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CAUSE NO. 2019 89441
ALLEN BROUGHTON IN THE DISTRICT COURT
V.
HARRIS COUNTY, TEXAS
CENTERPOINT ENERGY, INC.,
CENTERPOINT ENERGY HOUSTON
ELECTRIC, LLC, TRADESMEN
INTERNATIONAL, LLC and UTILITY
SERVICE & MAINTENANCE, INC. JUDICIAL DISTRICT
DEFENDANT CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC’S
REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR LEAVE
TO DESIGNATE RESPONSIBLE THIRD PARTY
Defendant Center oint Energy Houston Electric, LLC ( CenterPoint”) files this Reply to
Plaintiff’s Response to Motion for Leave to Designate Tradesmen International, LLC
(“Tradesmen ) as a responsible third party under section 33.004 of the Texas Civil Practice &
Remedies Code. In support of this reply, CenterPoint shows the Court as follows:
1. Plaintiff’s objection to CenterPoint’s motion to designate Tradesmen as a
responsible third party is based upon his contention the motion does not meet the fair notice
standard of pleading sufficient facts. The argument is utterly devoid of merit – Plaintiff originally
sued Tradesmen in this lawsuit on the very same allegations of negligence which are set forth in
CenterPoint’s RTP motion. Broughton cannot object to the very allegations his pleading was based
2. More specifically, in his petition Broughton contends he “was provided neither
adequate training nor sufficient safety equipment to perform the job” and these alleged failures
constituted negligence which caused his injuries. (See Plaintiff’s First Amended Petition, at ¶ 5.1).
In its motion, CenterPoint cited these very same allegations of negligence and stated that, if true,
Tradesmen, as Broughton’s employer, had a nondelegable duty to provide him a safe worplace
and the necessary training to his job. Thus, CenterPoint’s motion put Plaintiff squarely on notice
that Tradesmen is a responsible third party because the company’s breach of these duties
proximately caused his injuries. See e.g In re Greyhound Lines, Inc., CV, 2014 Tex.
App. LEXIS 2042, 2014 WL 1022329, at *2 (Tex. App.Dallas Feb. 21, 2014, orig. proceeding)
(mem. op.) (The pleading requirements for designating a responsible third party at the outset [*8]
of a case are not stringent."); and Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993) "[A] petition
is sufficient if a cause of action may reasonably be inferred from what is specifically stated in the
petition, 'even if an element of the cause of action is not specifically alleged.'"
Plaintiff devotes a section of his objection to a claim that CenterPoint had separate
obligations to him under the law which had nothing to do with Tradesmen. In support of his
position, but without any explanation or argument Broughton relies upon expert reports and
discovery responses. The submitted evidence is not properly before the court n determining
whether to grant a motion for leave to designate a responsible third party, the trial court is restricted
to evaluating the sufficiency of the facts pleadeCenterPoint and is not permitted to engage in
an analysis of the truth of the allegations or consider evidence on the third party's ultimate liability.
In re Unitec Elevator Services Co., 178 S.W.3d 53, 62 (Tex. App.Houston [1st Dist.] 2005, no
pet.)
Moreover, even if Plaintiff’s claim CenterPoint had different legal duties than
Tradesmen was true, this matter would be of no import here. At trial if there is a determination
of negligence, the jury will apportion negligence of all defendants and responsible third parties,
irrespective of the nature of the respective breach of duty. This is the very nature of the broad
m submission of negligence under the Pattern Jury Charges. Broughton is conflating the issue
of duty with apportionment of liability. Plaintiff’s argument has no merit.
Finally, Plaintiff asks the Court to deny CenterPoint’s motion for leave to designate
Tradesmen as a responsible third party. However, in the event the Court determines the allegations
in the motion do not meet the fair notice pleading standard, CenterPoint must be afforded an
opportunity to replead before the Court can deny the motion. Tex. Civ. Prac. & Rem. Code Ann.
§33.004(g)(2); and In re Smith, 366 S.W.3d 282, 288 (Tex. App.Dallas 2012, orig. proceeding).
(the trial court s statutorily required to give movants an opportunity to replead before denying
their motion, regardless of whether movantsspecifically asked for an opportunity to replead
The court should overrule Plaintiff’s objection which is disingenuous. Broughton
made the very same allegations of negligence against Tradesmen before nonsuiting the compa
after his determination the workers’ compensation law barred his claims. He should not be heard
now to object to those same theories, especially given that he has not amended his petition to
remove those allegations However, in the event the Court agrees with Plaintiff’s position,
CenterPoint is entitled to an opportunity to repleadand requests leave of court to do so
EREFORE, PREMISES CONSIDERED, Defendant respectfully requests that the
Court overrule Plaintiff’s objections and grant Defendant’s Motion for Leave to Designate
Responsible Third Party.
Respectfully submitted,
LUCERO│WOLLAM, P.L.L.C.
Gina A. Lucero
1776 Yorktown, Suite 100
Houston, Texas 77056
Telephone: (713225-3400
Facsimile(713225-3300
Email: glucero@lucerowollam.com
ATTORNEY FOR DEFENDANT,
CENTERPOINT ENERGY HOUSTON
ELECTRIC, LLC
CERTIFICATE OF SERVICE
I hereby certify that on the November 25 a true and correct copy of the foregoing
was sent or delivered to all parties through counsel of record pursuant to Rule 21a T.R.C.P.
Via E-Service:
Sean A. Roberts
R. Clive Markland
Anjali Sharma
Roberts Markland LLP
2555 North MacGregor Way
Houston, TX 77004
Via E-Service:
Tarush R. Anand
Bridget R. McLaurin
Brown Sims
1177 West Loop South, 10th Floor
Houston, Texas 77027
Gina A. Lucero
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CAUSE NO. 2019 89441 ALLEN BROUGHTON IN THE DISTRICT COURT V. HARRIS COUNTY, TEXAS CENTERPOINT ENERGY, INC., CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC, TRADESMEN INTERNATIONAL, LLC and UTILITY SERVICE & MAINTENANCE, INC. JUDICIAL DISTRICT DEFENDANT CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE THIRD PARTY Defendant Center oint Energy Houston Electric, LLC ( CenterPoint”) files this Reply to Plaintiff’s Response to Motion for Leave to Designate Tradesmen International, LLC (“Tradesmen ) as a responsible third party under section 33.004 of the Texas Civil Practice & Remedies Code. In support of this reply, CenterPoint shows the Court as follows: 1. Plaintiff’s objection to CenterPoint’s motion to designate Tradesmen as a responsible third party is based upon his contention the motion does not meet the fair notice standard of pleading sufficient facts. The argument is utterly devoid of merit – Plaintiff originally sued Tradesmen in this lawsuit on the very same allegations of negligence which are set forth in CenterPoint’s RTP motion. Broughton cannot object to the very allegations his pleading was based 2. More specifically, in his petition Broughton contends he “was provided neither adequate training nor sufficient safety equipment to perform the job” and these alleged failures constituted negligence which caused his injuries. (See Plaintiff’s First Amended Petition, at ¶ 5.1). In its motion, CenterPoint cited these very same allegations of negligence and stated that, if true, Tradesmen, as Broughton’s employer, had a nondelegable duty to provide him a safe worplace and the necessary training to his job. Thus, CenterPoint’s motion put Plaintiff squarely on notice that Tradesmen is a responsible third party because the company’s breach of these duties proximately caused his injuries. See e.g In re Greyhound Lines, Inc., CV, 2014 Tex. App. LEXIS 2042, 2014 WL 1022329, at *2 (Tex. App.Dallas Feb. 21, 2014, orig. proceeding) (mem. op.) (The pleading requirements for designating a responsible third party at the outset [*8] of a case are not stringent."); and Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993) "[A] petition is sufficient if a cause of action may reasonably be inferred from what is specifically stated in the petition, 'even if an element of the cause of action is not specifically alleged.'" Plaintiff devotes a section of his objection to a claim that CenterPoint had separate obligations to him under the law which had nothing to do with Tradesmen. In support of his position, but without any explanation or argument Broughton relies upon expert reports and discovery responses. The submitted evidence is not properly before the court n determining whether to grant a motion for leave to designate a responsible third party, the trial court is restricted to evaluating the sufficiency of the facts pleadeCenterPoint and is not permitted to engage in an analysis of the truth of the allegations or consider evidence on the third party's ultimate liability. In re Unitec Elevator Services Co., 178 S.W.3d 53, 62 (Tex. App.Houston [1st Dist.] 2005, no pet.) Moreover, even if Plaintiff’s claim CenterPoint had different legal duties than Tradesmen was true, this matter would be of no import here. At trial if there is a determination of negligence, the jury will apportion negligence of all defendants and responsible third parties, irrespective of the nature of the respective breach of duty. This is the very nature of the broad m submission of negligence under the Pattern Jury Charges. Broughton is conflating the issue of duty with apportionment of liability. Plaintiff’s argument has no merit. Finally, Plaintiff asks the Court to deny CenterPoint’s motion for leave to designate Tradesmen as a responsible third party. However, in the event the Court determines the allegations in the motion do not meet the fair notice pleading standard, CenterPoint must be afforded an opportunity to replead before the Court can deny the motion. Tex. Civ. Prac. & Rem. Code Ann. §33.004(g)(2); and In re Smith, 366 S.W.3d 282, 288 (Tex. App.Dallas 2012, orig. proceeding). (the trial court s statutorily required to give movants an opportunity to replead before denying their motion, regardless of whether movantsspecifically asked for an opportunity to replead The court should overrule Plaintiff’s objection which is disingenuous. Broughton made the very same allegations of negligence against Tradesmen before nonsuiting the compa after his determination the workers’ compensation law barred his claims. He should not be heard now to object to those same theories, especially given that he has not amended his petition to remove those allegations However, in the event the Court agrees with Plaintiff’s position, CenterPoint is entitled to an opportunity to repleadand requests leave of court to do so EREFORE, PREMISES CONSIDERED, Defendant respectfully requests that the Court overrule Plaintiff’s objections and grant Defendant’s Motion for Leave to Designate Responsible Third Party. Respectfully submitted, LUCERO│WOLLAM, P.L.L.C. Gina A. Lucero 1776 Yorktown, Suite 100 Houston, Texas 77056 Telephone: (713225-3400 Facsimile(713225-3300 Email: glucero@lucerowollam.com ATTORNEY FOR DEFENDANT, CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC CERTIFICATE OF SERVICE I hereby certify that on the November 25 a true and correct copy of the foregoing was sent or delivered to all parties through counsel of record pursuant to Rule 21a T.R.C.P. Via E-Service: Sean A. Roberts R. Clive Markland Anjali Sharma Roberts Markland LLP 2555 North MacGregor Way Houston, TX 77004 Via E-Service: Tarush R. Anand Bridget R. McLaurin Brown Sims 1177 West Loop South, 10th Floor Houston, Texas 77027 Gina A. Lucero