In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00175-CV
___________________________
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Appellant
V.
LESLEY HOWELL-HERRING, Appellee
On Appeal from County Court at Law No. 1
Tarrant County, Texas
Trial Court No. 2018-000793-1
Before Kerr, Womack, and Walker, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Appellee Lesley Howell-Herring sued appellant Allstate Fire and Casualty
Insurance Company to establish her right to and to recover uninsured/underinsured
motorist (UM/UIM) benefits under her Allstate automobile policy. Following a jury
trial to determine damages, the trial court granted Howell-Herring declaratory relief
and attorney’s fees under the Uniform Declaratory Judgments Act (UDJA). See Tex.
Civ. Prac. & Rem. Code Ann. §§ 37.001–.011. In what we construe as three issues,
Allstate argues that the trial court erred by awarding declaratory relief and attorney’s
fees because the UDJA is not available for establishing the right to UM/UIM benefits
and because even if such relief is available, the trial court’s attorney’s-fees award was
an abuse of discretion because Howell-Herring’s attorney’s-fees evidence should have
been excluded under Texas Rule of Civil Procedure 193.6, see Tex. R. Civ. P. 193.6,
61 Tex. B.J. 1152 (Tex. 1999, amended 2021),1 and because Howell-Herring did not
demonstrate that the attorney’s-fees award was equitable and just as the UDJA
requires, see Tex. Civ. Prac. & Rem. Code Ann. § 37.009. Because the UDJA is an
available remedy here, and the trial court did not abuse its discretion by awarding
1
Each of the Texas Rules of Civil Procedure cited in this opinion was amended
effective January 1, 2021. See Final Approval of Amendments to Texas Rules of Civil
Procedure 47, 99, 169, 190, 192, 193, 194, 195, 196, 197, and 198, Misc. Docket No. 20-
9153 (Tex. Dec. 23, 2020). But because those amendments apply to cases filed on or
after January 1, 2021, we cite to and apply the version of the Rules of Civil Procedure
in place when this case was filed in February 2018. See id.
2
Howell-Herring her attorney’s fees under the UDJA, we will affirm the trial court’s
judgment.
I. Background
Howell-Herring was in a motor-vehicle collision with Myles Edward Hopewell,
an uninsured driver. In February 2018, Howell-Herring sued Hopewell for negligence
and sued Allstate to recover UM/UIM benefits. Howell-Herring asserted claims
against Allstate for violations of Chapter 541 of the Texas Insurance Code, for a
declaration that she was entitled to recover UM/UIM benefits under her policy, and
for attorney’s fees under the UDJA. Howell-Herring took a default judgment against
Hopewell but proceeded to trial on her claims against Allstate.
The trial court set the case for jury trial on Monday, October 28, 2019. The
Friday afternoon before trial, Howell-Herring moved for a bifurcated trial, asserting
that evidence of her attorney’s fees was necessary on her UDJA claim and asking the
trial court to “bifurcate the trial and have the jury consider the evidence and award
attorney’s fees only after a finding of [a] Chapter 541 violation and damages in tort.”
Although Howell-Herring had pleaded for attorney’s fees, she had failed to designate
an attorney’s-fees expert. See Tex. R. Civ. P. 194.2(f), 61 Tex. B.J. 1153 (Tex. 1999,
amended 2021), 195.2, 61 Tex. B.J. 1154 (Tex. 1999, amended 2021). And she did not
name an attorney’s-fees witness on either her original or amended witness lists or list
any exhibits related to attorney’s fees on either her original or amended exhibit lists.
3
During a pretrial hearing the morning of trial, Allstate objected to Howell-
Herring’s attorney’s-fees claim, asserting not only that fees could not be recovered
under the UDJA, but also that Allstate “never anticipated” an attorney’s-fees claim
and was “kind of blindsided.” See Tex. R. Civ. P. 193.6. Despite Howell-Herring’s
attorney’s-fees pleading, Allstate claimed that the bifurcation motion was “the first
time that [it] ever thought there was seriously an attorney’s fees claim” because
Howell-Herring had not designated an expert. Allstate argued that had it known that
fees were “going to be an issue,” it would have designated a rebuttal expert and would
have “done an offer of settlement under the rules to cap that.” In response, Howell-
Herring offered to “put on” her attorney’s-fees evidence “outside of the hearing of
the jury” so that the fees issue was “totally separate” and that the parties could “argue
about it later.” She further offered to allow Allstate’s attorney “to get up and testify.”
After additional objections from Allstate, Howell-Herring offered to delay the
attorney’s-fees matter “for another time, so they can have their chance to designate
somebody for rebuttal.” Allstate maintained that because Howell-Herring had not
designated an attorney’s-fees expert, she could not recover her fees. The trial court
indicated that it was “inclined” to agree with Allstate.
The parties stipulated on the record that Howell-Herring was “dropping” her
Chapter 541 claim and filed signed, written stipulations regarding coverage, the
amount of Personal Injury Protection benefits Allstate had paid to Howell-Herring,
4
Howell-Herring’s compliance with her duties under the policy, and Hopewell’s
negligence being the accident’s sole proximate cause.
The case proceeded to a jury trial on Howell-Herring’s damages.2 After a two-
day trial, the jury determined that Howell-Herring had suffered damages totaling
$49,000.3
Almost three months later—on January 21, 2020—Howell-Herring moved for
entry of judgment and for attorney’s fees. With her motion, Howell-Herring
submitted a proposed final judgment with blanks for her attorney’s fees. On February
14, 2020, Howell-Herring filed a brief in support of her motion, and she filed a
supplemental brief on February 20, 2020. Allstate objected, arguing that (1) Howell-
Herring’s declaratory-judgment action and request for fees under the UDJA was “an
impermissible end-run around Brainard v. Trinity Universal Insurance Co., 216 S.W.3d
809, 818–19 (Tex. 2006)”; (2) an attorney’s-fees award would not be equitable and just
as the UDJA requires, see Tex. Civ. Prac. & Rem. Code Ann. § 37.009; and (3) Howell-
2
To establish an insurer’s liability to an insured under a UM/UIM policy, an
insured must first obtain determinations of the third-party driver’s liability and the
amount of damages. See In re State Farm Mut. Auto. Ins. Co., 629 S.W.3d 866, 875 (Tex.
2021) (orig. proceeding).
3
That finding comprised $2,000 for past physical pain and mental anguish,
$2,000 for future physical pain and suffering and mental anguish, $3,000 for past
physical impairment, $17,000 for past medical-care expenses, $5,000 for future
medical-care expenses, and $20,000 for past earning-capacity loss.
5
Herring’s attorney’s-fees evidence should be excluded under Texas Rule of Civil
Procedure 193.6, see Tex. R. Civ. P. 193.6.
The trial court heard Howell-Herring’s motion on February 21, 2020.4
Following the hearing, Howell-Herring filed an “Affidavit in Support of Attorney’s
Fees” and a “Supplement to Affidavit in Support of Attorney’s Fees,” on February 26,
2020, and March 24, 2020, respectively. In those affidavits, Howell-Herring claimed to
have incurred $27,815 in attorney’s fees through trial and would incur appellate
attorney’s fees if the case were appealed. Allstate reurged its objections, but on April
7, 2020—two weeks after Howell-Herring filed her supplemental affidavit—the trial
court signed an order ordering Allstate to pay Howell-Herring $16,700 in attorney’s
fees.
On May 5, 2020, the trial court signed a final judgment awarding Howell-
Herring declaratory relief and ordering that Howell-Herring recover the following
from Allstate:
• $30,000, “which consists of the maximum coverage available in uninsured
motorist benefits under the policy of insurance issued by [Allstate] in which
[Howell-Herring] was a covered person on March 31, 2016”;
Our record does not include a transcript from this hearing. Allstate stated in its
4
brief that it was “in the process of requesting and paying for” the transcripts from
“the hearing on Herring-Howell’s [sic] Motion for Attorney[’s] Fee[s], as well as the
hearing on Allstate’s post-judgment motions,” and that it would supplement the
record with those transcripts. Allstate has not supplemented the record, so we
contacted the court reporter. She stated that the only hearing in 2020 was held on
February 21, 2020, but that it was not transcribed.
6
• $16,700 in reasonable and necessary attorney’s fees under the UDJA, plus
conditional appellate attorney’s fees;
• Taxable court costs; and
• Postjudgment interest.
Allstate timely appealed and has raised what we construe as three issues5 to
which we now turn.
II. Establishing an Insurer’s Liability for UM/UIM Benefits
and Recovering Attorney’s Fees under the UDJA
Allstate argues in its first issue that the trial court erred by awarding Howell-
Herring declaratory relief and attorney’s fees because a policyholder cannot use the
UDJA to establish an insurance carrier’s liability for UM/UIM benefits. As noted in
Allstate’s brief, “[t]his case contains identical issues as were involved in” Allstate
Insurance Co. v. Irwin, 606 S.W.3d 774 (Tex. App.—San Antonio 2019), aff’d,
627 S.W.3d 263 (Tex. 2021), which Allstate argues was wrongly decided. But after
Allstate filed its brief and this case was submitted, the Texas Supreme Court resolved
these issues by affirming the San Antonio court’s holding and concluding that the
UDJA can in fact be used to determine an insurance carrier’s liability for UM/UIM
5
According to Allstate, “the issue on appeal in this case is whether the trial
court erred in allowing Herring-Howell [sic] to unnecessarily invoke the UDJA in
connection with her claim for UM benefits and by also awarding her attorney’s fees
under the statute.” But Allstate also argues that the attorney’s-fees award was not
equitable and just under the UDJA and that the attorney’s-fees award “is based on
improper evidence” that should have been excluded under Texas Rule of Civil
Procedure 193.6. See Tex. R. Civ. P. 193.6. We thus construe Allstate’s single issue as
three issues.
7
benefits, Irwin, 627 S.W.3d at 266–70, and that “reasonable and necessary attorney’s
fees as are equitable and just” are available under the UDJA, id. at 270–72 (quoting
Tex. Civ. Prac. & Rem. Code Ann. § 37.009). Accordingly, we overrule Allstate’s first
issue. See id. at 266–72; Allstate Cnty. Mut. Ins. Co. v. Hill, No. 02-20-00174-CV,
2021 WL 2978746, at *2 (Tex. App.—Fort Worth July 15, 2021, no pet.) (mem. op.)
(applying the supreme court’s Irwin holding to overrule identical arguments by
Allstate).
III. The Trial Court’s Attorney’s-Fees Award
Despite No Fee-Expert Designation
In Allstate’s second issue, it contends that the trial court abused its discretion
by awarding Howell-Herring attorney’s fees under the UDJA because her attorney’s-
fees evidence should have been excluded under Rule 193.6 because (1) she failed to
designate an attorney’s-fees expert witness or to produce evidence supporting her fees
claim in response to Allstate’s disclosure requests, and (2) she failed to establish good
cause or lack of unfair surprise or unfair prejudice. See Tex. R. Civ. P. 193.6(a), (b),
195.2.
“Texas law is clear that ‘[t]he issue of reasonableness and necessity of attorney’s
fees requires expert testimony.’” Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P.,
422 S.W.3d 821, 830 (Tex. App.—Dallas 2014, no pet.) (quoting Twin City Fire Ins. Co.
v. Vega-Garcia, 223 S.W.3d 762, 770 (Tex. App.—Dallas 2007, pet. denied)); see, e.g.,
Woollett v. Matyastik, 23 S.W.3d 48, 52 (Tex. App.—Austin 2000, no pet.) (op. on
8
reh’g) (“Expert testimony is required to support an award of attorney’s fees.”). The
Texas Rules of Civil Procedure provide that unless the trial court orders otherwise, a
party must designate experts testifying for a party seeking affirmative relief—“that is,
furnish information requested under Rule 194.2(f)”6—by the later of 30 days after the
request’s service or 90 days before the discovery period’s end. Tex. R. Civ. P. 195.2(a).
A party who fails to make, 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 trial court finds that (1) there was good cause for the
failure to timely disclose or (2) the failure will not unfairly surprise or unfairly
prejudice the other parties. Tex. R. Civ. P. 193.6(a). The burden of establishing good
cause or the lack of unfair surprise or unfair prejudice is on the party seeking to
introduce the evidence or call the witness. Tex. R. Civ. P. 193.6(b).
Determining whether a party has met this burden is within the trial court’s
discretion, but the record must support a finding of good cause or lack of unfair
surprise or unfair prejudice. See Arshad v. Am. Express Bank, FSB, 580 S.W.3d 798,
807 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Rhey v. Redic, 408 S.W.3d 440,
459 (Tex. App.—El Paso 2013, no pet.); see also Tex. R. Civ. P. 193.6(b). We thus
6
For a retained testifying expert, Rule 194.2(f) requires a party to provide the
expert’s name, address, and telephone number; the subject matter of the expert’s
testimony; the expert’s mental impressions and opinions and a brief summary of the
basis for them; all documents, reports, or compilations provided to, reviewed by, or
prepared by or for the expert in anticipation of the expert’s testimony; and the
expert’s current resume and bibliography. See Tex. R. Civ. P. 194.2(f).
9
review a trial court’s finding under Rule 193.6 for an abuse of discretion. Arshad,
580 S.W.3d at 807; see Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex.
2015) (stating that a trial court’s rulings on the admissibility of evidence are reviewed
for an abuse of discretion). A trial court abuses its discretion if it acts without
reference to any guiding rules or principles—that is, if its act is arbitrary or
unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings,
134 S.W.3d 835, 838–39 (Tex. 2004). We must uphold a trial court’s evidentiary ruling
if the record shows any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998). We cannot conclude that a trial court abused
its discretion merely because we would have ruled differently in the same
circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.
1995); see also Low, 221 S.W.3d at 620.
Here, Allstate objected under Rule 193.6 to Howell-Herring’s attorney’s-fees
evidence, arguing that the evidence should be excluded because Howell-Herring had
failed to timely designate an attorney’s-fees expert; had failed to timely identify her
attorney as a fact witness on the issue of attorney’s fees; and had failed to provide
complete disclosure regarding her evidence in support of her attorney’s-fees claim.7
7
On appeal, Howell-Herring “does not dispute that her counsel was not
designated as an expert.” She claims that because the record contains only her sixth
supplemental disclosure responses and none of her earlier responses, the record does
not support Allstate’s contention that Howell-Herring’s counsel was never disclosed
as a fact witness. See Gutierrez v. Gutierrez, 86 S.W.3d 729, 736 (Tex. App.—El Paso
2002, no pet.) (concluding that there was no unfair surprise and thus no abuse of
10
The trial court never expressly ruled on Allstate’s Rule 193.6 objections, but it did sign
an order granting Howell-Herring’s fees motion “having considered the record in this
cause” and then a final judgment ordering Allstate to pay Howell-Herring’s attorney’s
fees. Assuming without deciding that in so doing the trial court implicitly overruled
Allstate’s Rule 193.6 objections and that Allstate’s complaint is thus preserved for our
review,8 we conclude that under these facts, the trial court did not abuse its discretion
to the extent that it impliedly found that Howell-Herring’s failure to designate an
attorney’s-fees expert did not unfairly surprise Allstate.
Since Howell-Herring first sued in February 2018, she had pleaded for
attorney’s fees under the UDJA. At the October 2019 trial, Allstate claimed that it was
blindsided by Howell-Herring’s attorney’s-fees claim because she had not disclosed a
fees expert. Howell-Herring then offered to delay the attorney’s-fees issue “for
another time,” so that Allstate could “designate somebody for rebuttal.” From the
discretion to allow expert testimony on attorney’s fees when witness was not
identified as an expert in discovery responses but was identified as a fact witness who
would testify as to attorney’s fees).
8
But see Trevino v. City of Pearland, 531 S.W.3d 290, 300 (Tex. App.—Houston
[14th Dist.] 2017, no pet.) (“In short, a trial court’s ruling on [Rule 193.6] objections
to evidence at a bench trial or on a motion to exclude [attorney’s-fees] evidence is not
implicit in its judgment on the merits after the bench trial; it is not reasonable to
conclude that the trial court sustained or overruled the objections or granted or
denied the motion to exclude based on the trial court’s judgment on the merits. Thus,
it is not reasonable to conclude that by awarding the City attorney’s fees the trial court
implicitly denied the Trevinos’ motion to exclude or overruled their objections.”
(citations omitted)).
11
record, it does not appear that Allstate did so, and by the time of the hearing on
Howell-Herring’s motion to enter judgment in late February 2020, Allstate had known
for four months that Howell-Herring was seeking attorney’s fees. After that hearing
(of which we have no transcript), the trial court didn’t grant Howell-Herring’s
attorney’s fees motion until April 7, 2020—two weeks after it had received Howell-
Herring’s supplemental attorney’s-fees affidavit. We conclude that under these unique
circumstances, the trial court did not abuse its discretion by impliedly finding a lack of
unfair surprise. Cf. Rhey, 408 S.W.3d at 459 (concluding that trial court did not abuse
its discretion by overruling Rule 193.6 objection to an attorney’s-fees expert where
attorney’s-fees request was in original petition filed five months before trial and the
attorney’s-fees expert had been disclosed 31 days before trial); City of El Paso v. Parsons,
353 S.W.3d 215, 229 (Tex. App.—El Paso 2011, no pet.) (holding that trial court did
not abuse its discretion by implicitly finding good cause and no unfair surprise under
Rule 193.6 where plaintiff filed application for attorney’s fees and costs after jury
verdict was received; the original petition showed that attorney’s fees were being
sought as part of the relief requested, and the court, to cure any alleged surprise, gave
parties six weeks to conduct additional discovery before hearing on plaintiff’s
application); Beard Fam. P’ship v. Com. Indem. Ins. Co., 116 S.W.3d 839, 850 (Tex.
App.—Austin 2003, no pet.) (holding that trial court did not abuse its discretion by
admitting expert testimony on attorney’s fees despite untimely designation of expert
30 days before trial; after offering a postponement of testimony to allow opponent to
12
depose expert, the trial court found good cause because failure to timely designate was
due to inadvertence of counsel, and that there was no unfair surprise or prejudice
because the proponent’s pleadings contained an attorney’s-fees request from the suit’s
inception). We thus overrule Allstate’s second issue.9
IV. The Trial Court’s Attorney’s-Fees Award
Under the UDJA
Allstate asserts in its third issue that Howell-Herring failed to establish that the
trial court’s attorney’s-fees award was equitable and just as the UDJA requires and
that the trial court thus abused its discretion by awarding her attorney’s fees.
Under the UDJA, a trial court “may award . . . reasonable and necessary
attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem. Code Ann. § 37.009.
The UDJA “entrusts attorney[-]fee awards to the trial court’s sound discretion, subject
to the requirements that any fees awarded be reasonable and necessary, which are
matters of fact, and to the additional requirements that fees be equitable and just,
which are matters of law.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Whether
to award fees and what amount is equitable and just are questions committed to the
trial court’s discretion. See Ridge Oil Co., Inc. v. Guinn Invs., 148 S.W.3d 143, 161–
62 (Tex. 2004). Whether it is “equitable and just” to award attorney’s fees depends not
on direct proof but on the concept of fairness given all the circumstances. Id. at 162.
9
On appeal, Allstate does not argue that the attorney’s-fees award was not
reasonable or necessary nor does it otherwise attack the sufficiency of Howell-
Herring’s attorney’s-fees evidence.
13
We thus review a trial court’s award of attorney’s fees under the UDJA for an
abuse of discretion. See Bocquet, 972 S.W.2d at 20–21. A trial court abuses its discretion
by awarding fees under the UDJA when the award is inequitable or unjust. Id. at 21.
Allstate argues that the fees award here was neither equitable nor just because
(1) Howell-Herring’s legal entitlement to recover UM/UIM benefits is insufficient to
support the award because “UM/UIM insurance is simply supposed to put the
insured in the same place she would [have] been if the UM/UIM motorist had been
properly insured” and (2) “all [Allstate] was doing [was] following the law set out by
the Texas Supreme Court” before Irwin, which was pending in the Texas Supreme
Court at the time the trial court awarded Howell-Herring attorney’s fees. See
627 S.W.3d at 265–66. As noted, in Irwin, the supreme court held that the UDJA can
be used to determine an insurance carrier’s liability for UM/UIM benefits, id. at 266–
70, and that reasonable and necessary attorney’s fees as are equitable and just are
available under the UDJA in such actions, id. at 270–72. Because attorney’s fees are
available under the UDJA here, see id., and whether it is equitable and just to award
attorney’s fees is left to the trial court’s discretion and depends not on direct proof,
but on the matter of fairness given all the circumstances, see Ridge Oil Co., 148 S.W.3d
at 162, we conclude that that the trial court did not abuse its discretion by awarding
Howell-Herring her attorney’s fees. We thus overrule Allstate’s third issue.
V. Conclusion
Having overruled Allstate’s three issues, we affirm the trial court’s judgment.
14
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: April 21, 2022
15