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Alpine Industries, Inc. v. Whitlock

Court of Appeals of Texas, Second District, Fort Worth

June 21, 2018






         In three issues in this permissive interlocutory appeal, see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West Supp. 2017), and case of first impression, Appellants Alpine Industries, Inc. and Lane Thomas Shinogle appeal the trial court's denial of their motion to dismiss based on the failure of Appellees Benjamin Whitlock and Brianna Whitlock to timely file a threshold expert report as required under civil practice and remedies code section 128.053. See id. § 128.053 (West Supp. 2017).

         The parties dispute whether a scheduling order, agreed to by the parties, that purports to extend expert report deadlines but makes no explicit reference to the 90-day statutory deadline, will extend the statutory deadline for submitting the threshold expert report. If it does so, the parties further dispute whether the expert report deadline applies only to the conduct of Alpine, the owner of the range, or to Alpine's employee Shinogle as well. Additionally, the parties ask us to determine whether section 128.053 violates the open-courts and due-course-of-law provisions of the Texas Constitution. We affirm in part and reverse in part.

         I. Factual Background

         On December 17, 2016, Benjamin Whitlock went to Alpine's shooting range in Fort Worth. He carried with him a fully-loaded .22 caliber Winchester rifle. When he arrived at the range, Whitlock stopped at the gate to have his rifle cleared before entering. While Range Safety Officer Shinogle inspected Whitlock's rifle, the weapon was accidentally discharged, and a bullet struck Whitlock's leg, injuring him.

         Whitlock and his wife Brianna filed suit against Alpine and Shinogle for personal injuries caused by the discharge of a firearm at a sport shooting range, a cause of action that both sides agree-at least as to Alpine-implicates chapter 128 of the civil practice and remedies code. The parties also agree that the Whitlocks failed to serve a threshold expert report as mandated by section 128.053 by the statutory deadline, i.e., not later than the 90th day after filing their original petition. See id.

         II. Procedural History

         The Whitlocks filed their lawsuit on February 24, 2017. Three days after Alpine and Shinogle filed their answer, the trial court sent a letter to "all counsel and pro se parties," identifying the case as one being governed by a discovery control plan under Level 3. See Tex. R. Civ. P. 190.4. In compliance with rule 190.4, the trial court ordered the parties to attend a pretrial hearing or, in the alternative, submit an agreed discovery control plan which included, among other deadlines: "(1) all deadlines required under Rule 190.4(b)(1)-(4), plus (2) deadlines for challenges to reliability or qualifications of expert witnesses and any hearing thereon."

         A week prior to the scheduled pretrial hearing, the trial court signed an Agreed Uniform Scheduling Order (Level III). In it, the parties agreed that the Whitlocks would "designate experts and must provide reports" by February 12, 2018. The order made no specific reference to section 128.053, its expert report deadline, or whether the agreement purported to alter the statutory expert report deadline.

         On the 98th day after the lawsuit was filed-June 2, 2017-Alpine and Shinogle filed a joint motion to dismiss based on the Whitlocks' failure to timely serve a section 128.053 threshold expert report. Although the trial court initially denied the motion without explanation, the trial court clarified the basis for the denial in its October 26 amended order: "The April 7, 2017 Agreed Scheduling Order signed by the parties constituted a written agreement to extend Chapter 128's 90-day expert report deadline."

         In that same order, the trial court also found that "there is a controlling question of law as to which there is substantial ground for difference of opinion," identifying one issue and three subissues:

Does section 128.053 of the Texas Civil Practice & Remedies Code require dismissal of this lawsuit because Plaintiffs did not serve an expert report within 90 days of filing their Original Petition? The following sub-issues are subsumed within this issue:
a. Does a defendant's agreement and signature to an Agreed Scheduling Order setting expert disclosure dates extend the deadline to submit an expert report under Civil Practice and Remedies Code section 128.053?
b. Does section 128.053's expert report requirement violate the Open Courts or Due Process of Law provisions of the Texas Constitution?
c. Does section 128.053's expert report requirement apply to claims against an employee of a "sport shooting range"?

         Concluding that "an immediate appeal pursuant to Section 51.014(d) may materially advance the ultimate termination of the litigation," the trial court also granted the Whitlocks' request to stay the trial court proceedings until the interlocutory appeal had "concluded and the case returns to this Court." Thereafter, Alpine and Shinogle filed an unopposed petition for permissive interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d). We granted the petition for the above-framed issue and the three subissues.

         III. Standards of Review

         No Texas appellate court has discussed the standard of review applicable to reviewing a motion to dismiss under section 128.053(a), but both sides agree that, generally speaking, motions to dismiss-and motions generally-are reviewed for an abuse of discretion and that this is the standard we should apply here to the trial court's decision to deny the motion. See, e.g., Baty v. Futrell, 543 S.W.3d 689, 693 (Tex. 2018) (stating that at trial court's decision to dismiss a medical malpractice case based on an inadequate expert report is reviewed under the abuse-of-discretion standard); Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (reviewing trial court's ruling on a motion for continuance for an abuse of discretion); Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998) ("We employ an abuse of discretion standard to review a trial court's discovery rulings."); see also In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 715-16 (Tex. 2016) (orig. proceeding) (applying abuse-of-discretion standard to review of trial court's order denying motion to dismiss based on contractual forum-selection clause); In re ENSCO Offshore Int'l Co., 311 S.W.3d 921, 923 (Tex. 2010) (orig. proceeding) (applying abuse-of-discretion standard to review trial court's denial of motion to dismiss based on forum non conveniens). An abuse of discretion occurs when a trial court fails to analyze the law correctly or misapplies the law to established facts. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). Thus, a trial court's erroneous legal conclusion-even in an unsettled area of law-is an abuse of discretion. In re United Scaffolding, Inc., 301 S.W.3d 661, 663 (Tex. 2010) (orig. proceeding).

         In contrast, we review issues of statutory construction de novo. Willacy Cty. Appraisal Dist. v. Sebastian Cotton & Grain, Ltd., No. 16-0626, 2018 WL 1974485, at *4 (Tex. Apr. 27, 2018). In construing statutes, our primary objective is to give effect to the legislature's intent, and we rely on the statutory text's plain meaning as expressing legislative intent unless the plain meaning leads to absurd results or a different meaning is supplied by legislative definition or apparent from the context. Id.

         IV. Discussion

         A. Is section 128.053 unconstitutional?

         In their brief, the Whitlocks argue that civil practice and remedies code section 128.053 violates the Texas Constitution. Their argument is two-fold: first, that section 128.053 poses an unreasonable restriction on the Whitlocks' common law cause of action against Alpine and Shinogle, and second, that the restriction is unreasonable or arbitrary when balanced against the purpose of the statute. See Owens Corning v. Carter, 997 S.W.2d 560, 573 (Tex.) (setting forth this ...

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