Affirmed and Opinion Filed May 31, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00905-CV 

SJF FOREST LANE, LLC, A DELAWARE LIMITED LIABILITY 

COMPANY, AND HSB FOREST LANE, LLC, A DELAWARE LIMITED 

LIABILITY COMPANY, SUCCESSORS-IN-INTEREST TO FL 

ASSOCIATES, LLC, A DELAWARE LIMITED LIABILITY COMPANY, 

Appellants/Cross-Appellees 

V. 

TRINA PHAN, Appellee/Cross-Appellant 

On Appeal from the 192nd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-21-03613 

MEMORANDUM OPINION 

Before Justices Molberg, Pedersen, III, and Nowell 

Opinion by Justice Pedersen, III 

In this appeal arising from a breach of lease, appellants complain the trial court 

erred in (1) granting appellee summary judgment on her affirmative defense of claim 

preclusion and awarding her attorney’s fees as a prevailing party on appellants’ 

claim of breach of lease; (2) denying appellants’ motion for summary judgment on 

their claim for breach of lease, and (3) denying appellants’ motion for summary 

judgment seeking attorney’s fees for prevailing on appellee’s voluntarily dismissed 
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claim for wrongful garnishment. Appellee cross-appeals the trial court’s exclusion 

at trial of evidence of part of her claim for attorney’s fees. We affirm the trial court’s 

judgment. 

I. BACKGROUND

 Appellants SJF Forest Lane, LLC, and HSB Forest Lane, LLC, leased space 

in a shopping center to appellee Trina Phan. The lease was signed in February 2010. 

It was amended to be in effect through January 2025. 

In a previous lawsuit—filed August 6, 2020—appellants sued appellee for 

breach of the lease due to nonpayment of rent. Appellants alleged, 

Plaintiffs seeks judgment against Defendant for the sum of $23,903.00 

through August, 2020, plus interest at 18% interest per annum as per 

Article 24.2 of the Lease, plus additional charges as they accrue until 

time of trial. This amount increases monthly by $6,195.00. Plaintiffs 

reserve all rentals accruing after judgment in this case. 

(Emphasis added.) Appellants moved for summary judgment in that lawsuit, which 

the trial court granted. The trial court awarded appellants $48,683 damages 

“representing rental and other charges due and owing through December, 2020,” 

attorney’s fees, interest, and costs. The final judgment, signed January 26, 2021, 

recited, “This Judgment does not preclude Plaintiff from seeking additional damages 

as they accrue after December, 2020.” 

 Appellants subsequently filed an application for a writ of garnishment to 

satisfy the final judgment in the previous case. The agreed final judgment of 

garnishment was signed February 24, 2021. 
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 On March 22, 2021, appellants filed the lawsuit now before this Court. They 

sought $24,780 from appellee for unpaid rent earned since the previous judgment—

for the period of January 2021 through April 2021. They also sought additional 

monthly damages of $6,195 per month “until time of trial” and attorney’s fees. They 

alleged, “Plaintiffs reserve all rentals accruing after judgment in this case.” 

Appellee answered, alleging a general denial and affirmative defenses, 

including res judicata and collateral estoppel. Appellee counterclaimed for wrongful 

garnishment.

Appellants filed a motion for traditional summary judgment on their claim for 

breach of the lease, which they subsequently withdrew. 

Appellants filed a first amended petition. In it, they continued to seek damages 

for breach of lease for unpaid rent and charges from January 1, 2021, through the 

time of trial below. They again alleged, “Plaintiffs reserve all rentals accruing after 

judgment in this case.” 

Appellee filed a traditional motion for summary judgment. In it, she asserted 

the affirmative defenses of res judicata and collateral estoppel. 

 The trial court held a hearing on appellee’s traditional motion for summary 

judgment. The trial court granted appellee’s motion. The trial court dismissed with 

prejudice all claims asserted by appellants against appellee. It held all appellants’ 

claims were barred by res judicata. It awarded appellee attorney’s fees as a prevailing 

party pursuant to terms of the lease but did not specify the amount of the award. The 
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summary judgment order stated, “Thus the only issue that remains with regard to 

Plaintiffs’ claims and Defendant’s corresponding claim for attorney fees/costs, is the 

amount of fees/costs awarded.” 

 Subsequently, appellee filed a nonsuit of her counterclaim for wrongful 

garnishment without prejudice. The trial court ordered the claim dismissed without 

prejudice. 

 Appellants then filed their second amended petition. In it, appellants sought 

unpaid rent and charges from the time of the previous judgment, as before, but for 

the first time sought damages for unpaid rent and charges through the lease’s 

expiration in January 2025. They did not allege, as before, that they reserved rentals 

accruing after judgment in the case. They sought attorney’s fees based on their claim 

of breach of lease and on appellee’s nonsuit of her claim for wrongful garnishment. 

Appellants also alleged these claims in their third amended petition. 

 Appellants filed a motion for partial summary judgment on their claim for 

attorney’s fees. In it, they argued they were entitled to attorney’s fees for prevailing 

on appellee’s claim for wrongful garnishment. 

The trial court entered an “order denying plaintiffs’ claim for attorney fees 

and clarifying issues before the court at trial” on June 2, 2022. The trial court denied 

appellants’ claim for attorney’s fees and costs. It found the sole issue at trial to be 

the amount of appellee’s reasonable and necessary attorney’s fees, which the trial 
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court had generally awarded to appellee in the July 30, 2021 order granting 

appellee’s motion for partial summary judgment. 

 During trial proceedings on June 2, 2022, the trial court sustained an objection 

to admission of two monthly invoices for appellee’s attorney’s fees and excluded 

them from evidence. The trial court orally rendered judgment and awarded appellee 

attorney’s fees. 

The trial court signed the final judgment June 17, 2022. It incorporated the 

order on appellee’s motion for partial summary judgment and the subsequent 

clarification order. The trial court awarded appellee attorney’s fees and expenses 

incurred through trial of $59,890.07. It also awarded appellee attorney’s fees in the 

event of future successful trial-court and appellate-court proceedings, post-judgment 

interest, and contingent attorney’s fees, costs, and expenses in the event of successful 

enforcement and collection of the judgment. 

 Appellants filed a notice of appeal, and appellee filed a notice of cross-appeal. 

This appeal followed. 

II. CLAIM PRECLUSION, ISSUE PRECLUSION, AND APPELLANTS’ 

CLAIM FOR ATTORNEY’S FEES UNDER THE LEASE 

 Appellants state their first issue on appeal as follows: 

1. Whether the district court erred in granting Appellee Phan’s CrossMotion for Summary Judgment. 

a. The district court erred in holding Appellants’ claims were barred 

by res judicata. 
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b. The district court erred in holding Appellants’ claims were barred 

by collateral estoppel. 

c. The district court erred in holding that Phan was the prevailing 

party and, thus, entitled to recover attorney’s fees under the Lease. 

 We address each sub-point in turn. 

A. STANDARD OF REVIEW 

 We review de novo the trial court's ruling on a motion for summary judgment. 

See Ortiz v. State Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019); Valence 

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our 

review, “we take as true all evidence favorable to the nonmovant, and we indulge 

every reasonable inference and resolve any doubts in the nonmovant's favor.” Ortiz, 

589 S.W.3d at 131 (quoting Dorsett, 164 S.W.3d at 661). 

A traditional motion for summary judgment requires the moving party to show 

that no genuine issue of material fact exists and that the moving party is entitled to 

judgment as a matter of law. TEX. R. CIV. P. 166a(c); see Ortiz, 589 S.W.3d at 131; 

Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). If the movant does so, the 

burden then shifts to the nonmovant to come forward with competent controverting 

evidence sufficient to raise a genuine issue of material fact on the challenged 

element. See Lujan, 555 S.W.3d at 84. A genuine issue of material fact exists if the 

evidence regarding the challenged element “rises to a level that would enable 

reasonable and fair-minded people to differ in their conclusions.” First United 
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Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017) 

(quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). 

When, as here, a party has moved for traditional summary judgment on an 

affirmative defense, the movant has the initial burden of establishing entitlement to 

judgment as a matter of law by conclusively establishing each element of its 

affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008) (per 

curiam); see also TEX. R. CIV. P. 166a(b), (c). A matter is conclusively established 

if reasonable people could not differ as to the conclusion to be drawn from the 

evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005); see also

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per 

curiam). 

If the movant meets its burden, the burden then shifts to the nonmovant to 

present evidence raising a genuine issue of material fact as to one or more elements 

of the affirmative defense, precluding summary judgment. See Centeq Realty, Inc. 

v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). 

B. CLAIM PRECLUSION 

We address appellants’ first sub-issue of their first point on appeal, 

complaining that the district court erred in holding their claims were barred by “res 

judicata,” which we refer to as “claim preclusion.” See Barr v. Resolution Trust 

Corp., 837 S.W.2d 627, 628 (Tex. 1992) (within the “general doctrine” of res 
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judicata, “there are two principal categories: (1) claim preclusion (also known as res 

judicata); and (2) issue preclusion (also known as collateral estoppel.”)). 

Applicable Law 

“Res judicata, or claim preclusion, prevents relitigation of a claim or cause of 

action that has been finally adjudicated, as well as related matters that, with the use 

of diligence, should have been litigated in the prior suit.” See Barr, 837 S.W.2d at 

628. Accordingly, claim preclusion bars claims when there is “(1) a prior final 

judgment on the merits by a court of competent jurisdiction; (2) identity of parties 

or those in privity with them; and (3) a second action based on the same claims that 

were raised or could have been raised in the first action.” Citizens Ins. Co. of Am. v. 

Daccach, 217 S.W.3d 430, 449 (Tex. 2007); see Caballero v. Wilmington Sav. Fund 

Soc'y, FSB, No. 05-19-01054-CV, 2021 WL 3642256, at *2 (Tex. App.—Dallas 

Aug. 17, 2021, no pet.) (mem. op.).

Analysis 

Appellants concede it is “undisputed” that the first two elements of claim 

preclusion are satisfied. They argue appellee failed to meet her summary judgment 

burden to demonstrate as a matter of law the third element of claim preclusion. See 

Daccach, 217 S.W.3d at 449 (stating third element as “a second action based on the 

same claims that were raised or could have been raised in the first action”); 

Caballero, 2021 WL 3642256, at *2. 
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The lease in this case provides that upon termination, “Landlord shall be 

entitled to recover from Tenant all damages incurred by Landlord by reason of 

Tenant’s Default[.]” (Emphasis added.) Appellants expressly “terminated” the lease 

August 5, 2020. When appellants filed the previous lawsuit, the lease entitled them, 

in part, to three categories of damages: (1) rent unpaid before termination, (2) rent 

unpaid after the lease’s termination and before appellants receive judgment therefor, 

“and” (3) “unpaid rent called for under the Lease for the balance of the term[.]” 

Moreover, appellants cite judicial opinions that provide a landlord may sue for future 

damages upon breach of lease. See, e.g., Austin Hill Country Realty, Inc. v. Palisades 

Plaza, Inc., 948 S.W.2d 293, 300 (Tex. 1997). 

 Consequently, appellants “could have” alleged in the previous lawsuit a claim 

seeking judgment for all three categories of damages authorized by the lease. Cf. 

Daccach, 217 S.W.3d at 449; Caballero, 2021 WL 3642256, at *2. Instead, 

appellants alleged and recovered in the previous lawsuit only part of their claim by 

seeking solely unpaid rent that had accrued prior to the previous judgment. In this 

lawsuit, appellants seek (1) unpaid rents accrued from the time of judgment in the 

previous lawsuit to the time of judgment in this lawsuit and (2) subsequent rent to 

be paid for the balance of the lease’s term—claims that they could have alleged in 

the previous lawsuit. Consequently, we conclude the case now before this Court is 

“a second action based on the same claims that were raised or could have been raised 
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in the first action.” Daccach, 217 S.W.3d at 449; see also Caballero, 2021 WL 

3642256, at *2. 

Nonetheless, appellants argue the claims in this case are “distinct” from their 

claims in their previous action due to a recital in the previous judgment. They argue, 

The Judgment in the First Lease Lawsuit expressly provided that: “This 

Judgment does not preclude Plaintiffs from seeking additional damages 

as they accrue after December 2020.” Thus, the judgment in the First 

Lease Lawsuit covered only the damages from when Phan breached the 

lease through December 2020. The claims in the Second Lease Lawsuit 

pertain to damages accruing after December 2020. 

(Record citations omitted.) 

 Accordingly, we consider whether the recital in the first judgment concerning 

“additional damages as they accrue after December 2020” forecloses application of 

claim preclusion in this case, as appellants assert. We construe judgments under the 

same rules of interpretation as those applied to other written instruments. See In re 

S.B., No. 05-20-00338-CV, 2023 WL 6284703, at *22 (Tex. App.—Dallas Sept. 27, 

2023, no pet.) (mem. op.); Azbill v. Dall. Cnty. Child Protective Servs., 860 S.W.2d 

133, 136 (Tex. App.—Dallas 1993, no writ). We begin with the text of the judgment 

as written and, if it is unambiguous, we must give effect to the literal language used. 

In re Piatt Servs. Int’l, Inc., 493 S.W.3d 276, 281 (Tex. App.—Austin 2016, orig. 

proceeding). For undefined terms, we must give the term its common and ordinary 

meaning and typically look first to dictionary definitions. Anadarko Petrol. Corp. v. 

Hous. Cas. Co., 573 S.W.3d 187, 192 (Tex. 2019). The judgment in the previous 
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case does not define “accrue.” The common and ordinary meaning of “accrue” is “to 

come into existence as a legally enforceable claim.” Accrue, WEBSTER’S NINTH NEW 

COLLEGIATE DICTIONARY (1985). Moreover, appellants quote a Texas Supreme 

Court opinion that states, “[A] cause of action accrues . . . when facts exist that 

authorize a claimant to seek judicial relief.” See Schneider Nat’l Carriers, Inc. v. 

Bates, 147 S.W.3d 264, 279 (Tex. 2004). 

As noted, appellants “terminated” the lease August 5, 2020, and the lease 

expressly authorized appellants to seek damages they seek in this lawsuit at the time 

they terminated the lease. Consequently, appellants’ claim for the damages they 

claim in this lawsuit accrued—came into existence as a legally enforceable claim—

on August 5, 2020, when they terminated the lease and before they filed the previous 

lawsuit. See also id. Therefore, we conclude the recital in the previous judgment 

concerning claims that “accrue after December 2020” cannot apply to appellants’ 

claim for damages for breach of lease in this lawsuit, which accrued August 5, 2020, 

prior to the previous lawsuit and judgment. 

Appellants cite an opinion of this Court to support their assertion that the 

recitation in the judgment in the previous lawsuit avoids application of claim 

preclusion in this lawsuit. See Swiss Ave. Bank v. Slivka, 724 S.W.2d 394 (Tex. 

App.—Dallas 1986, no writ) (Slivka II). In Slivka II, this Court noted its statement 

in a previous opinion, Slivka I, which stated, 
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We do not reach the question of whether the Bank may recover 

attorney's fees in any other action or by virtue of the terms and 

provisions of the deeds of trust and this opinion is not to be read as 

holding that the Bank may not hereafter recover attorney's fees as 

provided for in the notes and deeds of trust. 

 

Id. at 397 (quoting Slivka v. Swiss Ave. Bank, 653 S.W.2d 939, 944 (Tex. App.—

Dallas 1983, no writ) (Slivka I). In Slivka I, this Court concluded the bank was not 

entitled to attorney’s fees “in this action” for opposing an injunction because the 

terms of promissory notes only provided for attorney’s fees in judicial proceedings 

to collect on notes. See Slivka, 653 S.W.2d at 943–44. Notably, the bank was not 

required to assert in Slivka I a compulsory counterclaim to collect the notes in order 

to avoid claim preclusion in subsequent litigation. See Slivka, 724 S.W.2d at 396-

97. The above-quoted language in Slivka I simply recognized the bank had not 

“split” a cause of action. Cf. Jeans v. Henderson, 688 S.W.2d 100, 103 (Tex. 1985) 

(claim preclusion prevents a plaintiff from “‘splitting’ his cause of action” by 

attempting to assert claims in a subsequent lawsuit that could have been litigated in 

a prior lawsuit); see Barr v. Resolution Trust Corp., 837 S.W.2d 627, 629 (Tex. 

1992) (“Claim preclusion prevents splitting a cause of action.”). Appellants in this 

case did. Consequently, Slivka I and Slivka II do not support appellants’ argument. 

 Appellants also cite Great Southern Life Insurance Co. v. Johnson, 13 S.W.2d 

424 (Tex. App.—Amarillo 1929), rev’d on other grounds, 25 S.W.2d 1093 (Tex. 

Comm’n App. 1930). In that case, involving installment payments of insurance 

proceeds, the previous judgment recited, 
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The Court further finds that the plaintiff is not entitled to recover 

judgment maturing the installments of $2,000.00 a year maturing in the 

future. This judgment in respect to future installments is without 

prejudice to the rights of either of the parties hereto in any litigation 

that may be had concerning said future installments. 

Id. at 428. The appellate court in the subsequent lawsuit explained, “The court 

thereby dismissed from that suit all matters and issues relating to such future 

installments and properly so, because that part of the plaintiff’s action was 

prematurely brought” Id. (emphasis added). In contrast to Great Southern Insurance 

Co., in which the plaintiff had no right to assert claims for installments that had not 

yet accrued, the lease and its termination in this case expressly authorized appellants 

to raise in the previous lawsuit the same claims that appellants subsequently alleged 

in this case. Consequently, Great Southern Insurance Co. is inapposite. 

 Appellants also rely on Chandler v. Prichard, 321 S.W.2d 891 (Tex. App.—

Eastland 1958, writ ref’d n.r.e.). There, the previous judgment stated, “The question 

of the claims of intervenors is not adjudicated herein . . . .” Id. at 894. The Chandler

court concluded claim preclusion did not apply to the intervenor in the case before 

it because the previous judgment expressly stated “it was not passing on his claims.” 

See id. Unlike this case, Chandler did not involve a party’s attempt to split a cause 

of action and is therefore inapposite.1

 

1

 Appellants cite other Texas appellate court opinions. However, those opinions do not involve judgment 

recitations similar to that in appellants’ previous lawsuit. We do not further address those opinions. 
 –14– 

Conclusion 

 We overrule appellants’ first sub-issue of its first appellate issue. 

C. ISSUE PRECLUSION 

In their second sub-issue of their first appellate issue, appellants complain the 

trial court erred in holding their claims were barred by “collateral estoppel,” or issue 

preclusion, which appellee had raised as an alternative ground for summary 

judgment. 

We concluded above the trial court did not err in granting appellee’s motion 

for summary judgment in favor of appellee on the ground that claim preclusion 

barred appellants’ claims in this lawsuit for breach of lease. Appellee’s proving the 

affirmative defense of claim preclusion provided her a complete defense to 

appellants’ claim for breach of lease and supported summary judgment regardless of 

issue preclusion.

 Consequently, we overrule appellants’ second sub-issue of their first appellate 

issue. 

D. ATTORNEY’S FEES 

Appellants complain in the third sub-issue of their first appellate issue that the 

trial court erred in holding that appellee was entitled to attorney’s fees because, they 

argue, she was not the prevailing party on their claim for breach of lease. Appellants 

argue, “In light of the district court’s error in determining the doctrine of res judicata 

barred SJF and HSB’s claims, the trial court’s determination that Phan was the 
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‘prevailing party’ was also error.” Moreover, they argue, “Ordinarily, for the 

purposes of awarding attorney’s fees, case law defines the term ‘prevailing party’ as 

referring to party who successfully prosecutes an action or successfully defends 

against an action on the main issue. Pegasus Energy Grp., Inc. v. Cheyenne 

Petroleum Co., 3 S.W.3d 112, 128 (Tex. App.—Corpus Christi-Edinburg 1999, pet. 

denied).” 

The second amendment to the lease provides, 

Should any dispute arise between the Parties, or their legal 

representatives, successors and/or assigns concerning any provision of 

this Amendment or the rights and duties of any person in relation 

thereto, the Party prevailing in such dispute shall be entitled, in addition 

to such other relief that may be granted, to recover reasonable 

attorneys’ fees and legal costs in connection with such dispute. 

Contrary to the sole premise of appellants’ argument, we concluded above 

that the trial court did not err in granting appellee summary judgment on the 

affirmative defense of claim preclusion on appellants’ claim for breach of lease. 

Therefore, appellee was a prevailing party in this case by successfully defending 

appellants’ claim for breach of lease. See Pegasus Energy Grp., Inc., 3 S.W.3d at 

128. 

We overrule appellants’ third sub-issue of their first issue on appeal. 

E. CONCLUSION 

 We overrule appellants’ first issue on appeal. 

 
 –16– 

III. APPELLANTS’ CLAIM FOR BREACH OF LEASE 

Appellants state their second issue on appeal as follows: 

Whether the district court erred in denying Appellants SJF Forest Lane 

and HSB Forest Lane’s Motion for Summary Judgment on their breach 

of lease claims. 

Appellants argue the trial court erred in denying their motion for summary 

judgment on their claim for breach of lease because claim preclusion does not apply 

to their claim in this case. However, we concluded above the trial court did not err 

in granting appellee’s motion for partial summary judgment on appellants’ claim for 

breach of lease on the basis of appellee’s affirmative defense of claim preclusion. 

That conclusion warrants our overruling appellants’ assertion that the trial court 

erred in denying its motion for summary judgment on its claim for breach of lease. 

Moreover, appellants stated in their response to appellee’s motion for 

summary judgment, “The Plaintiffs have withdrawn their Motion of Summary 

Judgment.” (Emphasis in original.) The final judgment recites, “all other relief 

pending before the Court which is not expressly granted herein, is hereby denied[.]” 

However, when the trial court signed its final judgment, there was no “pending” 

motion for summary judgment by appellants on their claim for breach of lease and 

no ruling by the trial court on the withdrawn motion. In this regard, appellants’ 

complaint finds no support in the appellate record. 

 We overrule appellants’ second issue on appeal. 
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IV. ATTORNEY’S FEES–DEFENSE OF

APPELLEE’S COUNTERCLAIM 

 Appellants state their third appellate issue as follows: 

Whether the district court erred in denying [appellants’] Motion for 

Partial Summary Judgment on Their Claim for Attorneys’ Fees and 

holding that [appellants] are not prevailing parties on the wrongful 

garnishment counterclaim and not entitled to attorney’s fees under the 

Lease. 

 Appellants argue they are entitled to attorney’s fees under the lease because 

they defeated appellee’s wrongful garnishment claim, which appellee voluntarily 

dismissed. Appellants argue, “In the context of a request for attorney’s fees pursuant 

to a contract, a defendant may be a prevailing party when a plaintiff nonsuits without 

prejudice if the nonsuit was taken to avoid an unfavorable ruling on the merits.” 

They cite Epps v. Fowler, 351 S.W.3d 862, 870 (Tex. 2011). However, Epps states, 

“[W]e hold that a defendant may be a prevailing party when a plaintiff nonsuits 

without prejudice if the trial court determines, on the defendant’s motion, that the 

nonsuit was taken to avoid an unfavorable ruling on the merits.” Id. (emphasis 

added). 

 The appellate record does not contain the judicial determination required by 

Epps that appellee nonsuited her claim to avoid an unfavorable ruling. Absent such 

a finding, appellants’ are not entitled to an award of attorney’s fees pursuant to Epps. 

See id.; Centurion Am. Custom Homes, Inc. v. Crossroads Opportunity Partners, 

LLC, No. 05-21-00025-CV, 2022 WL 17974698, at *3 (Tex. App.—Dallas Dec. 28, 
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2022, no pet.) (mem. op.) (overruling issue that trial court erred in not awarding 

attorney’s fees to appellant because, “There is no ruling from the trial court 

concluding that appellees nonsuited their case to avoid an unfavorable ruling.”); TLC 

CEC Parkdale, LLC v. Trevino, No. 13-20-00382-CV, 2022 WL 3652500, at *3 

(Tex. App.—Corpus Christi–Edinburg Aug. 25, 2022, no pet.) (mem. op.) 

(overruling issue that the trial court erred in not awarding attorney's fees to appellant 

as “prevailing party” because, “There is no ruling from the trial court concluding 

that Trevino nonsuited his case to avoid an unfavorable ruling.”); Int’l Med. Ctr. 25 

Enters., Inc. v. ScoNet, Inc., No. 01-16-00357-CV, 2017 WL 4820347, at *16 (Tex. 

App.—Houston [1st Dist.] Oct. 26, 2017, no pet.) (ruling that defendant was not 

entitled to attorney’s fees due to lack of a trial court finding on plaintiff’s motive for 

nonsuiting its claim). 

We overrule appellants’ third appellate issue. 

V. APPELLEE’S CROSS-APPEAL

 Appellee complains the trial court erroneously excluded evidence of her 

attorney’s fees for services provided in March and April 2022.2

 

 Trial was set to commence March 28, 2022. The trial court cancelled the trial 

date. Trial to the court took place June 2, 2022. Before June 2, 2022, appellee had 

timely produced some evidence of her attorney’s fees to appellants. At trial, appellee 

2

 We continue to identify the parties as appellants and appellee in addressing appellee’s cross-appeal unless 

the context requires otherwise. 
 –19– 

sought to introduce additional evidence of attorney’s fees for legal services provided 

during three months immediately preceding trial—March, April, and May 2022. 

Appellants’ counsel objected that appellee’s production on the day of trial was 

untimely pursuant to the scheduling order. He argued the invoices for those three 

months should be excluded pursuant to Texas Rule of Civil Procedure 193.6, which 

provides, 

(a) Exclusion of evidence and exceptions. A party who fails to make, 

amend, or supplement a discovery response, including a required 

disclosure, in a timely manner may not introduce in evidence the 

material or information that was not timely disclosed, or offer the 

testimony of a witness (other than a named party) who was not timely 

identified, unless the court finds that: 

(1) there was good cause for the failure to timely make, amend, 

or supplement the discovery response; or 

(2) the failure to timely make, amend, or supplement the 

discovery response will not unfairly surprise or unfairly 

prejudice the other parties. 

(b) Burden of establishing exception. 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. A finding of good 

cause or of the lack of unfair surprise or unfair prejudice must be 

supported by the record. 

TEX. R. CIV. P. 193.6(a), (b). After hearing argument, the trial court ruled, 

 So the bills from March and April are out. 

The bill from May can come in because it’s June 2nd, and if you do 

your bill on the first of the month, it’s very reasonable for that to be 

done for May. So that’s what we’ll do. 

. . .
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Your attorney’s fees as to March and April are out. You can testify as 

to May. 

Rule 193.6 “is mandatory, and the penalty—exclusion of evidence—is 

automatic, absent a showing of: (1) good cause or (2) lack of unfair surprise or (3) 

unfair prejudice.” Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 860 (Tex. 

App.—Dallas 2006, no pet.). A party seeking to exclude evidence under Rule 193.6 

bears the threshold burden of proving a violation of the discovery rules. See Ramirez 

v. Welch, No. 05-16-00681-CV, 2018 WL 3725254, at *4 (Tex. App.—Dallas Aug. 

6, 2018, no pet.) (mem. op.). A finding of good cause or lack of unfair surprise or 

unfair prejudice can be supported by counsel's uncontested representations to the 

trial judge—“if the trial court credits them”—about the state of discovery in the case. 

Jackson v. Takara, 675 S.W.3d 1, 6 (Tex. 2023) (per curiam); Monzingo v. Flories, 

No. 05-22-00719-CV, 2023 WL 6632799, at *3 (Tex. App.—Dallas Oct. 12, 2023, 

pet. denied) (mem. op.). 

We review the trial court's decision for abuse of discretion. See VSDH 

Vaquero Venture, LTD. v. Gross, No. 05-19-00217-CV, 2020 WL 3248481, at *4 

(Tex. App.—Dallas June 16, 2020, no pet.) (mem. op.). The general test for abuse 

of discretion is whether the trial court acted without regard to any guiding rules or 

principles. See Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). This occurs 

when either (1) the trial court fails to analyze or apply the law correctly, or (2) with 

regard to factual issues or matters committed to its discretion, the trial court could 
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reasonably only reach one decision and failed to do so. See Jaster-Quintanilla & 

Assocs., Inc. v. Prouty, 549 S.W.3d 183, 188 (Tex. App.—Austin 2018, no pet). 

The parties do not dispute that the excluded evidence was not timely provided. 

However, appellee argues, “Here, the record reflects uncontroverted evidence of 

good cause and no evidence of unfair surprise or prejudice.” 

The good cause exception “allows a trial judge to excuse a party's failure to 

comply with discovery obligations in difficult or impossible circumstances.” 

PopCap Games, Inc. v. MumboJumbo Distrib., LLC, 350 S.W.3d 699, 718 (Tex. 

App.—Dallas 2011, pet. denied). Inadvertence, lack of surprise, or the uniqueness 

of the offered evidence do not, standing alone, constitute good cause. See id. A party 

who relies on the good-cause exception must make a strict showing. Alvarado v. 

Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex. 1992) (interpreting materially similar 

predecessor to Rule 193.6); Franke v. Palau, No. 01-18-00424-CV, 2019 WL 

2220112, at *4 (Tex. App.—Houston [1st Dist.] May 23, 2019, no pet.) (mem. op.).

Appellee argues she demonstrated good cause because appellee’s counsel had 

a busy schedule. Appellee fails to cite a judicial opinion in her response brief that 

holds a busy schedule, without more, supports a finding of good cause for purposes 

of rule 193.6. Appellee’s counsel told the trial court he had his assistant office 

manager prepare the exhibit the night before trial so that he could review it the 

morning of trial and that he provided the exhibits to appellants’ counsel the morning 

of trial. The trial court asked, “Well, you know—I mean, you knew about the trial 
 –22– 

date since March, so why didn’t you make it [the excluded exhibit] exist earlier?” 

Counsel repeated he was too busy to have done so. He also stated he sent the 

excluded exhibit “immediately” to appellants’ counsel “so that he had as much 

notice as possible. I did not wait until the last minute to put this bill together.” 

The trial court reasonably could have found appellee did not present a record 

of “difficult or impossible circumstances” to support good cause. See PopCap 

Games, Inc., 350 S.W.3d at 718 (good cause exception “allows a trial judge to excuse 

a party's failure to comply with discovery obligations in difficult or impossible 

circumstances”). Rather, the trial court could reasonably have concluded appellee’s 

counsel waited “until the last minute” to put the invoices together. As the trial court 

stated, appellee had known about the reset trial date for several months, and 

appellee’s counsel stated he had the invoices prepared for trial in one evening, the 

evening before trial. Moreover, the trial court had held in a pre-trial order that the 

“sole issue” to be tried was the amount of appellee’s attorney’s fees. The trial court 

was free not to credit even uncontested representations by counsel. See Jackson, 675 

S.W.3d at 6. We conclude the trial court did not abuse its discretion in finding 

appellee failed to carry her burden of strictly demonstrating good cause. See TEX. R.

CIV. P. 193.6(b) (burden); Franke, 2019 WL 2220112, at *4 (party who relies on 

rule 193.6’s good-cause exception must make a strict showing of it) (citing 

Alvarado, 830 S.W.2d at 915). 
 –23– 

We now consider appellee’s argument that she established absence of unfair 

surprise or prejudice. We are guided by the purposes of Rule 193.6. Those purposes 

are: (i) to promote responsible assessment of settlement, (ii) to prevent trial by 

ambush, and (iii) to give the other party the opportunity to prepare rebuttal to expert 

testimony. See In re D.W.G.K., 558 S.W.3d 671, 680 (Tex. App.—Texarkana 2018, 

pet. denied). Accordingly, in order to establish the absence of unfair surprise or 

prejudice, the party seeking to call an untimely disclosed witness or introduce 

untimely disclosed evidence must establish that the other party had enough evidence 

to assess settlement reasonably, to avoid trial by ambush, and to prepare rebuttal to 

expert testimony. Id.; see F 1 Constr., Inc. v. Banz, No. 05-19-00717-CV, 2021 WL 

194109, at *3 (Tex. App.—Dallas Jan. 20, 2021 no pet.) (mem. op.). 

Appellee’s counsel argued to the trial court about unfair prejudice or unfair 

surprise as follows: 

I don’t believe there’s any unfair surprise or prejudice to the Plaintiffs 

by this exhibit being admitted. They don’t have any problem with the 

document, Your Honor, except that they didn’t get it until today.” 

Appellee argues in this Court that appellants did not dispute her trial court argument. 

However, appellee fails to acknowledge that appellee—not appellants—had the 

burden to demonstrate absence of unfair surprise or unfair prejudice. See TEX. R.

CIV. P. 193.6(b). Moreover, the trial court could reasonably have concluded that 

appellee’s argument failed to demonstrate appellants had enough evidence to assess 

settlement reasonably, to avoid trial by ambush, and to prepare rebuttal to expert 
 –24– 

testimony—thereby failing to establish absence of unfair surprise or unfair 

prejudice. See In re D.W.G.K., 558 S.W.3d at 680; F 1 Constr., Inc., 2021 WL 

194109, at *3. 

Appellee argues appellants’ attorney’s fees expert testified “that while he had 

gotten the March and April billing statements ‘this morning,’ he had reviewed and 

was prepared to testify about them.” However, the expert testified, “I have looked at 

them and have talked to you since then and had familiarity with some of the conduct 

that occurred in March, April, from a legal standpoint.” The testimony concerning 

review of “some” of the excluded evidence does not support appellee’s assertion that 

appellants’ expert “was prepared to testify about them.” 

Appellee raises a new argument in her reply brief that appellants could not 

have been surprised by the excluded invoices because appellants were aware before 

trial of some legal services reflected in the excluded invoices and should have 

anticipated that appellee’s counsel would prepare for trial. But we do not consider 

arguments raised for the first time in a reply brief. See Monzingo, 2023 WL 6632799, 

at *5 n.3 (citing Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795, 803 n.5 (Tex. 

App.—Dallas 2011, no pet.).3 However, even if the argument that appellants were 

aware of the issue of attorney’s fees were not considered to be a new argument, we 

would reject it because “rule 193.6(a) relates to discovery of evidence; its principal 

3

 Consequently, we do not consider other assertions raised for the first time in appellee/cross-appellants’ 

reply brief. 
 –25– 

purpose—and most common application—is to protect a party from surprise 

concerning the existence of undisclosed evidence—not issues.” See Lopez, 200 

S.W.3d at 862 (emphasis in original). The rule applies when the existence of 

evidence was not disclosed in a timely manner, whether or not such evidence related 

to an issue both parties knew existed in the case. See id. 

The trial court did not abuse its discretion in concluding that appellee failed 

to carry her burden to demonstrate appellants had enough evidence to assess 

settlement reasonably, to avoid trial by ambush, or to prepare rebuttal to expert 

testimony. See In re D.W.G.K., 558 S.W.3d at 680; F 1 Constr., Inc., 2021 WL 

194109, at *3. Consequently, the trial court did not abuse its discretion in concluding 

appellee failed to demonstrate absence of unfair surprise or unfair prejudice. 

The trial court did not abuse its discretion by excluding the untimely disclosed 

evidence. See F 1 Constr., Inc, 2021 WL 194109, at *3. 

We overrule the sole issue in appellee’s cross-appeal. 

VI. CONCLUSION

 We overrule appellants’ appeal and appellee’s cross-appeal. We affirm the 

trial court’s judgment. 

220905F.P05 

 

/Bill Pedersen, III/

BILL PEDERSEN, III 

JUSTICE 
 –26– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

SJF FOREST LANE, LLC, A 

DELAWARE LIMITED LIABILITY 

COMPANY, AND HSB FOREST 

LANE, LLC, A DELAWARE 

LIMITED LIABILITY COMPANY, 

SUCCESSORS-IN-INTEREST TO 

FL ASSOCIATES, LLC, A 

DELAWARE LIMITED LIABILITY 

COMPANY, Appellants 

No. 05-22-00905-CV V. 

TRINA PHAN, Appellee 

 On Appeal from the 192nd Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-21-03613. 

Opinion delivered by Justice 

Pedersen, III. Justices Molberg and 

Nowell participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED. 

 It is ORDERED that each party bear its own costs of this appeal. 

Judgment entered May 31, 2024