                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00056-CV


Kevin D. Spruell AND Darcy Spruell,       §    From the 431st District Court
Individually and as Next Friend of
Camryn Spruell, a Minor                   §    of Denton County (2008-40389-
                                               362)
v.
                                          §    January 31, 2013
USA Gardens at Vail Leasco, L.L.C.,
USA Gardens at Vail, L.L.C., and          §    Opinion by Justice Walker
Internacional Realty, Inc.

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.

       It is further ordered that appellants Kevin D. Spruell and Darcy Spruell,

Individually and as Next Friend of Camryn Spruell, a Minor shall pay all of the

costs of this appeal, for which let execution issue.

                                       SECOND DISTRICT COURT OF APPEALS


                                       By_________________________________
                                       Justice Sue Walker
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00056-CV


KEVIN D. SPRUELL AND DARCY                                         APPELLANTS
SPRUELL, INDIVIDUALLY AND AS
NEXT FRIEND OF CAMRYN
SPRUELL, A MINOR

                                        V.

USA GARDENS AT VAIL LEASCO,                                         APPELLEES
L.L.C.; USA GARDENS AT VAIL,
L.L.C.; AND INTERNACIONAL
REALTY, INC.

                                     ----------

          FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

                                I. INTRODUCTION

      This is a summary judgment appeal.          Two-and-a-half-year-old Camryn

Spruell received debilitating, lifelong injuries when she fell from an open window

      1
       See Tex. R. App. P. 47.4.


                                         2
in her third-story apartment. Appellant Kevin D. Spruell and Appellant Darcy

Spruell, individually and as next friend of Camryn Spruell, the divorced parents of

Camryn, filed suit against Appellees USA Gardens at Vail LeasCo, L.L.C.; USA

Gardens at Vail, L.L.C.; and Internacional Realty, Inc.,2 asserting causes of

action for premises liability, breach of the implied warranty of good and

workmanlike repair, negligent repair, and gross negligence. Appellees filed no-

evidence and traditional motions for summary judgment on all claims asserted by

Kevin and Darcy, which the trial court granted. Kevin and Darcy both perfected

appeals. On appeal, Kevin and Darcy filed separate briefs, both raising the same

two points: the trial court erred by granting Appellees’ motion for traditional and

no-evidence summary judgment, and the trial court erred by denying Kevin’s and

Darcy’s motions to strike the testimony of Michael Welton. We will affirm.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      In 2007, Darcy visited the Gardens at Vail Apartment Homes and viewed

apartment 3319; she decided to rent the apartment. Darcy entered into a Texas

Apartment Association (TAA) form lease entitled “Apartment Lease Contract” (the

Lease Agreement) with the owner of the complex—USA Gardens at Vail LeasCo,

L.L.C.—in January 2007.

      The Lease Agreement contains the following paragraph:


      2
       Kevin also sued Eric Frankfurt Homes, Inc. but later nonsuited his claims
against Eric Frankfurt Homes. Appellees also nonsuited their crossclaims
against Eric Frankfurt Homes. Eric Frankfurt Homes is not a party to this appeal.


                                        3
      24. RESIDENT SAFETY AND PROPERTY LOSS. You and all
      occupants and guests must exercise due care for your own and
      others’ safety and security, especially in the use of smoke detectors,
      door and window locks, and other safety or security devices. You
      agree to make every effort to follow the Security Guidelines on page
      5. Window screens are not for security or keeping people from
      falling out.

The Lease Agreement also contains Paragraph 28, which allows the landlord re-

entry into the apartment. Upon move in, Darcy inspected the apartment and

completed the TAA’s “Inventory and Condition Form,” noting no damage or

defects in the living room windows, latches, and screens on the form.

      After Darcy settled into the third-floor apartment with her daughter Camryn,

Darcy submitted a maintenance request for the two windows in the living room

because the right window would slam down if opened and the left one would

gradually work its way down after it had been opened. The windows were low-sill

windows; the sills were seven inches off the ground. Darcy wanted to be able to

open the windows and keep them open. Felix Galvan on the maintenance staff

at the apartment complex lubricated the track of the left window, and it then

stayed open to Darcy’s liking.3

      On May 19, 2007, Darcy opened the left window three-fourths to 100% of

its capacity and wanted it to remain open to provide fresh air. On that day, while

Darcy was cooking in the apartment, Camryn fell from the third-story apartment

through the left window in the living room and sustained serious and permanent

      3
       The maintenance request was submitted February 20, 2007, and the
repairs were completed March 21, 2007.


                                        4
injuries. At the time of the accident, the screen covering the window from which

Camryn fell contained the following language: “WARNING: Screen will not stop

child from falling out window. Keep child away from open window.”

             III. SUMMARY JUDGMENT FOR APPELLEES WAS PROPER

      In their first points, both Appellants argue that the trial court erred by

granting Appellees’ traditional and no-evidence motion for summary judgment.

                             A. Standard of Review

      When a party moves for both no-evidence and traditional summary

judgment, we first review the trial court’s summary judgment under the no-

evidence standard.    Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.

2004).   Under that standard, after an adequate time for discovery, the party

without the burden of proof may, without presenting evidence, move for summary

judgment on the ground that there is no evidence to support an essential element

of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The motion must

specifically state the elements for which there is no evidence. Id.; Timpte Indus.,

Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the

motion unless the nonmovant produces summary judgment evidence that raises

a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v.

Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199


                                        5
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).               If the

nonmovant brings forward more than a scintilla of probative evidence that raises

a genuine issue of material fact, then a no-evidence summary judgment is not

proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030

(2004).

      When a trial court’s order granting summary judgment does not specify the

ground or grounds relied on for its ruling, summary judgment will be affirmed on

appeal if any of the theories presented to the trial court and preserved for

appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473

(Tex. 1995).    When the trial court’s judgment rests upon more than one

independent ground or defense, the aggrieved party must assign error to each

ground, or the judgment will be affirmed on the ground to which no complaint is

made. Scott v. Galusha, 890 S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ

denied).


                                        6
      B. No Evidence of Breach of the Implied Warranty of Good and
         Workmanlike Repair and No Evidence of Negligent Repair

      Appellants argue that genuine issues of material fact exist on their claims

for breach of the implied warranty of good and workmanlike repair. Darcy argues

that Appellees breached the warranty of good and workmanlike repair when they

undertook to repair her window so that it would open fully but failed to take any

precautions to prevent children from falling from the window. Kevin argues that

the questions of the wrongdoing in the performance of the repairs and whether

the repairs were the proximate cause of Camryn’s injuries are genuine issues of

fact, precluding summary judgment.

      An implied warranty exists that a service provider will perform repairs in a

good and workmanlike manner. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d

349, 354 (Tex. 1987). A good and workmanlike manner means “that quality of

work performed by one who has the knowledge, training, or experience

necessary for the successful practice of a trade or occupation and performed in a

manner generally considered proficient by those capable of judging such work.”

Parkway Co. v. Woodruff, 901 S.W.2d 434, 446 (Tex. 1995); Melody Home Mfg.

Co., 741 S.W.2d at 354. The implied warranty focuses on a service provider’s

conduct by defining the level of performance expected when the parties fail to

make an express provision in their contract for such performance.         Centex

Homes v. Buecher, 95 S.W.3d 266, 273–74 (Tex. 2002).




                                        7
      Here, Darcy submitted a maintenance request for the windows in the living

room of her apartment to be repaired to remain open whenever she raised them.

The apartment complex repaired the windows pursuant to Darcy’s maintenance

request; the windows functioned as normal windows, remaining open when

raised.   No evidence exists that the windows in Darcy’s apartment were not

repaired in a good and workmanlike manner. To the extent that Appellants claim

that Appellees breached the implied warranty to perform the repairs in a good

and workmanlike manner because Appellees did not install safety locks, a

window guard, or other childproof devices on the windows, Appellants have

pointed us to no case law, and we have found none, holding that the failure to

install additional, unrelated features constitutes a breach of the implied warranty

to perform repairs in a good and workmanlike manner. Accord Sears, Roebuck

& Co. v. Nichols, 819 S.W.2d 900, 905 (Tex. App.—Houston [14th Dist.] 1991,

writ denied) (holding that Sears did not breach the implied warranty to repair a

lawnmower in a good and workmanlike manner by not removing belt

knowledgeable customer did not want removed).

      Moreover, Michael Welton, an expert with thirty years of experience who

was originally designated by Appellants and later cross-designated by Appellees,

testified at his deposition that the features that––after Camryn’s fall––Appellants

claim should have been installed on the window were not required by any

building code. Welton testified that there was no code or standard that required

window guards to be placed on the window to constrict the window opening at


                                        8
the time of the accident. Welton testified that under all the standards, it was

appropriate for the window to open to its full height. Welton also testified that at

the time of the accident, the low window sills did not violate any standard or

code. Welton said that Appellees did not violate any code or standard by failing

to remedy or change the window screens or with regard to the stickers on the

screen.    Welton testified that there was “no standard written, unwritten,

published, [or] unpublished that would suggest that the window as it appeared in

May 2007 was a safety hazard.” Concerning any duty owed by Appellees to

Appellants, Welton testified that an apartment landlord does not have a duty to

inspect the interior of an apartment on a regular basis after the apartment has

been rented, unless there is an emergency or a suspicion of illegal activity. 4

Welton agreed that Appellees did not “do anything to breach any duty, to do a

good workmanlike and safe manner repair”; that they did not “improperly perform

repairs with regard to this window because there was no standard that [they]

could have met or breached”; and that they met all minimum standards with

regard to the standard of care.

      Having examined the entire record in the light most favorable to Appellants

as the nonmovants, indulging every reasonable inference and resolving any

      4
        Welton did offer his opinion that Appellees should have placed a pin in the
window so that it would open only four inches. Welton conceded that Appellees’
failure to do this did not breach the implied warranty to repair the window in a
good and workmanlike manner and that no standard or code required this; he
based his opinion on what he claimed to be Appellees’ “fiduciary duty” to the
residents in the building.


                                         9
doubts against the motion, we hold that there is no evidence that would enable

reasonable and fair-minded jurors to differ in their conclusions because there is

no evidence that Appellees’ repair of the window—which was not improperly

performed, was completed in accordance with the maintenance request, enabled

the window to work properly after the repair, satisfied Darcy, and was not in

violation of any code or standard—breached the implied warranty of good and

workmanlike repair. See Hamilton, 249 S.W.3d at 426; Sudan, 199 S.W.3d at

292; see also Bossier Chrysler Dodge II, Inc. v. Rauschenberg, 201 S.W.3d 787,

805 (Tex. App.—Waco 2006) (holding that “we cannot say that the record

contains evidence which ‘would enable reasonable and fair-minded people’ to

conclude that Bossier County breached an implied warranty of good and

workmanlike performance” when requested repairs were made in a good and

workmanlike manner, though Bossier County was not able to completely fix the

oil leak), aff’d in part and rev’d in part on other grounds by 238 S.W.3d 376 (Tex.

2007); U.S. Marine Corp. v. Kline, 882 S.W.2d 597, 601 (Tex. App.—Houston

[1st Dist.] 1994, writ denied) (holding that there was no evidence, expert or

otherwise, to show that boat repairs were done negligently, thus overturning

jury’s finding that boat repairs were not performed in a good and workmanlike

manner); Nichols, 819 S.W.2d at 905 (holding that Sears did not breach implied

warranty as a matter of law because Sears performed work that was authorized

by customer on the motor mounts in a proficient manner; Sears was not required

to remove belt because such work was not requested by customer). The trial


                                        10
court therefore properly granted Appellees’ no-evidence motion for summary

judgment on Appellants’ claims for breach of the implied warranty of good and

workmanlike repair.

      Finally, no discernable difference exists between a claim that repairs were

not performed in a good and workmanlike manner and a claim that repairs were

negligently performed. See Coulson v. Lake L.B.J. Mun. Util. Dist., 734 S.W.2d

649, 651 (Tex. 1987); see also Archibald v. Act III Arabians, 755 S.W.2d 84, 86

(Tex. 1988) (Wallace, J., dissenting). To the extent that there is a difference

between the standards of care in actions for negligence and for breach of the

implied warranty of good and workmanlike performance of services, the latter is

the more demanding standard, and therefore conduct that does not breach the

implied warranty of good and workmanlike performance of service does not

constitute negligence. Daneshjou Co. v. Goergen, Nos. 03-04-00730-CV, 03-04-

00734-CV, 03-04-00735-CV, 03-04-00737-CV, 03-04-00738-CV, 03-04-00739-

CV, 03-04-00740-CV, 2008 WL 3171256, at *7 n.14 (Tex. App.—Austin Aug. 8,

2008, pet. denied) (mem. op.). Thus, the trial court properly granted Appellees’

no-evidence motion for summary judgment on Appellants’ claims for negligent

repair.   We overrule that portion of Appellants’ first points pertaining to their

claims for breach of the implied warranty of good and workmanlike repair and

negligent repair.




                                        11
 C. Premises Liability Claims and Gross Negligence Claims Fail Because
               No Exception to the No-Duty Rule Applies

      Appellants argue that genuine issues of material fact exist on their

premises liability claim. In a premises-liability case, the plaintiff must establish a

duty owed to the plaintiff, breach of the duty, and damages proximately caused

by the breach. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex.

2010). Whether a duty exists is a question of law for the court. Id. In premises-

liability cases, the scope of the duty turns on the plaintiff’s status. Id.

      Generally, a landlord has no duty to tenants or their invitees for dangerous

conditions on the leased premises. See, e.g., Johnson Cnty. Sheriff’s Posse,

Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996); Brownsville Navigation Dist. v.

Izaguirre, 829 S.W.2d 159, 160 (Tex. 1992). This rule stems from the notion that

a lessor relinquishes possession of the premises to the lessee. Endsley, 926

S.W.2d at 285. Texas courts, however, recognize several exceptions to this

general no-duty rule. A lessor may be liable for injuries arising from (1) the

lessor’s negligent repairs, (2) concealed defects of which the lessor was aware

when the premises were leased, and (3) a defect on a portion of the premises

that remained under the lessor’s control. Id.; see also Restatement (Second) Of

Torts §§ 357 (regarding negligent repairs), 358 (regarding concealed defects),

360 (regarding portion of premises remaining in lessor’s control).

      Appellants rely on the first and third exceptions to the general no-duty rule,

contending that, under these exceptions, Appellees owed them a duty.               As



                                           12
discussed above, no evidence exists that Appellees’ repair of the window was

performed negligently; thus, the first exception to the general no-duty rule does

not apply here. See Strunk v. Belt Line Rd. Realty Co., 225 S.W.3d 91, 99 (Tex.

App.—El Paso 2005, no pet.) (upholding summary judgment for premises owner

lessor when plaintiff—lessee’s invitee—failed to produce a scintilla of evidence

that owner had control over the premises or had made a negligent repair).

        Appellants argue under the third exception to the general no-duty rule—the

right-of-control exception—that Appellees retained effective control over the

windows in Darcy’s apartment because the terms of the lease permitted

Appellees to enter Darcy’s apartment to make repairs; expressly prohibited Darcy

from making any repairs to the property; and required Darcy to agree not to alter,

damage, or remove property. Appellants further argue that “[b]ecause Appellees

retained a right of re-entry to make repairs to the windows, coupled with the

prohibition on Appellants[’] repairing or altering the windows, Appellees retained

control over the windows, creating a duty to maintain them so as not to pose a

danger to Appellants.”

        Liability under the right-of-control exception is based on physical

possession of common areas; the liability question “turns on who had possession

of a part of the premises rather than a mere right of re-entry.” Shell Oil Co. v.

Khan, 138 S.W.3d 288, 296 (Tex. 2004). As the Texas Supreme Court stated in

Khan,




                                        13
             We have addressed Khan’s precise arguments before, and
      rejected them. In Flynn v. Pan American Hotel Co., the owner of the
      St. Anthony Hotel in San Antonio leased the entire property to
      another corporation to operate. The lessor retained the right to
      make repairs or improvements at will (and in fact made extensive
      renovations), and barred the lessee from making any changes
      without the lessor’s written consent. Nevertheless, when a hotel
      employee was injured in an elevator accident, we held the lessor
      could not be held liable because it did not retain a right to control
      any part of the premises:

             The terms of the lease, which have been stated, and the
             acts of the parties to the lease show that it was
             contemplated and intended that respondent should
             have the right to enter on the property to make
             improvements and repairs; but the reservation by a
             lessor of a right to enter the premises to make such
             repairs and alterations as it may elect to make is not a
             reservation of control over a part of the building and an
             obligation on the part of the lessor to make repairs does
             not arise from the reservation of such right.

            Because the defect in Flynn was not concealed, we held the
      lessee assumed responsibility for existing defects, and the landlord
      was not liable to the lessee’s employee.

Id. at 297 (footnotes omitted).

      Here, the lease’s terms regarding re-entry are not in dispute; paragraph 28

of the lease gave Appellees a right of re-entry.      But, as set forth above, a

contractual right of re-entry by Appellees to make repairs or improvements is not

a reservation of control over a portion of the building subjecting Appellees to

liability. See id. Thus, merely retaining the right to re-enter the premises to

make alterations and repairs does not trigger the right-of-control exception to the

general no-duty rule.    Darcy and Camryn had possession of the apartment




                                        14
containing the window; no evidence exists that Appellees retained “possession”

of the window at issue.5

      Having examined the entire record in the light most favorable to Appellants

as the nonmovants, indulging every reasonable inference and resolving any

doubts against the motion, we hold that there is no evidence that would enable

reasonable and fair-minded jurors to differ in their conclusion that Appellees had

no right to control the window in Darcy’s living room. See Khan, 138 S.W.3d at

298 (holding that Khan presented no evidence that Shell had a right to control

premises conditions at the station); Daitch v. Mid-Am. Apartment Cmtys., Inc.,

250 S.W.3d 191, 195 (Tex. App.—Dallas 2008, no pet.) (holding that there was

no evidence that Mid-America retained physical possession of the air conditioner

or that apartment dweller used it in common with others); see also Strunk, 225

S.W.3d at 99.6 Because no evidence exists that Appellees fall within either of the



      5
        Appellants’ subargument—that the window formed the “exterior envelope
of the building” and was therefore a common area that was under Appellees’
control—likewise fails. See Stein v. Gill, 895 S.W.2d 501, 503 (Tex. App.—Fort
Worth 1995, no writ) (holding that because steps accessed only lessee’s
apartment and deck, they were not a common area but instead were part of the
leased property that lessor conveyed exclusively to lessee under the apartment
lease).
      6
        Appellants urge us to rely on Jones v. Houston Aristocrat Apartments,
Ltd., 572 S.W.2d 1 (Tex. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.). Jones
held that the provisions of a lease—which permitted the landlord to enter the
premises for the purpose of making repairs and forbade the tenant from making
any alteration or improvement in the premises without the prior consent of the
landlord—granted the landlord effective control of the flooring in the apartment.
Id. at 3. Because the Texas Supreme Court implicitly overruled the 1978 Jones

                                       15
two exceptions pleaded by Appellants to the general no-duty rule, the trial court

properly granted Appellees’ no-evidence motion for summary judgment on

Appellants’ claims for premises liability. See Khan, 138 S.W.3d at 298 (holding

that trial court properly granted summary judgment on premises liability claim);

Daitch, 250 S.W.3d at 195 (same); Strunk, 225 S.W.3d at 99 (same).            And

because no evidence exists that Appellees fall within either of the two exceptions

pleaded by Appellants to the general no-duty rule, the trial court also properly

granted Appellees’ no-evidence motion for summary judgment on Appellants’

claims for gross negligence. See City of Waco v. Kirwan, 298 S.W.3d 618, 623

(Tex. 2009) (“As with negligence actions . . . a defendant may be liable for gross

negligence only to the extent that it owed the plaintiff a legal duty.”); West v.

SMG, 318 S.W.3d 430, 442–43 (Tex. App.—Houston [1st Dist.] 2010, no pet.)

(holding that trial court did not abuse its discretion by granting SMG’s motion for

summary judgment because concertgoer failed to bring forth sufficient evidence

on the element of duty, a necessary element of her negligence and gross

negligence claims). We overrule the remainder of both Appellants’ first points.7




opinion in its 2004 Khan opinion, we decline to follow Jones. See Khan, 138
S.W.3d at 296.
      7
        Because we have held that no evidence exists supporting Kevin’s causes
of action, we need not address Kevin’s argument that his causes of action were
not barred by a statute of limitations. See Tex. R. App. P. 47.1 (requiring
appellate court to address only issues necessary to final disposition of the
appeal).


                                        16
              IV. TRIAL COURT DID NOT ERR BY DENYING APPELLANTS’
               MOTION TO STRIKE THE TESTIMONY OF MICHAEL WELTON

      Both Appellants in their second points contend that the trial court erred by

denying their motions to strike the testimony of Michael Welton and by

considering “the inadmissible testimony of Appellants’ de-designated expert

witness Michael Welton.” Darcy sets forth the following procedural background

related to this point:

            Appellants initially designated Mr. Welton to be a testifying
      expert, and Mr. Welton was deposed.             Appellants then de-
      designated Mr. Welton as a testifying expert, re-designated him as a
      consulting-only expert, and affirmatively averred that he would not
      be called to testify. However, Appellees nevertheless relied heavily
      on the deposition testimony of Mr. Welton in support of their
      summary judgment motion. Appellants timely objected to and
      moved to strike Appellees’ use of the testimony of Appellants’ de-
      designated expert witness Michael Welton as summary judgment
      evidence. Under the Rules of Civil Procedure, after his de-
      designation as a testifying expert and re-designation as a consulting-
      only expert, his opinions and beliefs were no longer discoverable or
      admissible. [Citations omitted.][8]

      Appellants’ argument fails to acknowledge that the trial court conducted a

hearing and signed an order allowing Appellees to cross-designate Welton as a

testifying expert for Appellees. Appellees thus relied on the testimony of Welton

as their own expert witness, who testified regarding the window’s compliance

with applicable building code standards, in support of Appellees’ motion for

summary judgment.



      8
       A similar version of this background is set forth in Kevin’s brief.


                                         17
      Appellants   raise   no    arguments    challenging    Appellees’    expert’s

qualifications; they contend only that Appellees were not permitted to rely on the

expert that they had de-designated as a testifying expert and redesignated as a

consulting expert. This premise is not supported by case law. See Tom L. Scott,

Inc. v. McIlhany, 798 S.W.2d 556, 559–60 (Tex. 1990) (orig. proceeding)

(rejecting defendants’ redesignation of testifying experts as consulting experts

and stating that the protection afforded by the consulting expert privilege is

intended to be only “a shield to prevent a litigant from taking undue advantage of

his adversary’s industry and effort, not a sword to be used to thwart justice or to

defeat the salutary objects” of discovery); accord Hooper v. Chittaluru, 222

S.W.3d 103, 108 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (concluding

that appellant should not have been prohibited from calling Dr. Lambert as a

witness solely on the basis that Dr. Lambert was appellee’s expert); Castellanos

v. Littlejohn, 945 S.W.2d 236, 241 (Tex. App.—San Antonio 1997, orig.

proceeding) (explaining that a party will not be permitted to de-designate an

expert to protect his or her opinions from discovery when there is an improper

purpose behind the de-designation); see also Lopez v. Martin, 10 S.W.3d 790,

794–95 (Tex. App.—Corpus Christi 2000, pet. denied). Moreover, after a hearing

before the trial court, the trial court granted Appellees’ request to designate

Welton as an expert for Appellees. We therefore hold that the trial court did not

abuse its discretion by denying Appellants’ motion to strike the testimony of




                                        18
Welton.     See, e.g., McIlhany, 798 S.W.2d at 559–60.      We overrule both

Appellants’ second points.

                               V. CONCLUSION

      Having overruled both Appellants’ two points, we affirm the trial court’s

judgment.


                                                SUE WALKER
                                                JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DELIVERED: January 31, 2013




                                      19
