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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SUBSTITUTED CONCURRING OPINION The Concurring Opinion issued June 16, 2023, is withdrawn and this Concurring Opinion is issued in its place. 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 that sought information about the existence of responsible third parties.

To begin, I agree that Enterprise’s discovery-conduct following the expiration of limitations provides no basis for denying a proper third-party designation, when such is 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). Even so, I would add that it does not necessarily follow from that conclusion that Enterprise’s conduct remains 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 the limitations of its decision by stating, “[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 has not supplemented its discovery responses to mention the USBP as a responsible third-party during the long period that the case has 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 that are not adjudicated here. 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, as relevant here, even though § 33.004(d) permits Enterprise to make such third-party designation, that provision must be read together with § 33.004(l), which 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 designated third-party in fact bears a portion of responsibility for Todorovic’s claimed injury or damages.

GINA M. PALAFOX, Justice

June 12, 2024 Before Alley, C.J., Palafox and Soto, JJ.