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Date: 08-15-2022

Case Style:

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

Case Number: 02-21-00259-CV

Judge: Bonnie Sudderth


Court of Appeals Second Appellate District of Texas at Fort Worth

On appeal from the 348th District Court Tarrant County, Texas

Plaintiff's Attorney:

Fort Worth, Texas- Best Breach of Contract Lawyer Directory

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Defendant's Attorney: Thomas Sellers


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.
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
the subject matter on which the expert will testify. Tex. R. Civ. P. 194.2(f)(1), (2).3
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
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.
that Wells Fargo failed to amend or supplement its responses before the hearing on
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
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
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).

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

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