In re Windstar Trucking, LLC

• Decision Date: 26 August 2022
• Docket Number: 08-21-00001-CV
• Parties: IN RE: WINDSTAR TRUCKING, LLC, RELATOR.
• Court: Court of Appeals of Texas

IN RE: WINDSTAR TRUCKING, LLC, RELATOR.

No. 08-21-00001-CV

Court of Appeals of Texas, Eighth District, El Paso

August 26, 2022

AN ORIGINAL PROCEEDING IN MANDAMUS

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

JEFF ALLEY, Justice

This mandamus requires us to decide two legal questions: (1) is making an illegal left hand turn that violates the Texas Traffic Code a "criminal act" under Chapter 33 that permits the designation of unknown responsible third parties in civil cases; and (2) can a defendant wishing to designate an unknown person plead adequate facts to support the designation in their motion for leave to designate, and not their answer? We conclude that the answer to the first question is "Yes," and the answer for the second question is "Yes" as well, but only if certain other information specifically required to be pleaded in the answer is in the answer. Consequently, we grant the mandamus to allow Relator, Windstar Trucking, LLC, to designate an unknown responsible third party.

I. Background^[1]

The lawsuit below arises from a traffic accident in which a Windstar truck (an International tractor, pulling a commercial tanker trailer) driven by Javier Jimenez swerved out of its lane. The truck then struck a Volkswagen Passat driven by Michael Dubrule, along with passenger Rashon El-Amin Peterson. Peterson died from the collision and Dubrule was injured. Peterson's estate and representatives (the Petersons), along with Dubrule, sued Windstar and its driver, Jimenez.

Windstar contends that an unknown person driving a "white pickup truck" caused or contributed to cause the accident. Its argument is based on these asserted facts: The accident occurred at the intersection of Zaragosa and Rich Beam in El Paso, Texas. At the point of the accident, Zaragosa has four lanes in the northbound direction. The far left lane is a left hand turn lane only. The two middle lanes allow drivers to proceed northbound across Rich Beam (lanes #1 and #2). The far right lane is a right hand turn lane only. The Windstar truck was proceeding northbound in lane #1. The Dubrule vehicle was also northbound, but in lane #2. Windstar contends that a white pickup truck was also northbound in lane #1 immediately in front of the Windstar tractor-trailer. Even though the light facing northbound traffic was green the white pickup came to a sudden stop and then executed a left hand turn from lane #1 (and not from the designate left hand turn lane). Windstar contends that to avoid hitting the white pickup truck, Jimenez was compelled to swerve into the path of the Dubrule vehicle in lane #2.

Based on our record, Windstar presently cannot identify this other driver, and can only say the person was driving a white pickup truck. Windstar intended to develop this defense by naming a "John Doe" as a responsible third party which in turn might allow the jury to assign a percentage of responsibility to the John Doe (if evidence convinces the jury that there was in fact a John Doe that was responsible for the accident). Following several hearings, the Honorable Ruben Morales, Judge of the County Court at Law No. 7 of El Paso County, denied Windstar's Motion for Leave to Designate "John Doe" as a responsible third party. Windstar now seeks mandamus relief, requesting that we direct the trial court to vacate its denial order and enter a new order granting the motion for leave to designate the John Doe as a responsible third party.

II. Standard of Review

Mandamus is an extraordinary remedy only available when (1) a trial court clearly abuses its discretion, and (2) there is no adequate remedy by appeal. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). As for the first requirement, a trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to guiding rules or principles, or if its decision is so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). But "[a] trial court has no 'discretion' in determining what the law is or applying the law to the facts," Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) "even when the law is unsettled[.]" In re Prudential, 148 S.W.3d at 135.

As for the second mandamus requirement, when a trial court erroneously denies a party's motion for leave to designate a responsible third party, mandamus relief is the appropriate remedy. In re Mobile Mini, Inc., 596 S.W.3d 781, 787-88 (Tex. 2020) (orig. proceeding), citing In re Coppola, 535 S.W.3d 506, 507-09 (Tex. 2017) (orig. proceeding). Mandamus in this context is generally appropriate because "allowing a case to proceed to trial without a properly requested responsible third party designation 'would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of the relator's defense in ways unlikely to be apparent in the appellate record.'" Id., quoting In re Coppola, 535 S.W.3d at 509).

III. Responsible Third Parties

Subject to some exceptions, a tortfeasor in Texas is generally responsible only for their own proportionate share of responsibility in causing a loss. See Tex.Civ.Prac.& Rem.Code Ann. § 33.013(a).^[2] To execute that policy preference, section 33.003 of Civil Practices & Remedies Code allows the trier of fact to determine the proportionate responsibility for each claimant, defendant, settling person, and "responsible third party." Id. § 33.003. A "responsible third party" is a person or entity not named as a party in the litigation but who nevertheless may bear responsibility for the claimant's injury. Id. § 33.011(6); New Hampshire Ins. Co. v. Rodriguez, 569 S.W.3d 275, 298 n.9 (Tex.App.--El Paso 2019, pet. denied).

To designate a known responsible third party, a defendant must file a motion for leave to designate the person or entity as a responsible third party. Tex.Civ.Prac.& Rem.Code Ann. § 33.004(a). Unless another party files an objection to the motion for leave on or before the fifteenth day after service of the motion, the trial court shall grant the requested leave to designate. Id. § 33.004(f). Furthermore, even if an objection to the motion for leave is timely filed, the trial court still must grant leave to designate unless the objecting party can show: (1) the defendant failed to plead sufficient facts regarding the alleged responsibility of the person based on the Texas Rules of Civil Procedure's notice pleading requirement; and (2) after an opportunity to replead, the defendant still failed to plead sufficient facts regarding the alleged responsibility of the person. Id. § 33.004(g); see also In re Cordish Co., 617 S.W.3d 909, 913-14 (Tex.App.--Houston [14th Dist.] 2021, orig. proceeding) (referencing the notice pleading standard under Tex.R.Civ.P. 47 as it pertains to pleading facts in a motion for leave to designate a responsible third party); Pacheco-Serrant v. Munoz, 555 S.W.3d 782, 793 (Tex.App.--El Paso, 2018, no pet.) (discussing the notice pleading standard in Texas).

Subsection (j) of section 33.004 governs the designation of unknown third parties, and provides:

(j) 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.

Id. § 33.004(j). As we elaborate on below, the procedures to designate known and unknown responsible third parties share some similarities, but also contain notable differences.

Finally, a party seeking to submit the conduct of a responsible third party may have additional hurdles to clear. A party opposing the designation can move to strike the designation after an adequate time for discovery has passed, if "there is no evidence that the designated person is responsible for any portion of the claimant's alleged injury or damage." Id. § 33.004(1). And of course, a trial court should not submit the conduct of any actor unless the evidence at trial justifies the submission. See, e.g., Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992).

IV. Discussion

In two issues, Windstar challenges the denial of its designation of the John Doe allegedly driving the white pickup truck. In its first issue, Windstar asserts the trial court abused its discretion by denying its designation of an unknown responsible third party. In its second issue, Windstar asserts it has no adequate remedy for the denial of its designation of an unknown responsible third party.

A. Designation of the Unknown Driver

The trial court "shall grant" a timely and compliant motion for leave to designate a responsible third party. Tex.Civ.Prac.& Rem.Code Ann. § 33.004(f), (g), (j); In re Coppola, 535 S.W.3d at 507-09. No timing issue is raised for Windstar's motion for leave or answer.^[3]Instead, the trial court's order denied Windstar's motion for leave because Windstar "failed to plead sufficient facts to support the motion." Based on the arguments raised below, that alleged failure to plead sufficient facts implicates one of two arguments. The...