                                  Fourth Court of Appeals
                                          San Antonio, Texas

                                        DISSENTING OPINION
                                              No. 04-18-00818-CV

                         IN RE FIRETROL PROTECTION SYSTEMS, INC.

                                       Original Mandamus Proceeding 1

Per Curiam Opinion by: Luz Elena D. Chapa, Justice
Dissenting Opinion by: Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Luz Elena D. Chapa, Justice
                  Beth Watkins, Justice

Delivered and Filed: February 27, 2019

        Because I believe the trial court erroneously concluded the “[t]he Rule 11 Agreements

between the Parties regarding deadlines for designating expert witnesses are controlling,” I would

partially grant the petition for writ of mandamus filed by Firetrol Protection Systems, Inc. to vacate

the trial court’s orders: (1) denying Firetrol’s motion requesting an extension of the deadline to

designate its experts or leave to file a late designation; and (b) striking Firetrol’s amended

designation of expert witnesses. Because the trial court concluded the Rule 11 agreements were

controlling, the trial court clearly erred by failing to correctly apply the law which allowed it to

exercise discretion in deciding whether good cause existed to allow Firetrol to amend its expert

designation. Because the majority holds to the contrary, I respectfully dissent.




1
 This proceeding arises out of Cause No. 2016CI07805, styled Tony Escamilla, et al. v. Firetrol Protection Systems,
Inc., et al., pending in the 438th Judicial District Court, Bexar County, Texas, the Honorable Rosie Alvarado presiding.
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                                             BACKGROUND

        The underlying lawsuit arises from a fire at the Wedgewood Senior Apartments. Over 100

plaintiffs sued several defendants, including Firetrol, for personal-injury damages arising from the

fire. In the lawsuit, the plaintiffs alleged Firetrol “failed to adequately inspect, test, and maintain

Wedgewood’s fire alarm system and to ensure it complied with” applicable codes, standards, and

regulations. The case was designated as “complex.”

        On February 15, 2017, the trial court signed a docket control order pursuant to which trial

was set for March 1, 2018, and the plaintiffs and defendants were ordered to designate their expert

witnesses by September 22, 2017 and December 8, 2017, respectively. The docket control order

stated: “Any deadlines established by this Discovery Control Plan can be extended by a Rule 11

Agreement signed by all parties or upon Order of the Court for good cause shown.”

        In October and November 2017, the plaintiffs and Firetrol entered into Rule 11 agreements 2

extending the deadlines for expert designations. Under the agreements, Firetrol’s deadline to

designate experts was February 5, 2018.

        On January 12, 2018, Firetrol filed a motion for continuance, asking for a 180-day

continuance of the March 1, 2018 trial setting and for a new docket control order. In the motion,

Firetrol noted depositions had been taken of ninety plaintiffs and seven Firetrol employees;

however, sixteen plaintiffs and numerous fact witnesses had yet to be deposed, including relevant

witnesses from the city’s fire and building departments. In addition, Firetrol noted the plaintiffs

designated seven liability experts and seven general damages experts in addition to designating all

of the plaintiffs’ treating physicians as experts. The trial court did not rule on the request for a

new docket control order but continued the trial to June 22, 2018.


2
  Because the parties referred to the agreements as Rule 11 agreements, I use the same reference; however, I
acknowledge they could also be referred to as Rule 191.1 agreements.


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         On February 5, 2018, Firetrol designated its liability experts. About a month later, on

March 9, 2018, Firetrol filed a motion to extend the deadline to designate experts or, in the

alternative, leave to late designate experts (“motion for leave”). Following a March 14, 2018

hearing, the trial court took Firetrol’s motion under advisement but continued the trial to

September 14, 2018. Two weeks later, the trial court notified the parties that Firetrol’s motion for

leave was denied.

         On May 3, 2018, Firetrol served plaintiffs with an amended designation of expert

witnesses, and later filed a motion to accept the amended designation as timely. The plaintiffs

opposed the amended designation, arguing the Rule 11 agreements were controlling and the trial

court had a duty to enforce the terms of the agreements. The plaintiffs also filed motions to strike

the amended designation, arguing Firetrol could not show good cause or no unfair prejudice under

Rule 193.6 of the Texas Rules of Civil Procedure. 3

         On May 21, 2018, the trial court held a hearing on the plaintiffs’ motions to strike. At the

hearing, the plaintiffs argued “the Court has no discretion to grant the motion filed by [Firetrol.]

[I]f you enter into a Rule 11 agreement, you are bound by that agreement regarding designation of

experts, and the Court has no option but to follow that agreement. . . . [T]he trial court is duty-

bound to follow the Rule 11 agreement. . . . Unequivocally, Your Honor, in the state of Texas

you have no discretion but to follow it.” Following the May 21 hearing, the trial court took the

issue under advisement.




3
  Rule 193.6 provides: “A party who fails to make, amend, or supplement a discovery response in a timely manner
may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a
witness (other than a named party) who was not timely identified, unless the court finds that: (1) there was good cause
for the failure to timely make, amend, or supplement the discovery response; or (2) the failure to timely make, amend,
or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.” TEX. R. CIV.
P. 193.6(a).


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         On July 3, 2018, Firetrol filed a motion for continuance noting 121 depositions had been

completed; however, several relevant fact witnesses had yet to be deposed partially due to

resistance to the deposition process by non-parties. Firetrol also noted the plaintiffs had designated

all of their treating physicians as experts in addition to fourteen additional expert witnesses, and

expert depositions were still in progress. Finally, Firetrol noted the plaintiffs continued to

supplement discovery responses with additional document production, including document

production for one trial group that was in excess of 20,000 pages. 4

         On August 23, 2018, the trial court signed an order granting the motions to strike. In the

order, the trial court specifically found “[t]he Rule 11 Agreements between the Parties regarding

deadlines for designating expert witnesses are controlling . . . .” That same day, the trial court

continued the trial to March 29, 2019. Thereafter, the trial was continued on the trial court’s own

motion to May 10, 2019.

                                                     DISCUSSION

         As previously noted, the trial court’s orders precluding Firetrol from amending its expert

designation are based on the trial court’s conclusion that “[t]he Rule 11 Agreements between the

Parties regarding deadlines for designating expert witnesses are controlling.” In reaching this

conclusion, I believe the trial court erred by failing to correctly apply the law. In re BP Prods. N.

Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

         “Except where specifically prohibited, the procedures and limitations set forth in the rules

pertaining to discovery may be modified in any suit by the agreement of the parties or by court

order for good cause.” TEX. R. CIV. P. 191.1. Although the Texas Supreme Court has indicated

courts should be “reluctant to set aside a Rule 191.1 agreement after one party has acted in reliance


4
  At some point, the trial court ordered the case to proceed to trial on liability and damages with twelve plaintiffs, and
then further groups of twelve plaintiffs as to damages only.


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on the agreed procedure and performed its obligations under the agreement,” the court still

recognized a trial court has the discretion to set aside a Rule 191.1 agreement by examining the

grounds asserted for setting such an agreement aside. In re BP Prods. N. Am., Inc., 244 S.W.3d at

846-48 (examining grounds to determine if they provided “‘good cause’ for setting aside the

discovery agreement”). If the trial court was without discretion to decide whether “good cause”

had been shown, the Texas Supreme Court would not have analyzed each of the grounds asserted

for setting the agreement aside. Ultimately, the Texas Supreme Court held the trial court abused

its discretion because the grounds asserted did not “justify a refusal to enforce the agreement.” Id.

at 847-48. However, this holding clearly recognized the trial court had the discretion to set aside

the Rule 191.1 agreement if good cause was shown.

       By concluding the Rule 11 agreements in this case were “controlling,” I believe the trial

court clearly abused its discretion by accepting the plaintiffs’ argument that it had “no discretion

but to follow [the Rule 11 agreements].” Although I would vacate the existing orders, I believe

the trial court must still exercise its discretion to decide if Firetrol showed good cause for amending

its expert designation. Because the majority holds to the contrary, I respectfully dissent.

                                                   Sandee Bryan Marion, Chief Justice




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