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holding admission of expert testimony on attorney's fees not abuse of discretion, despite untimely disclosure, where opponent of evidence refused offer of further discovery and did not demonstrate offer insufficient
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No. 01-06-00961-CV
Opinion issued November 6, 2008.
On Appeal from the 189th District Court, Harris County, Texas, Trial Court Cause No. 2004-63597.
Panel consists of Chief Justice RADACK and Justices TAFT and ALCALA.
MEMORANDUM OPINION
Appellant, Barbara Hilburn, appeals from a declaratory judgment, rendered after a bench trial, that construed an easement agreement between her and appellee, Providian Holdings, Inc. ("Providian"), and that also awarded attorney's fees to Providian. We determine, as a matter of law, whether the trial court properly interpreted the easement agreement. We further determine whether the trial court abused its discretion by admitting the testimony of an untimely designated expert witness and by awarding attorney's fees to Providian based upon the expert's testimony. We affirm.
Background
Providian owns two properties that are located at the intersection of San Jacinto Street and Anita Street in Houston, Texas. One property is a two-story building with a small parking lot ("the first lot"). The other property is a parking lot across Anita Street ("the second lot"). Providian rents out space for several clinics in the building on the first lot and uses the second lot to supplement parking for its staff and retail businesses. The property at issue is the second lot. The second lot had only one entrance: a driveway into it from Anita Street. Hilburn owned an adjoining parking lot ("the third lot"). In 2000, Hilburn purchased a 25-foot by 100-foot easement from Cochran Cochran (also known as Cochran Associates), Providian's predecessor in ownership of the second lot, because there was no entrance to the third lot. The easement granted her use of the entrance to the second lot, and passage over the second lot, to access the third lot. When Hilburn purchased the easement, a fence spanned the Anita Street side of the second lot, and a gate was located at the entrance to the second lot. Prior to purchasing the second lot from Cochran Cochran, Providian was aware that the entrance to the second lot was burdened by Hilburn's easement and that Hilburn had a right to use the easement strip and the entrance to the second lot to access the third lot.
Providian sued Hilburn in November 2004, alleging that she had been closing or locking the gate across the entrance to the second lot, which prevented Providian from accessing its own property. Providian alleged that Hilburn's locking the gate constituted a nuisance and sought declaratory and injunctive relief, damages, and attorney's fees.Hilburn countersued for trespass, nuisance, and declaratory relief.
Providian also alleged a claim for trespass, based on Hilburn's having built aramp on the second lot, but that claim was disposed of by "mother hubbard" language in the final judgment after Providian's counsel advised the court that it intended to drop that claim.
On February 16, 2005, prior to the bench trial in this case, a different judge rendered a temporary restraining order ("TRO 1") in favor of Hilburn, which temporarily enjoined Providian from "destroying the gate across the easement, the poles supporting it, or the chain or lock securing it." Although not in the record, a second temporary restraining order ("TRO 2") was rendered by the trial court at least 18 months prior to trial and sometime after TRO 1.TRO 2 required Hilburn to keep the gate open during normal business hours, allowing Providian, its employees, tenants, and their respective clients access to the second lot.
The existence of TRO 2 is evident from discussions at trial.
At the bench trial, Providian argued that the easement was non-exclusive and, therefore, that Hilburn did not have the right to restrict access by closing or locking the gate. In support, Providian's owner, Khyati Undavia, testified that Hilburn had routinely locked the gate during business hours;she denied that Hilburn had given her the combination to the lock; she denied knowing whether Hilburn had given her employees the combination; and she opined that, even if Hilburn had provided her with the lock's code, that "wouldn't[have] work[ed] for me because this parking lot was bought for specific purposes of us being able to use it and to have access — unrestricted access to the parking lot." In contrast, Hilburn asserted at trial that she had an absolute right of control over the gate because the gate was an appurtenance to her easement;she testified that the contracting parties intended that she have the right to control the gate; she testified that that right existed to guard against a "grave concern for security," which involved "vagrants . . . walking onto the property and into the area"; and she denied "that Providian has ever been denied access to their property" because she locked the gate only after business hours and gave Providian the lock's combination.
However, Undavia admitted that Hilburn had kept the gate open during the 18-month period of TRO 2, as that order had required.
"Appurtenance" can have a variety of meanings, Phoenix Holdings, Ltd. v. Circle C Land Corp., 987 S.W.2d 933, 935 n. 3 (Tex.App.-Austin 1999,), but with respect to real property, this Court has defined it as including "`all rights and interests in other property necessary for the full enjoyment of the property conveyed and which were used as necessary incidents thereto,'" as including "`everything necessary to the beneficial use of the property, . . . whatever is needed to complete a structure and make it capable of performing its intended function,'" and as being "`analogous to "improvements" . . . something annexed to another thing more worthy'" or "`which belongs to something else.'" Pinev. Gibraltar Sav. Ass'n, 519 S.W.2d 238, 241 (Tex.Civ.App.-Houston[1stDist.] 1974, writ ref'd n.r.e.) (quoting Hancox v. Peek, 355 S.W.2d 568, 569(Tex.Civ.App.-Fort Worth 1962, writ ref. n.r.e.) and 6 C.J.S. Appurtenance136).
The trial court found in favor of Providian, declaring that the easement agreement did not give Hilburn the right to close or to lock the gate and ordering that Hilburn pay $10,000 in attorney's fees. Providian's request for a permanent injunction, its claims for nuisance and trespass, and Hilburn's counterclaims (to the extent that they may still have been pending at the time of trial, which the record does not clearly reveal), were disposed of by "mother hubbard" language in the final judgment. The court did not enter findings of fact or conclusions of law.
Scope of the Easement Agreement
In her first issue, Hilburn contends that the trial court improperly interpreted the easement agreement not to grant her the right to close or to lock the gate across her easement.First, Hilburn contends that the gate was an appurtenance to the easement and that the agreement gave her complete control over all appurtenances, including the right to lock or to close the gate. Alternatively, Hilburn contends that the easement agreement was ambiguous on its face and, thus, that the intent of the parties to the agreement could be determined by her testimony at trial, which was that the easement's purpose, although unstated in the agreement, was also for security from and exclusion of unauthorized persons, such as after-hours bar patrons.
Hilburn characterizes her challenge as one of legal sufficiency, while Providiancharacterizes it as one of factual sufficiency. These characterizations miss the mark. Hilburn's position below was that the easement agreement's express terms allowed her to close and to lock the gate in order to protect the third lot; her position on appeal is both that the agreement's express terms allowed for this and, alternatively, that the agreement was ambiguous, so that parol evidence of the contracting parties' intent of the easement's purpose should be considered. In this context, the disputes of historical fact that Hilburn discusses in her brief — whether she actually closed or locked the gate during business hours, whether Providian's employees had the combination to the gate's lock, and whether providing the combination would solve Providian's access problems — are immaterial to the case's disposition: (1) the trial court's judgment simply declared whether the easement agreement's express terms gave Hilburn the right to close or to lock the gate; (2) the trial court did not award damages or grant injunctive relief; (3) the agreement (as discussed further below) was not ambiguous, so that Hilburn's parol evidence of intent was irrelevant; and (4) the historical facts of the gate's existence, its location, and the easement's location at the sole entrance to both lots, which were necessary to the court's declaration, were undisputed. See Voges v. LowerColorado River Auth., No. 03-97-00561-CV, 1999 WL 66205, at *4 (Tex.App.-Austin Feb. 11, 1999, no pet.) (not designated for publication) (in holding that appellant was estopped from arguing that trial court erred in submitting question of unambiguous easement contract's construction to jury because appellant had requested issue's submission to jury, noting that unambiguous easement language presents question of law for court). The trial court itself indicated as much when it noted that it would probably disregard the testimony that it allowed as to whether the gate had been locked and as to the contracting parties' intent because the issue before the court was simply the construction of the agreement, a question of law. Nonetheless, based upon Hilburn's briefing as a whole, and in accordance with the rule that we liberally construe briefs ( see TEX. R. APP. P. 38.1(f), 38.9 and Sterner v. Marathon OilCo., 767 S.W.2d 686, 690 (Tex. 1989)), we construe her first issue to be a challenge to the trial court's interpretation of the easement agreement as a matter of law.
A. Applicable Law and Standard of Review
We construe easement agreements according to the rules governing contract construction. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). To determine the scope of the easement holder's rights, we look to the contracting parties' intentions, as expressed in the grant. Id. We read the terms of the easement as a whole to reach an interpretation of the parties' intentions and to carry out the purpose for which the easement was created. Id. Unless the language in an agreement is ambiguous, we rely solely on the written instrument. Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 498 (Tex.App.-Houston[1st Dist.] 2004, pet. denied) (citing Adams v. Norsworthy Ranch, Ltd., 975 S.W.2d 424, 427 (Tex.App.-Austin 1998, no pet.)).
Whether a contract is ambiguous is a question of law. Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 830 (Tex.App.-Houston[1st Dist.] 1999, no pet.) (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). An ambiguity does not arise merely because the parties to the agreement have different interpretations of a term. DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999). Rather, a term in a contract is deemed ambiguous only after the application of established rules of contract construction leaves it susceptible to more than one reasonable meaning. Id.
We assume that the contracting parties intended for every clause in an agreement to have some effect. Koelsch, 132 S.W.3d at 498. When the provisions of an agreement appear to be in conflict with one another, we harmonize them, if at all possible, to reflect the parties' intentions. Id. We examine and consider the entire contract to harmonize and to give effect to all of its provisions, so that none will be rendered meaningless. Id.
We review the trial court's legal conclusions concerning an unambiguous contract de novo. See MCI Telecomm. Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999). But when the contract is ambiguous, interpretation of the instrument becomes an issue of fact. See Weaver, 4 S.W.3d at 830.
B. Whether the Easement Agreement Is Ambiguous
Hilburn contends that the easement agreement is ambiguous because the agreement mistakenly defines the "dominant estate" as the same property currently owned by Providian[the second lot]. She argues that this is a legal impossibility because Providian's property is the property burdened by the easement, meaning that it is the servient estate, not the dominant estate. See Allen v. Allen, No. 07-06-0150-CV, 2008 WL 3890210, at *11 (Tex.App.-Amarillo Aug. 21, 2008, no pet. h.) (explaining that easement creates "burden on one estate, the servient estate, for the benefit of another, the dominant estate").
The easement agreement does mistakenly refer to the second lot (Providian's property) as the "dominant estate," when it is in fact the servient estate. But that mistake does not render the entire agreement ambiguous, especially because neither party disputed below which estate was the dominant one and which was the servient one. Moreover, this mistake has no bearing on the easement agreement's provisions on which Hilburn rests her appellate challenges: the "Grant of Easement" and "Improvement and Maintenance of Easement Property" provisions. Thus, as a matter of law, the easement agreement is not ambiguous for the reason that Hilburn argues.
Because we determine that the easement agreement is not ambiguous as a matter of law for the reason that Hilburn argues, we disagree with her contention that we may rely on her testimony of the contracting parties' intent in construing the agreement. See Rutherford v. Randal, 593 S.W.2d 949, 953 (Tex. 1980) ("The absence of an ambiguity in the deed negates all justification for the consideration of extrinsic evidence concerning the original intent of the grantor. . . . Under these circumstances, this court will limit its search for the grantor's intent to that intent which was expressed within the four corners of the deed."). Hilburn's subjective belief as to what the contracting parties intended to convey with the easement is immaterial, insofar as such intentions are not found in, and in fact add to, the plain language of the agreement itself. See Koelsch, 132 S.W.3d at 498; see also Gary E. Patterson Assocs., P.C. v. Holub, No. 01-04-00108-CV, 2008 WL 100233, at *11 (Tex.App.-Houston[1st Dist.] Jan. 10, 2008, pet. denied) (providing that "`[u]nder the parol evidence rule, . . . all prior negotiations and agreements with regard to the same subject matter are excluded from consideration'" and that "`a written instrument presumes that all prior agreements relating to the transaction have been merged into it and will be enforced as written and cannot be added to, varied, or contradicted by parol testimony.'") (citations omitted). The easement agreement made this plain by incorporating a merger clause, which provided, "This agreement contains the complete agreement of the parties and cannot be varied except by written agreement of the parties. The parties agree that there are no oral agreements, representations, or warranties that are not expressly set forth in this agreement." See Gary E. Patterson Assocs., 2008 WL 100233, at *11 ("If a written contract's terms are unambiguous . . ., `then parol evidence is inadmissible . . . to vary, add to or contradict its terms' — especially when . . . the contract contains a merger clause.").
The trial court allowed Hilburn's parol testimony concerning the contracting parties' intent over Providian's objection, but commented that it would likely not consider that testimony because the issue before it was simply the meaning of the easement agreement, a question of law.
C. What the Plain Meaning of the Easement Agreement Is
We are thus left with construing the easement agreement's plain language. See Koelsch, 132 S.W.3d at 498 (providing that, unless agreement's language is ambiguous, court relies solely on the written instrument's terms for interpretation).
The easement agreement is entitled, "Easement Agreement for Access." (Emphasis added.) The agreement's stated purpose is "[f]or providing free and uninterrupted pedestrian and vehicular ingress to and egress from the Dominant Estate property[the third lot]." As these provisions demonstrate, the easement's clear purpose was merely for access to and from the third lot. This limited easement purpose was then incorporated into the granting language itself:
Grantor . . . grants, sells, and conveys to Grantee[Hilburn] . . . an easement over, on, and across the Easement Property for the Easement Purpose and for the benefit of the Dominant Estate[the third lot], together with all and singular the rights and appurtenances thereto in any way belonging (collectively, the "Easement"). . . .
(Emphasis added.)
Additionally, under the "Terms and Conditions" section of the agreement, the parties expressly provided that "[t]he Easement is nonexclusive. . . ." The agreement then provided for a corresponding reservation of rights in Providian's predecessor (and thus in Providian):
Grantor reserved for Grantor and Grantor's . . . successors . . . the right to continue to use and enjoy the surface of the Easement Property for all purposes that do not interfere or interrupt the use of enjoyment of the Easement by Grantee[Hilburn] for the Easement Purposes. Grantor reserves for Grantor and Grantor's . . . successors . . . the right to use all or part of the Easement in conjunction with Grantee [Hilburn]. . . .
(Emphasis added.)
All of this language unambiguously makes Hilburn's easement nonexclusive, provides that its purpose is to give access to and from the third lot, and allows Providian the simultaneous use and enjoyment of the easement, i.e., the driveway to its parking lot, which is the sole common entrance. Hilburn contends that requiring the gate to remain unlocked will interfere with the use of her easement, but it will not: the easement gives Hilburn access to and from the third lot; allowing Providian the use of the easement by requiring that the gate remain unlocked does not hinder that purpose.
D. Why Hilburn Contends that the Agreement Means Something Else
Hilburn nonetheless contends, based on three provisions of the easement agreement, that she has the right to close or to lock the gate.
1. Hilburn's Duties and the Easement's Grant
First, she notes that the easement agreement gave her the duty to maintain the easement property and to keep it clean and neat.Second, Hilburn relies on the granting language itself, which provides that the easement was "for the Easement Purpose and for the benefit of the Dominant Estate[the third lot], together with all and singular the rights and appurtenances thereto. . . ." (Emphasis added.) She argues that, because the gate is an appurtenance to her easement by virtue of its being attached to the easement property, because the easement requires that she maintain and care for the easement property, and because locking the gate will keep both lots safe, the agreement gave her the right to lock the gate.
The agreement provides: "Improvement and maintenance of the Easement Property will be at the sole expense of Grantee[Hilburn]. . . . Grantee[Hilburn] must maintain the Easement Property in a neat and a cleancondition."
For the purposes of our discussion, we assume without deciding that the gate was an appurtenance to the easement. The gate's being an appurtenance does not give Hilburn the unfettered right to preclude Providian's use of the easement when its use does not conflict with Hilburn's easement rights. The provisions on which Hilburn relies must be read in context. See Koelsch, 132 S.W.3d at 498. The whole purpose of the easement is to grant Hilburn access to and from her property. The duty for Hilburn to keep the easement clean and neat and to pay for its maintenance does not expand the basic grant that she received. Additionally, the easement agreement plainly states that Hilburn's grant is nonexclusive. The only entrance to both the second and third lots is through the easement on the second lot, Providian's property. If the agreement allowed Hilburn to shut off this sole entrance, it would in effect allow Hilburn the exclusive use and control of the easement by precluding Providian's entrance or exit to the second lot. And under Hilburn's interpretation, she could use the easement, and anything attached to it, to block Providian from access to its own property simply because doing so would be necessary for the benefit of the third lot.Yet the agreement does not grant Hilburn this exclusive control. Were we to read the agreement as Hilburn does, the "Easement Purpose" provision would conflict with the agreement's granting language, which violates the rule of construction that contracted terms should not be read to conflict with each other if at all possible. See Koelsch, 132 S.W.3d at 498.
For example, Hilburn might want to perform construction on her building for the benefit of the third lot and choose to park cranes, bulldozers, and other equipment on the easement, thus restricting Providian's access to its own property.
2. Further Maintenance Provision
Third, Hilburn relies on the following (italicized) portion of the agreement's "Improvements and Maintenance" provision:
All matters concerning the configuration, construction, installation, maintenance, replacement, and removal of the Road Improvements are at Grantee's[Hilburn's] sole discretion, subject to the performance of Grantee's obligations under this agreement. Grantee has the right to remove or relocate any fences within the Easement Property or along or near its boundary lines if reasonably necessary to construct, install, maintain, replace, or remove the Road Improvements or for the road to continue onto other lands or easements owned by Grantee and adjacent to the Easement Property, subject to replacement of the fences to their original condition on the completion of the work.
(Emphasis added.)
Initially, we note that this section refers to fences, not gates. And even if "fences" could mean "gates," the provision grants Hilburn the right to only the temporary relocation of them, subject to their replacement to their original condition. Finally, the right to remove and to relocate fences is granted only as necessary to construct "Road Improvements." The agreement defines "Road Improvements" as "a road with all culverts, bridges, drainage ditches, sewer facilities, and similar or related utilities under or across any portion of the Easement Property." Because Hilburn does not seek to construct, install, maintain, replace, or remove "Road Improvements," the contractual language concerning the right to remove and to relocate fences temporarily does not apply.
E. What We Hold
For all of these reasons, we hold that the easement agreement did not give Hilburn the right to close or to lock the gate at the entrance to her easement. Therefore, we hold that the trial court did not err in rendering its declaratory judgment interpreting the easement, and we overrule Hilburn's first issue.
Expert Testimony on Attorney's Fees
In her second issue, Hilburn contends that the trial court erred in allowing opposing counsel, Wade T. Howard, to testify as an expert witness on attorney's fees because he had not been timely designated as such. Hilburn further contends that, because this expert's testimony was the sole evidence of Providian's attorney's fees, there was no evidence to support the trial court's award.
Providian responds that it had no duty to designate Howard as an expert because Hilburn never sent it a request for disclosure under Texas Rule of Civil Procedure 194. See TEX. R. CIV. P. 194.2 ("A party may request disclosure of any or all of the following: . . . for any testifying expert:[various information]."); see also TEX. R. CIV. P. 195.1 ("A party may request another party to designate and disclose information concerning testifying expert witnesses only through a request for disclosure under Rule 194 and throughdepositions and reports as permitted by this rule."). The record does not confirm or refute Providian's assertion.
A. Standard of Review
We apply an abuse-of-discretion standard to the question of whether a trial court erred in an evidentiary ruling. Harris County v. Inter Nos, Ltd., 199 S.W.3d 363, 367 (Tex.App.-Houston[1st Dist.] 2006, no pet.); see Beard Family P'ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 850 (Tex.App.-Austin 2003, no pet.) (applying abuse-of-discretion standard when trial court allowed attorney's fees expert to testify despite not having been timely designated). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Inter Nos, 199 S.W.3d at 367; Powers v. Mem'l Hermann Hosp. Sys., 81 S.W.3d 463, 465 (Tex.App.-Houston[1st Dist.] 2002, pet. denied).
B. The Law
When a request for disclosure is made under rule 194.2(f) (concerning testifying experts), a party must designate testifying experts within a specified time frame, unless the court orders otherwise. See TEX. R. CIV. P. 195.2 ("Unless otherwise ordered by the court, a party must designate experts — that is, furnish information requested under Rule 194.2(f) — by the later of the following two dates:. . . ."). Texas Rule of Civil Procedure 193.6(a) provides that "[a] party who fails to make . . . a discovery response in a timely manner may not introduce in evidence material or information that was not timely disclosed. . . ." TEX. R. CIV. P. 193.6(a). "The purpose of[rule 193.6] is to prevent trial by ambush." Inter Nos, 199 S.W.3d at 367.
Rule 193.6 nonetheless allows the trial court to admit evidence violating (for example) rule 195.2 upon a showing of good cause or if its use would not unfairly surprise or prejudice the other party. TEX. R. CIV. P. 193.6(a)(1)-(2). The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to call the witness. TEX. R. CIV. P. 193.6(b). A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by evidence in the record. Id. Ultimately, the trial court has the discretion to determine whether the offering party met its burden of showing grounds for good cause. Aluminum Co. of Am. v. Bullock, 870 S.W.2d 2, 3 (Tex. 1994) (referencing predecessor to rule 193.6). But even if the party seeking to introduce testimony does not carry its burden of establishing the grounds for the exception, the court may grant a continuance or temporarily postpone the trial to allow the proponent to make its discovery response and to allow the opponent to conduct discovery regarding any new information presented by that discovery response. See TEX. R. CIV. P. 193.6(c).
C. The Record
At the very start of trial, the following discussion occurred:
Hilburn:Trace Sherer and Barbara Hilburn for the Defendant and we're ready.
Court:All right. I guess that moots the Motion for Continuance then; is that correct?
Hilburn:We're ready — I'm sorry. Subject to the motions that we filed, the Motion for Continuance and Motion to Exclude.
The clerk's record does not contain these motions.
Court:Then you are not ready? You want a continuance?
Hilburn:Well, that's correct.
. . .
Court:Well, how much? I've got the Motion on Expert Testimony and what I am going to do is, I think, give you the rest of the week to do all of the discovery that you want and "tee" it up first thing Monday morning.
Trial began on a Wednesday.
Hilburn:I need the Plaintiff, who has the burden of proof and —
Court:Just tell me who you want. Don't tell me about who's got the burden of proof. Tell me what expert depositions you want and we'll get them for you. . . . So, you just tell me what experts you want and I might just let you do them today and then we may "tee" it up tomorrow morning or we may do it Monday.
. . .
Hilburn:Again, Your Honor, without waiving —
Court:You want[Howard's] deposition on attorney's fees?
Hilburn:Without waiving any of our objections that it's a trial by ambush, for us to be forced to go to trial within a 30-day period of time and not timely designating experts, any expert that might — and respectively[sic] to this Court, is that any expert that he's going to bring over our objection, is my understanding is part and parcel of our Motion for Continuance. This Court entered a docket control order that the Plaintiff, Providian, was to designate their experts by, I think —
Court:Ms. Hilburn.
Hilburn: — it is September of 2005.
Court:Ms. Hilburn. Ms. Hilburn, let me interrupt you. Rule 193.6 says that the party . . . I mean, I've got the discretion to hold that you are not surprised by this in the first place, but I am willing to give you the benefit of the doubt. Rule 193.6 . . . says that — that I can continue to the case or temporarily postpone the trial to allow opposing parties to conduct discovery regarding any new information. So, you tell me what discovery you want and if — I'll give it to you. You can go do it this afternoon. And we'll start the case tomorrow or Friday sometime. And we're going to get right to this thing. . . .
Hilburn:Your Honor, we respectfully —
Court:No. You tell me what you want exactly. Do you want to depose Mr. Howard about attorney's fees?
Hilburn:May I proceed, Your Honor?
Court:Give me a straight answer, Ms. Hilburn. Do you want to depose Mr. Howard about attorney's fees.
. . .
Court:Would you answer that question, please?
Hilburn:The first question? I think there was multiple questions. My first question in response, Your Honor, is: I would like the Plaintiff to timely designate, outside of 30 days, any experts that they want to seek expert opinions from the trier of fact in this case. And I think that a continuance to allow us to do that, under the rules and the case law, is that it must be done within two or three days and I am not going to waive my objection —
Court:All right.
Hilburn: — to the expert testimonies being — experts being designated within two or three days of trial and subject to that, I understand the Court's question.
. . .
Hilburn:And subject to that, any experts that he is planning on bringing — subject to my objection that it's a trial by ambush — obviously I would like to have either an expert report and/or a deposition.
Court:Now, I am giving you a deposition. So, when — who do you want to take?
Hilburn:He's never designated experts, Your Honor. How can I say who I want to take?
Court:All right. Ms. Hilburn, the two persons who have been identified are a surveyor and Mr. Howard. Those are the two, quote, experts we're dealing with. Do you want to depose Mr. Howard?
Hilburn:Subject to my objection —
Court:I understand that you want a 30-day notice. I consider your demand for the 30 days notice frivolous. I am getting ready to — in the scheme of things — probably going to sanction you in this Court for frivolous conduct because you are being recalcitrant. You are trying to slow things down. Your co-counsel came in here last week and announced ready. So, now when you couldn't get the case worked out this morning, we're going into the stall tactic.
. . .
Court:All right. . . .[W]e know that there are two potential experts. Their testimony is of limited significance it appears to this Court, but you are wanting to stand on your 30 days. . . . I am saying, fairness doesn't seem, to me, to dictate 30 days in this situation. So the question is: if we're not going to take 30 days, we're just going to take a day or two to postpone the trial. Then, do you want to depose Mr. Howard? And do you want to depose the surveyor? That's the only real issue at this point.
Providian then clarified that it would not call the surveyor because his testimony related to its trespass claim, which it intended to drop. The trial court then continued:
Court:Well, if you[Providian] are dropping him[the surveyor], then that's a nonissue, Ms. Hilburn. So, do you want to depose Mr. Howard on the attorney's fees?
Hilburn:Subject to my objection before the Court, I'd like some time over lunch, but I am inclined to say no.
Court:All right. We'll let you think about it over lunch. My inclination is that — well, I'll tell you what: if you want to depose — if you want to go forward, you can depose Mr. Howard over lunch. I will volunteer my court reporter here to take your deposition. So that the record is clear, you have an opportunity to depose Mr. Howard over lunch about attorney's fees if you want to. And if you don't want to, then you can come back and tell me about that when you get done and we will just wait until you are done with attorney's fees before we get started. Okay?
Hilburn:Your Honor, the Defendant — Counter-plaintiff's Motion to Preclude Providian's — Providian's Expert Testimony is being denied?
Court:Well, at the present time, I guess it is. Then, if Mr. Howard refuses to give you his deposition, I might consider granting it. But if he's willing to give his deposition at lunch time and you are willing to take it, then in that circumstance, I think the Motion to Preclude Evidence on Attorney's Fees will be denied.
Hilburn:Okay. And, likewise, my Motion for Continuance, based on the Court's denying my Motion to Strike Plaintiff's Experts is likewise denied?
Court:No. I am telling you that I am going to continue the case temporarily to give you the opportunity to depose the experts[sic]. I am not going to continue it for 30 days; that part of the request is denied. But I am going to give you relief under[rule] 193.6 to avoid the surprise and to take the depositions you say you've been denied. I don't think that there's any real surprise to you, in terms of who the experts are, certainly not on the attorney's fees. And that really is what appears to be all that we're dealing with right now. So your Motion for Continuance is granted to allow you to take the deposition, if you feel necessary. All right?
Hilburn:And that's granted just for?
Court:For a short time, yes.
Hilburn:Just for today?
Court: For today. Unless, if there is for some reason that you can tell me that it can't be taken today. I think maybe that's probably all that is needed. And if we need to, we can adjourn the trial when we get done, to let you come in with additional evidence. So, there's lots of ways to avoid any prejudice to you, under the rules; and that's what I intend to do. If I see some prejudice, I will act to avoid it.
(Emphasis added.)
Hilburn did not depose Howard during the time granted by the trial court and renewed her objection when he was called to testify, saying only, "[J]ust so the record is clear, we object to any expert testimony on the part of Mr. Howard concerning his fees." The trial court overruled the objection, stating:
Court:I gave you an opportunity at lunch to depose Mr. Howard on attorney's fees, as I indicated I would, and evidently y'all decided not to do that. So, under the circumstances, there's no real surprise about what's happening here and the Court makes a finding under 193.6 that there is good cause for allowing the testimony, at this point, and there is lack of unfair surprise because you — particularly an unfair prejudice — particularly in the light of the fact that you didn't take advantage of the opportunity to depose him that I offered you. So, I will allow him to testify. And it may be that I can make a finding of attorney's fees, totally, without regard to what the testimony is, but I'll deal with that when I get there.
(Emphasis added.) Howard then testified concerning his fees, and Hilburn cross-examined him.
D. Hilburn's Arguments
Hilburn contends that the record lacks a showing by Providian of good cause or lack of unfair surprise. Hilburn also contends that the trial court's decision to postpone the trial for a lunchtime deposition did not mitigate unfair surprise. Furthermore, Hilburn argues that because Howard's testimony should have been excluded, and because his was the only testimony offered on Providian's attorney's fees, no evidence supported the trial court's award.
Despite the trial court's reference to good cause and lack of unfair surprise, which findings are relevant to rule 193.6(a) and (b), what the trial court actually did was to allow a continuance, a ruling that is consistent with rule 193.6(c). Rule 193.6(a) and (b) assume that a proffered witness was not timely revealed in discovery, but allow the court nonetheless to admit his testimony if the proponent shows either good cause for the failure to disclose or that the failure did not unfairly surprise or prejudice the opposing party. See TEX. R. CIV. P. 193.6(a), (b). Rule 193.6(c), in contrast, assumes that the proponent has not made the showing required to invoke the exception of 193.6(a) and (b), but nonetheless allows the court to "grant a continuance or temporarily postpone the trial to allow a response to be made, amended, or supplemented, and to allow opposing parties to conduct discovery regarding any new information presented by that response." See TEX. R. CIV. P. 193.6(c). Thus, relief under rule 193.6(c) is available if the burden of rule 193.6(a) and (b) was not met. The trial court's ultimate ruling was thus one under rule 193.6(c), regardless of its additional verbal findings of good cause and lack of unfair surprise.
Hilburn contends that the trial court's offer to allow her to depose Providian's expert witness on attorney's fees during lunch did not mitigate unfair surprise because she would have been forced to prepare questions, to anticipate potential responses, and to look at and to interpret bills (which Howard admitted that he did not have with him at trial) during only a lunch break. We understand this to be an argument that the trial court's order under rule 193.6(c) did not allow Hilburn sufficient time to prepare to depose Providian's expert adequately.
The record indicates that Hilburn, an attorney herself, was able to determine the reasonableness and necessity of attorney's fees associated with the lawsuit because she apparently was designated to testify on her own behalf regarding the amount of attorney's fees that she had charged — a conclusion that we reach because she did testify to this later without objection.It was thus not unreasonable for the trial court to conclude that a lawyer with this knowledge would not need more than a lunch break to depose a fellow lawyer about the fees that were reasonable and necessary in the case. Furthermore, when the trial court advised Hilburn that it would not postpone trial for a full 30 days because that repeated request was "frivolous," showed "recalcitran[ce]," and appeared to be a "stall tactic," Hilburn did not explain why she needed the full 30 days to prepare, why her request for that amount of time was not frivolous, or how it was not a stall tactic or mere recalcitrance. Likewise, when the trial court first ruled that Hilburn could take Howard's deposition over the lunch break, it qualified that ruling by indicating that its decision would stand "[u]nless . . . there is . . . some reason that you can tell me that it can't be taken today." Hilburn did not give the court any reason in response. Nor, after Hilburn had finished cross-examining Howard on fees, did she ask to avail herself of the trial court's other offer that, "if we need to, we can adjourn the trial when we get done, to let you come in with additional evidence."
We also note that Hilburn ultimately asked for the same amount of attorney's fees requested by Providian — $20,000.
Hilburn chose not avail herself of the trial court's initial offer, which we have held was reasonable, that was made to remedy any unfair prejudice to her, nor did she explain when given the chance why that offer was insufficient. Accordingly, she can hardly now complain that she suffered unfair prejudice by the admission of Howard's testimony. See Santos v. Comm'n for Lawyer Discipline, 140 S.W.3d 397, 404 (Tex.App.-Houston[14th Dist.] 2004, no pet.) ("Santos fails to demonstrate he was prejudiced by the trial court's actions. The trial court gave Santos the opportunity for additional discovery relating to attorney's fees sought by the Commission and offered to continue the hearing to allow him to obtain the information he claimed he was not provided. In effect, the trial court granted the same relief available under 193.6(c) . . ., that is, a postponement to allow a response to the discovery and to allow Santos to conduct discovery on any new information presented by the response. Santos declined the offer to continue the proceedings, insisting on going forward. He can hardly be heard to argue that he was unfairly prejudiced."); cf. Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 671-72 (Tex.App.-Texarkana 1999, pet. denied) (holding — under predecessor to rule 193.6, which provided only for "good cause" exception to automatic exclusion of witness, and under common law, which gave court discretion to cure prejudice of untimely discovery by postponing trial and imposing sanctions — that party opposing witness waived complaint about witness's testimony when court offered to declare mistrial and to postpone trial to allow witness's deposition, offering party agreed to pay for deposition and to offer witness over recess or lunch hour, court alternatively agreed to accept offering party's offer if opposing party agreed, and opposing party rejected court's offers).
And in any event, even if the court's ruling had been an abuse of discretion, it is not at all apparent that Hilburn was harmed by it: (1) her cross-examination of Howard spans eight pages of the reporter's record; (2) it appears thorough, including questions on how much was billed in trial preparation, how long before trial he began trial preparation, how his bills had been only $6,500 14 months before trial and how the case had lain dormant until pretrial preparation, what his hourly rate was for trial preparation, how many years he had practiced, and how he could not give exact hours for his billing totals; and (3) she does not explain on appeal how the cross-examination that she actually conducted was rendered ineffective by the court's ruling. See TEX. R. CIV. P. 44.1(a)(1).
Accordingly, we hold that the trial court's decision to allow Hilburn to depose Howard during a lunch break was not an abuse of discretion. Hilburn did not avail herself of this offer, did not explain when prompted why that offer was insufficient, and did not avail herself of the related offer to adjourn the trial at the close of the testimony to allow her to present any additional evidence that she might need. Therefore, we further hold that the trial court did not abuse its discretion in admitting the expert testimony.Accordingly, there was some evidence in the record to support the award of attorney's fees.
We distinguish Progressive County Mutual Insurance Co. v. Roberson, No. 11-05-00063-CV, 2006 WL 2507621 (Tex.App.-Eastland Aug. 31, 2006, nopet.) (memo. op.), on which Hilburn relies. In Progressive, the trial courtimplicitly overruled an objection to an untimely disclosed expert without any evidence of good cause or lack of unfair prejudice or surprise, or even any discussion after the objection, and did not offer a postponement of trial to allow discovery. Id. at *2-3.
For these reasons, we overrule Hilburn's second issue.
Conclusion
We affirm the judgment of the trial court.