Juan Carrasco v. Texas Transportation Institute, Texas A & M University Systems--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-95-018-CV

JUAN CARRASCO,

Appellant

v.

TEXAS TRANSPORTATION INSTITUTE,

TEXAS A & M UNIVERSITY SYSTEMS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 38,999-361

ON MOTION FOR REHEARING

Texas Transportation Institute (TTI) filed a motion for rehearing following our reversal and rendition of this Fair Labor Standards Act case. We deny the motion, but write briefly concerning TTI's second point (third point in its amended motion).

The court granted TTI's "directed verdict," (technically, a motion for judgment), at the close of Juan Carrasco's evidence and refused to award Carrasco his attorney's fees and costs as proven. However, we awarded him attorney's fees and costs consistent with the uncontroverted evidence. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990).

TTI argues that our award of attorney's fees was improper because it "was not afforded an opportunity to contradict [Carrasco's] testimony regarding attorney's fees and costs" since this was an appeal from a "directed verdict." Specifically, TTI argues that it was unable to "introduce witnesses to contradict [Carrasco's] testimony."

First, as noted in our opinion, TTI did not conduct any meaningful cross-examination of Carrasco's attorney who proved up the fees and costs. Second, TTI failed to identify any expert witnesses in response to an approrpriate interrogatory. TTI's response to the interrogatory, without objection or further supplementation, read: "At this time, Defendant has not determined whether or not it intends to call expert witnesses at trial."

Our disposal of this point did not prevent TTI from presenting any evidence it could have presented at trial. Not only did TTI forego its opportunity to cross-examine Carrasco's attorney during his case-in-chief, but it also forfeited its right to call any expert witnesses because it failed to comply with the discovery rules. Tex. R. Civ. P. 166b(6)(b), 215(5). Because TTI had not identified any experts, it could not have called an expert to testify and could not have rebutted Carrasco's evidence of attorney's fees and costs. Id.

TTI filed a motion for leave to amend its motion for rehearing alleging two additional points of error. We granted leave to file the amended motion, considered the additional points, and have found them to be of no merit. TTI's motion for rehearing is denied.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Motion denied

Opinion delivered and filed November 8, 1995

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