in Re CVR Energy, Inc., CVR Partners, LP, CVR Refining, LP, Gary-Williams Energy Company, LLC

Opinion issued February 9, 2016

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-15-00877-CV

———————————

IN RE CVR ENERGY, INC., CVR PARTNERS, LP, CVR REFINING, LP,

GARY-WILLIAMS ENERGY COMPANY, LLC, Relators

Original Proceeding on Petition for Writ of Mandamus

OPINION

This original proceeding concerns named defendants’ efforts to designate a

former co-defendant as a responsible third party in a wrongful death suit.1 The

plaintiffs nonsuited the former co-defendant—Wynnewood Refining Company,

LLC, which is a wholly owned subsidiary of a named defendant—less than sixty

1

The underlying case is Mann v. CVR Energy, Inc., et al., cause number 2013-

DCV-209679, pending in the 434th District Court of Fort Bend County, Texas, the

Honorable James H. Shoemake, presiding.

days before trial and after the date beyond which their claims against it would be

time-barred. The remaining defendants, Relators CVR Energy, Inc., CVR Partners,

LP, CVR Refining, LP, and Gary-Williams Energy Company, LLC, (collectively

CVR) then filed a motion to designate Wynnewood as a responsible third party,

but that motion was denied.

Relators now seek a writ of mandamus to compel the trial court to (1) vacate

its October 12, 2015 order denying CVR’s motion for leave to designate

Wynnewood as a responsible third party and (2) grant CVR’s motion for leave to

make the designation.

We conditionally grant the writ.

Background

Russell Mann and Billy Smith were killed in a September 28, 2012

explosion at the Wynnewood refinery. According to the Fourth Amended Petition

filed by their wives (the live petition at the time of CVR’s motion), the explosion

occurred when Mann and Smith were assisting in an effort to “re-start” the pilot

light in a large “outdated and archaic” boiler. They were both employed by

Wynnewood. Wynnewood is a wholly-owned subsidiary of CVR Refining, which

was, at the time of the accident, a wholly-owned subsidiary of CVR Energy, Inc.

According to Plaintiff’s petition, the boiler “had to be re-started manually

because it was not equipped with a Boiler Management System (BMS)” to permit

2

an operator to re-start it “from a safe and remote site.” They were both, therefore,

very close to the boiler when it exploded—Smith inches and Mann a few feet

away. Furthermore, the boiler was not equipped with “gas-flowing gauges or any

device to advise how much gas was entering this chamber.” “Wynnewood received

several proposals” for a BMS for the boiler but rejected them all. Wynnewood, and

later CVR, “had actual knowledge of prior detonations” of the boiler that injured

workers. Finally, Plaintiff’s petition alleged that Wynnewood was “rife with

dangerous conditions and working conditions,” resulting in numerous

Occupational Safety and Health Administration (OSHA) violations.

The refinery was originally owned by Gary-Williams Energy Co., LLC. In

2011, CVR Refining purchased the refinery from Gary-Williams. Thus, CVR

became the premises owner. According to CVR, Wynnewood employed Mann and

Smith and, on the day of the explosion, it was Wynnewood employees “who tasked

Smith and charged Mann” with their responsibilities.

Plaintiffs allege that CVR committed the following acts of negligence and

gross negligence: (1) failed to install a boiler management system (BMS) on the

boiler; (2) failed to install boiler management controls on all heating equipment as

ordered by OSHA; (3) failed to adequately monitor the dangerous condition of the

refinery and its boiler; (4) failed to alleviate hazardous conditions that could cause

injury or death; (5) failed to repair hazardous conditions causing injury or death,

3

including the boiler; and (6) failed to comply with OSHA directives to install a

BMS system on the boiler.

Plaintiffs’ live petition also contains numerous allegations against

Wynnewood. According to Plaintiffs, Wynnewood intentionally and willfully

committed the following acts that caused the deaths of Smith and Mann:

(1) “[r]efused to install a BMS and one-inch gas feed pursuant to a third party

engineering report;” (2) “[d]id not document that the equipment complies with

recognized and generally accepted good engineering practices;” (3) “[d]id not

ensure that written operating procedures addressed the operating limits of the

process;” (4) “[d]id not ensure the written operating procedures addressed the

consequence of deviation from the safe upper and lower limits of the

process;” (5) “[d]id not provide refresher training at least every three (3) years to

each employee involved in operating a process;” (6) “[d]id not establish and

implement written procedures to maintain the on-going mechanical integrity of

process equipment;” and (7) “[d]id not establish and implement written procedures

to manage changes to process chemicals, technology, equipment, procedures and

changes to facilities that affect a covered process.”

Plaintiffs further alleged that Wynnewood was cited by OSHA with five

violations for its actions causing the explosion. Because of Wynnewood’s past

investigation, fines, internal investigations, and investigations by third parties,

4

Plaintiffs assert that Wynnewood “had knowledge” that an explosion was

“substantially likely” to occur. According to Plaintiffs’ live petition, Wynnewood

was not entitled to immunity from liability under the Oklahoma worker’s

compensation statute because Mann and Smith were injured as a result of

Wynnewood’s willful and intentional conduct.

Plaintiffs served Rule 194 requests for disclosure on CVR while

Wynnewood was still a named defendant. Rule 194 states that a party may obtain

disclosure of identifying information for any person who may be designated as “a

responsible third party.” See TEX. R. CIV. P. 194.1, 194.2(l). When CVR

responded to Plaintiffs’ requests for disclosure on potential responsible third

parties in December 2013, it did not list co-defendant Wynnewood in its response.

Wynnewood and CVR remained as defendants through four amended

petitions, but, in April 2015, approximately 20 months after suit was filed and

55 days before trial, Plaintiffs filed a notice of nonsuit of Wynnewood and deleted

it from their Fourth Amended Original Petition. The date of nonsuit was beyond

the limitations period for a wrongful death claim against Wynnewood (except for

claims by Smith’s young son). Despite nonsuiting their claims against

Wynnewood, Plaintiffs continued to allege Wynnewood’s intentional conduct in

the body of their amended petition.

5

Twenty-six days after the notice of nonsuit, and 29 days before the then-

scheduled trial, CVR filed a motion for leave to designate Wynnewood as a

responsible third party.2 Plaintiffs objected to this motion, asserting limitations had

run on their claims against Wynnewood and the motion was untimely. The trial

court denied CVR’s motion.

Issue Presented

CVR contends the trial court abused its discretion by denying its motion for

leave to designate Wynnewood as a responsible third party because

(1) Wynnewood had been an active defendant in the case for more than 19 months,

(2) Plaintiffs nonsuited Wynnewood 55 days before the trial setting, which was

five months before the subsequent trial date,3 (3) CVR moved to designate

Wynnewood as a responsible third party less than 30 days after Plaintiffs’ nonsuit,

and (4) the evidence regarding Wynnewood’s responsibility for the accident is

inseparable from Plaintiffs’ allegations against CVR. CVR asserts that it does not

have an adequate remedy by appeal for this abuse of discretion.

2

CVR simultaneously amended its response to the request for Rule 194 disclosure

and designated Wynnewood as a responsible third party.

3

This Court granted CVR’s emergency motion to stay the underlying proceeding

and trial setting pending resolution of this petition for writ of mandamus. See TEX.

R. APP. P. 52.10.

6

Standard for Granting Mandamus Relief

To be entitled to mandamus relief, a petitioner must show both that the trial

court abused its discretion and that there is no adequate remedy by appeal. In re

Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2004). Generally, appellate courts

will hold that a trial court has abused its discretion if its actions were either

“without reference to any guiding rules and principles” or “arbitrary or

unreasonable.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985). “A trial court has no discretion in determining what the law is or

applying the law to the facts, even when the law is unsettled.” In re Brokers

Logistics, Ltd., 320 S.W.3d 402, 405 (Tex. App.—El Paso 2010, orig. proceeding)

(citing Prudential, 148 S.W.3d at 135). A trial court’s clear failure to analyze or

apply the law correctly is an abuse of discretion. Walker v. Packer, 827 S.W.2d

833, 840 (Tex. 1992).

Abuse of Discretion

A. Overview of Proportionate Responsibility Statute

Chapter 33 of the Civil Practice and Remedies Code sets out the Texas

proportionate responsibility law. TEX. CIV. PRAC. & REM. CODE ANN. § 33.001–

33.017 (West 2015). These statutes allow a tort defendant to designate as a

responsible third party a person who “is alleged to have caused in any way the

harm for which the plaintiff seeks damages.” See Jay Miller & Sundown, Inc. v.

7

Camp Dresser & McKee Inc., 381 S.W.3d 635, 638–39 (Tex. App.—San Antonio

2012, no pet.) (referring to predecessor to Subsection 33.004).

There are limitations to a defendant’s ability to designate responsible third

parties under Subsection 33.004. These limitations add “procedural safeguard[s]”

that prevent a defendant from undercutting “the plaintiff’s case by belatedly

pointing its finger at a time-barred responsible third-party against whom the

plaintiff has no possibility of recovery.” Withers v. Schneider Nat’l Carriers, Inc.,

13 F. Supp. 3d 686, 689 (E.D. Tex. 2014). The first statutory limitation is that a

defendant may not designate a responsible third party within 60 days of trial unless

the court finds good cause. TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a). The

second is that a defendant may be precluded from designating a responsible third

party if it had an obligation to disclose the person earlier and did not do so and the

statute of limitations has run on the plaintiff’s claim against the late-disclosed

party:

A defendant may not designate a person as a responsible third party

with respect to a claimant’s cause of action after the applicable

limitations period on the cause of action has expired with respect to

the 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(d).

8

These timing limitations are part of a “statutory balance” created by the

Legislature that seeks to address a defendant’s interest in identifying nonparties

who may have some culpability while recognizing that a plaintiff has time

limitations on pursuing its claims against parties not already included in its suit.

See Withers, 13 F. Supp. 3d at 689.

Plaintiffs contend that, under the statute’s plain meaning, the trial court

correctly denied CVR’s motion to designate Wynnewood as a responsible third

party because CVR did not comply with either of these two time limitations, i.e., it

attempted to designate Wynnewood within 60 days of trial and after Plaintiffs’

statute of limitations against Wynnewood had expired.4 Plaintiffs contend that

Subsection 33.004(d) requires the trial court to deny a motion seeking to designate

a responsible third party made after limitations have run even if the party was

previously a defendant in the case. According to Plaintiffs, the proportionate

responsibility statute adopts a “bright-line, per se rule” that a defendant may not

designate a responsible third party after a plaintiff’s claims against that party are

barred by limitations.

4

No one disputes that the two-year Oklahoma statute of limitations ran on

September 28, 2014, at least as to claims the adult plaintiffs could assert against

Wynnewood.

9

But Plaintiffs’ reading of the statute ignores the limiting clause included at

the end of Subsection (d). It states that a party may not designate responsible third

parties after limitations have run “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.” TEX. CIV. PRAC.

& REM. CODE ANN. § 33.004(d). Thus, in addressing the extent to which

Subsection (d) might prohibit CVR’s attempted designation, we must consider

whether CVR failed to comply with an existing discovery obligation to disclose

Wynnewood as a responsible third party.

CVR asserts that it did not. According to CVR, it owed no obligation to

disclose Wynnewood, under Rule 194.2(l) as a party “who may be designated as a

responsible third party,” while Wynnewood was a named party defendant.

B. Rule 194.2’s Disclosure Obligation

Rule 194.2 of the Texas Rules of Civil Procedure obligates a defendant,

upon a request from the plaintiff, to disclose, among other things, its defensive

legal theories, any potential parties, any witnesses with “knowledge of relevant

facts,” as well as “any person who may be designated as a responsible third party.”

TEX. R. CIV. P. 194.2. The response must be complete, “based on all information

reasonably available” at the time. TEX. R. CIV. P. 193.1. The scope of the

defendant’s response is, to a large extent, shaped by the allegations contained in

10

the plaintiff’s live pleading. See generally TEX. R. CIV. P. 194.2(e) (requiring

disclosure of identifying information for people “having knowledge of relevant

facts”); Frazin v. Hanley, 130 S.W.3d 373, 377–78 (Tex. App.—Dallas 2004, no

pet.) (reversing strike of late-disclosed expert in response to new counterclaim

filed after expert deadline because “her obligation to disclose defense witnesses did

not even arise until appellees filed their counterclaim against her”). If the

plaintiff’s allegations change, and if those changes prompt a change in the defense

strategy, then the defendant must supplement its disclosures if the change causes

its prior response to now be “incomplete.” TEX. R. CIV. P. 193.5(a) (“If a party

learns that the party’s response to written discovery . . . is no longer complete and

correct, the party must amend or supplement the response.”). There is no duty to

supplement, however, if the additional information “has been made known to the

other parties in writing, on the record at a deposition, or through other discovery

responses.” TEX. R. CIV. P. 193.5(a)(2).

When CVR responded to the requests for disclosure, Plaintiffs were suing

Wynnewood as a defendant, asserting claims against it, and seeking to hold it

legally responsible for their damages. At that time, CVR had no obligation to

disclose Wynnewood as a potentially responsible party; it was already a party

whose conduct would be considered by the jury in the jury charge. The purpose of

disclosing responsible third parties and adding them to the jury charge is

11

inapplicable when the entity is already a party and, thus, already going to be in the

jury charge. It was not until Plaintiffs nonsuited Wynnewood that CVR had a duty

to “reasonably promptly” supplement its disclosures if necessary to respond to this

change in Plaintiffs’ strategy, which it sought to do. See TEX. R. CIV. P. 193.5(b).

C. The Statutory Definition of “Responsible Third Party”

The proportionate responsibility statute supports our holding that Rules

193.5(b) and 194.2(l) did not require CVR to designate Wynnewood as a

responsible third party until after Plaintiffs nonsuited their claims against it. The

interpretation of a statute presents a question of law that we must review de novo,

giving effect to the Legislature’s intent by looking first at the words of the statute.

First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008); Lexington

Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006); State v. Shumake, 199

S.W.3d 279, 284 (Tex. 2006). We begin with the text because it “is the best

expression of legislative intent unless a different meaning is apparent from the

context or the plain meaning leads to absurd or nonsensical results.” 5 Molinet v.

Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011); see also Fresh Coat, Inc. v. K–2, Inc.,

318 S.W.3d 893, 901 (Tex. 2010) (“Our ‘ultimate purpose’ when construing

5

When a statute’s language is clear and unambiguous, we generally do not apply

rules of construction or extrinsic aids, such as legislative history, to construe the

statutory language. Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011) (citing

Tex. Lottery Comm’n v. First State Bank, 325 S.W.3d 628, 637 (Tex. 2010)).

12

statutes is ‘to discover the Legislature’s intent.’ Presuming that lawmakers

intended what they enacted, we begin with the statute’s text, relying whenever

possible on the plain meaning of the words chosen.”) (citations omitted). This text-

first methodology applies to unambiguous text unless enforcement of the plain

language would produce absurd results. Entergy Gulf States, Inc. v. Summers, 282

S.W.3d 433, 437 (Tex. 2009). We may not add language that is not “implicitly

contained” in the statute’s language. Lee v. City of Houston, 807 S.W.2d 290, 294–

95 (Tex. 1991) (“A court may not . . . add words that are not implicitly contained

in the language of the statute.”); Villarreal v. Wells Fargo Brokerage Servs., LLC,

315 S.W.3d 109, 122 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (stating court

“may not add language that is not implicitly contained in the language of the

statute”).

The text of the current version of the responsible-third-party statute does not

address whether a person may simultaneously be a defendant and a responsible

third party. The current definition of a “responsible third party” broadly reads:

[A]ny person who is alleged to have caused or contributed to causing

in any way the harm for which recovery of damages is sought,

whether by negligent act or omission, by any defective or

unreasonably dangerous product, by other conduct or activity that

violates an applicable legal standard, or by any combination of these.

TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6) (West 2015) (including one

limitation on definition not applicable here). To address this issue, “[w]e begin by

13

reviewing dictionary definitions of” the phrase “third party.” Jaster v. Comet II

Const., Inc., 438 S.W.3d 556, 563 (Tex. 2014) (plurality opinion). Dictionaries

demonstrate that the common understanding of the phrase “third party” is a person

who is not a named party to the litigation. BLACK’S LAW DICTIONARY (10th ed.

2014) (defining “third party” as “person who is not a party to a lawsuit . . . but who

is usu. somehow implicated in it; someone other than the principal parties”);

WEBSTER’S NEW WORLD COLLEGE DICTIONARY 1507 (5th ed. 2014) (defining

“third party” as person “in a case or matter other than the principals”); MERRIAM-

WEBSTER’S COLLEGIATE DICTIONARY 1300 (11th ed. 2003) (defining “third

party” as “a person other than the principals”); GARNER’S DICTIONARY OF LEGAL

USAGE 893 (3d ed. 2011) (stating that verb phrase “they were third-partied” means

“to bring into litigation as a third-party defendant”); see generally In re Ford

Motor Co., 442 S.W.3d 265, 271 (Tex. 2014) (distinguishing plaintiffs, defendants,

and third parties); id. at 294 (Boyd, J., dissenting) (same).

We presume that the Legislature adopts the common meaning of a word

unless the Legislature provides a different definition or the language clearly

indicates otherwise. See Ford Motor, 442 S.W.3d at 271‒72 (requiring “a high

level of linguistic clarity from the Legislature that it intends its statutory definition

to depart markedly from the ordinary meaning” of term and examining whether

statutory definition “clearly signal[s] a departure from ordinary usage”); City of

14

Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008) (in absence of legislative

definition or use of technical term, courts “construe the statute’s words according

to their plain and common meaning unless a contrary intention is apparent from the

context or such a construction leads to absurd results”). The ordinary meaning of

the phrase “third party” supports CVR’s interpretation, while a definition of the

phrase “third party” that includes co-defendants “is contrary to the ordinary

meaning” of the phrase. See Ford Motor, 442 S.W.3d at 271 (construing word

“plaintiff”).

These common distinctions presumably informed the Texas Supreme Court

when it declared, “Chapter 33 provides, among other things, that a defendant in

such an action may seek to designate a person, who has not been sued by a

claimant, as a responsible third party.” Galbraith Eng’g Consultants, Inc. v.

Pochucha, 290 S.W.3d 863, 865 (Tex. 2009) (emphasis added) (describing third

party in case governed by current definition of “responsible third party”); see also

Jay Miller, 381 S.W.3d at 638–39 (stating, in case governed by current definition

of “responsible third party,” that statute “allows a tort defendant to designate as a

responsible third party a person who has not been sued by the plaintiff, but who is

alleged to have caused in any way the harm for which the plaintiff seeks

damages”); AAMCO Transmissions, Inc. v. Bova, No. 01–14–00974–CV, 2016

WL 191927, at *4 (Tex. App.—Houston [1st Dist.] Jan. 14, 2016, no pet. h.)

15

(noting that defendants remaining after nonsuit of other defendants may designate

newly omitted defendants as responsible third parties); Spencer v. BMW of N. Am.,

LLC, No. 5:14–CV–869–DAE, 2015 WL 1529773, at *2 (W.D. Tex. Apr. 2, 2015)

(“The statute permits a trier of fact, when apportioning liability, to consider the

relative fault of the defendants as compared to other responsible third parties that

are not party to the suit.”). While these cases did not address the issue before us

and therefore are not binding here, they demonstrate a generally accepted

understanding of the phrase “third party” to mean a party not already in the suit,

which likewise is consistent with common dictionary definitions of the phrase.

As part of construing a term or phrase, we consider the context of the entire

statute—the surrounding words or the “lexical environment.” See Ford Motor, 442

S.W.3d at 271–73 (looking beyond meaning of term “plaintiff” to its context and

stating that “context is essential to textual analysis” because “‘[l]anguage cannot be

interpreted apart from context’”); ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW; THE INTERPRETATION OF LEGAL TEXTS 70 (2012) (ordinary

meaning applies unless there is “reason to think otherwise, which ordinarily comes

from context”); id. at 167 (stating that whole-text canon requires courts “to

consider the entire text, in view of its structure and the physical and logical relation

of its many parts” and that “[c]ontext is a primary determinant of meaning”). As a

plurality of the Texas Supreme Court recently explained:

16

While we must consider the specific statutory language at issue, we

must do so while looking to the statute as a whole, rather than as

“isolated provisions.” We “endeavor to read the statute contextually,

giving effect to every word, clause, and sentence.” We thus begin our

analysis with the statute’s words and then consider the apparent

meaning of those words within their context.

Jaster, 438 S.W.3d at 562 (citations omitted). “Undefined terms in a statute are

typically given their ordinary meaning, but if a different or more precise definition

is apparent from the term’s use in the context of the statute, we apply that

meaning.” Ford Motor, 442 S.W.3d at 273. More precisely, courts depart from the

common meaning only when the context of the entire statute provides “a high level

of linguistic clarity” that the common definition should not be used.6 Id. at 272.

6

A plurality of the United States Supreme Court has stated the rule somewhat

differently:

Whether a statutory term is unambiguous, however, does not

turn solely on dictionary definitions of its component words.

Rather, “[t]he plainness or ambiguity of statutory language is

determined [not only] by reference to the language itself, [but

also by] the specific context in which that language is used,

and the broader context of the statute as a whole.” Ordinarily,

a word’s usage accords with its dictionary definition. In law

as in life, however, the same words, placed in different

contexts, sometimes mean different things.

Yates v. United States, 135 S. Ct. 1074, 1081–82 (2015) (citations omitted). The dissent

in Yates also recognized this rule:

I agree with the plurality (really, who does not?) that context

matters in interpreting statutes. We do not “construe the

meaning of statutory terms in a vacuum.” Rather, we interpret

particular words “in their context and with a view to their

place in the overall statutory scheme.” And sometimes that

means, as the plurality says, that the dictionary definition of a

disputed term cannot control.

17

Chapter 33 addresses proportionate responsibility and how the proportioning

of that responsibility impacts the amount of recovery available to a plaintiff from

the named parties. Subsection 33.003(a) distinguishes a defendant from a

responsible third party and permits the jury to allocate some portion of the 100% of

total responsibility to both. It states that the factfinder “shall determine the

percentage of responsibility . . . for . . . (1) each claimant; (2) each defendant; (3)

each settling person; and (4) each responsible third party who has been designated

under Section 33.004.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.003. We presume

that the proportionate responsibility statute maintains this distinction throughout all

its provisions. See Horseshoe Bay Resort, Ltd. v. CRVI CDP Portfolio, LLC, 415

S.W.3d 370, 384 n.7 (Tex. App.—Eastland 2013, no pet.) (discussing presumption

of consistent usage and citing SCALIA & GARNER, READING LAW at 170 (“A word

or phrase is presumed to bear the same meaning throughout a text . . . .”)). This

context—an explicit reference to a third party that is consistent with the ordinary

meaning of the term—informs the disclosure requirements that applied to CVR in

this case.

Plaintiffs rely on the history of the proportionate responsibility statute to

support their argument that a defendant cannot designate a responsible third party

after limitations have expired. The earlier version of the statute, enacted in 1995

135 S. Ct. at 1092 (Kagan, J., dissenting).

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and found in an older version of Subsection 33.011, narrowly defined a

“responsible third party” as follows:

[A]ny person to whom all of the following apply:

(i) the court in which the action was filed could exercise

jurisdiction over the person;

(ii) the person could have been, but was not, sued by the claimant;

and

(iii) the person is or may be liable to the plaintiff for all or a part of

the damages claimed against the named defendant or

defendants.

Act of September 1, 1995, 74th Leg., R.S., Ch. 136, § 1 1995 Tex. Gen. Laws 971,

973 (adding earlier version of Section 33.011); see also id. (adding earlier version

of Subsection 33.004(a), which stated that “a defendant may seek to join a

responsible third party who has not been sued by the claimant.”).

The definition was entirely rewritten in 2003 and it “substantially broadened

the meaning of the term ‘responsible third party’ to eliminate . . . restrictions,”

“such as a [past] requirement for personal jurisdiction and a potential for liability

19

to the claimant.”7 Galbraith, 290 S.W.3d at 868 n.6. Rather than operating as a

limitation, the amended definition expanded the responsible–third–party defense.8

We are not persuaded that the deletion of the phrase “person . . . [who] was

not [] sued by the claimant” from the 2003 definition should be interpreted to mean

that a responsible third party, thereafter, includes parties who are already named as

defendants for three reasons. First, as we have already discussed, the plain meaning

of the phrase “third party” means a person who is not a named litigant with claims

asserted directly by or against it and whose responsibility is already a matter for

the jury’s consideration. Second, other parts of the statute—the linguistic

context—demonstrate a consistent understanding by distinguishing a responsible

third party from a defendant. Third, to the extent we might consider it, the history

of the amendments does not clearly indicate a different meaning.

Through a 2003 amendment, the proportionate responsibility statute was

broadened to allow a jury to apportion responsibility to any non-party9 regardless

7

Similarly, Section 33.004 was entirely rewritten and no longer explicitly indicates

that a responsible third party subject to joinder is one who has not been sued. See

TEX. CIV. PRAC. & REM. CODE ANN. § 33.004.

8

As a result of the new definition, “the jury should allocate responsibility among all

persons who are responsible for the claimant’s injury, regardless of whether they

are subject to the court’s jurisdiction or whether there is some other impediment to

the imposition of liability on them, such as a statutory immunity.” Galbraith, 290

S.W.3d at 868 n.6 (quoting 19 WILLIAM V. DORSANEO III, TEXAS LITIGATION

GUIDE § 291.03[2][b][i] at 291–24.1 (2009)).

20

of whether the nonparty has immunity, limitations defenses or other legal defenses

or are even unknown criminals. See Galbraith, 290 S.W.3d at 868–69; In re Unitec

Elevator Servs. Co., 178 S.W.3d 53, 58, n.5, 60 n.6 (Tex. App.—Houston [1st

Dist.] 2005, orig. proceeding); Sun Dev., L.P. v. Hughes, No. 09-12-00524-CV,

2014 WL 4755467, at *13 (Tex. App.—Beaumont Sept. 25, 2014, pet. filed)

(mem.op.).

A comparison of the text of the 2003 amendment with the 1995 version

demonstrates that the 2003 amendment’s effect is to broaden the universe of

parties submitted in the jury charge and assigned a percentage of responsibility.

Plaintiffs’ interpretation would deny CVR the right to have Wynnewood assigned

its applicable percentage only because Plaintiffs altered their strategy and

nonsuited the entity. A result more compatible with the broadening of potentially

responsible third parties would be one that provided CVR recourse to ensure that

the jury will be able to assign a percentage to Wynnewood.

Finally, we note that the Legislature did not simply delete the phrase “person

. . . [who] was not [ ] sued by the claimant” from the definition. Rather, the

Legislature completely rewrote the definition to focus, not on whether the plaintiff

9

A seller eligible for indemnity in a products liability action is exempted from the

provision. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6) (West 2015).

21

could have sued the third party but, instead, on whether that third party might have

some responsibility that should not be borne by the litigating, named defendant.

Under these circumstances, we cannot conclude there is “a high level of

linguistic clarity” that the Legislature intended to depart from the common

meaning of “third party.” Instead, we follow the straightforward construction that

“third party” means a party that is not otherwise a party to the litigation.

D. Whether the Designation was Timely

Plaintiffs object that CVR did not timely move to designate Wynnewood

under Subsections 33.004(a) and (d). Subsection (a) requires a defendant to file a

motion for leave to designate responsible third parties “on or before the 60th day

before the trial date unless the court finds good cause to allow the motion to be

filed at a later date.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a). When CVR

filed its motion for leave 28 days before the trial date, it asserted that it had good

cause because Wynnewood was still a named defendant at the 60-day deadline, and

thus, CVR was not required to designate Wynnewood as a third-party at that time.

We agree. Plaintiffs nonsuited Wynnewood within the 60-day pre-trial period.

CVR amended its disclosure responses and moved to designate Wynnewood as a

“responsible third party” within 30 days of the nonsuit. This meets the requirement

that the supplementation occur “reasonably promptly.” TEX. R. CIV. P. 193.5(b). It

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further demonstrates “good cause” for seeking to designate within the 60-day pre-

trial period.

Subsection (d) prohibits a defendant from designating a responsible third

party after the claimant’s applicable limitations period has expired if the defendant

failed to timely disclose the third party under Rule 194.2(l).10 TEX. CIV. PRAC. &

REM. CODE ANN. § 33.004(d). We conclude that Subsection (d) does not make

CVR’s motion untimely. A defendant has no obligation to designate a co-

defendant as a responsible third party in its disclosure. Plaintiffs were well aware

of Wynnewood’s potential share of responsibility for their damages; indeed, they

named Wynnewood as a defendant and asserted claims directly against it in

multiple petitions in the case. Further, Plaintiffs voluntarily nonsuited Wynnewood

after the date on which their limitations period expired. The combination of lack of

disclosure and post-limitations period designation do not offend Subsection (d) in

this context.

E. Whether CVR alleged Sufficient Facts in its Motion to Warrant Relief

Plaintiffs’ final argument that the trial court’s denial of CVR’s motion for

leave to designate Wynnewood as a responsible third party was not error is that

CVR did not allege sufficient facts concerning Wynnewood’s responsibility.

10

Subsection (l) requires disclosure of “the name, address, and telephone number of

any person who may be designated as a responsible third party.” TEX. R. CIV. P.

194.2(l).

23

Subsection 33.004(g)(1) states that leave to designate shall be granted unless

the opposing party establishes, through a timely objection, that “the defendant did

not plead sufficient facts concerning the alleged responsibility of the person to

satisfy the pleading requirement of the Texas Rules of Civil Procedure.” TEX. CIV.

PRAC. & REM. CODE ANN. § 33.004(g)(1). The applicable Rule of Civil Procedure

is Rule 47, which is our “notice” pleading rule. See In re Greyhound Lines, No.

05–13–01646–CV, 2014 WL 1022329, at *2 (Tex. App.—Dallas Feb. 21, 2014,

orig. proceeding) (mem. op.) (“The standard for designating a potentially

responsible third party is notice pleading under the Texas Rules of Civil

Procedure.”); see also TEX. R. CIV. P. 47(a) (requiring “a short statement of the

cause of action sufficient to give fair notice of the claim involved”).

Under the notice-pleading standard, fair notice is achieved “if the opposing

party can ascertain from the pleading the nature and basic issues of the

controversy, and what type of evidence might be relevant.” Greyhound Lines, 2014

WL 1022329, at *2. A trial court may not review the truth of the allegations or

consider the strength of the defendant’s evidence. Unitec, 178 S.W.3d at 62.

CVR satisfied this low threshold. Its motion for leave to designate

Wynnewood quoted from Plaintiffs’ own allegations against Wynnewood. It also

alleged that, if any entity or persons were negligent in a manner that proximately

caused Plaintiffs’ injuries, it was [Wynnewood] and its employees, who were

24

responsible for “the calculations made, instructions given, steps taken and means

employed to light the steam boiler.” CVR added that “if this case is submitted to a

jury at all, [Wynnewood] should be included in the initial liability question because

the story of the accident itself—what happened—cannot be told without reference

to [Wynnewood].” Finally, we note that the allegations of Wynnewood’s

responsibility were well-known to Plaintiffs because the 15 page incident report

faulted Wynnewood, its employees, procedures, and inadequate training for the

explosion and Plaintiffs themselves continued to include allegations in their

amended petition of Wynnewood’s allegedly intentional misconduct. We hold that

CVR provided sufficient notice to Plaintiffs of Wynnewood’s alleged wrongdoing.

Because CVR complied with all statutory requirements, the trial court

abused its discretion in denying CVR’s motion for leave to designate Wynnewood

as a responsible third party.

Adequate Remedy by Appeal

We must next decide if CVR has an adequate remedy by appeal. Mandamus

will not issue “when the law provides another plain, adequate, and complete

remedy.” In re Tex. Dep’t of Family & Protective Servs., 210 S.W.3d 609, 613

(Tex. 2006) (orig. proceeding) (quoting Prudential, 148 S.W.3d at 135–36).

Prudential provides that the requirement of an “adequate” remedy on appeal is not

subject to simple categories or bright-line rules and, instead, “is simply a proxy for

25

the careful balance of jurisprudential considerations that determine when appellate

courts will use original mandamus proceedings to review the actions of lower

courts.” 148 S.W.3d at 136–37. The test “is practical and prudential.” Id. at 136.

A complete analysis of the adequacy of appellate remedies requires

consideration of the degree to which “important substantive and procedural rights”

are subject to “impairment or loss.” Id. While mandamus review of “incidental,

interlocutory rulings” which are “unimportant . . . to the ultimate disposition of the

case at hand [or] the uniform development of the law,” would distract the appellate

courts and add expense and delay to the process, mandamus review of “significant

rulings in exceptional cases” could prove essential. Id. Review might be necessary

to preserve important substantive and procedural rights from

impairment or loss, allow the appellate courts to give needed and

helpful direction to the law that would otherwise prove elusive in

appeals from final judgments, and spare private parties and the public

the time and money utterly wasted enduring reversal of improperly

conducted proceedings.

Id. Thus, courts should consider “the impact on the legal system” in determining

whether mandamus relief is appropriate. Id. at 137.

An appellate remedy is “adequate” when the “benefits to mandamus review

are outweighed by the detriments.” Id. at 136. Further, additional expense, by

itself, does not warrant granting mandamus relief. See id. at 136. Nonetheless,

when the error is “clear enough, and correction simple enough,” mandamus review

may still be appropriate. Id. at 137.

26

Courts of appeals that have addressed the adequacy of the remedy by appeal

in Chapter 33 cases have reached different conclusions, but they repeatedly refer to

the Prudential maxim that the decision “depends heavily upon the circumstances

presented.” In re Investment Capital Corp., No. 14–09–00105–CV, 2009 WL

310899, at *2 (Tex. App.—Houston [14th Dist.] Feb. 4, 2009, orig. proceeding)

(citing Prudential regarding circumstances justifying mandamus relief); see In re

Wilkerson, No. 14–08–00376–CV, 2008 WL 2777418, at *2 (Tex. App.—Houston

[14th Dist.] June 6, 2008, orig. proceeding) (same).

The courts holding that the appellate remedy was adequate reasoned that a

lack of exceptional circumstances in those cases caused the detriments of

mandamus review to outweigh the benefits. See Unitec, 178 S.W.3d at 64–65; In re

Martin, 147 S.W.3d 453, 459–60 (Tex. App.—Beaumont 2004, orig. proceeding);

In re SDI Indus., Inc., No. 13–09–00128–CV, 2009 WL 781562, at *1 (Tex.

App.—Corpus Christi March 23, 2009, orig. proceeding); In re Caterpillar Inc.,

No. 04–09–00796–CV, 2009 WL 5062324, at *1 (Tex. App.—San Antonio Dec.

23, 2009, orig. proceeding); Investment Capital, 2009 WL 310899, at *2;

Wilkerson, 2008 WL 2777418, at *2; In re Scoggins Constr. Co. Inc., No. 13–08–

00548–CV, 2008 WL 4595202, at *1 (Tex. App.—Corpus Christi Oct. 15, 2008,

orig. proceeding); In re Helm, No. 13–07–00344–CV, 2007 WL 1584177, at *1

(Tex. App.—Corpus Christi June 1, 2007, orig. proceeding).

27

The courts reaching the opposite conclusion have based their decisions on

the following considerations:

(1) denial of the right to designate responsible third parties 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”;11

(2) there would be a substantial waste of time and money to

proceed to trial without error correction;12 and

(3) review would allow appellate courts to offer “needed and

helpful direction to the law that would otherwise prove elusive

in appeals from final judgments.”13

Because the issue of the adequacy of the remedy by appeal “is practical and

prudential,” “depends heavily on the circumstances,” and is determined by a

balancing test, this split is not surprising. See Prudential, 148 S.W.3d at 137. Each

accumulation of circumstances in the cases presented for mandamus review

presents a different balance of factors. For example, the Fourteenth Court of

Appeals has found that appellate remedy would be inadequate in a case with

11

Brokers Logistics, 320 S.W.3d at 408; see In re Arthur Andersen LLP, 121 S.W.3d

471, 486 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding); see also In re

E. Rio Hondo Water Supply Corp., No. 13–12–00538–CV, 2012 WL 5377898, at

*10 (Tex. App.—Corpus Christi Oct. 29, 2012, orig. proceeding) (same);

Greyhound Lines, 2014 WL 1022329, at *4 (same).

12

See, e.g., Andersen, 121 S.W.3d at 484–86.

13

In re Lewis Casing Crews, Inc., No. 11–14–00137–CV, 2014 WL 3398170, at *5

(Tex. App.—Eastland July 10, 2014, orig. proceeding); see also Brokers Logistics,

Ltd., 320 S.W.3d at 408 (same).

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multiple parties and issues but not in other cases with less exceptional

circumstances. Compare Andersen, 121 S.W.3d at 485–86 (holding no adequate

remedy by appeal because Andersen might not have another remedy in separate

suit against third parties, absence of third parties could profoundly affect suit’s

outcome in ways not necessarily apparent in appellate record, and there would be

enormous waste of resources given case size, expense, and effort to prepare two

trials), with Investment Capital, 2009 WL 310899, at *2 (holding appellate remedy

adequate when defendant sought to designate employer as responsible third party

after trial court had granted summary judgment for employer because

circumstances were not extraordinary), and Wilkerson, 2008 WL 2777418, at *1‒2

(holding appellate remedy adequate because circumstances of case were not

exceptional, denial of defendant’s motion was based on failure “to plead sufficient

facts, and granting mandamus relief would encourage parties to seek mandamus

relief in “all kinds of cases”).

The Corpus Christi Court of Appeals likewise has held that an appellate

remedy would be inadequate in one case but not in others. Compare E. Rio Hondo,

2012 WL 5377898, at *10 (finding appellate remedy inadequate when erroneous

designation of responsible third party could skew trial proceedings, possibly affect

result, and compromise presentation of appeal in ways not apparent in appellate

record), with SDI Indus., 2009 WL 781562, at *1 (holding appellate remedy

29

adequate as circumstances presented were not exceptional), and Scoggins, 2008

WL 4595202, at *1 (denying relief due to unexceptional circumstances), and

Helm, 2007 WL 1584177, at *1 (same).

The Dallas Court of Appeals has adopted a rule that the improper denial of a

motion for leave to designate a responsible third party is generally curable by

mandamus. See In re Smith, 366 S.W.3d 282, 289 (Tex. App.—Dallas 2012, orig.

proceeding) (holding appellate remedy ordinarily inadequate when trial court

improperly denies motion to designate responsible third party); In re Oncor Elec.

Delivery Co., 355 S.W.3d 304, 306 (Tex. App.—Dallas 2011, orig. proceeding)

(holding appellate remedy of denial of motion to designate responsible third parties

inadequate because of potential effect on outcome of litigation that might not be

apparent in the appellate record); Greyhound Lines, 2014 WL 1022329, at *4

(same).

Plaintiffs rely on a case from our court that held that “a relatively

straightforward personal injury case” did not present exceptional circumstances.

See Unitec, 178 S.W.3d at 64. Despite holding that an appellate remedy would be

adequate in Unitec, we acknowledged that a future case may present more

exceptional circumstances that would justify a holding that an appellate remedy

would not be adequate. See id. at 65. This is such a case. It is a complicated

wrongful death case arising from an explosion of a large boiler at a refinery with

30

multiple plaintiffs, multiple defendant parent and subsidiary companies, and

multiple allegations of tortious conduct by the various companies, with conduct

and knowledge of conduct allegedly overlapping between the parties. Plaintiffs

seek actual and punitive damages in excess of $1,000,000. Cf. Lewis Casing

Crews, 2014 WL 3398170, at *4 (rejecting argument that case was simple,

“straightforward negligence matter,” in part, because plaintiffs sought damages in

excess of $1,000,000). Over 16,000 pages of documents have been produced.

Sixteen depositions have been taken; of those, eleven were of Wynnewood

employees. And the trial, according to CVR’s petition for writ of mandamus, is

expected to last “more than two weeks [and] will require at least twenty

witnesses.”

Unitec is distinguishable for a second reason. Unlike Unitec, this case

presents a novel legal issue: whether, under the 2003 definition of “responsible

third party”, a defendant is required to designate a co-defendant. Interpreting

Subsection 33.004(d) to answer that issue allows us “to give needed and helpful

direction to the law that would otherwise prove elusive” and enables us to “spare

private parties and the public the time and money utterly wasted enduring eventual

reversal of improperly conducted proceedings.” See Prudential, 148 S.W.3d at

136. Here, the error is “clear enough, and correction simple enough, that

mandamus review [is] appropriate.” See id. at 137. The issue of interpretation of

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the current version of Subsection 33.004(d) is one of first impression, presents a

question of law, and is likely to recur; thus, it “fits well within the types of issues

for which mandamus review is not only appropriate but necessary.” Id. at 138.

Another factor is the potential difficulty in demonstrating on appeal that the

absence of a responsible third party caused harm. See Hughes, 2014 WL 4755467,

at *13 (noting difficulty in establishing harm from unsubmitted responsible third

party); see also Prudential, 148 S.W.3d at 138 (if appellant suffers judgment on

unfavorable verdict, it could not obtain reversal absent harmful error); Brokers

Logistics, 320 S.W.3d at 409 (noting same in case involving striking of designation

of responsible third party). Wynnewood, as the deceaseds’ employer, is

inextricably tied to the events and decision-making leading to the on-site

explosion. Additionally, post-trial proof that the jury would have attributed

responsibility to it, had it been permitted to, might be difficult given how the

employer’s potential exclusion might affect the relevance and admissibility of such

evidence.

We further agree with CVR that the evidence regarding its conduct as the

premises owner with respect to the boiler and the procedures and training of

personnel at the refinery cannot be readily separated from Wynnewood’s conduct,

procedures, training, supervision, and responsibility for the same boiler and

explosion. These facts further support allowing CVR to designate Wynnewood as a

32

responsible third party so that its responsibility as the employer may be

apportioned together with the responsibility of the premises owner. Plaintiffs’

allegations against CVR are intertwined with their allegations against Wynnewood.

Finally, the district court’s ruling is not a mere incidental ruling. See Unitec,

178 S.W.3d at 65. The denial of CVR’s right to allow the jury to determine the

proportionate responsibility of all responsible parties is a significant ruling and

mandamus review will prevent the impairment or loss of this substantive right. See

Prudential, 148 S.W.3d at 136.

Accordingly, after balancing the jurisprudential considerations, we conclude

that the benefits of mandamus review in this case outweigh the detriments and,

thus, hold that the appellate remedy under these circumstances is inadequate.

Conclusion

We hold that the trial court abused its discretion and that CVR has

demonstrated that it lacks an adequate remedy by appeal. Therefore, we direct the

trial court to vacate its order of October 12, 2015 and to grant CVR’s motion for

leave to designate Wynnewood as a responsible third party. We are confident the

trial court will promptly comply. The writ will issue only if it does not.

Harvey Brown

Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

33