Opinion issued Febr uary 1, 2024

In The 

## Court of Appeals

For The 

## First District of Texas

———————————— NO. 01

- 23

- 00 3 2 3

- CV

———————————
IN RE J & R MULTIFAMILY GROUP LTD

, Relator

Original Proceeding on Amended Pe titi on f or Wr i t of Mandamus

MEMORAN DUM O PI NION

Relator

, J & R Multifamily Group Ltd

, has filed a n amended petition for a

writ of mandamus

, 1 challenging the t rial court ’ s February 28, 2023 order denying

relator ’ s “ M otion for L eave to D esignate John Doe , Unknown Criminal Assailant

a s R espon s ible T hi rd P a rty ” ( the “ motion for leave to designate ” )

. In its sole issue,

1 Re l ator previously filed a mandamus p etition , which the C ourt denied without prejudice to refile a petition for writ of mandamus that complied with the Texas Rules of Appellate Pro cedure. See In re J & R Multi fa mil y Gr p. L T D. , No. 01

- 23

- 0032 3

- CV, 2023 WL 3743185, at *1 (Tex. App.

— Houston [1st Dist .] June 1, 2023, orig . proceeding) (mem. op.).2

r elator con tends that the trial court erred in denying its motion for leave to

designate

.

W e co ndi tionally grant the amended p eti tion. 2

Background

T he underlying pr oceeding arises ou t of a sexual assault o f r ea l party in

interest

, Jane Doe

. In h er ori g inal petitio n, re al party in interest a lleg ed that she

“ was a tenant at T he Worthing t on at T he Bel tway Apartments ” ( the “ Premises ”)

,

“ when on February 6 , 20 22 [,] she was brut ally raped at gunpoint on the

[P]remises

. ” According to real party in interest , she stepped out of her apartment

and “ [ w ] hen [ she ] returned to enter the apa r tment, a man ” (t he “ p erpetrator ” )

“ [ s n u c k ] up behind h er and p ut his foo t in the doorway to stop her from clo si ng the

door

. ” Real party in interest subsequently discovered that she had been

impregnated by the p erpetrator

. Real party in interest did not know the perpet r a tor ,

who remains unidentified and not apprehended

.

Rea l party in interest furth er alle ged t ha t t he Premises were owned by relator

2 The underlying case is Jan e Doe v. J&R Multifamily Group Ltd d/ b/a The Worth i ngton at T

he Beltway a/k/a Worthington A partments and Casa Nube En B is sonnet , and J&R Multifamily Management LLC

, Cause No. 2022

- 71136

, pending in the 1 8 9 th District Court of Harris Co unty, Texas, the Honorable T amika Craft

- Demming presiding

.3

and managed by J&R Multifamily Management LLC (“J&R Management”). 3

Acc ording to r eal party in interest

, “ [ t ] he gates [at the Prem ises] did not function

properly, there was no security, and no functional security came ra s

. ” Further

, prior

to the sexual assault, re al party in inte rest did n ot receiv e any warnings of criminal

activity on the Premises

, even though relator and J &R Managemen t “ were aware

(or had reason to know) of frequent violent c riminal activity occurrin g in close

pr oximity to

. . . and on the Premises

. ” Real party in inte rest furthe r alleged th at

her injurie s were “ a direct and pr oximate result of [ relator ’ s and J &R

Managemen t ’ s ] failure to take a ppropriate action an d pro perly safeguard the

[P] remises

. ” Re al party in interest brought various claims against relator and J &R

Ma n agemen t , inclu ding negligence, gross negligence, premises liability, and

violations o f t he Texas Dece pti ve Trade Practices Act ( “ DTPA ” )

. 4

O n December 29 , 20 22

, re lato r answered, gen er ally den y in g the allegations

in real party in interest ’s origin al petition and asserting:

Pleading further and without w a iving the foreg oing, [relator] assert [ s ] that the incident in q uestion was proximately caused or solely proximately caused by the n eg ligent and/or wro ngful and/or criminal conduct of third

- parties outside the control of [relator]

.

On January 2 4, 202 3, re lator filed a n amended answer

, assertin g in rel evant part :

3 Al though relator and J&R Management jointly fil ed numerous documents in the tri al court, i n cluding an original answer , an amended answer

, and a motion for leave to designate

, J &R Management is not a par ty t o this mandamus proceeding

.
4 See T EX

. B US

. & C OM

. C ODE A N N

. §§ 17.41

– .63

.4

Pleading further and subject to the foregoing, without waiving same, [re la tor] herein would show that the incident complained of in [ real party in interest ’ s] [ o] riginal [p] etition was caused by t h e criminal acts of an unidentified individual over which [relator] had no co ntrol. According to the [real party in interest ’ s] [o] r ig inal [p] etition, on or abou t

. . . F ebruary 6, 2022, [she] was sexually assaulted in her apartment at 1350 Greens Pkwy, Ho u ston, Texas 77067. Said criminal acts by the unidentified [perpetrator] were either the sole cause, or in the alternative, a proxi ma te cause, and/or a producing

cause of the incident and injuries made the basis of this litigation.

T hat same d ay, re lator filed a motion for leave to des ig n a te

. In its motion

for leave to designate , relator state d in pe rt inent part:

This is a pe rs onal injury action involving an a lleged sexual assault at an apartment complex on or about Febr u ary 6, 2022, at 1350 Greens Pkwy in Houston, Texas 77067.

[Real party in interest ] alleged :
[Real party in interest ] was a tenant at the Worthington at [T] he Beltway Apartments when on February 6, 2022, she “was brutall y raped at gunpoint on the premises” after “a man [sic] (corre c t spel ling: snuck) up behind her and put his foot in the doorway to stop her from

c losing the door. He then slammed [ r eal party in interest ] down on the floor so hard that she believed her back was broken. The man put a gun to her head and started pulling off her pan t s... He then repeatedly raped [ r eal party in int erest ]

. The man penetrated her vagina with his penis and hi s finger s several times and ejaculated into her vagina at least twice. [] ”

. . . [ I] t appears there is only o ne unknown suspect involved in the [sexual assault]

. As such, [rel ator ] would show that [real p arty in interest ’ s ] alleged injuries were caused in whole or in part by the cri minal conduct of an unknown criminal assailant and request to d esignate John Doe as a responsible thir d party

.

R eal party in interest objected to the mo t io n fo r leave to designate and5

asserted that relato r ’s amended answer “ fail [ed ] to specify which ‘ incident

complained of ’ was caused by the criminal acts of the unidentified assailant

. ” Real

party in interest further a rgued that relator ’ s amended answer “lack [ed] suffi cient

clarity to warrant designation of a responsible third part y ” because it prefa ce d the

description of the sexual assault with the phra se “according to [ real party in

interest ’s] [o] ri ginal [ p] etition

. ” According to r eal party in interest, the trial court

should deny t he mo t ion fo r leave to des ig n a te because relato r failed “ to comply

with the requirements of [ Texas Civil Practice and Remedies Code ] [s] ection

33.004(j)

. ”

On February 28, 2023, t he trial court held a hearing on relator ’s motio n fo r

leave to des ig n a te

. During the hearing, re al party in interest a sser t e d that relator ’ s

“ amended answer and

. . . original answer fail [ed] to admit th [at] [real party] was
raped on the [Premises] or that an unknown person even committed a criminal act

that caused [rea l party in interest ’ s] injuries. ” Real party further ass e r ted :

[T] he [a ] mended [a ] nswer [was] full of contradictions ; and, therefore it fail [ed] to sati sfy the pleadin g req uirement and d [id] n ot give fair notice of the claims. On the one hand, it sa [ id] [re al p arty in interest] alle g e [d] [ she ] was assaulted. O n the other hand, it sa [ id] her allegations [were n ot] true. There [could not] be a responsible third

- party if her allegations [were not] true.

Next, [relator] sa [ id] that the [sexual assault] was caused by the negligence of third

- parties. Then [ relato r ] sa [ id] that the allegation

was caus ed by the criminal acts of an unknown individual. Which [was] it, third

- parties or an unknown individual, negligent conduct or intentional criminal conduct?6

And then, last by not least

. . . [relator] [d id not] s a y t h a t [real party in interest ] was raped by a male, [did not] d escribe him as a ma le, [did

n ot] describe the individual at all, whatsoever. [Because re lator ha d ] not identified or attempted to identify this person in [its] amended

answer ; and

, there fore, th a t amended a n swer f ail [ed] to meet the pleading requirement and [relator] should not be allowed to designate a responsible third

- party.

With respect to its pleadings, r elator responded that although real party in

interest suggested that relator had “ t o admit that there was a rape before [relator]

c [ould] say tha t th ere was a responsible third

- party

. . . that did it [,] ” and

“ al ternative pleadings in the State of Texas

. . . [dictate d oth er wise

, namely, that

relator] c [ould] deny what happened [to real p a rty in interest ].

The trial court , at the hearing, noted that it “ believe [d] that [it was ] under

strict guidance from

- - the Supreme Court in Gonzale s [ 5 ]

. . . to strictly enforce the

requirements of

. . . [subsection] (j) of [ Texas Civil Practice a n d Remedies Code

section] 33.0 04 [,] ” and express ed conc e rn tha t relator did not spec ify whether the

unknown person was a male or femal e. R e lator inform ed the t rial court t h at such

identifying information was included under the “ Facts ” section of its motio n for

leave to designate. R e al par ty in interest asserted , however, that th e identifying

information was supposed to be in relator ’ s amended answer and not in the motion

for leave to designate

. When asked by the trial court if there were “ any characteris t i cs of the

5 See In re Go nzale s , 619 S.W.3d 259 (Tex. 2021)

.7

alle ged [p erpetrator] in the police report

, ” relat or responded in th e negati ve ,

inform ing the trial court that the “ police r eport ” only sa id “ [u]nkno w n [s]uspect

. ”

Relator explain ed that becau se there was “ no thing else that would help [rel ator ]

id e ntify ” t he per petrator, r elator was rel ying on Tex as Civil Practice and Remedies

Code section 33.004 (j) , and if the trial court were “ to not hold

. . . this unknown

and un identified individual

. . . as a responsible third

- party [ it would ] completely

c i r cumvent[] the purpose of

. . . th [at] provis i on

. ”

At the conclusion of the hearing

, t he trial court in address ing relator

, stated :

I think what troubles the Court most is that

-- and maybe I ’ m wrong. B ut can you show me where you, at least, identified t h e alleged John Doe as a mal e

.

In re sponse, r elator stated that it ha d “ assumed that [the perpetrator ] was a ma le

because [ real party in interest ] claim [ed] she was raped and, ultimately

, impregn ated. ” The trial court ruled, “ b ased on pleadings of bot h parti e s and th e
responses and arguments of counsel

, [ that relator ’s] motion [ for leave to designate ]

[be] denied

. 6

Subsequently, r elator filed a n amended petition for writ o f mand am us,

request ing that this Court grant its petition and direct the tria l court to grant its

mot ion for leave to desig nate

.

6 By order , signed t he same da y the hearing took place

, the trial court sustain ed real party in interes t’s objections and den ied relator ’ s motion for leave to des ig n a t e

.8 S tandard of R eview

“Mandamus relief is warranted when a trial court clearly abuses its

discretion and the relator has no adequate remedy by appeal.” In re YRC Inc.
, 646

S.W.3d 805, 808 (Tex. 2022) ( orig. proceeding) ; In re Prudential Ins. Co.

, 148

S.W.3d 124, 135 (Tex. 2004) (orig. proceeding)

. A trial co urt abuse s its discret io n

i f it “fail s to a n al yze or apply the law correct l y .” I n re Nationwide Ins.

, 494

S.W.3d 708, 71 2 ( Tex. 2016) (orig. proceeding)

. This C ourt must “ defer to [a]

trial court ’ s factual determinations while rev ie w i n g its legal co n clusions de n ovo

. ”

In re Makris , 217 S.W

. 3d 52 1

, 523 (Tex. App.

— San Antonio 2 0 0 6, ori g.

p roceeding)

. A p arty ordinarily lacks an adequate remedy by appeal when a trial

court erroneously denies a party ’ s motion for leave to designate a responsible third

party

. See In re Mobile Mini, Inc. , 596 S.W.3d 781, 787

– 88 (Tex. 2020 ) (orig.

p r oceeding) ; In re Coppola

, 53 5 S.W.3d 506, 50 9

– 10 (Tex. 2017) (o rig.

proceeding)

.

Motion for Leave to Designate Responsible Th ird Party

In its sole issue

, r elator argue s that the trial court err ed in denying its motion

for leave t o designate becaus e rela t o r met t he requirements of Texas Civil Pract ice

and Remedies Code section 33.004(j)

.9

A. R esponsible

- T hird

- P arty Statu t e

Texas Civil Practice and Remedies Code chapter 33 governs the designati o n

of a resp o nsi bl e third part y , known and u n kn own

. Texas C iv i l Practice and

Rem edies Code s ecti on 33.0 04 (j) gove rns the designat i on of u n known third

part ies

, and provides :
Notwithstanding any other provision of this section, if, not later than 60 days after the filing of the defendant ’ s original answ er, the defen da n t all eges in an answer filed with the court that an unknown
per s on com mi tted 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 responsi bl e thir d party if:

(1) the court determ ines that the defendant has pl e aded f ac ts 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 identif yi n g cha racteristics of the unknown pe rson, known at the time of the

answer ; and

(3) the allegation satisfies the pleading requirements of the Texas Rules of Civil Procedure. [ 7 ]

7 Texas follows a “ fa ir notice” standard for pleadin gs in civil cases

. Se e Low v. Henry
, 221 S.W.3d 609, 612 (Tex. 2007) ; In re Cordish Co

. , 617 S.W.3d 909, 913

– 14 ( Tex. App.

— Houston [14th Dist.] 2 02 1, orig. proceeding) (referenci ng fai r notice pleading stand ard under Texas Rule of Civil Procedure 47 as it pertains to pleading facts in motion for leave to designate responsible third party)

. “ A trial
court ma y not review the tr uth of th e allegations or co nsider t he s trength of the de f endant ’ s evidence

. ” In re CV R Energy, Inc. , 500 S. W

. 3d 67, 80 (Tex. App.

— Hous ton [1st Dist.] 2 016, orig

. proce eding) (i nternal q uotations and citation s omitted )

.10

T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 33.004 (j). Thus, within sixty days of filing

i t s origi nal answer, a defendant must fi le an answer including an alle g ation th at an

unknown person committed a criminal act that was a cause of the loss , an d all of

the known identifying characteristics of the unknown person as a responsible third

party

. S ee id. In consideri ng wh ether a defen dant has pleaded sufficient fa c ts

und er section 33.004(j)

, a trial court may consider those facts alleged in the answer

and in the motion for leave to designate the unknown person. See In re Windstar

Trucking, LLC

, 6 5 7 S

. W

. 3d 474 , 48 3 (Tex. App.

— El Paso Aug . 26, 2022, orig.

proceeding)

.

B. A mend ed A ns wer , M otion fo r L eave to D esignate , and Response to Motion for Leave to Designat e

Relator filed its original answ er on December 2 9 , 20 22

, a s serting i n relev an t

part :

Pl e ading further and without waiving the foreg oing, [relator] assert [s] that the incident in q uestion was proximately caused or solely proximately caused by the negligent and/or wrongful and/or criminal condu ct of third

-

parties outside th e contr ol of [rela to r ]

. (Emp has is added)

. O n January 2 4, 2023

, within sixty days of filing its original

answer, r elator filed an amended an swer , which state d in pertinent par t :
Pleading further and subject to the fore going, without waiving same, [ r elator ] herein would sh ow that the incident complained of in [ real party ’s] [ o] riginal [p] etition was caused by the criminal acts of an unidentified individual over which [relator] had no co ntrol. According to the [real party in terest ’s] [o] riginal [p] etition, on o r abou t

. . . F e bruary 6, 2022, [she] was sexually assaulted in her11

apartment at 1350 Greens Pkwy, Houston, Texas 77067. Said criminal acts by the unidentified [per petrator] were either the sole cause, or in the alter native, a proximate cause , and / or a produci ng

cause o f the incident and injuries made the basis of this litigation.

(Emp has is added)

. Relator ’ s motion for leave to designate

, a l s o filed on January

24, 2023

, state d :

This is a personal injury action inv olving an alleged sexual

assau l t at an apar tm ent comp le x on or about February 6, 2022 , at 1350 Greens Pkwy in Houston, Texas 77067

. [Real party in interest ] alleged :
[Real party in interest ] was a tenant at the Worthington at [T] he Beltway Apartments when on February 6, 2022, she “ was brutally raped at gun

po in t on the prem i s es” after “a man [sic] (correct spelling: snuck) up behind her and put his foot in the doorway to stop her from c losing the door. He then slammed [ r eal party in interest ] down on the floor so hard that she believed her back was broken. T he

man put a gun to her head an d started pulling off her pants... He then repeatedly raped [ r eal party in interest ]

. The man penetrated her vagina with his penis and hi s fingers several times and ejaculated into her vagina at least twice. [] ”

. . . [I] t appears ther e is only one unknown suspect involved in th e [sexual assault]

. As such, [rel ator] would show that [real p arty in interest ’ s ] alleged injuries were caused in whole or in part by the cri minal conduct of an unknown criminal assailant and reque st to d esignate Jo hn Doe as a respo nsible third party

.

R eal pa r ty in int erest object ed to the designation of John Doe as a
responsible third part y on the grounds that r elato r ’ s amended answer “ fail [ed] to

specify which ‘ incident com plained of ’ was caus ed by the criminal acts of the

unidentified [perpetrator] ” and “ lack [ed] sufficient cla r ity. ”12

At the outset, i t is undisputed that relator ’s amended answer , filed less than

one month after the original answer

, was timely filed pursuant to Texas Civil

P ra ct ice an d Remedies Code section 33

. 004 (j)

. S ee T EX

. C IV

. P RAC

. & R EM

. C ODE

A NN . § 33.004 (j) ; In re Echols , 569 S.W.3d 776, 782

– 83 (Tex. App.

— Dallas 2018,

orig. proceeding) ( designation of unknown person whose criminal act cause d

plaintiff ’ s loss

, to be ma de “n ot later than 60 days after f i ling of defe nd ant ’ s
original answer ”)

. It is likewise undisp uted that r elator ’s motion for leave to

designate , filed on the same dat e as the amended answer, was ti mely filed

.

Texas follows a “fair notice” standard for p le adings in civi l cases

— a party

meets that s ta ndard when the opposing party can ascertain from the pleading the

nature, basic issues, and the type of ev idence which might be relevant to the

controversy. See Low v. Henry
, 221 S.W.3d 609, 612 (Tex. 2007)

. “ To plead

suffic ient facts on a motion for le a ve to design at e a responsible third party under

[Texas Civil Practice and Remedies Code ] [ s ] ection 30.004, a movant must satisfy

on l y this fair

- notic e requirement. ” In re YRC Inc

. , 646 S.W.3d 805, 809 (Tex.

2022)

. “ So long as a party can ascertain from the pleading t he nature, basic issues,

and t ype of evide nc e that might be relevant to the controversy, a pleading satisfies

the [fai r

- notice] standard

. ” Id

. at 809

– 10 ; see also Windstar T rucking, LLC

, 657

S. W.3d at 485 (appl ying “fair notice ” standard to relator ’s motion for leave to

designate unknown responsible third party )

.13

Here, relator sufficiently alleged that a criminal act wa s committed by a n

“ unknown ” person as required by Texas Civil Practice and Remedies Code section

33.004(j)

. R elator ’ s identification in i ts amended a nswer o f the perpetra tor of the

sexual assault as “unide n ti fied ” is sufficient to satisf y Texas Civil P ra ctice and

Remedi es Code section 33.004 (j)

. A lthough r eal party in interest , in her respo nse

t o the petition for writ of mandamus, asserts that the words “ unidentified ” and

“ unknown ” are not synonymo us , and that relator ’ s use of the word “ unidentified ”

c on stitute s a “subs tantive ” “ departure from [section 33.004 (j) ’s predicate

requi re ment , ” this assertion is un a vail ing

. We consider the word “unidentified ” in

context, and not in isolation. See In re Windstar Trucking, LLC , 657 S. W.3d at

4 8 3 (“Given the en or mous power of co ntext to transform the meaning of language,

courts should resist rulings anchored in hyper

- technical readings of isolated words

or phrases.”). As such, in th e context of assigning responsibility to the perpetrator

for se xua l ly assault ing r e al party in int erest , it can be reasonably inferred that t here

is no meanin gful dist inction between the two wor d s

. Relator also sufficiently alleged that a crime had o ccurred under Texas Civil

Practice and Remedies Code section 33.004(j)(1), and its al le gations satisfie d the

fair

- notic e pleading requirement under section 33.004(j)( 3). In its amended

answer , by alleging that real party in interest was sexually assaulted and provid ing

the date an d p lace of occurrence of th e cr ime , relat or satisfied the r eq uirements of14

sec tion 33.004 (

j) (1)

. See In re Echols , 569 S.W.3d at 781 ( “ Expert medical reports

and further discovery [are] not necessary to support an alleg ation that [an] act, in

‘ reasonable probability, ’ was criminal. ” ). Relat or further quoted the a ll egation s in

more detail from real party in interest ’ s original petition in its motion fo r leave to

d es ignate

. See In re 7

- Eleven, Inc

. , No. 13

- 22

- 00464

- CV, 2023 WL 348018, at *5

(Tex. App

. — Corpus Christi

- Edinburg Jan. 20, 2023 , o rig. proceeding ) (mem. o p. )

( “ In consideri ng whether [a] defendant has pleaded sufficient facts

under

. . . [ Texas Civil Practice and Remedies Code section 33.004 (j)]

, [a] trial

court may consider tho se facts alleged i n the answer and in the motion for leave to

designate the unkn ow n person. ”) ; In re Windstar Trucking, LLC

, 657 S

. W

. 3d at

48 3 ( “ [P] leaded facts supporting that the unknown person committed a criminal act

can appear in the motion for leave

. ”)

.

Real party in interest ’s as sertion

, in its response to the petition for w ri t of

mandam us, t hat relator failed to provide fair notice of the allegations is without

merit . Indeed, relator ’s repeating the allegation as stated in re al party in interest ’s

original petition is evidence of fair notice of the allegation on w hi ch relat or was
relying. R e al party in interest ’ s additional assertion that relator ’ s motion for leave

to designate d id not “ cure ” any alleged pleading def iciencies in relator ’ s amended

answer because the motion descri be d the f actual allegations as real party in

i nt erest ’ s allegati ons w it ho ut adop ting them as relat o r ’ s own , is a lso without merit

.15

H owever , real party in interest does concede that relator “ is entirely correct that it

did not have to admit (or even rely on) [real party in interest ’ s] a llegations to

s at isfy [Texas Civil P ractice and Remedies Code ] [ c ] hapter 33

. ”

Finally , relator stated all identify ing characteristics of the perpetrator known

at the time it filed its answer as required by Texas Civil Practice and Remedies

Code section 33.004(j )(2). Re lator asserts , in i ts petition for writ of mand amus,

that it did not ignore this pleading requirement. Rather, relator did not have any

identifying information

, known at the time

, to pr ovide in its amended a n swe r

. The

transcript of the hearing on relat or ’ s motion for leave to des ignat e re flects that even

the “ police report ” was scarce o n listing identifying cha racteristics of the

perpetrator of the sexual assault and only stated that the suspect was “ [u]nkno wn

. ”

R eal party in interest ass erts, in her r e s ponse to the petiti on for writ of

mandamus

, t h at relator could have

, b ut did not, use identifying c haracteristics of

the perpetrator from r eal party in interest ’s original pet i ti on to satisfy the

requirements of T exas C ivil Practice and Remedies Code sec ti on 33.004 (j) ( 2 )

. But

“ w hen c on struing a statute, we consider its purpose

. ” In re Windstar Trucking,

LLC , 657 S. W.3d at 4 8 4 ; see also T EX

. G OV ’ T C ODE A NN

. § 311.023 (“In

construing a statute, whether or not the statute is considered ambiguous on its fac e,
a court may consider among oth er matters the

. . . object sought to be attained

. .

.. ” ). And w e are confident that the p u r pose of section 33.004 (j )(2) is no t to16

preclude relator from designa ting an unknown responsib le third party when there

are no ava il able identifying characteristi cs t o a llege , or the available identifyin g

characteristics are blatantly obvious

. Re al par ty in interest , in her original petition,

all e g ed that she was impreg nated b y the perpetr ator of the sexual assault

. Thus,

because i t was clear that the perpetrator was a male, it was error for the trial cour t

to den y relat or ’ s motion for leave to designate on the groun d that relator did not

indicate in its amended an swer that the preparator was a ma le

. Additionally , w e note that this c ase is distinguishable from th e Te xas

Supreme Court ’ s decision In re Gonzale s , which was relied on by t he trial court in

denying relator ’s motion for leave to designate

. U nlike the facts in In re Gonz ales

,

where the amen ded answe r was filed more than t w o

- and

- a

- h alf years after the

ori gin al answer and “contained no allegations about any ‘unknown ’ responsible

third party

, ” relator , here, filed its amended answer twenty

- six days after its

original answe r and assert ed tha t “ the [sexual assault]

. . . was cau se d by the

crimi na l acts of an u n identified individua l. ” See In re Gonzales , 619 S.W.3d a t

262

.

Because relator satisfied the requirements of Texas Civil Practice and

Remedies Code section 33.004(j), w e hold that the trial court abu sed i ts discretion

in d e n ying relator ’ s motion for le ave to designate

.17

C

. Relator Has No A de q uate Remedy by W ay of Appeal

The Texa s Supreme Court h as held that there is no ad equate appellate

remedy fo r a trial court’s improp er denial of a party ’ s timely filed motion to

des ign at e a responsible third part y. In re Eagleridge Operating, LLC

, 642 S.W.3d

518, 526 (Tex. 202 2 ) ; s ee a lso In re Windstar Trucking, LLC

, 6 57 S.W.3d at 488

( noting question of no adequate r emedy resolved in relator ’ s favor by Texas

Supreme Court

, granting m an damus petition

, and ordering t rial cour t to vacate

order denying relator ’s designation of John Doe as responsible third party ).

A ll ow ing a case t o p roceed to trial desp ite the erroneous denia l of a

res ponsible

- third

- part y desig nation “ w ould skew the pro ce ed ings, potentially aff ec t

the o u tcome of the litigation, and com promi se the presentation of t he re l ator ’ s
defense in ways u nl ikely to be apparent i n t he appellate record

. ” In re Mobile

Mini, Inc

. , 596 S.W.3d at 788

. Here, because we have held that the t rial court

erred in den ying re lator ’ s timely filed motion for leave t o designate , we hold that

relator l ack s an adequate remedy by way of appeal and mandamus relief is

appropriate.

We sustain relator ’ s sole issue.

Conclusion

W e conditionally grant relat or ’ s amended petition for w rit o f mandamus a nd

di re ct the trial court to vac a te its February 28, 2023 order d en ying relator ’ s18

“ M otion for L eave to D esignate John Doe , Unknown Criminal Assailant a s

R espon s ible T hird P a rty ” and to grant l eave for that design at ion

. Our writ will

issue only if the trial court fails to act

. We di smiss any pending motions as m oot

.

We withdraw our December 2 0, 2023 order sta ying the trial setting of January 2 3,

2 024

.

Julie C o untiss Just ice

Panel consists o f J us tice s Goodman, C o u nt iss , an d Farris

.