law-responsible-third-party-designation
09-0621
BIELA'S GLASS AND ALUMINUM PRODUCTS, INC. AND ALERT LOCK AND KEY v. SONIA VALVERDE; from
Bexar County;
4th district (04-08-00587-CV & 04-08-00857-CV, ___ SW3d ___, 06-10-09, pet denied Oct 2009) (designation
of responsible third party, timelines, limitations, res judicata)
Summary Judgment Granted on the Basis of Limitations
To begin with, Valverde argues the trial court erred in granting summary judgment in the first suit because her
claims against Biela's and Alert were timely. A negligence claim arising from a personal injury must be brought
within two years from the date of injury. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp. 2008).
Section 33.004 of the Code, however, provides a plaintiff with the opportunity to assert a claim after the
expiration of limitations when certain conditions are met. Section 33.004, entitled "Designation of Responsible
Third Party," states in relevant part:
(a) A defendant may seek to designate a person as a responsible third party by filing a motion for leave to
designate that person as a responsible third party. The motion must be filed on or before the 60th day before
the trial date unless the court finds good cause to allow the motion to be filed at a later date.
. . .
(e) If a person is designated under this section as a responsible third party, a claimant is not barred by
limitations from seeking to join that person, even though such joinder would otherwise be barred by limitations, if
the claimant seeks to join that person not later than 60 days after that person is designated as a responsible
third party.
(f) A court shall grant leave to designate the named person as a responsible third party unless another party
files an objection to the motion for leave on or before the 15th day after the date the motion is served.
. . .
(h) By granting a motion for leave to designate a person as a responsible third party, the person named in the
motion is designated as a responsible third party for purposes of this chapter without further action by the court
or any party.
Tex. Civ. Prac. & Rem. Code Ann. § 33.004(a), (e), (f), (h) (Vernon 2008).
Valverde claims that although the motion for leave to designate Alert and Beila's as responsible third parties was
filed on August 14, 2007, the trial court did not actually grant the motion until June 13, 2008. Accordingly, she
had 60 days from June 13, 2008 in which to assert claims against Biela's and Alert. She filed her second
amended petition naming Biela's and Alert as defendants on June 16, 2008. Valverde's responses to the
motions for summary judgment included as attachments both the June 13, 2008 order designating the appellees
as responsible third parties and her second amended petition filed on June 16, 2008.
Alert responds that because Valverde did not file an objection to the motion to designate within 15 days from the
filing of the motion, the motion was granted as a matter of law on August 29, 2007. In support, Alert cites
subsection (f), which states that the trial court "shall grant leave to designate the named person as a responsible
third party unless another party files an objection to the motion for leave on or before the 15th day after the date
the motion is served." Tex. Civ. Prac. & Rem. Code Ann. § 33.004(f). Accordingly, Alert argues that Valverde
had 60 days from August 29, 2007 in which to join Alert and Biela's. Biela's likewise argues that Valverde had 75
days from August 14, 2007 in which to sue Biela's and Alert, and that an order granting the motion for leave is
only necessary when there is an objection to the designation.
This court recently analyzed the language of section 33.004 to determine whether a defendant is required to file
a motion for leave to designate a person as a responsible third party. See Ruiz v. Guerra, No. 04-08-00090-CV,
2009 WL 1472051 (Tex. App.--San Antonio May 27, 2009, no pet. h.). We held that the clear language of the
statute unambiguously requires that a motion be filed. Id.; see also Sheffield v. Begeman, 274 S.W.3d 846, 850
(Tex. App.--Eastland 2008, pet. filed). Further, we held that the plain language of the statute requires the trial
court to take action by granting the motion. Ruiz, 2009 WL 1472051, at *4 ("A plain reading of the statute
compels us to hold that such a designation cannot be achieved without both the timely filing of a motion for leave
and a court order granting leave to designate the named person."). We based our conclusion on the language
of subsections (f) and (h), which demonstrate that the trial court must take action to grant the motion for leave.
See Tex. Civ. Prac. & Rem. Code Ann. § 33.004(f) ("A court shall grant leave to designate the named person as
a responsible third party unless another party files an objection to the motion for leave on or before the 15th day
after the date the motion is served.") (emphasis added); Tex. Civ. Prac. & Rem. Code Ann. § 33.004(h) ("By
granting a motion for leave to designate a person as a responsible third party, the person named in the motion
is designated as a responsible third party for purposes of this chapter without further action by the court or any
party.") (emphasis ours); see also Gregory J. Lensing, Proportionate Responsibility and Contribution Before and
After the Tort Reform of 2003, 35 Tex. Tech L. Rev. 1125, 1182 (2004) (citing Tex. Civ. Prac. & Rem. Code Ann.
§ 33.004(e), (h)) ("The sixty-day revival period starts when the person 'is designated as a responsible third
party,' which apparently occurs at the time the trial court 'actually grant[s] a motion for leave to designate a
person as a responsible third party.'"). It is only upon the trial court's granting of a motion for leave to designate
a person as a responsible third party that the designation becomes effective. See Tex. Civ. Prac. & Rem. Code
Ann. § 33.004(h).
Because our reading of the statute compels us to hold that an order granting the motion for leave is required to
designate a responsible third party, we cannot agree with the appellees' assertions that either: 1) the motion is
granted as a matter of law if no objection is filed, or 2) an order is only required in those instances where an
objection is filed. Here, there is an order granting the motion for leave to designate Biela's and Alert as
responsible third parties. The order was signed by Judge Sakai on June 13, 2008. Accordingly, Valverde had 60
days from that date in which to join Biela's and Alert. Valverde filed her second amended petition on June 16,
2008 naming Biela's and Alert as defendants, and thus her claims against them were timely.
Biela's argues that even assuming the 60-day period ran from the granting of the motion for leave to designate
the appellees as responsible third parties on June 13, 2008, Valverde's second amended petition filed on June
16, 2008 fails to "add any allegations that defeat application of the statute of limitations as to Biela's" because
she "merely amended her already fatally deficient pleadings." Biela's cites no authority to support this
proposition, and we disagree that section 33.004 requires Valverde to use any special language to join a party
once they have been designated. Under the statute, once the designation is achieved by virtue of the trial
court's order granting leave to designate a named person as a responsible third party, the claimant may join the
person(s) within 60 days. See Tex. Civ. Prac. & Rem. Code Ann. § 33.004(e), (h). Accordingly, Valverde's
second amended petition filed three days after the order designating Biela's and Alert as responsible third
parties was entered is sufficient to join the appellees.
Based on the foregoing analysis, we cannot conclude Biela's and Alert met their summary judgment burden of
conclusively establishing their affirmative defense of limitations. Accordingly, we sustain Valverde's first issue on
appeal, reverse the summary judgment granted on June 24, 2008, and remand the cause to the trial court for
further proceedings.