Javier Aguilar v. Wells Fargo Bank, N.A.

Fort Worth, Texas – Breach of Contract lawyer represented Appellant with appealing a consumer credit card breach of contract suit.

Wells Fargo Bank brought a consumer credit card breach of contract suit

against Aguilar. Aguilar appealed the trial court's entry of summary judgment

(including an award of attorney's fees) in favor of Wells Fargo. The Amarillo Court

of Appeals1

affirmed the trial court's judgment as to everything but the award of

appellate attorney's fees; it reversed and remanded the case to the trial court for "a

determination of the amount Wells Fargo should recover as its reasonable and

necessary attorney's fees on appeal.” Aguilar v. Wells Fargo Bank, N.A., No. 07-20-

00036-CV, 2021 WL 317641, *6 (Tex. App.—Amarillo Jan. 29, 2021, no pet.).

Prior to the original trial, and in response to Aguilar's expert witness-related

discovery requests, Wells Fargo disclosed the identity of Thomas M. Sellers and

indicated that he would testify as to reasonable and necessary attorney's fees incurred

by Wells Fargo.2

Additionally, in an interrogatory seeking the identities of any

witnesses that Wells Fargo expected to call to testify at trial, Wells Fargo responded

that it expected to call Aguilar as well as another Wells Fargo employee.

1The case was transferred from this Court to the Amarillo Court pursuant to a

docket equalization order. See Tex. Gov't Code Ann. § 73.001.

2Mr. Sellers, as attorney of record for Wells Fargo, also signed the disclosures.

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At the attorney's fees hearing on remand, when Sellers attempted to testify as

to the issue of appellate attorney's fees, Aguilar objected, arguing that there was a

"lack of information in discovery regarding appellate attorney's fees in disclosures and

the failure in interrogatories to specify or identify by name, address, and phone

number any witness that will testify at trial or any proceeding.” The trial court

overruled this objection, and Sellers testified that Wells Fargo incurred $4,056 in

appellate attorney's fees. Sellers also sponsored a billing record from his law firm

reflecting this amount that was admitted into evidence without objection.

In arguing that the trial court should not have admitted evidence of appellate

attorney's fees, Aguilar makes two related claims. First, he argues that Sellers should

not have been allowed to testify because he was not named as a "trial witness” in

Wells Fargo's response to Aguilar's interrogatory. Second, Aguilar argues that

because Wells Fargo's expert witness designation omitted any reference to appellate

attorney's fees, Wells Fargo was not entitled to recover any amount for appellate

attorney's fees. We will address each claim in turn.

Expert testimony is necessary to determine the reasonableness and necessity of

attorney's fees. See Woollett v. Matyastik, 23 S.W.3d 48, 52 (Tex. App.—Austin 2000,

no pet.) (op. on reh'g) ("Expert testimony is required to support an award of

attorney's fees.”). For cases filed prior to January 1, 2021, a party may request

disclosure of a testifying expert's name, address, and telephone number, along with

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the subject matter on which the expert will testify. Tex. R. Civ. P. 194.2(f)(1), (2).3

If

a party subsequently learns that his response is incomplete or incorrect when made or

is no longer complete and correct, the party has an affirmative duty to amend or

supplement his response. See Tex. R. Civ. P. 193.5(a).

A party who fails to amend or supplement a discovery response in a timely

manner may not introduce into evidence the material or information that was not

timely disclosed unless the court finds that (1) there was good cause for the failure to

timely amend or supplement the discovery response or (2) the failure to timely amend

or supplement the discovery response will not unfairly surprise or unfairly prejudice

the other parties. Tex. R. Civ. P. 193.6(a). The trial court's decision to admit or

exclude evidence as a result of an alleged discovery violation is reviewed under an

abuse-of-discretion standard. See Miller v. Kennedy & Minshew, P.C., 142 S.W.3d 325,

348 (Tex. App.—Fort Worth 2003, pet. denied).

Aguilar challenges the trial court's decision to allow Sellers to testify at all. He

bases this on the fact that Sellers's name was not provided in a response to an

interrogatory requesting information about what witnesses would testify at trial and

3

In 2020, the Supreme Court of Texas amended Rule 194, effective January 1,

2021. A party is now required to disclose expert witness information without waiting

for a discovery request by the other party. See Tex. R. Civ. P. 194.2, 195.5(a); Order,

Misc. Docket No. 20-9153 (Tex. Dec. 23, 2020). Our citations to the discovery rules

refer to the former versions.

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that Wells Fargo failed to amend or supplement its responses before the hearing on

remand.

But Wells Fargo designated Sellers as a testifying expert, and "[a] party may

obtain information concerning testifying expert witnesses only through disclosure

under this rule and through depositions and reports as permitted by this rule.” Tex.

R. Civ. P. 195.1. Accordingly, Aguilar's interrogatory was not a permissible method

for Aguilar to obtain information about Sellers, a testifying expert. See In re Nat'l

Lloyds Ins. Co., 532 S.W.3d 794, 814 (Tex. 2017) (orig. proceeding); see also In re Ford

Motor Co., 427 S.W.3d 396, 397 (Tex. 2014) (orig. proceeding) ("Rule 195 addresses

the methods for obtaining such information, limiting testifying-expert discovery to

that acquired through disclosures, expert reports, and oral depositions of expert

witnesses.”).

In its disclosures, Wells Fargo identified Sellers as an expert who would testify

"as to the reasonable and necessary attorneys' fees incurred by” Wells Fargo in the

course of the litigation.4

In addition to identifying Sellers, Wells Fargo provided

4Aguilar argues that Wells Fargo's designation of expert testimony is lacking

because it fails to specify "appellate” attorney's fees. Aguilar does not direct us to any

authority that would distinguish between trial and appellate attorney's fees in

discovery responses. Indeed, there is no reason to presume that such a segregation is

necessary. See Udcoff v. Castille, No. 11-04-00274-CV, 2006 WL 2075244, at *12 (Tex.

App.—Eastland July 27, 2006, no pet.) (holding that trial court could have concluded

that appellee's designation of counsel as expert witness on attorney's fees did not

unfairly surprise or unfairly prejudice appellant on the subject of appellate attorney's

fees).

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Aguilar with Sellers's address and telephone number. Because Wells Fargo's

designation of Sellers as an expert witness fulfilled its duty under the discovery rules,

there was no reason for the trial court to strike Sellers's testimony due to his being an

undisclosed "trial witness,” and the trial court did not commit error by allowing

Sellers to testify.

Second, to the extent Aguilar complains that all evidence regarding the amount

of appellate attorney's fees should have been excluded because Wells Fargo did not

adequately disclose the full subject matter of Sellers's testimony, we note that Aguilar

failed to object to a billing record that Wells Fargo offered and that the trial court

admitted into evidence reflecting that Wells Fargo expended $4,056 in appellate

attorney's fees, and it was admitted for all purposes. By failing to object to this billing

record reflecting the amount of appellate fees incurred by Wells Fargo, Aguilar has

waived any complaint about Sellers's testimony on the same point. See Tex. R. App.

P. 33.1; Hoefker v. Elgohary, 248 S.W.3d 326, 331 (Tex. App.—Houston [1st Dist.]

2007, no pet.) (holding that appellant's objection that appellee did not disclose

attorney-expert on issue of fees failed to preserve complaint on appeal about

admission of attorney's fees billing invoices); see also In re S.B., 207 S.W.3d 877, 883

(Tex. App.—Fort Worth 2006, no pet.) (holding that admission of evidence is

harmless if same or similar evidence is subsequently admitted without objection).

Having overruled Aguilar’s sole issue, we affirm the trial court’s judgment