OPINIONOriginal Mandamus Proceeding[1]Opinion by: Rebeca C. Martinez, JusticeSitting: Rebeca C. Martinez, JusticeLuz Elena D. Chapa, Justice Irene Rios, JusticeDelivered and Filed: June 20, 2018PETITION FOR WRIT OF MANDAMUS DENIEDIn their petition for writ of mandamus, relators assert the trial court abused its discretion by allowing the real parties in interest to designate a lawyer and her law firm as responsible third parties after the real parties in interest had named the lawyer and her firm as third-party defendants and later reached a settlement with them. Relators also assert they have no adequate remedy by appeal. Because we believe relators have an adequate remedy by appeal, we deny the petition for writ of mandamus.BACKGROUNDRelators and the real parties in interest, Eloy Garcia and Rail Link International, Inc. (“RLI”), formed a partnership to lease property and operate a rail car uploading operation at Port San Antonio. The parties retained attorney Allison Haynes and her law firm to negotiate the lease terms and draft the partnership agreement. After a dispute arose, relators filed suit initially against three defendants, two of whom are Garcia and RLI. Relators alleged Garcia and RLI breached the joint venture partnership.Garcia and RLI filed third-party claims against Haynes and her firm, alleging they committed legal malpractice and breached fiduciary duties. Garcia and RLI also alleged Haynes and her firm were liable for “all damages suffered as a result of this litigation which [relators] have claimed is an amount in excess of $29 million.” One week before trial, Garcia and RLI settled their third-party claims against Haynes and her firm.About one week after settling with Haynes and her law firm, Garcia and RLI moved to designate Haynes and her law firm as responsible third parties. Relators opposed the motion. The trial court granted the motion to designate and stayed the trial setting to allow relators to file this mandamus proceeding.PREREQUISISTES TO MANDAMUS RELIEFMandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). Mandamus will issue only to correct a clear abuse of discretion when there is no other adequate remedy at law. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). The relator has the burden of establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam). Because we conclude the issue of whether relators have an adequate remedy by appeal is dispositive, we do not address whether the trial court abused its discretion.ADEQUATE REMEDYWe can find no mandamus case discussing the granting of a motion to designate a responsible third party (“RTP”), and both parties acknowledge there are none. Nevertheless, relators urge this court to adopt the same analysis applied in In re Coppola, 535 S.W.3d 506, 509 (Tex. 2017) (orig. proceeding) (per curiam), in which the Texas Supreme Court addressed the adequacy of an appellate remedy for the first time in the context of a RTP designation pursuant to Texas Civil Practice and Remedies Code section 33.004.[2] In Coppola, unlike here, the trial court had denied the motion to designate without granting leave to replead.The Coppola Court first explained “that ‘adequate’ is merely ‘a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts’ and an ‘adequate’ appellate remedy exists when ‘any benefits to mandamus review are outweighed by the detriments.’” Id. (citation omitted). Regarding the denial of a section 33.004 RTP designation, the Coppola Court concluded that “[i]n weighing the benefits of mandamus review, . . . the benefits generally outweigh the detriments.” Id. The Court reached this conclusion based on its determination that allowing a case to proceed to trial despite the erroneous denial of a RTP 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. (citation omitted); see also In re Brokers Logistics, Ltd., 320 S.W.3d 402, 408 (Tex. App.—El Paso 2010, orig. proceeding) (“The trial court’s [striking of a RTP designation] certainly could be reviewed on appeal in the event Relators suffer an adverse judgment, but Relators would be required to prove that the court’s error caused the rendition of an improper judgment in order to obtain a reversal.”). “The denial of mandamus review [of a trial court's denial of a RTP designation] impairs—and potentially denies—a litigant’s significant and substantive right to allow the fact finder to determine the proportionate responsibility of all responsible parties.” Coppola, 535 S.W.3d at 509; see also In re CVREnergy, Inc., 500 S.W.3d 67, 84 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding) (“The denial of [relator'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.”). Accordingly, the Coppola Court held that, “ordinarily, a relator need only establish a trial court’s abuse of discretion to demonstrate entitlement to mandamus relief with regard to a trial court’s denial of a timely-filed section 33.004(a) motion.” Coppola, 535 S.W.3d at 510 (emphasis added).Finally, an appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. In reMcAllenMed. Ctr., Inc., 275 S.W.3d 458, 472 (Tex. 2008) (orig. proceeding). “In previous cases, [the Texas Supreme Court has] explained that ‘the cost and delay of pursuing an appeal will not, in themselves, render appeal an inadequate alternative to mandamus review.’” Id. (citation omitted.) However, the Brokers Logistics court held that, in the context of the denial of a motion to designate a RTP, courts “must also consider whether mandamus will spare litigants and the public ‘the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.’” Brokers Logistics, 320 S.W.3d at 409 (citations omitted).The Brokers Logistics court concluded it would be a substantial waste of the litigants’ time and money if they proceeded to trial without the error being corrected, proceeded through the appellate process only to have the judgment reversed, and then retried the entire case with the designated responsible third party. Id. “The additional expense and effort of preparing for and participating in those trials does not, standing alone, justify the issuance of a writ of mandamus.” Id. “Where, however, a trial court’s error will cause a waste of judicial resources, an appellate court may properly consider that factor in determining the adequacy of an appeal to remedy the error in question.” Id. The Brokers Logistics court concluded “[t]he potential waste of resources, when combined with the possibility that Relators may not be able to successfully prosecute an appeal, supports our conclusion that Relators do not have an adequate remedy at law.” Id.In this case, we have the reverse of the facts presented in the above cases: the trial court granted Garcia and RLI’s motion to designate a RTP. Relators assert the appellate record will reveal that involving Haynes and her law firm in this trial will “significantly increase trial time and the number of witnesses needed for trial.” However, they contend the appellate record will not reveal the increased cost associated with increased trial time and witness time, or the strategic decisions relators will be forced to make regarding their treatment of Haynes and her law firm. According to relators, if this court declines mandamus review and the case goes to trial only to have the RTP designation later reversed on appeal, “it will be impossible to ‘extrapolate’ Haynes and her law firm from the jury’s eventual judgment.” Finally, relators contend relator/plaintiff Nolan Richardson is seventy-five years old and in declining health, and “there is a sad but real likelihood that he will not be able to tell his story” if he must wait through a lengthy trial and appeal.Garcia and RLI counter that the granting of a RTP designation may be addressed at multiple stages at trial. For example, relators may object to the sufficiency of the evidence against the allegedly responsible third parties by filing a motion to strike the designation pursuant to Civil Practice and Remedies section 33.004, which provides as follows:After adequate time for discovery, a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant’s alleged injury or damage. The court shall grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person’s responsibility for the claimant’s injury or damage.Tex. Civ. Prac. & Rem. Code § 33.004(l). Relators have not filed a motion to strike the designation of Haynes and her law firm as RTPs.Garcia and RLI also assert relators could argue—at the jury charge conference—that the submission of any question on the responsibility of Haynes and her law firm is improper due to lack of evidence. They rely on Civil Practice and Remedies Code section 33.003, which provides: The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person’s causing or contributing to cause 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: each claimant; each defendant; each settling person; and each responsible third party who has been designated under Section 33.004. This section does not allow a submission to the jury of a question regarding conduct by any person without sufficient evidence to support the submission. Tex. Civ. Prac. & Rem. Code § 33.003 (emphasis added).CONCLUSIONWe hold the same “jurisprudential considerations” do not apply when a motion to designate a RTP is granted because, under the circumstances of this case, there are other opportunities for relators to oppose the RTP designation. Therefore, we must conclude relators have not carried their heavy burden to show they have no adequate remedy at law. Accordingly, we deny the petition for writ of mandamus.Rebeca C. Martinez, Justice
