Texas’ proportionate responsibility statute has long afforded defendants in tort cases, including design and construction defendants, the opportunity to “try the empty chair” by utilizing the Responsible Third Party Designation procedure. Texas Civil Practices and Remedies Code Section 33.004 allows a defendant in tort cases to seek to designate a person as a responsible third party by filing a motion for leave to designate that person on or before the 60th day before the trial date unless the court finds good cause for a motion to be filed at a later date. A responsible third party is any person who is alleged to have caused or contributed to the harm for which recovery of damages is sought whether by negligence, any defective or unreasonably dangerous product, or other conduct or activity that violates an applicable legal standard. A person can be a responsible third party even if the statute of limitations has run against them, if they are outside the court’s jurisdiction, are unknown criminals, or bankrupt persons. The designated responsible third party then appears on the jury charge along with each claimant, each defendant, and each settling person for the jury to apportion percentage of liability, but, the responsible third party is not formally joined to the proceedings.

The responsible third party procedure was created as part of sweeping tort reforms in 2003 and was intended to be a procedure useful to defendants. Use of the procedure is often a key element in the defense of a suit involving a multi-party construction project where, perhaps due to lack of information, for strategy reasons, or issues related to limitations of liability contained in contracts between parties, a plaintiff does not sue all the potentially responsible contractors, sub-contractors, and/or design parties. However, for years, the holding in the Dallas Court of Appeals case, American Title Co. v. Bomac Mortg. Holdings, L.P., 196 S.W.3d 903 (Tex. App. – Dallas 2006, pet. granted, judgm’t vacated w.r.m), had been used by plaintiff’s counsel to argue that a defendant must file the motion to designate the 60th day before the original trial date absent an express agreement by the parties to extend the deadline if the trial date and other pre-trial deadlines were continued. This placed the burden on defendants to discover the identity of potential responsible third parties early on in discovery and further, to raise the need for specifically extending the deadline to designate in negotiations for continuances of trial dates. This of course served to tip off plaintiff’s counsel that a potential responsible third party motion was coming and limited the effect of a valuable defense strategy.

The Texas Supreme Court has now clarified Bomac and in a per curiam opinion the Court conditionally granted a writ of mandamus, directing the trial court to grant a motion to designate responsible third parties where the only objection to the motion was that it was filed long after the initial trial date but more than 60 days before the new trial setting. In re Frank Coppola and Bridget Coppola, Relators, ___Tx. S. Ct. J. ___(Cause No. 16-0723)(Tex. December 12, 2017)(per curiam). In so doing, the Court held that, “Trial courts have no discretion to deny a timely-filed motion to designate absent a pleading defect and an opportunity to cure….”

The Court also confirmed for the first time that mandamus relief was appropriate for denial of a responsible-third-party designation. Relying on In re Prudential Insurance Co. of America, 148 S.W.3d 124 (Tex. 2004)(orig. proceeding), the Court found that allowing a case to proceed to trial despite erroneous denial of a responsible-third-party designation skews the proceedings, potentially affects the outcome of the litigation, and compromises the presentation of the case in ways that are not likely to be reflected in the record. The In re Coppola case reflects a significant change to Texas’s responsible third party procedure and while defendants should remain mindful of timely disclosing the potential existence of responsible third parties, this recent ruling allows defendants more time to consider whether or not a responsible third party designation is appropriate.