In a case arising from a horrific automobile rollover accident that killed one person and severely injured two others, the Corpus Christi Court of Appeals has held that a trial court abused its discretion when it denied defendants’ motion for leave to designate a responsible third party without giving them the opportunity to replead facts supporting the designation.

The facts of In re 7-Eleven, Inc. and Louie’s Backyard, Inc. (No. 13-22-00464-CV; filed January 20, 2023) can be briefly stated as follows. Two sisters, their minor children, and one of the sister’s boyfriends drove from McAllen to South Padre Island. The adults apparently drank on the drive, at the beach, at dinner at Louie’s, in a bar called Laguna Bob’s, and then bought beer from a 7-Eleven and drank it on the way back to McAllen. The intoxicated driver, who had a suspended license for previous DUIs, lost control of her vehicle near San Benito. The vehicle rolled over, ejecting the passengers, killing her daughter and seriously injuring her sister and niece. The subsequent lawsuit named 7-Eleven, Louie’s Backyard, and Laguna Bob’s and their employees, asserting liability under the Texas Dram Shop Act. 7-Eleven filed a third-party petition against the driver, and the decedent minor’s father intervened. 7-Eleven filed a motion for leave to designate several responsible third parties, including a friend who joined the group during the day and provided them alcohol, and the unknown drivers of two pick-up trucks whose drag racing on the highway allegedly contributed to the driver losing control of the vehicle. The trial court denied the motions. 7-Eleven and Louie’s Backyard sought mandamus.

The court granted the petition in part and denied it in part. As to the two pick-up truck drivers, the court found that 7-Eleven did not designate them as responsible third parties within the statutory deadline in § 33.004(j), CPRC. That section requires a defendant alleging in an answer that an unknown person committed a criminal act that was a cause of the loss or injury to do so not later than 60 days after the filing of the defendant’s original answer. In this case, however, 7-Eleven did not file any amended answers within the 60-day period, nor did it file its motion for leave to designate until nearly 11 months later. Relators argued that the motion was timely because it was filed seven months prior to the trial date. Under § 33.004(a), motion for leave to designate may be made on or before the 60th day before trial, so relators tried to shoehorn the pick-up drivers into the general provision. The court didn’t go for it, noting that the statute clearly calls for an answer alleging a third-party criminal act within 60 days of the original answer, not 60 days before trial.

The court did, however, agree with 7-Eleven that the trial court erred when it determined, as plaintiffs argued, that the defendants had to establish that the designated parties owed the plaintiffs a legal duty in order to obtain leave to designate. As SCOTX held in Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 868 (Tex. 2009), “‘Chapter 33 does not equate responsibility with liability and ‘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.’” Accordingly, the court of appeals held that the defendants’ pleadings do not have to show that RPTs are “legally responsible for the real parties’ injuries at this stage of the litigation. Further, we need not determine whether the relators pleaded sufficient facts regarding [the boyfriend’s] alleged responsibility, because even if a deficiency existed, the trial court lacked discretion to deny the motion to designate without affording them an opportunity to replead” under § 33.004(g).

This case demonstrates both the benefits and pitfalls of responsible third-party practice. Relators’ failure to timely designate third-party criminal actors (the pick-up drivers) potentially cost them another name on the jury charge, if they could have pleaded sufficient facts to make the designation stick. On the other hand, the boyfriend’s alleged actions in providing alcohol to the driver despite knowledge of the driver’s DUI record and intoxicated state might be important to a jury if defendants can get them there. And once again we see a court of appeals carefully applying the law in a difficult case and reaching, in our view, a correct decision.

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