Hilburn v. Providian Holdings, Inc. (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Taft)
(UDJA, interpretation of easement agreement, untimely designation of expert witness, attorney's fees)
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Chief Justice Radack, Justices Taft and Alcala
01-06-00961-CV Barbara Hilburn v. Providian Holdings, Inc.
Appeal from 189th District Court of Harris County
Trial Court Judge: Hon. William R. Burke. Jr.
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.
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. Footnote Hilburn countersued
for trespass, nuisance, and declaratory relief.
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.
Footnote 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.
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; Footnote 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; Footnote 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
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.
Footnote 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.
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. Footnote 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.”).
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
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”) . . . .
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] . . . .
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. Footnote 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
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. Footnote 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.
2. Further Maintenance Provision
Third, Hilburn relies on the following (italicized) portion of the agreement’s “Improvements and
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.
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. Footnote
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. Footnote
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.[ Footnote ]
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
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
Hilburn:May I proceed, Your Honor?
Court:Give me a straight answer, Ms. Hilburn. Do you want to depose Mr. Howard about
. . .
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—
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.
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.
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
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
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. Footnote 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
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. Footnote Accordingly, there was some evidence
in the record to support the award of attorney’s fees.
For these reasons, we overrule Hilburn’s second issue.
We affirm the judgment of the trial court.
Panel consists of Chief Justice Radack and Justices Taft and Alcala.