Shinogle v. Whitlock

• Decision Date: 21 February 2020
• Docket Number: NO. 18-0703,18-0703
• Citation: 596 S.W.3d 772
• Parties: Lane Thomas SHINOGLE, Petitioner, v. Benjamin WHITLOCK and Brianna Whitlock, Respondents
• Court: Texas Supreme Court

596 S.W.3d 772

Lane Thomas SHINOGLE, Petitioner,

v.Benjamin WHITLOCK and Brianna Whitlock, Respondents

NO. 18-0703

Supreme Court of Texas.

OPINION DELIVERED: February 21, 2020

Rehearing Denied April 17, 2020

Wade C. Crosnoe, Cassie J. Dallas, Heather Hart Sauter, J. Richard Harmon, Thompson Coe Cousins & Irons, L.L.P., Dallas TX, for Petitioner.

David E. Keltner, John Thomas Wilson IV, Kelly Hart & Hallman LLP, Fort Worth TX, C. Andrew Weber, John R. Johnson II, Kelly Hart & Hallman LLP, Austin TX, Charles Lindley Woods, The Woods Law Firm, Dallas TX, Michael H. Bassett, Sadie A. Horner, The Bassett Firm, Dallas TX, for Respondents

PER CURIAM

Section 128.053 of the Texas Civil Practice and Remedies Code requires a claimant suing a sport shooting range to serve an expert report on each party within 90 days after the original petition was filed unless the deadline is "extended by written agreement of the affected parties." See TEX. CIV. PRAC. & REM. CODE § 128.053(a). Failure to comply with section 128.053's mandate gives a defendant as to whom an expert report has not been served the right to dismissal with prejudice. Id. § 128.053(b)(2).

This case presents two principal issues: (1) whether an agreed scheduling order setting expert report deadlines, with no reference to section 128.053, extended the statutory deadline to serve an expert report, and (2) whether the claimants' failure to timely serve an expert report entitled the shooting range's employee to seek dismissal. We hold that an agreed order silent about extending the statutory deadline does not constitute an agreement to extend the deadline, and noncompliance with the statute entitled the employee to dismissal with prejudice as an implicated defendant whose conduct was required to be addressed in an expert report. Id. § 128.053(a), (b)(2). We therefore affirm the court of appeals' judgment in part and reverse and render in part.

On December 17, 2016, Benjamin Whitlock brought a loaded .22 caliber rifle to the Alpine Industries, Inc. shooting range in Fort Worth, Texas. Lane Shinogle, Alpine's Range Safety Officer, greeted Whitlock at the entrance gate. As required, Whitlock handed his weapon to Shinogle for a pre-entrance safety inspection. While Shinogle had possession of the rifle, the gun discharged and shot Whitlock in the leg. Whitlock suffered severe injuries that required extensive medical treatment.

On February 24, 2017, Whitlock and his wife sued Alpine and Shinogle, alleging various negligence theories. The Whitlocks' suit was governed by level-three discovery, so the parties submitted an agreed scheduling order, which the trial court approved on April 18, 2017. The scheduling order stated that "[a] party seeking affirmative relief shall designate experts and must provide reports [by February 12, 2018] (expert reports are not required for treating doctors)." The order neither specifically referenced section 128.053 nor mentioned an extension of the 90-day expert report deadline.

On June 2, 2017, more than 90 days after the Whitlocks filed suit, Alpine and Shinogle filed a motion to dismiss. Alpine and Shinogle argued the Whitlocks were required to designate and serve expert reports on all parties in accordance with section 128.053's 90-day deadline. Because the Whitlocks did not do so, Alpine and Shinogle sought a dismissal with prejudice under section 128.053(b)(2). The Whitlocks did not dispute that section 128.053 governs their suit, but they argued the agreed scheduling order was the parties' written agreement to extend section 128.053's deadline.

The trial court denied Alpine and Shinogle's dismissal motion after a non-evidentiary hearing. The trial court ruled that the agreed scheduling order effectively extended the Whitlocks' section 128.053 deadline. But on the issue of whether an explicit reference to section 128.053 or its deadline is required to constitute an extension agreement, the trial court granted a permissive interlocutory appeal, agreeing with Alpine and Shinogle that it is "a controlling question of law as to which there is a substantial ground for difference of opinion." See TEX. CIV. PRAC. & REM. CODE § 51.014(d) (permissive interlocutory appeal).

The court of appeals accepted the appeal, id. § 51.014(f), and reversed, holding the agreed scheduling order did not extend the statutory deadline because the order did not specifically reference section 128.053. 554 S.W.3d 174, 187 (Tex. App.—Fort Worth 2018). In so holding, the court relied on Crosstex Energy Services, L.P. v. Pro Plus, Inc., 430 S.W.3d 384 (Tex. 2014), and Spectrum Healthcare Resources, Inc. v. McDaniel, 306 S.W.3d 249 (Tex. 2010), both of which involved statutes with similar expert report deadlines. Because the parties' agreed order did not refer to section 128.053, the court held the order did not extend the deadline to serve a compliant expert report. Id. The appeals court dismissed all the claims against Alpine, but allowed the Whitlocks' suit against Shinogle to proceed on the basis that section 128.053(b)(2) does not apply to a shooting range's employees. Id. at 187-88.

On petition for review, the parties join issue as to whether defendants like Shinogle may seek dismissal under section 128.053(b)(2). In a conditional cross petition, the Whitlocks also argue that the agreed scheduling order was effective to extend section 128.053's deadline and that our decisions in Crosstex and Spectrum Healthcare are distinguishable on that point.

The issues the parties raise are intertwined, so we address both. We affirm the court of appeals' judgment dismissing the suit against Alpine because the agreed scheduling order did not extend the Whitlocks' deadline to serve the expert report section 128.053 requires. But we reverse the judgment as to Shinogle because he is entitled to dismissal with prejudice under section 128.053(b)(2) as an implicated defendant whose conduct was required to be addressed in an expert report.

Section 128.053 of the Civil Practice and Remedies Code requires a claimant in a suit against a sport shooting range to serve each party in the litigation with an expert report. TEX. CIV. PRAC. & REM. CODE § 128.053(a). The report is due within 90 days after the claimant files the original petition, but "[t]he date for serving the report may be extended by written agreement of the affected parties." Id. The Legislature creates "threshold report requirement[s] as a substantive hurdle," and claimants must satisfy those requirements before their suits may proceed. Spectrum Healthcare, 306 S.W.3d at 253.

Section 128.053 is a relatively new statute, passed in 2011, and we have not yet considered the type of written agreement required to extend the statutory deadline. But we have resolved the same question in cases involving similar expert report statutes: sections 74.351 and 150.002 of the Civil Practice and Remedies Code. See Crosstex, 430 S.W.3d at 395 ; Spectrum Healthcare, 306 S.W.3d at 249. Our precedent construing these analogous statutes is instructive.

Spectrum Healthcare involved a similarly worded written-agreement exception to a statutory expert report deadline. See 306 S.W.3d at 253 ("The date for serving the report may be extended by written agreement of the affected parties." (quoting TEX. CIV. PRAC. & REM. CODE § 74.351(a) )). At issue was "whether a generic docket control order in a healthcare liability lawsuit that [made] no reference to the section 74.351 threshold expert report requirement" was sufficient to extend its 120-day deadline. Id. We held it was not. Id. We observed that the Legislature enacted chapter 74's expert report requirement to target frivolous medical malpractice claims for expeditious termination, so when parties intend to alter the legislatively mandated deadline, the agreed scheduling order "must make a clear acknowledgment of their intent to do so." Id. Accordingly, "to extend the section 74.351 threshold expert report deadline, the order must explicitly indicate the parties' intention to extend the deadline and reference that specific deadline." Id. at 254.

Four years later, in Crosstex, we addressed whether a Rule 11 agreement and docket control order governing discovery extended a statutory deadline for filing an expert's certificate of merit. 430 S.W.3d at 395. We relied on Spectrum Healthcare in holding that the parties' discovery "agreement did not operate to postpone [ section 150.002's] filing requirement." Id. We reiterated that "an agreed order dealing with expert report deadlines does not impact" separate statutory deadlines for an expert's threshold certification of merit "unless [the statute] is specifically mentioned in the agreed order." Id.

The rationale in Spectrum Healthcare and Crosstex applies equally to the present case. Like sections 74.351 and 150.002, section 128.053 is a threshold expert report requirement that must be satisfied before a claimant may proceed with a lawsuit. See TEX. CIV. PRAC. & REM. CODE § 128.053(a). And like Spectrum Healthcare and Crosstex, the parties' agreed scheduling order did not explicitly reference section 128.053 or its 90-day expert report deadline. Instead, the scheduling order set a general expert report and designation deadline, which is insufficient to meet the explicit reference standard applied in Spectrum Healthcare and Crosstex .

Because the Whitlocks did not timely serve an expert report, subsection (b)(2) requires dismissal with prejudice on the motion of an affected defendant. See id. § 128.053(b)(2). The right to dismissal with prejudice is not in question here; the only issue is whether Shinogle can claim it. This is a question of statutory construction we consider de novo. Pedernal Energy, LLC v. Bruington Eng'g, Ltd., 536 S.W.3d 487, 491 (Tex. 2017).

Our primary goal in construing a statute is to give effect to the Legislature's intent. Id. We take statutes as we find them and construe them "so that no part is surplusage, but so that each word has...