In re Gamble

676 S.W.3d 760

IN RE Jeramie Wayne GAMBLE, Individually and as Next Friend of A.G. and S.G., Minors, Relator

No. 02-22-00429-CV

Court of Appeals of Texas, Fort Worth.

Delivered: August 17, 2023

Rehearing Denied November 16, 2023

ATTORNEYS FOR RELATOR: AVERY MCDANIEL, GARETTE M. AMIS, LAW OFFICE OF AVERY, MCDANIEL, FORT WORTH, TEXAS, J. CARL CECERE, CECERE PC, DALLAS, TEXAS.

ATTORNEYS FOR REAL PARTY IN INTEREST: JOHN D. GARRETT, BOWMAN AND BROOKE LLP, AUSTIN, TEXAS, TIMOTHY J. MATTSON, BOWMAN AND BROOKE LLP, MINNEAPOLIS, MINNESOTA, JESSICA Z. BARGER, BRADLEY W. SNEAD, RUBEN C. GARZA III, WRIGHT CLOSE & BARGER, LLP, HOUSTON, TEXAS.

Before Birdwell, Womack, and Walker, JJ.

OPINION

Opinion by Justice Birdwell

I. INTRODUCTION

In this original proceeding, Relator Jeramie Wayne Gamble, seeks mandamus relief individually and as next friend of his minor daughters, A.G. and S.G., from the trial court's order granting their former stepfather, Real Party in Interest James Couch, leave to designate their mother, Kendra Couch (Kendra), and the Texas Department of Transportation (TxDOT) as third parties responsible for the catastrophic injuries that they suffered in a cross-median, head-on collision on U.S. Highway 287 as passengers in a 2016 Chevrolet Silverado pickup truck leased by Couch's employer, Ecolab, Inc. (Ecolab),¹ and driven by Couch. By granting Couch leave to so designate Kendra and TxDOT, the trial court authorized the submission of their and Couch's respective percentages of responsibility² to the jury in the upcoming trial for a determination of their proportionate responsibility for purposes of adjudicating Couch's joint and several liability, if any, for the damages alleged by Gamble on behalf of himself and his daughters. Tex. Civ. Prac. & Rem. Code Ann. §§ 33.003 (submission), 33.013(b) (adjudication of joint and several liability). Gamble asserts that the trial court abused its discretion by authorizing these designations because (1) Couch failed to comply with his disclosure obligations as required by Section 33.004(d) of the Texas Civil Practice and Remedies Code in seeking such leave and (2) Kendra's parental immunity and TxDOT's governmental immunity render them ineligible, as a matter of law, for designation as "responsible third parties" since their legal immunities foreclose adjudication of their responsibility according to an "applicable legal standard" such as negligence.³ Although we conclude that the trial court correctly held that individuals and entities possessing immunity from liability may be designated as responsible third parties, we grant, in part, the mandamus relief requested because we conclude (1) that, as to Gamble's individual claims, the trial court abused its discretion by concluding that Couch had met his discovery obligations as the necessary predicate to such designations of Kendra and TxDOT pursuant to Section 33.004(d) but (2) that Section 33.004(d) does not apply to A.G.’s and S.G.’s claims because the applicable limitations periods on their causes of action have not yet expired. See id. § 33.004(d).

II. BACKGROUND

On a fateful, rainy July 4, 2016, Couch was driving home to Fort Worth from Pampa, Texas, along U.S. Highway 287 with his then-wife, Kendra, and her two minor daughters from her prior marriage to Gamble, A.G., age ten, and S.G., age eight. Couch was operating the Silverado with S.G. seated in the front passenger seat and A.G. and Kendra seated in the back seat behind him and S.G., respectively.

Just outside of Wichita Falls, Couch responded to wet driving conditions by applying the brakes to both disengage the truck's cruise control and to slow its overall speed, but in so doing, he lost control of the truck, which left the southeast-bound lanes of traffic, crossed the grassy highway median, and collided virtually head-on into a 2005 Cadillac Escalade SUV travelling the opposite direction in the northwest-bound lanes, causing both vehicles to catch fire. A.G. and S.G. suffered significant gastrointestinal injuries, spinal-cord injuries, closed-head injuries, and neurological damage. A.G. continues to suffer from paraplegia, and both children will require ongoing medical care and other assistance into the foreseeable future.

On January 13, 2017, a little over six months after the accident, Gamble—both in his individual capacity and as next friend of A.G. and S.G.—filed suit against Couch, seeking over $5 million in medical and other expenses that he has incurred or will incur caring for his daughters during their minority, as well as non-economic damages recoverable on behalf of his daughters both before and after they reach the age of majority, and economic damages recoverable on their behalf after reaching majority.⁴ Along with his original petition, Gamble served Couch with requests for disclosure, which pursuant to Rule 194.2 of the Texas Rules of Civil Procedure required Couch to disclose, inter alia, "[t]he name, address, and telephone number of any potential parties"; "[t]he name, address, and telephone number of any person who may be designated as a responsible third party"; and "the legal theories and ... the factual bases of [his] claims or defenses[.]" Tex. R. Civ. P. 194.2(b), (c), (l ) (2004, amended 2021).⁵

In his original responses to Gamble's requests for disclosure, served on March 22, 2017, Couch did not disclose any potential or responsible third parties, stating that he was "unaware of any such potential parties at [that] time" while reserving "the right to supplement his response as his investigation and discovery continue[d]." He further did not disclose a defensive theory of third-party responsibility, as required by Rule 194.2(c), by which Gamble could reasonably discern the identity of any potential party or responsible third party:

Further, the negligence, acts, and conduct of Plaintiff and/or third persons, parties, legal entities[,] or instrumentalities over whom Couch had no control were a proximate cause and/or the sole proximate cause and/or a producing cause and/or the cause in whole or in part of the incident giving rise to this lawsuit.

See In re Dawson , 550 S.W.3d 625, 630 (Tex. 2018) (orig. proceeding) (holding that "boilerplate language about unnamed ‘persons or entities’ " purportedly causing claimant's injuries and a stated intention to supplement in the future did not satisfy defendant's discovery obligations under Rule 194.2(l ) and Section 33.004(d)). Couch did, however, identify Kendra as a person with knowledge of relevant facts due to her status as a passenger in the pickup at the time of the collision.

On July 28, 2017, Couch supplemented his disclosure responses to identify "the State of Texas" as a person who may be designated as a responsible third party, but he did not provide an address or phone number as required by Rule 194.2(l ) or specify which state agency or department he intended to designate. He further did not disclose a defensive theory of responsibility against the State of Texas by which Gamble could reasonably discern which state agency or department was the intended designee; instead, Couch's response remained the identical boilerplate assertion against "third persons, parties, legal entities[,] or instrumentalities over whom [he] had no control"—the same assertion that he had made in his original disclosure responses.

On June 27, 2018—just one week from the expiration of the two-year statute of limitations on his individual claims⁶ —Gamble filed his first amended petition adding Ecolab as a defendant.⁷ Along with his first amended petition, Gamble served Ecolab with requests for disclosure.

Served upon Gamble on September 7, 2018, Ecolab's original disclosure responses identified "the State of Texas" and Kendra as potential responsible third parties. Like Couch, however, Ecolab failed to specify which state agency or department it intended to designate and did not provide an address or phone number for "the State of Texas" or Kendra. Nor did Ecolab disclose a defensive theory of third-party responsibility against the State of Texas by which Gamble could discern which state agency or department was the intended designee; instead, Ecolab's response mirrored the boilerplate assertion that Couch had made against "third persons, parties, legal entities[,] or instrumentalities over whom [he] had no control" in both his original and supplemental disclosures. This same boilerplate assertion similarly failed to disclose any defensive theory of third-party responsibility against Kendra; as had Couch, Ecolab merely identified Kendra as a person with knowledge of relevant facts due to her status as a passenger.

On May 30, 2019, Couch served his second supplemental disclosure responses in which he again designated "the State of Texas"—but not Kendra—as a responsible third party. He still did not provide an address or phone number or specify which state agency or department he intended to designate. His boilerplate disclosure of defensive legal theories remained unchanged.

Finally, over four years after the collision, on August 17, 2020, Couch and Ecolab served identical supplemental disclosure responses,⁸ disclosing that, in addition to the State of Texas, they might designate Kendra as a responsible third party. While they listed a phone number for Kendra, they did not provide an address, merely stating that "her current address is unknown." Additionally, both Couch's and Ecolab's supplemental responses contained the following identical statement regarding their legal theories and the factual bases for their defenses:

According to the deposition of [Kendra's mother, the girls’ grandmother,] Kathy Ely, Kendra ... told her that one or both of the minor children, A.G. and S.G., were wearing a lap belt only at the time of the accident and had taken the shoulder belt off. To the extent one or both of the minor children, A.G. and S.G., were not properly restrained at the time of the accident, the negligence of Kendra ...,

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