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In re Saddles Blazin, LLC

Court of Appeals of Texas, Ninth District, Beaumont

October 31, 2019

IN RE SADDLES BLAZIN, LLC

          Submitted on September 18, 2019

          Original Proceeding 284th District Court of Montgomery County, Texas Trial Cause No. 18-03-03200-CV

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          PER CURIAM

         Relator Saddles Blazin, LLC ("Saddles") filed an application for writ of mandamus, in which Saddles argues that the trial court abused its discretion by (1) entering an amended docket control order ("ADCO") that included retroactive expert designation and pleading deadlines that were impossible to meet; (2) ordering the parties to do more than required by the Texas Rules of Civil Procedure to designate expert witnesses; (3) refusing to accept Saddles' prior timely designation of expert witnesses, which Saddles asserts it made by responding to the real party in interest's requests for disclosure; (4) determining that Saddles was not entitled to an exception to exclusion of its experts under Rule 193.6; (5) excluding Saddles' experts although Saddles had designated them under the applicable rules and the prior docket control order; and (6) denying Saddles' motion for leave to file its first amended answer and expert designation list. For the reasons explained below, we conditionally grant the petition for writ of mandamus.

         BACKGROUND

         Saddles filed the underlying lawsuit against the real party in interest, KRG Portofino LLC ("KRG"), asserting causes of action for alleged fraud in a real estate transaction by misrepresentation and nondisclosure, common law fraud, deceptive trade practices, bad-faith retention of its security deposit, and declaratory judgment regarding KRG's alleged failure to disclose that the leased property contained asbestos. In its answer, KRG pleaded a general denial, specifically denied actual knowledge of asbestos in the subject premises, and asserted a counterclaim against Saddles for alleged breach of the lease agreement.

         The trial court signed its original docket control order ("DCO") on April 18, 2019. In the DCO, the trial judge scheduled trial for September 16, 2019, and ordered that the pleadings must be filed no later than ninety days before trial (i.e., June 18, 2019), and discovery responses must be filed no later than sixty days before trial (i.e., July 18, 2019). On July 9, 2019, the trial judge signed an order granting the parties' agreed motion for continuance, waiver of jury trial, and request for a non-jury trial setting. In said order, the trial judge scheduled the case for trial on November 4, 2019.

         On July 9, 2019, the trial judge also signed the ADCO, which scheduled trial for November 4, 2019, and required all amendments and supplements to be filed no later than 150 days before trial (i.e., June 7, 2019). The order further provided that a party seeking affirmative relief must file its expert witness designation no later than 150 days before trial, and "[a]ll other parties" must file their expert witness designation no later than 120 days before trial (i.e., July 8, 2019). The order's provision dealing with expert witness designations specifically stated, "A Rule 194 disclosure is not a substitute for this filed designation." The order required the parties to file their discovery responses no later than ninety days before trial (i.e., August 6, 2019).

         On July 25, 2019, Saddles filed a motion for leave to file an amended answer, in which Saddles asserted that "[l]ikely inadvertently and resulting from a difference in standardized forms," the ADCO "added an expired deadline for expert witness designations, June 7, 2019." Saddles' motion also pointed out that the ADCO added a requirement that the parties file a list containing the name, address, telephone number, subject of the testimony, and opinions that each expert would proffer, and the ADCO also "retroactively changed the pleading deadline from June 18, 2019[, ] to June 7, 2019, eleven days earlier than the prior deadline." In its motion, Saddles pleaded that the parties had engaged in basic written discovery and had designated experts, but no depositions had occurred and discovery was ongoing. Saddles asserted that there would be "no surprise or prejudice" in permitting it leave to file its expert designation list and first amended answer. According to Saddles, it did not comply with the ADCO's requirements "because they simply did not exist before the Court granted the continuance and issued the [ADCO]." Saddles also pointed out that Rule 63 generally permits parties to amend pleadings up to seven days before trial. See Tex. R. Civ. P. 63.

         KRG opposed Saddles' motion for leave, stating that KRG had agreed to a brief continuance of less than thirty days because of scheduling conflicts and pointing out that the motion for continuance "was not based on any need by Saddles for additional time to amend pleadings or to designate additional experts." In its response to Saddles' motion, KRG pleaded that the pleadings and expert deadlines under the prior DCO had passed when Saddles filed the motion for continuance. According to KRG, although the original DCO did not provide a deadline for designating expert witnesses, Rule 195.2(a) of the Texas Rules of Civil Procedure requires a party seeking affirmative relief to identify its testifying experts within thirty days after service of the request for disclosure or ninety days before the end of the discovery period, whichever is later. KRG asserted that regardless of a court-imposed deadline in the DCO, "the deadline for Saddles' expert designation of 90 days before trial, which was June 18, 2019, had already passed at the time the Motion for Continuance was filed on July 9, 2019." According to KRG, Saddles sought to designate a new and previously undisclosed expert, which would result in surprise and prejudice to KRG, and KRG would be unable to conduct discovery regarding the expert and would not be able to designate a rebuttal expert. KRG also asserted that Saddles' addition of multiple affirmative defenses would also cause surprise and prejudice to KRG because it would not be able to conduct discovery on those defenses prior to trial.

         The trial judge signed an order denying Saddles' motion for leave to file a first amended answer to KRG's counterclaim and a designation of experts on August 18, 2019. On August 13, 2019, five days before the trial court denied Saddles' motion for leave to file a first amended answer and expert designation, KRG filed a traditional motion for partial summary judgment, in which it asserted that the "as is" disclaimer of warranties in the lease agreement between KRG and Saddles precludes Saddles from asserting its claims for breach of the implied warranty of suitability, fraud, and DTPA violations. According to KRG's motion, the lease "destroys any reliance by Saddles and negates Saddles['] ability to prove 'causation' of any injury." KRG contended that there is no genuine issue of material fact that the lease contained an "as is" provision, and that Saddles accepted the premises without representations or warranties by KRG.

         On the same date, KRG also filed a no-evidence motion for partial summary judgment as to Saddles' claim of fraudulent inducement. KRG asserted that "[t]he discovery period in this case under the Court's docket control order has ended." KRG filed notices of submission of its motions for partial summary judgment, which stated that the trial court would consider the motions on September 20, 2019. Saddles filed its petition for writ of mandamus with this Court on September 10, 2019, as well as a motion for emergency relief seeking a stay of all proceedings in the trial court pending this Court's resolution of the ...


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