adequate appellate remedy is ordinarily lacking because allowing a case to proceed to trial without a properly requested responsible-third-party designation “would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of the relator‘s defense in ways unlikely to be apparent in the appellate record.” Id. at 509.
OPINION DELIVERED: March 13, 2020