In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00323-CV ___________________________
IN RE TIMOTHY K. WADE; ROBERT STEPHEN HAWK; GINA WADE; CELIA HAWK; 407 REAL PROPERTY MANAGEMENT, LLC; AND 407 GUN CLUB, LLC
Original Proceeding Trial Court No. 16-09166-367
Before Sudderth, C.J.; Meier and Birdwell, JJ. Opinion by Justice Birdwell OPINION
Chapter 128 of the Texas Civil Practice and Remedies Code requires a plaintiff
who sues a sport shooting range or an owner or operator of a sport shooting range to
serve a report that summarizes an expert’s opinions about the standards of care for
operating the sport shooting range, how the defendant breached the standards, and
how that breach caused damages. If the plaintiff does not do so, the trial court must
dismiss the plaintiff’s claims and award attorney’s fees to the defendant.
Lee Stinson and Anissa Stinson, the real parties in interest in this original
proceeding, sued relators Timothy K. Wade; Robert Stephen Hawk; Gina Wade; Celia
Hawk; 407 Real Property Management, LLC; and 407 Gun Club, LLC, each of whom
own or operate a sport shooting range. The Stinsons did not serve relators with a
chapter 128 expert report. We therefore hold that the trial court clearly abused its
discretion by denying relators’ motion to dismiss the Stinsons’ shooting-related claims.
We also hold that relators have no adequate appellate remedy from the trial court’s
error. We conditionally grant mandamus relief.
Background
According to the Stinsons’ pleadings, in 2006, they bought several acres of
residential property in Denton County. In 2007, the Hawks and the Wades jointly
bought property that adjoins the Stinsons’ property. The Hawks and the Wades
2 eventually formed 407 Real Property Management, LLC to hold their interests in the
real property and 407 Gun Club, LLC to operate a shooting range at the property.1
To build the shooting range, in 2014, relators placed two columns of shipping
containers across their property. The Stinsons claim that relators’ shipping containers
divert the flow of rainwater so that it impounds upon and damages the Stinsons’
property. Thus, the Stinsons assert a collection of claims (the Water Claims) against
relators, including seeking declarations that relators violated a provision of the Texas
Water Code and county flood plain regulations in constructing the shipping-container
structure and pleading common-law claims of trespass, negligence, and private
nuisance.
The Stinsons also allege that relators’ operation of the shooting range causes
them fear, discomfort, annoyance, and inconvenience. They claim that they have
“lived . . . in fear that stray bullets may shoot them, their guests, or their livestock,”
that the shooting scares their horses and hinders their ability to ride them, and that
“on multiple occasions, [they] have had to leave the [p]roperty to get away from the
noise created by the shooting.” From these facts and similar allegations, the Stinsons
1 The Stinsons filed their original petition against the Hawks and the Wades in November 2016. In March 2017, the 407 entities filed a petition to intervene in the suit. The Stinsons added the 407 entities as defendants in subsequent pleadings. For simplicity, we will refer to the Hawks, the Wades, and the 407 entities collectively as “relators” even though some of the acts of which the Stinsons complain involved only some of those parties or occurred before the creation of the 407 entities.
3 plead a second group of claims (the Shooting Claims) against relators, including
negligence and private nuisance.
From both groups of claims, the Stinsons seek monetary relief, including
damages caused by an alleged loss in the fair market value of their property. They also
seek injunctive relief, a declaratory judgment, and attorney’s fees.
Several months after the Stinsons filed their lawsuit, relators filed a motion for
the trial court to dismiss the Shooting Claims.2 They contended that chapter 128 of
the civil practice and remedies code required the Stinsons to serve an expert report
supporting those claims, that the Stinsons had failed to do so, and that the statute
mandated dismissal of the claims. They acknowledged that the Stinsons had served a
report by Randall Pogue, a licensed professional engineer, to support the Water
Claims, but they argued that Pogue’s report did not qualify as an expert report under
chapter 128.
The Stinsons responded to relators’ motion to dismiss. They argued that
Pogue’s report satisfied chapter 128’s requirements. Alternatively, they contended that
relators waived any complaint about the sufficiency of Pogue’s report by not timely
2 Relators also filed a traditional motion for partial summary judgment on the Shooting Claims; they did not seek judgment on the Water Claims. Because we hold below that the trial court abused its discretion by not granting relators’ motion to dismiss the Shooting Claims, we express no opinion on the merits of relators’ traditional motion for partial summary judgment to the extent that the motion asserted grounds for judgment other than dismissal for failure to serve an expert report under chapter 128.
4 objecting to it. They further asserted that section 128.053’s expert-report requirement
violated several state and federal constitutional provisions.3
Relators filed a reply to the Stinsons’ response. They argued that Pogue is not
an “expert” as defined by chapter 128 and that he therefore could not submit an
expert report complying with the chapter. They also asserted that relators’
constitutional challenges to the expert-report requirement were frivolous.
The trial court denied relators’ motion to dismiss. Relators filed this original
proceeding to challenge that ruling.
Standard of Review
Relators ask us to conditionally issue a writ of mandamus that directs the trial
court to grant their motion to dismiss and to award them attorney’s fees. Mandamus
relief is proper only to correct a clear abuse of discretion when there is no adequate
remedy by appeal. In re Fain, 514 S.W.3d 917, 918 (Tex. App.—Fort Worth 2017, orig.
proceeding). A trial court clearly abuses its discretion if it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id.; see
Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011) (“A trial court . . . abuses its discretion by
failing to analyze or apply the law correctly.”); In re Tex. Collegiate Baseball League, Ltd.,
367 S.W.3d 462, 465 (Tex. App.—Fort Worth 2012, orig. proceeding) (explaining that
3 The Stinsons also argued in the trial court that relators had not proven that their property qualified as a “sport shooting range” subject to chapter 128’s requirements. In this court, the Stinsons do not expressly contest relators’ assertion that they operate a sport shooting range on their property. See Tex. Loc. Gov’t Code Ann. § 250.001(a)(2) (West 2016) (defining “sport shooting range”).
5 a “trial court’s erroneous legal conclusion, even in an unsettled area of law, is an abuse
of discretion”).
Whether a clear abuse of discretion can be adequately remedied through an
appeal depends on a careful analysis of costs and benefits of mandamus review. In re
McAllen Med. Ctr., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). As this balance
depends heavily on circumstances, it must be guided by analysis of principles rather
than simple rules that treat cases as categories. Id. An appeal is inadequate for
mandamus purposes when parties are in danger of permanently losing substantial
rights, such as when the appellate court would not be able to cure the error or when
the party’s ability to present a viable claim or defense will be vitiated. In re J.R.J., 357
S.W.3d 153, 155 (Tex. App.—Fort Worth 2011, orig. proceeding).
The Stinsons Failed to Comply with Chapter 128’s Expert-Report Requirement
In their mandamus petition, relators argue that the Shooting Claims should be
dismissed because the Stinsons failed to serve an expert report under section 128.053
of the civil practice and remedies code.4 Section 128.053 states that when a plaintiff
In their reply filed in this court, relators clarify that they “do not seek any relief 4
from this Court under section 128.052. Instead, [r]elators seek relief under . . . section 128.[053].” [Footnote omitted.] Therefore, we need not resolve the Stinsons’ contention that the Shooting Claims are permissible under section 128.052. See Tex. Civ. Prac. & Rem. Code Ann. § 128.052 (West Supp. 2018) (limiting the scope of civil actions that may be asserted against sport shooting ranges or owners or operators of sport shooting ranges). And for the reasons explained below that require dismissal because of the Stinsons’ failure to serve an expert report under section 128.053, we also need not resolve whether section 250.001 of the local government code forecloses the Shooting Claims. See Tex. Loc. Gov’t Code Ann. § 250.001(b)–(c).
6 files a suit against a sport shooting range or the owner of property on which a sport
shooting range is operated, the plaintiff “shall, not later than the 90th day after the
date the original petition was filed, serve on each party . . . one or more expert reports,
with a curriculum vitae of each expert listed in the report for each defendant against
whom a claim is asserted.” Tex. Civ. Prac. & Rem. Code Ann. § 128.053(a) (West
Supp. 2018). If a plaintiff fails to do so, upon the motion of the affected defendant,
the trial court must dismiss the plaintiff’s claim with prejudice and must award the
defendant attorney’s fees and costs. Id. § 128.053(b)(1)–(2). If a plaintiff serves an
expert report, each “defendant whose conduct is implicated” must file and serve any
objection to the report’s sufficiency within twenty-one days after receipt, or the
objection is waived. Id. § 128.053(a). When a defendant asserts that an expert report is
inadequate, the trial court must determine whether the report represented an
“objective, good faith effort to comply with the requirements of an expert report.”
Id. § 128.053(e).
Relators contend that the trial court clearly abused its discretion by denying
their motion to dismiss the Shooting Claims because the Stinsons never served an
expert report in accordance with section 128.053. The Stinsons respond by
contending that (1) service of Pogue’s report satisfied section 128.053’s requirements;
(2) section 128.053 required relators to complain about any insufficiency in Pogue’s
report within twenty-one days after receiving it, and they did not, resulting in waiver
7 of any objections; and (3) on several grounds, section 128.053’s expert-report
requirement violates state and federal constitutional provisions.
Pogue’s report is “no report,” and relators did not waive their objections
Pogue’s report did not satisfy section 128.053’s requirements. Section 128.051
specifies the contours of an “expert report” subject to section 128.053. See id.
§ 128.051 (West Supp. 2018). That section states that an expert report is a written
report “by an expert that provides a fair summary of the expert’s opinions . . . regarding
applicable standards of care for operation of a sport shooting range, the manner in which a
defendant failed to meet the standards, and the causal relationship between that
failure and the . . . damages claimed.” Id. § 128.051(4) (emphases added). The section
further defines “expert” to mean a person who gives
opinion testimony about the appropriate standard of care for a sport shooting range, an owner or operator of a sport shooting range, or the owner of real property on which a sport shooting range is operated, or the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care[.][5]
Id. § 128.051(3)(A) (emphasis added).
Pogue, while perhaps qualifying under the rules of evidence as an “expert” who
is qualified to render professional engineering opinions 6—see Tex. R. Evid. 702—is
This language belies the Stinsons’ argument in this court that chapter 128 5
provides “no real guidance whatsoever as to what qualifications the expert must have or specifically what must be contained in the expert report to render it sufficient.”
The Stinsons contend that “it is beyond cavil that Mr. Pogue is qualified to 6
render the opinions that he does regarding violations of . . . the Texas Water Code
8 not an “expert” as defined by chapter 128. See Tex. Civ. Prac. & Rem. Code Ann.
§ 128.051(3)(A). He did not provide opinion testimony about the standard of care for
the operation of a sport shooting range or about the causation of harm from the
activities of a sport shooting range. See id. § 128.051(4). Rather, in his report, he
provided opinion testimony about the engineering and developmental impacts of
improvements made by relators to their property—impacts that may have been
similarly attributed to a sport shooting range or any structure 7—while discussing
matters such as topography, drainage, and water flow. His report does not refer in any
manner to the discharge of any type of firearm, i.e., to “shooting,” or to the alleged
harms pleaded by the Stinsons with respect to the Shooting Claims, all of which require
the discharge of a firearm. Furthermore, in a discovery response that appears in the
mandamus record, the Stinsons represented that they retained Pogue to testify about
water-related matters and that relators’ use of their property as a sport shooting range
was “irrelevant to determining” the water code violations that Pogue would testify
about. In a deposition, Pogue testified that none of his opinions depended upon
relators’ use of their land as a sport shooting range. Finally, Pogue signed a declaration
in which he expressed that his opinions concerned the “standards of care for
. . . . Mr. Pogue is a licensed Professional Engineer with years of experience related to water diversion and impoundment cases.” 7 The Stinsons concede in this court that Pogue’s opinions about diversion and impoundment of water would apply to any “structure, person[,] or business” and are not tailored to relators’ sport shooting range.
9 designing water drainage plans so that water is not improperly diverted or impounded
on adjoining properties.” In the declaration, he stated that the “standards of care
relating to water diversion and impoundment apply equally regardless of the building’s
use (i.e., regardless of whether a structure is to be used as a shooting range or for
some other purpose).”
Because Pogue does not purport to have expertise about the appropriate
standards of care for discharging a firearm, let alone for operating a sport shooting
range, and because his report does not provide opinions about such standards, we
hold that Pogue is not an “expert” under section 128.051 and that his report is neither
an “expert report” under section 128.051 nor a good faith effort to constitute the
same. The Stinsons therefore failed to serve an “expert report” under section 128.053.
See id. §§ 128.051(3)(A), (4), .053(a), (e).
Consequently, there is also no merit to the Stinsons’ argument that relators
waived their objections to Pogue’s report by not asserting them within twenty-one
days after they received it. Section 128.053(a) requires only that objections to an
expert report be filed and served within twenty-one days; because Pogue’s report
constituted no report at all under chapter 128, relators’ obligation to object was never
triggered. See id. §§ 128.051(3)(A), (4), .053(a); see also Villarreal v. Fowler, 526 S.W.3d
633, 634–35, 637–38 (Tex. App.—Fort Worth 2017, no pet.) (holding that under
chapter 74 of the civil practice and remedies code, which similarly requires service of
expert reports in healthcare liability claims, the twenty-one-day deadline to object was
10 not triggered when a party served a “Clinical Review,” which was “no report at all”);
Haskell v. Seven Acres Jewish Senior Care Servs., 363 S.W.3d 754, 759 (Tex. App.—
Houston [1st Dist.] 2012, no pet.) (holding that if a chapter 74 report is so deficient as
to constitute no report at all, the twenty-one-day deadline to object is never triggered
and the trial court is “required to dismiss”); Francis v. Select Specialty Hosp., No. 01-04-
01186-CV, 2005 WL 2989489, at *3 (Tex. App.—Houston [1st Dist.] Nov. 3, 2005,
no pet.) (mem. op.) (“[B]ecause there is no evidence in the record that Sharon filed
her expert report with the trial court or otherwise provided Select Specialty with an
expert report, the 21-day deadline by which a health care provider must file and serve
its objections to the sufficiency of such a report was not triggered.”).
Similarly, because the Stinsons’ sole report was wholly insufficient to meet
section 128.053’s requirements, there is no merit to the Stinsons’ alternative argument
that dismissal was not required because relators received one sufficient report and
because section 128.053 requires a sufficient report on only one theory that a plaintiff
alleges against a defendant. Cf. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex.
2013) (holding that if a report “satisfies [the] requirements” of chapter 74 as to at least
one healthcare liability theory, the suit may proceed); SCC Partners, Inc. v. Ince, 496
S.W.3d 111, 115 (Tex. App.—Fort Worth 2016, pet. dism’d) (“[A] report that satisfies
the statutory elements . . . is sufficient to avoid dismissal of an entire case.” (emphasis
added)).
11 Section 128.053 is not unconstitutional
The Stinsons further contend that section 128.053’s expert-report requirement
violates several state and federal constitutional provisions. We generally presume that
a statute is constitutional. Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d
659, 662 (Tex. 1996). The party challenging a statute’s constitutionality bears the
burden on that issue. See Edgewood ISD v. Meno, 917 S.W.2d 717, 725 (Tex. 1995).
The Stinsons argue that the expert-report requirement violates the open-courts
guarantee of the Texas constitution8 and equal protection and due process guarantees
of our federal and state constitutions—contentions that we have previously rejected in
analyzing section 128.053 and that courts have consistently repudiated in analyzing the
similar expert-report requirement of section 74.351 of the civil practice and remedies
code. See U.S. Const. amend. XIV, § 1; Tex. Const. art. 1, §§ 3, 13, 19; Tex. Civ. Prac.
& Rem. Code Ann. § 74.351 (West 2017); Alpine Indus. v. Whitlock, 554 S.W.3d 174,
8 The Stinsons reason that section 128.053 violates the open-courts guarantee because, in part, the section requires them to pay an expert to pursue a claim and because it limits their discovery. See Tex. Civ. Prac. & Rem. Code Ann. § 128.053(f). We note that although the Stinsons contend at length that section 128.053’s procedural requirements may hypothetically create financial and logistical barriers (including discovery limitations) to some plaintiffs’ suits against sport shooting ranges, they do not establish that any such barriers actually prevented them from hiring an expert on the operations of a sport shooting range or from serving a valid expert report in this case. Cf. Moncrief v. Harvey, No. 05-90-01116-CV, 1991 WL 258684, at *7 (Tex. App.—Dallas Nov. 26, 1991, writ denied) (not designated for publication) (“That [a statute] may be unconstitutional regarding others is not enough.”). We also note that “while a statute that totally forecloses judicial review may violate the [open courts] provision, one that merely presents hurdles to judicial review may withstand scrutiny.” Abraham v. Greer, 509 S.W.3d 609, 615 (Tex. App.—Amarillo 2016, pet. denied).
12 179–85 (Tex. App.—Fort Worth 2018, pet. filed); Univ. of Tex. Health Sci. Ctr. at
Houston v. Joplin, 525 S.W.3d 772, 782–84 (Tex. App.—Houston [14th Dist.] 2017, pet.
denied); Hebert v. Hopkins, 395 S.W.3d 884, 898–902 (Tex. App.—Austin 2013, no
pet.); Broxterman v. Carson, 309 S.W.3d 154, 159 (Tex. App.—Dallas 2010, pet. denied)
(collecting cases). The Stinsons’ arguments do not persuade us to depart from these
decisions, so we hold that section 128.053’s expert-report requirement does not
violate open courts, due process, due course of law, or equal protection guarantees.
The Stinsons also assert that section 128.053’s requirement is an impermissible
“special law” under the Texas constitution—see Tex. Const. art. III, § 56(a)(16)—
because, in the Stinsons’ words, the requirement applies to “particular persons” rather
than the general public and because the requirement seeks “to prohibit lawsuits . . .
against sport shooting ranges and their owners that would be . . . permitted against
any other private citizen in the public at large.” Article III, section 56 prevents
lawmakers from the practice of “trading votes for the advancement of personal rather
than public interests.” Maple Run at Austin Mun. Util. Dist. v. Monaghan, 931 S.W.2d
941, 945 (Tex. 1996). The constitutional provision does not prohibit the Legislature
from making reasoned classifications.9 See id. “The primary and ultimate test of
9 As we explained in Alpine Industries, three of the purposes of section 128.053 are to protect safe gun ranges from legal harassment, to “add a legislative hurdle to the filing of frivolous lawsuits,” and to accommodate Texas’s liberalization of its gun laws. 554 S.W.3d at 185.
13 whether a law is general or special is [determined by] whether there is a reasonable
basis for the classification made by the law, and whether the law operates equally on
all within the class.” Rodriguez v. Gonzales, 227 S.W.2d 791, 793 (Tex. 1950).
The Stinsons contend that section 128.053 violates the “special law”
prohibition because the section requires plaintiffs who sue sport shooting ranges to
pass certain procedural and evidentiary hurdles that “other members of the general
public do not have” to pass. Courts have rejected similar arguments in the context of
considering section 74.351’s expert-report requirement, and because the Stinsons
articulate no reason for us to depart from those decisions here, we decline to do so.
See Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512, 520–21 (Tex. App.—Dallas
2011, pet. denied) (reciting the presumption of constitutionality of state statutes and
holding that although section 74.351 treated medical malpractice plaintiffs differently
than plaintiffs alleging other tort claims, the section was not an unconstitutional
special law); Smalling v. Gardner, 203 S.W.3d 354, 371 (Tex. App.—Houston [14th
Dist.] 2005, pet. denied) (holding similarly).
The Stinsons also contend that section 128.053 is unconstitutionally vague
because it purportedly does not “define what an expert is, what qualifications are
The Stinsons argue that absent their failure to file an expert report, chapter 128 would otherwise permit the Shooting Claims. Assuming, without deciding, that they are correct, then like the plaintiffs in Alpine Industries, it is the Stinsons’ “failure to timely serve the expert report—not the existence of the expert report requirement— that [bars their claims].” See id.
14 necessary to make the author an expert, what an expert report is deemed to be, or
what must be included in the expert report to make it sufficient.” The Stinsons are
incorrect. As described above, chapter 128 defines an “expert,” what the expert’s
qualifications must be, and the necessary contents of the expert report. Tex. Civ. Prac.
& Rem. Code Ann. § 128.051(3)–(4).
Finally, the Stinsons compare chapter 128’s provisions to similar provisions
from other states with the apparent goal of showing that chapter 128’s provisions do
not accomplish their intended purposes or are simply unreasonable. But in a
constitutional analysis, we do not consider the wisdom or expediency of a law—that is
the Legislature’s job. See Alpine Indus., 554 S.W.3d at 181. Furthermore, although the
Stinsons rely on legislative history materials to contend that the text of chapter 128
does not serve its intended purposes, “the truest manifestation of what legislators
intended is what lawmakers enacted, the literal text they voted on.” HDSA Westfield
Lake, LLC v. Harris Cty. Appraisal Dist., 490 S.W.3d 558, 561 (Tex. App.—Houston
[14th Dist.] 2016, no pet.). The Stinsons’ arguments about chapter 128’s alleged flaws,
either in what the statute contains or what it omits, do not persuade us that they have
met their burden to establish the chapter’s unconstitutionality. See Alpine Indus., 554
S.W.3d at 181 (“We presume that the legislature has not acted unreasonably or
arbitrarily, and where reasonable minds could differ, a mere difference of opinion is
not a sufficient basis for striking down legislation as arbitrary or unreasonable.”); see
also BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86 (Tex. 2017)
15 (stating that appellate judges should be “sticklers” about adjudicating and not
legislating).
For all of these reasons, we hold that the trial court clearly abused its discretion
by denying relators’ motion to dismiss the Shooting Claims for the Stinsons’ failure to
serve an expert report under section 128.053. See Tex. Civ. Prac. & Rem. Code Ann.
§ 128.053(a)–(b).
Relators Have No Adequate Appellate Remedy
Relators contend that they have no adequate remedy by appeal from the trial
court’s failure to dismiss the Shooting Claims.
Mandamus relief is appropriate when the “very act of proceeding to trial—
regardless of the outcome—would defeat the substantive right involved.” McAllen
Med. Ctr., 275 S.W.3d at 465. The application of section 128.053 in this case gives
relators substantive rights to dismissal of the Shooting Claims without a trial and to an
award of attorney’s fees. Requiring relators to litigate the Shooting Claims (and incur
further attorney’s fees to do so) despite the Stinsons’ noncompliance with section
128.053 would wholly defeat those substantive rights. Thus, we hold that relators do
not have an adequate remedy by appeal. See id. at 466–69 (holding that there was no
adequate remedy on appeal from a trial court’s erroneous decision to not dismiss a
healthcare liability claim when the plaintiffs failed to file an adequate expert report); see
also In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (holding
that when a party was entitled to dismissal under rule of civil procedure 91a,
16 mandamus relief was “appropriate to spare the parties and the public the time and
money spent on fatally flawed proceedings”); In re Schmitz, 285 S.W.3d 451, 458–59
(Tex. 2009) (orig. proceeding) (holding there was no adequate remedy on appeal when
the defendant was statutorily entitled to dismissal and when allowing the case to
proceed to trial would therefore “defeat the substantive right the Legislature sought to
protect”).
Conclusion
For all of these reasons, we conclude that the trial court abused its discretion by
denying relators’ motion to dismiss the Stinsons’ Shooting Claims and that mandamus
relief is appropriate. See Tex. R. App. P. 52.8(c). We order the trial court to vacate its
March 21, 2018 order denying relators’ motion to dismiss, to grant relators’ motion to
dismiss the Shooting Claims, and to award attorney’s fees to relators to the extent that
those fees are attributable to relators’ litigation of the Shooting Claims. See Tex. Civ.
Prac. & Rem. Code Ann. § 128.053(a)–(b). A writ will issue only if the trial court fails
to do so. This court’s October 23, 2018 order staying the proceedings in the trial court
is hereby lifted.
/s/ Wade Birdwell
Wade Birdwell Justice
Delivered: December 20, 2018