COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

IN RE: § No. 08-23-00081-CV EAN HOLDINGS, LLC d/b/a ENTERPRISE § AN ORIGINAL PROCEEDING RENT-A-CAR § IN MANDAMUS Relator.

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CONCURRING OPINION Given our present record, I join with the majority’s conclusion that the trial court abused its discretion in denying Enterprise’s motion for leave to designate the USBP as a responsible third party. I write separately, however, to comment further about Relator’s long delay in supplementing its response to a discovery request seeking information about the existence of such third parties.

It is true that Enterprise’s post-limitations discovery conduct provides no basis for denying an otherwise proper third-party designation, when timely filed, pursuant to § 33.004(d). In re Mobile Mini, Inc., 596 S.W.3d 781, 786-87 (Tex. 2020) (per curiam); see also TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(d). Although this is the case, I would add that it does not necessarily follow that such discovery conduct would be seen as immaterial to the resolution of other pretrial issues. In In re Bertrand, 602 S.W.3d 691, 706 (Tex. App.—Fort Worth 2020, no pet.), the court particularly noted, “[w]e express no opinions on other issues which may be related to discovery abuse governed by the Texas Rules of Civil Procedure, pre-trial discovery orders, or otherwise.” Id. Rule 193.5 of the Texas Rules of Civil Procedure provides that “[a]n amended or supplemental response must be made reasonably promptly after the party discovers the necessity for such a response.” TEX. R. CIV. P. 193.5(b). Here, Todorovic contends Enterprise never supplemented its discovery responses to mention the USBP as a responsible third-party during the long period the case remained pending awaiting trial. Reading the statute in harmony, as we must, I find that such conduct may be relevant to other aspects of the third-party designation. For example, § 33.004(l) permits a party, after adequate time for discovery, to move “to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant's alleged injury or damage.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(l). Thus, even though §33.004(d) permits Enterprise to make such third-party designation, §33.004(l) further provides that the designation remains subject to being stricken, after adequate time for discovery on the ground that no evidence supports a claim that the USBP bears a portion of responsibility for Todorovic’s claimed injury or damages.

GINA M. PALAFOX, Justice

June 16, 2023 Before Rodriguez, C.J., Palafox, and Soto, JJ.