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In re Unitec Elevator Services Co.6/2/2005
By petition for writ of mandamus, relators, Unitec Elevator Services Company d/b/a VTM Elevator Company, VTM Elevator Company, NAES Central, Inc., NAES Central, Inc., formerly known as Unitec Elevator Services, and NAES Central, Inc., d/b/a VTM Elevator Company, challenge the trial court's orders of April 5, 2004 and December 20, 2004, denying relators' motions for leave to designate responsible third parties in the underlying lawsuit. See Tex. Civ. Prac. & Rem. Code Ann. ยง 33.004 (Vernon Supp. 2004-2005). In their sole issue, relators contend that the trial court clearly abused its discretion in denying their first, second, and third motions for leave to designate responsible third parties in the underlying lawsuit.
We deny the petition.
Factual and Procedural Background
In the underlying lawsuit, real parties in interest Mary Theresa Bryant and Anna Menses, allege that, on November 1, 2001, while working for Southwestern Bell Telephone Company ("Southwestern Bell") at a building located on 3303 Weslayan Street in Houston, they sustained personal injuries when the elevator in which they were riding fell three stories. Plaintiffs further allege that, although the relators were responsible for the maintenance of the elevator and had knowledge that the elevator was having mechanical failures, relators returned the elevator to service before the accident without ensuring that it was in a safe working condition. Plaintiffs have brought claims of negligence and gross negligence against relators and seek actual and punitive damages.
David Trujillo and Rawle Frank have intervened in the lawsuit, alleging that they too were passengers in an elevator located at the Southwestern Bell building on 3303 Weslayan and, following a loss of power, the elevator in which they were riding fell three floors, causing them personal injuries. Trujillo and Frank have brought claims of negligence and malice against relators, and seek actual and punitive damages.
Southwestern Bell Telephone Company
The case was originally set for trial on June 1, 2004. On March 25, 2004, relators filed a motion for leave to designate Southwestern Bell as a responsible third party, alleging that (1) plaintiffs and intervenors were employees of Southwestern Bell at the time of the incident; (2) Southwestern Bell was the owner of the building in which the elevators were located; (3) Southwestern Bell had the right of control over the building, its elevators, and its electrical power; and (4) Southwestern Bell's conduct was the sole cause of the incident. Plaintiffs, on March 30, 2004, filed an objection to relators' motion, asserting that the building was owned by SBC Communications, a parent company of Southwestern Bell. In their objection, plaintiffs also assert that relators had failed to plead sufficient facts to support their allegations that Southwestern Bell was the owner of the building and was responsible for the incident. On April 5, 2004, the trial court entered an order sustaining plaintiffs' objection to relators' motion for leave to designate Southwestern Bell as a responsible third party, and denying relators' motion "as presented."
On November 10, 2004, relators filed a request for reconsideration and an amended motion for leave to designate Southwestern Bell as a responsible third party, alleging that the construction of the Southwestern Bell building as well as the defective design and manufacture of the elevator may have contributed to the incident. Relators also allege that Southwestern Bell was responsible for the unreasonably dangerous condition, had a duty to warn of such a condition, and was responsible for placing the allegedly defec
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