CourtListener 9568012•In Re: Pranav Chitkara, M.D. v. the State of Texas
In Re: Pranav Chitkara, M.D. v. the State of Texas
CourtListener 9568012Txctapp512.06.2024
Gesamter Gesetzestext
CONDITIONALLY GRANT and Opinion Filed June 12, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00482-CV
IN RE PRANAV CHITKARA, M.D., Relator
Original Proceeding from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-23-11181
MEMORANDUM OPINION
Before Justices Pedersen, III, Smith, and Garcia
Opinion by Justice Smith
By petition for writ of mandamus, relator Pranav Chitkara, M.D., challenges
a trial court order granting real parties in interest Raul Arturo Ramirez Ortiz and
Hellas Construction, Inc.’s motion for leave to designate an unknown person as a
responsible third party. Because real parties did not satisfy the pleading
requirements of Texas Civil Practice and Remedies Code subsection 33.004(j) and
Chitkara lacks an adequate remedy by appeal, we conditionally grant the petition for
writ of mandamus.
Background
Chitkara sued Ortiz and Hellas Construction, Ortiz’s employer, for
negligently causing an automobile accident. Chitkara alleged that he was driving
north in the far left lane on the Dallas North Tollway and Ortiz, in the course and
scope of his employment, was driving north in the middle lane. He further alleged
that Ortiz “improperly, unsafely, and abruptly moved into the left lane . . . and
simultaneously applied the brakes[,]” forcing Chitkara into a collision with the rear
of Ortiz’s vehicle.
On August 28, 2023, Ortiz and Hellas Construction filed an original answer,
asserting a general denial and affirmative defenses. Among other things, they
alleged that “the occurrence in question was the result of a person not a party to the
suit and such act or omission by this person was the sole proximate cause of the
occurrence in question.” They further alleged that they were entitled to ask the
factfinder to determine, pursuant to Texas Civil Practice and Remedies Code section
33.001 or other statute or common law, the responsibility of “any and all claimants,
settling parties, Plaintiffs, Defendants, and responsible third parties” for causing
harm, if any, to Chitkara.
On January 23, 2024, 148 days after filing their original answer, Ortiz and
Hellas Construction filed a motion for leave to designate a responsible third party,
which they referred to as “John Doe (s).” According to the motion, Ortiz moved
into the left lane in an effort to avoid an accident because “[u]nknown people, John
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Doe (s) were pulling in front of people and changing lanes when unsafe to do so and
almost striking . . . Ortiz’s vehicle.” The motion alleged that John Doe(s) failed to
use ordinary care by various acts and omissions, which were a proximate cause of
the occurrence made the basis of this suit. Attached as exhibits to the motion were
(1) a police report; (2) a photo purportedly depicting “John Doe (s)[’] white
Mercedes-Benz;” and (3) Chitkara’s interrogatory responses, which identified an
unknown white Mercedes-Benz as one of three vehicles involved in the incident.
Chitkara filed objections and a response to the motion for leave, arguing that
real parties’ original answer failed to adequately allege John Doe(s)’ responsibility
as required by Texas Civil Practice and Remedies Code subsection 33.004(j) and the
applicable sixty-day window for amending their answer had expired. Real parties
filed a reply; the reply did not address Chitkara’s subsection 33.004(j) argument and
asserted instead that real parties’ pleadings complied with subsection 33.004(g).
On February 29, 2024, the trial court held a brief hearing and took the motion
under advisement. On March 1, 2024, the trial court signed an order granting the
motion for leave and designating “John Doe (s)” as responsible third parties.
Standard of Review
“A writ of mandamus will issue if a trial court abuses its discretion and no
adequate remedy by appeal exists.” In re Gonzales, 619 S.W.3d 259, 261 (Tex.
2021) (orig. proceeding) (per curiam) (citing In re C.J.C., 603 S.W.3d 804, 811 (Tex.
2020) (orig. proceeding)). A trial court has “no ‘discretion’ in determining what the
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law is or applying the law to the facts” and, therefore, abuses its discretion if it fails
to properly apply a statutory requirement. Id. (citing Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992) (orig. proceeding)).
Leave to Designate an Unknown Person as a Responsible Third Party
Chitkara contends that the trial court abused its discretion in granting real
parties’ motion for leave because real parties failed to satisfy the strict pleading
requirements of Texas Civil Practice and Remedies Code subsection 33.004(j) and
that he lacks an adequate remedy by appeal. We agree.
Section 33.004 of the civil practice and remedies code governs the designation
of responsible third parties. TEX. CIV. PRAC. & REM. CODE ANN. § 33.004. A person
designated as a responsible third party is to be included in the list of parties the
factfinder may consider in allocating responsibility for a plaintiff’s damages,
provided that there is sufficient evidence at trial to support the submission. Id.
§ 33.003(a)(4), (b).
The procedure for designating an unknown person as a responsible third party
differs from that required for designating a known person.1 See Gonzales, 619
1
Subsection 33.004(a) provides that a defendant who desires to designate “a person” as a responsible
third party must move for leave on or before the sixtieth day before a trial date, unless the court finds good
cause to allow the motion at a later date. Gonzales, 619 S.W.3d at 262 (citing TEX. CIV. PRAC. & REM.
CODE ANN. § 33.004(a)). The court shall grant leave to designate a “named” person as a responsible third
party unless another party objects within fifteen days after the motion for leave is filed. Id. (citing TEX.
CIV. PRAC. & REM. CODE ANN. § 33.004(f)). If a party timely objects, the court must grant the motion for
leave “unless the objecting party establishes that the defendant failed to adequately plead facts establishing
the third party’s responsibility, even after receiving an opportunity to replead those facts.” Id. (citing TEX.
CIV. PRAC. & REM. CODE ANN. § 33.004(g)). “‘Notwithstanding’ any of these provisions, subsection (j)
governs the designation of an ‘unknown person as a responsible third party.’” Id. (citing TEX. CIV. PRAC.
& REM. CODE ANN. § 33.004(j)).
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S.W.3d at 262–64. Subsection 33.004(j) sets out the procedure for designating an
unknown person and provides:
Notwithstanding any other provision of this section, if, not later than 60
days after the filing of the defendant’s original answer, the defendant
alleges in an answer filed with the court that an unknown person
committed a criminal act that was a cause of the loss or injury that is
the subject of the lawsuit, the court shall grant a motion for leave to
designate the unknown person as a responsible third party if:
(1) the court determines that the defendant has pleaded facts
sufficient for the court to determine that there is a
reasonable probability that the act of the unknown person
was criminal;
(2) the defendant has stated in the answer all identifying
characteristics of the unknown person, known at the time
of the answer; and
(3) the allegation satisfies the pleading requirements of the
Texas Rules of Civil Procedure.
TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(j). A defendant must follow
subsection 33.004(j)’s requirements in order to designate an unknown person as a
responsible third party. See Gonzales, 619 S.W.3d at 262 (trial court may not grant
leave to designate unknown person as responsible third party when defendant fails
to “timely and adequately satisfy” subsection 33.004(j)’s pleading requirements).
Real parties’ original answer did not allege that an unknown person’s
commission of a criminal act resulted in Chitkara’s loss or injury. Nor did real
parties amend their answer within sixty days of filing their original answer to include
the required allegation. Because real parties failed to satisfy subsection 33.004(j)’s
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predicate pleading requirement, the trial court should have denied real parties’
motion for leave. See id.; In re 7-Eleven, Inc., No, 13-22-00464-CV, 2023 WL
348018, at *5 (Tex. App.—Corpus Christi–Edinburg Jan. 20, 2023, orig.
proceeding) (mem. op.) (no abuse of discretion in denying designation of “John
Doe” as responsible third party when defendant 7-Eleven did not file answer
asserting that unknown person committed criminal act that was cause or loss of
injury within sixty days after filing its original answer).
Relying on the allegation in their original answer that “the occurrence in
question was the result of a person not a party to the suit and such act or omission
by this person was the sole proximate cause of the occurrence in question,” real
parties nevertheless respond that they provided “fair notice” and “alleged an
unknown driver had contributed to or caused [Relator’s] alleged injuries by a
negligent act or omission, by criminal conduct, or some combination of these.”
Subsection 33.004(j), however, “expressly requires the answer to state ‘that an
unknown person committed a criminal act that was a cause of the loss or injury’ and
‘all identifying characteristics of the unknown person, known at the time of the
answer.’” In re Winstar Trucking, LLC, 657 S.W.3d 474, 484 (Tex. App.—El Paso
2022, orig. proceeding) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(j)).
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Here, real parties’ only timely filed pleading, their original answer, refers to neither
an unknown person nor a criminal act.2
Real parties further assert that their answer must be viewed in context with
their motion for leave and, in the event their pleading is deficient, the remedy is to
allow them to replead. This ignores subsection 33.004(j)’s explicit timing
requirement. To allow a defendant to generally refer to “an act or omission” by “a
person not a party” in its answer and then, in a motion for leave filed well after the
applicable deadline, allege for the first time that the act or omission was a criminal
act committed by an unknown person is contrary to subsection 33.004(j)’s plain
language. It “‘would render the pleading deadlines imposed in subsection (j)
meaningless’ because a ‘defendant would never have an incentive to comply with
the pleading requirement in subsection (j) when it could simply wait to designate the
unknown person sixty days before trial, and obtain a strategic advantage not intended
by the legislature.’” Gonzales, 619 S.W.3d at 263 (quoting In re Unitec Elevator
2
We note too that in each case real parties cite to support their “fair notice” argument, the defendant
had timely filed an answer that included specific allegations that an unknown person committed a criminal
act that was a cause of the loss or injury that was the subject of the lawsuit. See In re J & R Multifamily
Grp. Ltd., No. 01-23-00323-CV, 2024 WL 371107, at *5–6 (Tex. App.—Houston [1st Dist.] Feb. 1, 2024,
orig. proceeding) (mem. op.) (amended answer, filed less than month after original answer, alleged that
incident complained of was caused by unidentified individual’s criminal acts [sexual assault of plaintiff]
and thus satisfied subsection 33.004(j)’s predicate pleading requirement); In re Galvan, No. 04-23-00831-
CV, 2023 WL 7171491, at *3 (Tex. App.—San Antonio Nov. 1, 2023, orig. proceeding) (mem. op.)
(defendant’s amended answer stated that unknown driver’s criminal actions [violations of Texas
Transportation Code and failing to provide signal to vehicles following behind his/her vehicle] caused
accident); Winstar Trucking, 657 S.W.3d at 480, 483–85 (timely filed supplemental answer alleged that
criminal act of unknown person was cause of loss or injury).
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Servs. Co., 178 S.W.3d 53, 61 (Tex. App.—Houston [1st Dist.] 2005, orig.
proceeding)).
Subsection (j) is the exclusive means by which an unknown person may be
designated as a responsible third party. Id. at 264 & n.4. Because real parties did
not timely or adequately satisfy subsection (j)’s predicate pleading requirement, we
conclude that the trial court abused its discretion by granting their motion for leave
and designating John Doe(s) as a responsible third party. See id. (trial court has no
discretion to grant motion for leave to designate unknown person as responsible third
party when defendant failed to satisfy subsection 33.004(j)’s strict pleading
requirements).
Requiring Chitkara to “go through a trial before remedying the trial court’s
error would defeat the substantive rights that subsection (j) protects.” Id. at 265
(citing In re Dawson, 550 S.W.3d 625, 629–30 (Tex. 2018) (orig. proceeding) (per
curiam)). Accordingly, Chitkara does not have an adequate remedy by appeal, and
mandamus is appropriate. Id. (mandamus is appropriate to “protect a plaintiff’s right
to not have to try her case against an empty chair”). Because Chitkara has
demonstrated both requirements for obtaining mandamus relief, we conditionally
grant his petition for writ of mandamus.
Conclusion
We conditionally grant the petition for writ of mandamus and direct the trial
court to vacate its March 1, 2024 order granting the motion for leave to designate
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responsible third party and ordering that John Doe(s) be formally designated as
responsible third parties. The writ of mandamus will issue only if the trial court fails
to do so within fourteen (14) days of the date of this opinion and accompanying
order.
Craig Smith/
CRAIG SMITH
JUSTICE
240482F.P05
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