Davie C. Westmoreland D/B/A Allegheny Casualty Co. Bail Bonds v. Rick Starnes D/B/A Starnes & Associates and Thomas Bevans ( 2015 )


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  •                                      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
    9