                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                   No. 07-13-00364-CV


  DAVIE C. WESTMORELAND D/B/A ALLEGHENY CASUALTY CO. BAIL BONDS,
                            APPELLANT

                                              V.

        RICK STARNES D/B/A STARNES & ASSOCIATES AND THOMAS BEVANS,
                                 APPELLEES

                           On Appeal from the 361st District Court
                                   Brazos County, Texas
          Trial Court No. 09-000508-CV-361, Honorable Steven Lee Smith, Presiding

                                     March 24, 2015

                             MEMORANDUM OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

        Davie   C.    Westmoreland    d/b/a    Allegheny   Casualty    Co.   Bail   Bonds

(Westmoreland) appeals from a judgment in favor of Rick Starnes d/b/a Starnes &

Associates and Thomas Bevans (collectively referred to as Starnes) based on

Westmoreland’s failure to pay for services rendered under an oral contract between

them.    She contends the trial court erred in 1) denying her motion for judgment

notwithstanding the verdict and motion for new trial due to the unenforceability of the
contract because of its violation of the statute of frauds, 2) excluding the testimony of

her expert witness due to Westmoreland’s failure to disclose the opinions of the expert,

and 3) awarding attorney’s fees if we reverse the judgment on either of the first two

issues. We affirm the judgment.

       Westmoreland posted six bonds totaling $140,000 for the release of Stephen

Bruce Unger, Jr. from jail. On November 26, 2007, he failed to appear for court. After

that, Westmoreland had 270 days in which to find Unger and return him or she would be

liable for the bonds. In December 2007, she agreed to pay Rick Starnes, a bounty

hunter, 10-20% of the bond if he located Unger. By the summer of 2008, Unger had not

been found, and Starnes referred Westmoreland to Thomas Bevans who had contacts

with the Federal Bureau of Investigation (FBI), other law enforcement personnel, and

private investigators. Bevans claimed she orally agreed in July to pay him 20% of the

bonds for locating Unger and 20% of all assets recovered. The FBI located Unger in

the Ukraine and captured him on December 13, 2008. Westmoreland negotiated a

settlement on the bond liability for half of the amount and recovered some assets.

       When Westmoreland failed to pay, once Unger was arrested, Starnes sued. The

causes of action included breached contract and quantum meruit. The jury found that

Westmoreland had breached the agreement and awarded Starnes $34,850 plus

attorney’s fees.

       Statute of Frauds

       In her first issue, Westmoreland argues that the agreement was unenforceable

under the statute of frauds since it had to be in writing, and it had to be written because

it could take more than a year to perform it. We overrule the issue.



                                            2
       An “agreement which is not to be performed within one year from the date of” its

execution must be in writing to be enforceable. TEX. BUS. & COM. CODE ANN. § 26.01(a)

&(b)(6) (West 2015).      An agreement that can be performed within that year is not

subject to the requirement, however. Miller v. Riata Cadillac Co., 517 S.W.2d 773, 775,

(Tex. 1974); Double Diamond, Inc. v. Hilco Elec. Coop., Inc., 127 S.W.3d 260, 267-68

(Tex. App.—Waco 2003, no pet. ).1 According to the evidence at bar, the agreement to

capture Unger and discover his property was susceptible to performance within one

year; indeed, it was performed within one year. Thus, it need not have been written.

        Expert Witness

       We next address the allegation about the trial court committing error when it

excluded testimony of an expert. We are told:

       [T]he trial court should remand this case for a new trial because the trial
       court improperly excluded evidence that should have been admitted. The
       bounty hunters were required to be licensed by the Texas Department of
       Public Safety to be entitled to enter into agreements with bondsmen such
       as Ms. Westmoreland. A violation of the statute constituted a state jail
       felony. Ms. Westmoreland timely designated an expert and disclosed that
       he would testify about licensing of bounty hunters. All evidence reviewed
       by the expert was timely disclosed to the plaintiffs. Further, the plaintiffs
       did not depose the witness. Nevertheless, the plaintiffs objected to the
       expert testifying in the case and the trial court refused to allow the witness
       to testify about these matters. This was error. The disclosures were
       timely.

We overrule the issue.

       According to Westmoreland’s offer of proof, the expert would have testified:

       That he is familiar with the standards governing private investigators in the
       State of Texas on bail-related issues and that in reviewing those issues
       that he has determined that Thomas Bevans was not licensed between
       the period of September 30th, 2008 through December 31st, 2008, and


       1
         Because this cause was transferred to the Seventh Court of Appeals from the Tenth Court of
Appeals, we apply the precedent of the Tenth Court of Appeals when available. TEX. R. APP. P. 41.3.

                                                3
          that he was not able to act as a private investigator during that period of
          time which is the period relevant to this lawsuit.

          It is also anticipated that Mr. Moore would testify that he has reviewed an
          affidavit prepared by Mr. Bevans in this case and that in that affidavit Mr.
          Bevans appears to falsely state that he was licensed when he was not and
          that he was aware of that because part of his problem was that he kept
          having to reapply, reapply after his license he discovered had expired.

          Additionally, it is anticipated that Mr. Moore would testify that the actions
          taken by Mr. Bevans in this case were actions by an investigator. As the
          Court is aware, Mr. Bevans testified during his direct and cross-
          examination that he was attempting to find, they were doing a manhunt,
          there was an e-mail that specifically said that. And that is different than
          what they've been presenting to the Court before this time – before that
          time they were saying that they were just looking -- he was providing a
          doorway and that changed it. And I believe that that opens the door.

          We believe that Mr. Moore would also testify that in doing investigative
          work to attempt to find assets under the definition in the investigator's
          statute, that also would require a license.

          Finally, Your Honor, Mr. Moore would testify that performing those types of
          duties without a license would be a crime, a Class A misdemeanor.

Moore was identified as an expert witness in response to a request for disclosure.

When Westmoreland sought to proffer him at trial, Starnes objected because the

response failed to contain a synopsis of the expert’s mental impressions and opinions.

During the ensuing debate about whether the witness should be allowed to testify and

while discussing the substance of Westmoreland’s discovery response, the trial court

asked counsel for Westmoreland to “[c]ite to me in here where I see his mental

impressions and opinions.” At that point, counsel admitted that “they are not in the

disclosure.”2 He, nonetheless, suggested that his opponents could have discovered

them by deposing the expert.              So too did Westmoreland’s attorney argue that his

opponents knew that Westmoreland was attacking Bevans’ ability to engage in the

          2
              Perusal of the record reveals that they were not included in a supplement to the response,
either.

                                                     4
contract at issue due to his lack of appropriate licensure;3 that issue was supposedly

broached in a motion for summary judgment.

        Ultimately, the trial court said that “following Rule 194.2, . . . there has not been a

providing of the general substance of the expert's mental impressions and opinions and

a brief summary basis for them within the response. And as a result, Mr. Moore will not

be able to testify to those matters.” He was not prohibited from testifying on other

matters, though. In so concluding, the trial court did not abuse its discretion.

        Rule 194.2 of the Rules of Civil Procedure permits a litigant to discover the

subject matter on which any expert will testify as well as “the general substance of the

expert’s mental impressions and opinions and a brief summary of the basis for them.”

TEX. R. CIV. P. 194.2(f)(2)&(3). Though a request for those impressions and opinions

was made, Westmoreland failed to supply them, as conceded by her attorney at trial.

Failing to supply them is basis for their exclusion, unless the omission arose from good

cause or the evidence would not unfairly surprise or unfairly prejudice the other party.

TEX. R. CIV. P. 193.6(a). And, the burden to establish good cause or lack of unfair

surprise or prejudice is on the party seeking to introduce the evidence. TEX. R. CIV. P.

193.6(b).

        As for the matter of good cause, Westmoreland says nothing of why the

information was omitted.         So, it cannot be said that her failure to comply with the

discovery rule was justified by good cause.




        3
           The Texas Occupations Code provides that a person commits an offense if he contracts with a
bail bond surety to secure the appearance of a person who has jumped bail unless the person is a peace
officer, an individual licensed as a private investigator or a commissioned security officer employed by a
licensed guard company. TEX. OCC. CODE ANN. § 1702.3863(a) (West 2012).

                                                    5
      As for prejudice and surprise, Westmoreland would have us accept that the tenor

of her response provided sufficient notice to her opponents to vitiate any surprise and

prejudice. That response constituted of her disclosing:

      Mr. Moore is an attorney who specializes in bail bond law and who is an
      expert on the ordinary customs and practices of bail bonds and bounty
      hunters. He will testify as to what type of licensing is required of a private
      investigator and bounty hunter before they may participate in an ongoing
      investigation. Mr. Moore will also testify as to the standard procedure for
      filing suits and the threshold for determining whether a suit is brought in
      bad faith or for purposes of harassment.

(Emphasis added). But, if one reads the offer of proof mentioned above, he would

quickly see that the expert was going to testify about much more than licensing

requirements of a private investigator and bounty hunter in general. The individual was

going to 1) review documents purportedly obtained from a governmental agency, 2)

conclude from those unauthenticated documents that Bevans had no license to provide

services of a private investigator or bounty hunter, 3) opine that Bevans knowingly lied

in an affidavit about the status of his license because he had to “reapply, reapply,” 4)

analyze the totality of the services Bevans provided and opine that placing phone calls

and sending emails in effort to uncover property and the location of a person constituted

acts requiring licensure, and 5) ultimately opine that Bevans committed a criminal act.

An intent to address the subjects we itemized is not reasonably inferable from the scope

of Westmoreland’s response.

      Nor is the happenstance that Starnes could have deposed the expert sufficient to

negate surprise and prejudice. It is one thing to say that a litigant cannot claim surprise

because he deposed a witness. See State v. Target Corp., 194 S.W.3d 46, 51 (Tex.

App.—Waco 2006, no pet.) (holding there was no unfair surprise when the expert’s



                                            6
report had been provided and he had been deposed twice). It is another to say that

opting not to depose vitiates any claim of surprise or prejudice. A litigant should be able

to rely on discovery responses provided by his opponent in determining what other

discovery, if any, to pursue. If those responses are of an ilk suggesting that only certain

topics will be discussed, an opponent need not be forced to wonder whether unrelated

matter (outside the scope of the response) may also be broached. He need not be

placed in a position of wondering whether the response is incomplete or inaccurate and

weighing whether additional, economically burdensome, and potentially wasteful

discovery efforts should also be pursued.

       To adopt Westmoreland’s suggestion that the opportunity to conduct depositions

prevented Starnes from claiming surprise and prejudice would be tantamount to saying

that Starnes (and future litigants) should doubt the accuracy or thoroughness of their

opponent’s discovery responses. We opt not to say that. On this matter we find the

opinion in Gibbs v. Bureaus Inv. Group Portfolio No. 14, LLC, 441 S.W.3d 764 (Tex.

App.—El Paso 2014, no pet.) most enlightening. There, the court rejected the argument

that Gibbs suffered no surprise simply because “Gibbs bore the responsibility to ‘inquire

about or request additional information as to who exactly the designated witness for

Bureaus would be or to attempt to seek additional information once the witness was

designated.’” Id. at 768. The court did so because 1) Bureaus was “not excused from

complying with the rules of civil procedure” and 2) the “contention eviscerates Rule

193.6(a)'s ‘salutary effect of promoting full and complete discovery and instead invites

trial by ambush, the very peril the promulgation of the rules of discovery sought to

avert.’” Id., quoting Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854 (Tex. App.—



                                             7
Dallas 2006, no pet.). A “party . . . ‘is entitled to prepare for trial assured that a witness

will not be called because opposing counsel has not identified him or her in response to

a proper interrogatory.’” Id., quoting Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911

(Tex. 1992).    No less is true here.     Litigants are entitled to rely on the discovery

responses provided them. That they do is not basis for later arguing that they should

have known better.

       Nor is the argument about having filed a summary judgment motion attacking

Bevans’ credentials enough for us to conclude that the trial court erred. The motion

does not appear of record. Nor does the summary judgment evidence appended to the

motion appear of record. So, we do not know whether it was enough to somehow

inform Starnes that the expert would be talking about more than mere licensing

requirements.

       Yet, even if Westmoreland filed a motion for summary judgment and thereby

attacked the status of Bevans’ investigator’s license, that is not dispositive. The issue is

not simply whether he had a private investigator’s license. Indeed, that matter is of no

import unless it is also established that the various acts he did were of the type requiring

a license. And, missing from Westmoreland’s contentions at bar is reference to any

summary judgment evidence from an expert (or any other person) purporting to

illustrate that those acts fell under the requisite umbrella. So, we cannot say that the

trial court was obligated to conclude that the purported motion for summary judgment

placed Starnes on notice of the expert’s potential opinions regarding that topic (or of his

views about Bevans committing a crime and lying). We cannot say, from the record

before us, that Westmoreland established the lack of surprise and prejudice.



                                              8
       Having overruled the first two issues, there is no need for us to discuss the third

issue. Accordingly, we affirm the judgment of the trial court.



                                                                 Brian Quinn
                                                                 Chief Justice




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