569 S.W.3d 776
Tex. App.2018Background
- Ashley Scott Echols sued Dr. Bryan Buchanan and associated entities for negligent treatment after Echols was shot in the head and later discharged with a bullet remaining.
- Buchanan filed an original answer on October 9, 2017, but did not allege an unknown criminal shooter as a responsible third party until a motion for leave filed June 27, 2018 and a second amended answer filed August 21, 2018.
- Echols objected that the designation of the “unknown gunman” was untimely under Tex. Civ. Prac. & Rem. Code § 33.004(j), which requires allegations identifying an unknown criminal to be included not later than 60 days after the defendant’s original answer.
- The trial court granted Buchanan leave to designate the unknown gunman on August 23, 2018.
- Echols petitioned for mandamus, arguing the trial court clearly abused its discretion by permitting the late designation and that he lacks an adequate appellate remedy.
- The Court of Appeals reviewed statutory construction and prior authorities and concluded the trial court abused its discretion; it conditionally granted the writ and ordered the trial court to vacate its designation order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §33.004(j)’s 60-day deadline for alleging an unknown criminal is mandatory | Echols: subsection (j) requires allegations within 60 days of the original answer; Buchanan’s designation was untimely | Buchanan: subsection (j) is one timing option; a defendant can instead use the general §33.004(a) deadline (60 days before trial) and thus file later | Court: §33.004(j) is mandatory for unknown criminal designations; Buchanan’s late designation was improper |
| Whether trial court abused its discretion by granting leave for the late designation | Echols: grant was a clear abuse because statutory deadline was missed | Buchanan: trial court had discretion and plaintiff has appellate remedies | Court: trial court abused its discretion by misapplying §33.004(j) |
| Whether Echols has an adequate remedy by appeal | Echols: appellate review is inadequate because RTP designation skews proceedings and affects defense presentation | Buchanan: appeal can remedy any error | Court: appeal is inadequate here; mandamus appropriate |
| Whether discovery or inability to replead justifies late designation | Buchanan: 60 days is often insufficient (e.g., healthcare claims with discovery stays); defendants should be allowed to replead later | Echols: subsection (j) requires only facts/identifying characteristics known when answering; additional discovery not required to allege criminal act | Court: legislative scheme requires early pleading; late designation would undermine statutory deadlines |
Key Cases Cited
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (mandamus standard and adequacy of appellate remedy discussion)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (abuse of discretion standard for mandamus review)
- City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008) (statutory construction principles)
- In re Unitec Elevator Servs. Co., 178 S.W.3d 53 (Tex. App.—Houston [1st Dist.] 2005) (holding §33.004(j) required allegations within 60 days of original answer)
- In re Oncor Elec. Delivery Co., LLC, 355 S.W.3d 304 (Tex. App.—Dallas 2011) (mandamus appropriate where RTP ruling skews litigation and appeal is inadequate)
- In re Smith, 366 S.W.3d 282 (Tex. App.—Dallas 2012) (following In re Oncor on adequacy of appellate remedy for RTP rulings)
- In re Bustamante, 510 S.W.3d 732 (Tex. App.—San Antonio 2016) (no adequate remedy by appeal for denial of timely motion to designate RTP)
- In re Coppola, 535 S.W.3d 506 (Tex. 2017) (noting intermediate courts hold erroneous denial of timely §33.004(a) motion ordinarily warrants mandamus)