On April 2, 2025 – the Fifth District Court of Appeals in Texas handed down its opinion in Hemphill v. On Target Guns & Range LLC, Case No. 05-23-01200-CV.
Pretty straight forward facts – Plaintiff alleges that she was struck by a ricocheting bullet while she was using On Target’s shooting range. She sued for negligence and premises liability.
For an unknown reason, Plaintiff did not file an expert report as required by Section 128.053 of the Texas CP&RC, which provides:
“In a suit against 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, a claimant shall, not later than the 90th day after the date the original petition was filed, serve on each party or the party’s attorney 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. The date for serving the report may be extended by written agreement of the affected parties.”
Defendant moved for dismissal due to the failure to file the report, which the Court granted, without the motion being set for hearing, dismissing Plaintiff’s claims with prejudice.
Plaintiff appealed the dismissal arguing that the Court’s dismissal without a hearing denied her of due process pursuant to Rule 165a of the Tex. R. Civ. P. The Court of Appeals did agree that the trial court erred in failing to provide Plaintiff with a hearing.
However, the Court found that the error was harmless because the fact of the matter is that Plaintiff failed to file the mandatory report. There is simply no argument the Plaintiff could have made to overcome this simple failure.
Moral of the story – know your statutes!
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Christopher Chapaneri a distinguished Lydecker attorney with extensive expertise in civil litigation, construction defect, premises liability, amusement park litigation, commercial motor vehicle/trucking, employment law, and environmental litigation—including mold exposure and vegetation management/overspray matters. Chapaneri also has a robust appellate practice, having successfully handled cases before the Texas Supreme Court and the Fifth Circuit Court of Appeals.
In addition, Chapaneri brings substantial experience in handling high exposure and high-risk cases, further strengthening Lydecker’s ability to serve clients across multiple industries in Texas and beyond. Chapaneri also provides services in the State of Oklahoma.