Court of Appeals of Texas, Second District, Fort Worth
ALPINE INDUSTRIES, INC. AND LANE THOMAS SHINOGLE APPELLANTS
BENJAMIN WHITLOCK AND BRIANNA WHITLOCK APPELLEES
THE 141ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; GABRIEL and KERR, JJ.
SUDDERTH CHIEF JUSTICE
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).
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.
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
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.
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."
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.
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."
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
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.
Standards of Review
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).
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.
Is section 128.053 unconstitutional?
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 ...