Opinion issued February 23, 2023

In The Court of Appeals For The First District of Texas ———————————— NO. 01-22-00867-CV ——————————— IN RE FEDEX GROUND PACKAGE SYSTEM, INC., O’BRIEN INTEREST, INC., AND SHANNON WILKERSON, Relators

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION Relators, FedEx Ground Package System, Inc., O’Brien Interest, Inc., and Shannon Wilkerson, filed a petition for writ of mandamus challenging the trial court’s “Order Denying [Relators’] Motion for Leave to Designate Responsible Third Party.”1 In their mandamus petition, relators argue that the trial court abused

The underlying case is Roberto Ramirez v. FedEx Ground Package System, Inc., O’Brien Interest, Inc., Shannon Wilkerson, and Jim McCord, Cause No. its discretion by denying their motion for leave to designate Jim McCord as a responsible third party pursuant to Texas Civil Practice and Remedies Code Chapter 33. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004.

On February 9, 2023, relators filed a motion to voluntarily dismiss their petition for writ of mandamus, stating that the relief requested in their petition for writ of mandamus had effectively been rendered moot because “[i]n his response,” real party in interest, Roberto Ramirez, “appear[red] to now concede [that] Jim McCord’s fault must be submitted for apportionment.” Accordingly, relators “seek to voluntarily dismiss their [p]etition for [w]rit of [m]andamus.” See TEX. R. APP. P. 52.8(a).

Relators’ motion does not include a certificate of conference, but it states that “[b]ecause th[e] motion does not prevent [Ramirez] from seeking any relief to which [he] would otherwise be entitled, [Ramirez’s] consent or conference is not required.”

The Texas Rules of Appellate Procedure require that a party filing a motion in a civil case include a “certificate stating that the filing party conferred, or made a reasonable attempt to confer, with all other parties about the merits of the motion and whether those parties oppose the motion.” See TEX. R. APP. P. 10.1(a)(5). The rules do not include an exception to the requirement to confer for situations where the motion

2019-74906, in the 334th District Court of Harris County, Texas, the Honorable Dawn Rogers presiding. does not prevent the other parties from seeking relief to which [they] would otherwise be entitled. However, on February 9, 2023, Ramirez filed a response to relators’ motion to dismiss, stating that he “does not oppose the motion.” See TEX. R. APP. P. 10.1(b).

Accordingly, we grant relators’ motion and dismiss the petition. We dismiss any pending motions as moot.

PER CURIAM Panel consists of Justices Hightower, Rivas-Molloy, and Farris.