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E.F. Hutton Co., Inc. v. Youngblood

Supreme Court of Texas
Nov 10, 1987
741 S.W.2d 363 (Tex. 1987)

Summary

holding that "services" under the DTPA includes "services of a 'loan broker' in attempting to obtain a loan for a borrower"

Summary of this case from Vine v. PLS Fin. Servs., Inc.

Opinion

No. C-5526.

November 10, 1987. On Rehearing November 10, 1987.

Appeal from the 73rd District Court, Bexar County, James C. Onion, J.

Thomas T. Hutcheson and Andrew R. Harvin, Hutcheson Grundy, Houston, Bruce L. Goldston, San Antonio, for petitioner.

Sam C. Bashara, San Antonio, for respondents.


OPINION ON MOTION FOR REHEARING


We grant in part the Youngbloods' motion for rehearing, withdraw our opinion and judgment delivered June 24, 1987, and substitute the following:

John D. Youngblood and his wife, after receiving erroneous tax and investment advice, sued E.F. Hutton Company, Inc., under the Texas Securities Act (TSA), Tex.Rev.Civ.Stat.Ann. art. 581-1 et seq. (1987), the Deceptive Trade Practices Act (DTPA), Tex.Bus. Comm. Code §§ 17.41 et seq. (Vernon Supp. 1987), other statutes, and the common law. The trial court rendered judgment for the Youngbloods under the DTPA, and the court of appeals affirmed. 708 S.W.2d 865. A majority of this court affirms the judgment of the court of appeals insofar as it allows recovery of damages under the DTPA. However, we reverse and here render judgment that the Youngbloods are not entitled to recover attorney's fees.

In answers to propounded interrogatories, Youngblood failed to designate an expert witness regarding the claim for "reasonable and necessary" attorney's fees recoverable under DTPA § 17.50(d). At trial, Youngblood's attorney called himself and one other attorney to testify. E.F. Hutton objected because neither had been identified as a prospective expert witness. The objection was overruled.

The identity of expert witnesses must be disclosed no later than thirty days prior to the beginning of trial. Tex.R.Civ.P. 166b(5). Failure to comply will result in exclusion of testimony unless the proferring party demonstrates good cause for its admission. Tex.R.Civ.P. 215(5).

The trial judge conducted a brief hearing on this issue, during which Youngblood's attorney offered two reasons why he had "inadvertently" failed to make an amendment to his answers to interrogatories. First, he stated he had only that day decided who would be called to testify; and second, he claimed that E.F. Hutton's attorney already had the special knowledge necessary to cross-examine the witnesses. Neither of these reasons constitutes good cause. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986); Yeldell v. Holiday Hills Retirement Nursing Center, 701 S.W.2d 243, 246 (Tex. 1986). Therefore, the trial court erred in failing to exclude this evidence. We hold the Youngbloods are not entitled to attorney's fees.

E.F. Hutton has also argued that the DTPA is inapplicable to securities transactions because of alleged inconsistencies between the TSA's "due diligence" defense and the liability provisions of the DTPA. However, E.F. Hutton never presented this argument to the trial court. Nor did E.F. Hutton make this argument in the court of appeals until its second motion for rehearing in that court. In these circumstances, error, if any, was waived.

We modify the judgment of the court of appeals so as to disallow recovery of attorney's fees by the Youngbloods. As modified, the judgment of the court of appeals is affirmed.


Summaries of

E.F. Hutton Co., Inc. v. Youngblood

Supreme Court of Texas
Nov 10, 1987
741 S.W.2d 363 (Tex. 1987)

holding that "services" under the DTPA includes "services of a 'loan broker' in attempting to obtain a loan for a borrower"

Summary of this case from Vine v. PLS Fin. Servs., Inc.

holding that parties were "not entitled to attorney's fees" because they "failed to designate an expert witness regarding their claim for 'reasonable and necessary' attorney's fees" in case where parties' attorney "called himself and one other attorney to testify" and the trial court overruled adverse party's objection

Summary of this case from In re B.L.B.

holding that, under the circumstances of that case, an argument made for the first time in a motion for rehearing was waived

Summary of this case from Riles v. State

holding plaintiff was a consumer of investment services for which commission was to be paid even though no commission was ultimately paid or charged

Summary of this case from Moak v. Huff

holding that where party made argument for first time in motion for rehearing in court of appeals, "error, if any, was waived"

Summary of this case from 7-Eleven, Inc. v. Combs

finding that inadvertent, late decision about calling expert witness and opposing counsel's ability to cross-examine undisclosed witness on attorney's fees was not good cause

Summary of this case from Smith v. Southwest Feed Yards

concluding that argument that Deceptive Trade Practices Act was inapplicable to securities transactions was never presented to trial court and was therefore waived

Summary of this case from Jacobs Field Servs. N. Am., Inc. v. Willeford

reversing a fee award where plaintiff failed to identify an expert witness on the reasonableness of the fee claim in answering interrogators and failed to show good cause for that failure

Summary of this case from 15625 Ft. Bend Ltd. v. Sentry Select Ins. Co.

requiring expert testimony; no discussion why

Summary of this case from Taurus IP, LLC v. DaimlerChrysler Corp.

disallowing attorney's fees where expert witness on issue not designated in answer to interrogatories

Summary of this case from Reynolds v. Nagely

In Hutton, the supreme court disallowed the recovery of attorney's fees, finding it error to have allowed the appellee's attorney to testify, over objection, where the appellee failed to supply the attorney's name as an expert witness.

Summary of this case from Lohie Inv. v. C.G.P. No. 10
Case details for

E.F. Hutton Co., Inc. v. Youngblood

Case Details

Full title:E.F. HUTTON COMPANY, INC., Petitioner, v. John D. YOUNGBLOOD et ux.…

Court:Supreme Court of Texas

Date published: Nov 10, 1987

Citations

741 S.W.2d 363 (Tex. 1987)

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