COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00056-CV

Kevin D. Spruell AND Darcy Spruell, 

Individually and as Next Friend of 

Camryn Spruell, a Minor

v.

USA Gardens at Vail Leasco, L.L.C., 

USA Gardens at Vail, L.L.C., and 

Internacional Realty, Inc.

§

§

§

§

From the 431st District Court

of Denton County (2008-40389-

362)

January 31, 2013

Opinion by Justice Walker

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
2

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00056-CV

KEVIN D. SPRUELL AND DARCY 

SPRUELL, INDIVIDUALLY AND AS 

NEXT FRIEND OF CAMRYN 

SPRUELL, A MINOR

APPELLANTS

V.

USA GARDENS AT VAIL LEASCO, 

L.L.C.; USA GARDENS AT VAIL,

L.L.C.; AND INTERNACIONAL 

REALTY, INC.

APPELLEES

----------

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 

 

1See Tex. R. App. P. 47.4.
3

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.,2asserting causes of 

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

workmanlike repair, negligent repair, and gross negligence. Appellees filed noevidence 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:

 

2Kevin 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. 
4

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 reentry 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. 
5

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 noevidence 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 
6

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).
7

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).
8

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 
9

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 

 

4Welton 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. 
10

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 
11

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.
12

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 premisesliability 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 
13

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,
14

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 
15

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 

 

5Appellants’ 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).

6Appellants 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
16

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.

7Because 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).
17

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 dedesignated 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’ dedesignated expert witness Michael Welton as summary judgment 

evidence. Under the Rules of Civil Procedure, after his dedesignation as a testifying expert and re-designation as a consultingonly 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. 

 

8A similar version of this background is set forth in Kevin’s brief. 
18

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 
19

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