MANDAMUS VACATES TARDY DESIGNATION OF UNKNOWN CRIMINAL AS RESPONSIBLE THIRD PARTY

In re Echols
Dallas Court of Appeals, No. 05-18-01226-CV (December 19, 2018)
Justices Lang-Miers (Opinion, linked here), Fillmore, and Stoddart

Ken Carroll

Echols sued a physician who treated him for a gunshot wound. About nine months after he answered, the defendant physician sought leave to designate the “Unknown Gunman” who shot Echols as a responsible third party under section 33.004 of the Civil Practice and Remedies Code. When the trial court granted that request, Echols sought mandamus relief, arguing the requested designation was not timely under the statute. The Dallas Court of Appeals agreed and ordered the designation vacated. In so doing, the Court made two significant rulings in areas where there had been sparse authority:

First, breaking new ground, the Court of Appeals held there is no adequate remedy at law or by appeal when a trial court abuses its discretion by improperly granting a motion for leave to designate a responsible third party. Several courts had recognized the availability of mandamus relief when a trial court erroneously denied such a motion, but the Dallas Court went a step further in holding mandamus appropriate where a trial court improperly grants a motion to designate a responsible third party. In the process, the Court parted ways with the San Antonio Court of Appeals, which held earlier this year, in In re Macoroni Enterprises, that parties aggrieved by such an allegedly improper designation did not “show they have no adequate remedy at law,” and therefore that mandamus relief was unavailable.

Second, the Dallas Court joined the Houston First in concluding that section 33.004(j) of the Civil Practice and Remedies Code provides the exclusive procedure for designating as a responsible third party an unknown person whose criminal act contributed to the plaintiff’s loss or injury. Under subsection (j), a defendant must seek to make such a designation “not later than 60 days after the filing of [his] original answer”—as opposed to the more lenient deadline, 60 days before trial, provided in subsection (a) for known third parties. The defendant’s attempt to designate the shooter here, therefore, was late by several months, and the trial court’s decision to allow that designation was contrary to statute and an abuse of discretion.