in Re: Paul Rudnicki ( 2021 )

DISSENTING and Opinion Filed May 11, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00127-CV
IN RE PAUL RUDNICKI, Relator
Original Proceeding from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-00644
DISSENTING OPINION
Opinion by Justice Schenck
I dissent from the panel’s decision to deny relator’s petition for writ of
mandamus in connection with the trial court’s denial of relator’s motion for leave to
designate a responsible third party because it is in direct conflict with the Court’s
recent en banc decision concerning the availability of mandamus to correct a refusal
to allow a designation of a responsible third party and Texas Supreme Court
authority concerning the designation deadline.
APPLICABILITY OF MANDAMUS RELIEF
Mandamus is an extraordinary remedy granted only when the relator
establishes an abuse of discretion by the trial court and an inadequate appellate
remedy. In re N. Cypress Med. Ctr. Operating Co., 559 S.W.3d 128, 130 (Tex.
2018) (orig. proceeding). A trial court abuses its discretion when it acts in an
unreasonable or arbitrary manner or, stated differently, when it acts without
reference to guiding rules and principles. In re Colonial Pipeline Co., 968 S.W.2d
938, 941 (Tex. 1998) (orig. proceeding).
BACKGROUND
The real parties in interest, plaintiffs below, sued relator and Frank Peterman,
former officers of real parties in interest Thompson Petroleum Corporation and the
J. Cleo Thompson and James C. Thompson, Jr., L.P. Partnership Companies,1 to
recover bonuses that were paid in connection with the closing of an oil and gas
transaction known as Red Bull. The real parties in interest settled their claims
against Peterman and, more than a year before the current trial setting of June 8,
2021, relator sought to designate Peterman and real parties in interest’s legal counsel,
David Drumm, who was involved in the negotiations over the bonuses, as
responsible third parties, having identified them as potential responsible third parties
in his disclosures of January 20, 2020, a year and a half before the current trial
setting. The real parties in interest objected to the designations, and on December
4, 2020, the trial court allowed leave to designate Peterman as a responsible third
party and denied leave to designate Drumm as such. Relator then initiated this
original proceeding asserting the trial court abused its discretion by denying him
1
Dorothy Thompson, J. Cleo Thompson, Jr.’s surviving wife, and Linda Gordan and Christy
Thompson, J. Cleo Thompson, Jr.’s daughters, are also real parties in interest.
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leave to designate Drumm and citing In re Coppola in support of his contention
mandamus review is appropriate. 535 S.W.3d 506 (Tex. 2017) (orig. proceeding).
DISCUSSION
I. Abuse of Discretion
Section 33.004(a) of the Texas Civil Practice & Remedies Code provides a
defendant may seek leave to designate a responsible third party by filing a motion
on or before 60 days 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). Relying on American Title Company v. Bomac Mortgage Holdings,
LP, real parties in interest assert that the trial court’s resetting of the initial trial
setting of June 9, 2020, did not alter the deadline by which relator was to designate
responsible third parties and thus, claim real parties in interest, relator’s designation
of June 4, 2020, was untimely. 196 S.W.3d 903, 908–09 (Tex. App.—Dallas 2006,
pet. granted, judgm’t vacated w.r.m.). Real parties in interest’s reliance on Bomac
is misplaced as that case involved a materially distinct posture from the current case.
In that case, the trial was continued for the “very limited” purpose of allowing
additional discovery, and the scheduling order explicitly stated that a trial
continuance would not alter any deadlines unless specifically provided by order. Id.
Here, the scheduling order that set trial on June 9, 2020, did not reference
designations of responsible third parties or the Texas Civil Practice & Remedies
Code and did not alter the deadline for designating responsible third parties. Thus,
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applying the Texas Supreme Court’s precedent, which applied section 33.004(a)
according to its plain language, relator’s motion to designate was timely filed. See
Coppola, 535 S.W.3d at 507–08 (concluding, under circumstances similar to those
presented here, motion to designate filed long after initial trial date, but more than
60 days before new trial setting, was timely). Accordingly, I conclude the trial court
abused its discretion in denying leave to designate Drumm as a responsible third
party.
Regardless, had the initial trial setting controlled, making the motion
untimely, the trial court would still be obliged to consider the motion to determine
whether good cause existed to grant leave to designate the responsible third parties.
TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a). Here, the trial court recognized
this obligation, in part, by granting leave as to Peterman, but not as to Drumm.
Relator disclosed both Peterman and Drumm as potential responsible third parties in
response to requests for disclosure in January 2019, almost six months prior to filing
his formal designation and the initial trial setting, and a year and a half before the
current trial setting. I find it difficult to fathom how good cause did not exist to
allow the designation under these circumstances.
II. Adequate Remedy by Appeal
With respect to the adequacy of an appellate remedy, this Court has spoken to
this issue with respect to designations of responsible third parties over my dissent
and has concluded any error in denying a designation is subject to mandamus. See
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In re Cook, No. 05-20-00205-CV, 2021 WL 1660645, at *5 (Tex. App.—Dallas
April 28, 2021, orig. proceeding).2
CONCLUSION
I would conclude relator established the trial court abused its discretion in
denying him leave to designate Drumm as a responsible third party and relator has
no adequate remedy by appeal. Accordingly, I would conditionally grant relator
mandamus relief. Thus, I dissent from the majority’s decision.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
210127DF.P05
2
In Cook, this Court, sitting en banc, concluded the trial court abused its discretion in denying relators’
motion to designate Ken Paxton—due to his service as counsel to and as manager and member of an entity
that sold mineral interests that were the subject of the lawsuit—as a responsible third party, and found there
was no adequate remedy at law. Cook, 2021 WL 1660645, at *6. I dissented from the Court’s decision in
Cook because the focus of Chapter 33 is on responsibility, not liability, and the statute permits third-party
designation for the purpose of reducing the designating party’s responsibility for the judgment. Id. at *6–
10; see also TEX. CIV. PRAC. & REM. CODE § 33.013(a). Where the legislature has made a separate
apportionment decision in a statute, such as permitting the aggrieved party to recover in full against any
wrongdoer, e.g., Southwest Bank v. Information Support Concepts, Inc., 149 S.W.3d 104, 111 (Tex. 2004),
I read Chapter 33 as inapplicable. Thus, the designation under section 33.004(a) should not be permitted
as any apportionment would have no potential of reducing the wrongdoer’s responsibility for damages
awarded.
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