Rebecca Isaac v. Jon Wright d/b/a Jon Wright Industries, Roofing, Siding and Windows — Memorandum Opinion by Chief Justice Koch

Affirmed in part and Reversed and Rendered in part and Opinion Filed
October 20, 2026
SIn The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00340-CV
REBECCA ISAAC, Appellant
V.
JON WRIGHT D/B/A JON WRIGHT INDUSTRIES, ROOFING, SIDING,
AND WINDOWS, Appellee
On Appeal from the 471st Judicial District Court
Collin County, Texas
Trial Court Cause No. 471-03305-2019
MEMORANDUM OPINION
Before Chief Justice Koch, Justice Wright,1 and Justice Evans2
Opinion by Chief Justice Koch
Rebecca Isaac3 appeals the trial court’s amended final judgment in favor of
Jon Wright d/b/a Jon Wright Industries, Roofing, Siding, and Windows (JWI),4
awarding JWI $44,347.05 in damages and $108,020.00 in attorney’s fees, and
1 The Hon. Carolyn Wright, Justice, Assigned
2 The Hon. David Evans, Justice, Assigned
3 The amended final judgment lists appellant’s name as “Rebecca Isaac.” However, during the
trial, she testified that, although she goes by “Rebecca,” her name is “Maria Rebecca Isaac.”
4 Although JWI is not a separate legal business entity, for clarity we use “Wright” to refer to the person and
“JWI” to refer to the business as whole.

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against Isaac on her counterclaims. Isaac raises three issues on appeal arguing
(1) that the evidence is legally and factually insufficient to support the jury’s finding
in favor of JWI on its affirmative defense to her promissory-estoppel counterclaims
that Isaac waived her right to collect from JWI the attorney’s fees that she incurred
in her separate lawsuit against Ed Kelly d/b/a Kelly Plumbing & Leak Detection
(Kelly), (2) that the trial judge erred when she failed to rule on Isaac’s Texas Rule
of Civil Procedure 193.6 objection to JWI’s attorney’s-fees evidence as untimely
and considered that evidence on submission, and in the alternative (3) that the trial
judge’s award of attorney’s fees should be reversed because JWI’s attorney failed to
segregate the fees sought and awarded.
We conclude the evidence is legally and factually sufficient to support the
jury’s finding on waiver. We also conclude that the trial judge abused her discretion
when she impliedly overruled or failed to rule on Isaac’s Rule 193.6 objection to
JWI’s attorney’s-fees evidence as untimely and considered that evidence on
submission. The trial court’s final amended judgment is reversed in part and
affirmed in part, and judgment is rendered that JWI take nothing by way of its claim
for attorney’s fees.

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I. Factual and Procedural Background
According to Isaac, she and her husband, Sanjai Isaac, M.D., own a residential
house in Plano, Texas.5 JWI is a contractor whose primary business involves
roofing, siding, and windows. At the time of trial, Wright had been in that business
for 43 years, held several roofing certifications, and was a member of several
business-related associations. Wright conducted JWI’s training, approved the bills,
signed checks, handled complaints, assigned sales leads, and handled some sales.
A. Isaac Hired JWI
On August 5, 2016, Isaac hired JWI to replace her roof and upgrade the
existing roof material to slate for $83,600. Isaac paid half of the contract price in
two installments. The contract specified that JWI would have no responsibility for,
among other things, structural defects and pre-existing conditions. Although Isaac’s
sale representative signed the contract on behalf of JWI, Wright reviewed the project
estimate and the scope of work.
A few weeks after the work commenced, Isaac requested that Wright act as
the job supervisor rather than her sales representative, which Wright agreed to do.
5 The record is not clear as to the ownership of the house. Isaac testified at trial that she and
Dr. Isaac own the house. JWI sued Isaac in her individual capacity and Isaac counterclaimed in
her individual capacity. However, the Kelly invoices were sent to the “Meridian Revocable Trust”
care of Dr. Isaac and Isaac. Further, in a prior related appeal in this Court, the homeowners were
identified as Dr. Isaac, Isaac, and the Meridian Revocable Trust. See Kelly v. Isaac, No. 05-19-
00813-CV, 2020 WL 4746589, at *1 (Tex. App.—Dallas Aug. 17, 2020, pet. denied) (mem. op.).
In addition, the parties do not point us to, nor could we find anything in the record identifying, the
terms of the Meridian Revocable Trust or the identity of its trustee(s). Neither Dr. Isaac nor the
Meridian Revocable Trust are parties in this case.

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Wright did not have much interaction with Isaac or Dr. Isaac and instead worked
with their representative, Blake Myers, who was supervising and coordinating the
work performed by JWI on behalf of Isaac. During the roof installation, JWI
employees punctured a water line that had been installed too closely to the underside
of the roof deck. They immediately turned off the water to the house, and the interior
did not sustain any damage. Isaac hired additional workers to repair that damage.
Later, the roofing crew punctured a gas line that had also been installed too close to
the roof deck. JWI was asked to assist with finding someone to repair the damage
and it provided Myers with several names, including Kelly.
B. Kelly Was Hired to Fix the Gas Leak and Damages the House
Kelly was hired to fix the gas leak, but the parties disagree as to who was
responsible for hiring him. Kelly performed both the repair of the gas leak and
additional work on the house. However, Kelly damaged the house while doing so
and, at some point, Myers threatened to call the police.
On February 13 and 14, 2017, Kelly emailed JWI invoice #1881. That invoice
was dated February 10, 2017, and requested $989 for the repair of the attic gas line
that was damaged due to a nail strike. Also, on February 13, 2017, Kelly mailed the
Meridian Revocable Trust invoice #1893 requesting $2,262 for the installation of
gas valves on three furnaces, work on a tankless water heater, and work on a gas
grill. That invoice noted that Myers was rude, that the toilet supply line blew apart

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when the water was turned on, and that Myers refused to sign the invoice but had
agreed to the work.
C. The Kelly Invoices Were Not Paid
On February 16, 2017, Kelly sent the Meridian Revocable Trust a letter
stating that it had previously sent JWI invoice #1881 but had not received a response
and that the Trust was responsible for both invoices #1881 and #1893. On March 1,
2017, Kelly sent the Meridian Revocable Trust a letter labeled “third notice,” and on
March 14, 2017, it sent a final notice, both of which advised the Trust that it had the
ability to place a lien on the property for non-payment. The final notice further
advised that if Kelly was not contacted regarding the matter by March 23, 2017, it
would take legal action.
On March 24, 2017, there was a group text that included among others
Dr. Isaac, Wright, and Myers. In that text, Myers stated in part that he could not pay
JWI until he was assured the house was not in jeopardy of any liens and stated that
Kelly was sending certified letters demanding payment of $2,600 or it would put a
lien on the house. Wright responded that he thought the Kelly bill was $700 but he
would compose a letter stating that “we do not pay people for destroying property.”
Myers responded that the amount was $2,600. At that point, Dr. Isaac requested that
Wright “[t]ake care of this bill.” These texts also included complaints about JWI’s
workmanship. On March 27, 2017, Myers texted Wright that Dr. Isaac had received
a letter from Kelly at his office and “hit the roof,” that Myers has “shielded [JWI]

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from [] Dr. Isaac and his attorney being involved,” and that Dr. Isaac was giving JWI
only twenty-four hours to rectify the situation before filing suit. Throughout, Wright
requested copies of the Kelly bills.
There were also a series of emails that included among others Isaac, Myers,
and Wright. On March 24, 2017, Isaac emailed Myers requesting that he forward
the Kelly demand letters to JWI, which he did on the same day. Wright responded
that he would send Kelly a letter upon receipt of additional information relating to
the hours that Kelly had worked. Myers complied. On March 27, 2017, Wright
responded that he would forward the information to his attorney so he could sue
Kelly for the damage done to the Isaac house. Isaac did not respond to the demand
letters or pay Kelly. As a result, Kelly filed a lien on the house.
Although Wright had represented to the Isaacs that he would sue Kelly, he did
not do so. Nor did he do anything to have the lien on the house removed. According
to Wright, he could not do so because the Isaacs did not provide him with copies of
the Kelly bills.
D. Isaac Obtained a Restraining Order Against Kelly and Sued to Have the
Lien Removed
Kelly posted negative statements about the Isaacs on social media. He also
threatened Isaac, her family, her neighbors, and her attorney. As a result, Isaac
obtained a restraining order against Kelly. Isaac was represented by Friedman and
Feiger in that matter and incurred $46,848.82 in attorney’s fees.

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Isaac also filed a declaratory judgment action against Kelly seeking to have
the lien declared invalid. In that lawsuit, she was represented by Scheef & Stone.
Isaac prevailed in her suit and on appeal. See Kelly v. Isaac, No. 05-19-00813-CV,
2020 WL 4746589 (Tex. App.—Dallas Aug. 17, 2020, pet. denied) (mem. op.).
Testimony in the trial of this case revealed that Isaac was awarded her attorney’s
fees in the Kelly judgment.
E. Wright Sued Isaac and Isaac Counterclaimed
Meanwhile, Isaac did not pay JWI the outstanding balance on their contract.
As a result, JWI filed its original petition against Isaac on June 19, 2019. In JWI’s
second amended petition, it alleged claims against Isaac for breach of contract,
promissory estoppel, unjust enrichment, and in the alternative, detrimental reliance
and money had and received. On August 18, 2019, Isaac filed her answer generally
denying the claims, asserting various affirmative defenses, and incorporating her
disclosure requests for the information or material described in Texas Rule of Civil
Procedure 194.2(a)–(i), (l).
In her second amended counterclaims, Isaac alleged counterclaims against
Wright for breach of contract, negligent hiring of Kelly, breach of express warranty,
breach of implied warranty, and promissory estoppel. With respect to her
promissory-estoppel counterclaim, Isaac asserted that Wright had promised to use
JWI’s attorney to handle all legal matters concerning Kelly, Isaac had relied on that
promise to her detriment, and Isaac incurred substantial attorney’s fees and litigation

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costs in her litigation with Kelly. In its second amended answer to Isaac’s
counterclaims, JWI asserted among others the affirmative defense of waiver.
On February 3, 2023, the parties signed an agreement pursuant to Rule 11 of
the Texas Civil Rules of Procedure. That agreement stated (1) that the parties
intended to request the trial court to bifurcate the issue of attorney’s fees and hear
that issue after the jury returned its verdict, and (2) that the parties intended to
request the trial court to establish an acceptable briefing schedule for the issue of
attorney’s fees. Immediately before the trial was scheduled to begin, the parties
informed the trial judge of their Rule 11 agreement.6 As a result, the trial was
bifurcated as follows: (1) on February 6–9, 2023, the liability phase was tried to the
6 The following occurred:
Counsel for Isaac: I just needed to state on the record: The parties have filed a
Rule 11 agreement related to the issue of attorney’s fees that
were incurred in this case via submission post-trial. So
we’re not going to be putting on evidence of attorney’s fees
by the parties to the jury.
Counsel for Wright: Plaintiff agrees.
(Pause in proceedings.)
(Jury panel seated.)
Trial judge: Please be seated.

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jury7; and (2) on August 23, 2024, the attorney’s-fees phase was tried by submission
to the trial judge.8
At the conclusion of the liability phase, the jury found (1) in favor of JWI on
its breach-of-contract claim, awarding JWI $44,787.05 in damages offset by
$440.34, and (2) in favor of Isaac on her promissory-estoppel counterclaim,
awarding her $5,451.00 in reliance damages, but also in favor of JWI on its
affirmative defense that Isaac waived her right to her reliance damages, resulting in
a take-nothing judgment on Isaac’s counterclaims.
On March 20, 2023, the parties filed an agreed motion to enter a briefing
schedule for post-judgment submission of the attorney’s-fees issue. On March 21,
2023, the trial judge granted the motion and ordered that the parties (1) file and serve
the documents in support of their respective claims for attorney’s fees 30 days after
the date of the order, and (2) file any responsive documents 30 days after that. The
trial judge also ordered that there would be no reply briefing absent further order
from the trial court.
On April 20, 2023, JWI filed its application for attorney’s fees pursuant to
Texas Civil Practice and Remedies Code § 38.001 seeking $180,736.50 in attorney’s
7 The liability phase of the trial was heard by a jury and presided over by the Hon. Rayburn M.
Nall, but the final judgment was signed by the Hon. Andrea K. Bouressa, and the amended final
judgment was signed by the Hon. Ray Wheless.
8 The attorney’s-fees phase of the trial was submitted to the Hon. Andrea K. Bouressa, who signed
the order granting JWI’s application for attorney’s fees.

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fees along with the affidavit of JWI’s counsel, which attached his resume and
invoices showing the date, time, and rate for his firm’s legal services. On May 24,
2023, Isaac filed her response to JWI’s application for attorney’s fees, which
included (1) her Rule 193.6 objection to JWI’s evidence because it failed to disclose
its attorney’s fee bills, the amount of attorney’s fees sought, and the information
generally sought by expert disclosures as they relate to attorney’s fees under
Rule 194.2, and (2) her motion to strike that evidence under Rules 193.6 and 194.2.
On August 23, 2023, JWI’s application for attorney’s fees was submitted to the trial
judge, who signed an order awarding JWI its attorney’s fees in the amount of
$108,020.00.
F. Trial Court Judgment and Amended Judgment
On September 15, 2023, the trial judge signed the final judgment. Isaac filed
a motion to modify the judgment and for new trial and JWI filed a motion to modify
the final judgment. After a hearing, the trial judge signed an amended final judgment
on December 22, 2023.
On January 22, 2024, Isaac filed a motion to modify the amended final
judgment and motion for new trial. The parties filed a series of responses, replies,
and sur-replies. After a hearing, on March 25, 2024, the trial judge denied Isaac’s
motion to modify the final judgment, motion to modify the amended judgment, and
application for attorney’s fees.

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II. Legal and Factual Sufficiency of the Evidence to Support Waiver
In issue one, Isaac argues the evidence is legally and factually insufficient to
support the jury’s finding in favor of JWI on its affirmative defense that Isaac waived
her right to collect from JWI the attorney’s fees that she incurred in her lawsuit
against Kelly. Isaac contends there is no evidence that she hinted–orally or in
writing–that she did not intend to rely on Wright’s promises. She maintains that the
only evidence JWI offered to support its affirmative defense—her offer to settle her
dispute with JWI relating to the amount owed for the roof, which did not include the
attorney’s fees she incurred litigating against Kelly, and which JWI rejected—is
evidence of an unsuccessful negotiation, not relinquishment of a right. Further, at
the time of Isaac’s offer to settle her dispute with JWI, the litigation with Kelly was
in its infancy.
JWI does not challenge the jury’s findings in favor of Isaac on her promissory-
estoppel counterclaim. However, it responds that Isaac waived her right to rely on
Wright’s promise to handle her issues with Kelly because the evidence shows
(1) that Isaac’s demands exceeded the amounts for the Kelly repairs related to the
punctured gas line and included additional items that Isaac and Myers requested
Kelly perform, (2) that it did not credit Isaac’s account because she did not provide
JWI itemized invoices, photographs, or other proof to substantiate the credits sought
by Isaac, and (3) that Isaac’s testimony was conflicting—Kelly breached promises
made directly to Isaac, her lawsuit against Kelly was due to Dr. Isaac’s desire to save

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face after being teased about the matter by a co-worker, and Kelly was JWI’s
subcontractor.
A. Standard of Review
Evidence is legally insufficient to support a jury finding when (1) the record
discloses a complete absence of evidence of a vital fact, (2) the court is barred by
rules of law or evidence from giving weight to the only evidence offered to prove a
vital fact, (3) the evidence offered to prove a vital fact is no more than a mere
scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact.
Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 736 (Tex. 2018). When a party
attacks the legal sufficiency of the evidence to support an adverse jury finding on
which she did not have the burden of proof at trial, she must demonstrate there is no
evidence to support the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co.,
L.C., 348 S.W.3d 194, 215 (Tex. 2011). All the record evidence must be considered
in the light most favorable to the party in whose favor the verdict was rendered. Hill,
544 S.W.3d at 736. An appellate court must credit favorable evidence if a
reasonable jury could and disregard contrary evidence unless a reasonable jury could
not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Anything more
than a scintilla of evidence is legally sufficient to support the finding. Formosa
Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48
(Tex. 1998). More than a scintilla exists when the evidence rises to the level that
enables reasonable and fair-minded people to have different conclusions. See Waste

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Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156 (Tex.
2014). However, if the evidence is so weak that it creates only a mere surmise or
suspicion of a fact’s existence, it is regarded as no evidence. Id.
A party attacking the factual sufficiency of the evidence to support an adverse
finding on which the party did not have the burden of proof must demonstrate on
appeal that there is insufficient evidence to support the adverse finding. Hoss v.
Alardin, 338 S.W.3d 635, 651 (Tex. App.—Dallas 2011, no pet.). In a factual-
sufficiency review, an appellate court will set aside a jury’s finding only if, after
considering and weighing all the pertinent record evidence, it determines that the
credible evidence supporting the finding is so weak, or so contrary to the
overwhelming weight of all the evidence, that the finding should be set aside and a
new trial ordered. Amazon.com Servs. LLC v. Grant, No. 05-23-01306-CV,
2024 WL 5053063, at *2 (Tex. App.—Dallas Dec. 10, 2024, no pet.) (mem. op.).
When conducting a factual-sufficiency review, an appellate court must not merely
substitute its judgment for that of the jury. Golden Eagle Archery, Inc. v. Jackson,
116 S.W.3d 757, 761 (Tex. 2003). The jury is the sole judge of the witnesses’
credibility and the weight to be given to their testimony. Id.
An appellate court’s review is restricted to the jury charge when no objection
was lodged, and it measures the legal and factual sufficiency of the evidence against
the charge as actually submitted. See Seger v. Yorkshire Ins. Co., Ltd., 503 S.W.3d
388, 407 (Tex. 2016) (legal sufficiency); Amazon.com Servs., 2024 WL 5053063, at

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*3 (legal and factual sufficiency). Even where another legal theory was argued to
the jury and explained by the lawyers in argument, an appellate court is bound by
the instructions given to the jury and presumes that the jury followed those
instructions. Seger, 503 S.W.3d at 407.
B. Applicable Law
Generally, waiver is an intentional relinquishment of a known right or
intentional conduct inconsistent with claiming that right. Chalker Partners III, LLC
v. Le Norman Operating LLC, 595 S.W.3d 668, 676 (Tex. 2020). The elements of
waiver include: (1) an existing right, benefit, or advantage held by a party; (2) the
party’s actual or constructive knowledge of its existence; and (3) the party’s actual
intent to relinquish the right or the party’s intentional conduct inconsistent with the
right. Perry Homes v. Cull, 258 S.W.3d 580, 602–03 (Tex. 2008). It is an
affirmative defense. TEX. R. CIV. P. 94; Teal Trading & Dev., L.P. v. Champee
Springs Ranches Prop. Owners Ass’n, 593 S.W.3d 324, 335 (Tex. 2020). Waiver is
ordinarily a fact question. See Chalker, 595 S.W.3d at 676.
A waivable right may spring from law or from a contract. Tenneco Inc. v.
Enter. Prods. Co., 925 S.W.3d 640, 643 (Tex. 1996). Evidence of intent for the
purposes of waiver generally takes three forms: (1) a party’s express relinquishment
of a known right; (2) a party’s silence or inaction for so long a period as to show an
intention to yield the known right; or (3) a party’s other conduct that is of such a
nature as to mislead the opposite party into an honest belief that the waiver was

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intended or assented to. See US MCT, Inc. v. Brodsky, No. 05-98-00204-CV,
2001 WL 1360301, at *4 (Tex. App—Dallas Nov. 7, 2001, no pet.) (op. on reh’g)
(mem. op., not designated for publication) (citing Alford, Meroney & Co. v. Rowe,
619 S.W.2d 210, 213 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.)); see also
Tenneco, 925 S.W.3d at 643. A party’s intent is determined by examining whether
the party’s conduct, considering the surrounding facts and circumstances, is
unequivocally inconsistent with claiming that right. Teal Trading, 593 S.W.3d at
335–36. To establish waiver by conduct, the conduct must be unequivocally
inconsistent with claiming a known right. Chalker Partners, 595 S.W.3d at 677.
There can be no waiver of a right if the person asserting that right said or did nothing
inconsistent with an intent to rely upon such right. Id.
C. The Evidence Is Legally and Factually Sufficient to Support the Jury’s
Waiver Finding
The jury found in favor of Isaac on her promissory-estoppel counterclaim—
finding that JWI promised to sue Kelly and take legal action to remove the lien from
Isaac’s house, that Isaac substantially relied on this promise and her reliance was
foreseeable, and that Isaac’s reliance damages were $5,451. Then, the jury found in
favor of JWI on its affirmative defense of waiver.
On appeal, Isaac challenges the legal and factual sufficiency of the evidence
to support the jury’s affirmative answer to question No. 15, which addressed waiver
as follows:

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QUESTION 15
Did [Isaac] waive her right to collect from [Wright] the attorneys’
fees incurred by [Isaac] in [Isaac’s] lawsuit against [] Kelly
[Plumbing]?
Waiver is an intentional surrender of a known right or intentional
conduct inconsistent with claiming the right.
Answer “Yes” or “No.”
ANSWER: YES
Under the jury charge as written it is not clear whether the jury found she
intentionally surrendered her right, engaged in intentional conduct inconsistent with
claiming that right, or both. Accordingly, Isaac’s burden on appeal was to show
there was no evidence for either potential finding. See Malooly Bros., Inc. v. Napier,
461 S.W.2d 119, 121 (Tex. 1970). Isaac’s brief is not clear that she is challenging
the sufficiency of the evidence on the intentional surrender prong of the charge.
However, we need not decide whether she adequately briefed the first kind of waiver
because the evidence is sufficient to support the second.
At the outset, we note that Wright testified that he agreed to forward the Kelly
lien issue to his attorney and, although Wright did not believe that he was responsible
for the Kelly lien issue, he offered to pay Kelly because he thought it would be
cheaper than litigation but this did not happen.
The record supports a finding that Isaac’s conduct was inconsistent with
claiming her right to rely on JWI’s promise to assist with the Kelly issue because,
although Wright agreed to send the information to his attorney, Isaac did not send

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him the bills. For example, in an email dated March 27, 2017, from Wright to Myers,
Wright expressly stated that he needed the actual bill to send to his attorney. Instead,
Isaac sued Kelly. Isaac’s inaction and actions were inconsistent with her claiming
her right to rely on JWI for legal assistance. In addition, evidence was introduced
that on December 11, 2017, Isaac’s counsel sent Wright an email stating that Isaac
agreed to pay JWI the remaining $44,787.05 balance for the roof. That email does
not request that JWI offset the balance Isaac owed for the roof by the amounts Isaac
owed Kelly or the legal fees she had incurred thus far in her suit against Kelly.
Further, Isaac sought the attorney’s fees she incurred in her suit against Kelly
as reliance damages. During the trial in this case, Isaac testified that she incurred
$137,592.48 in attorney’s fees and costs in the Kelly litigation. Also, Isaac’s counsel
testified that the Kelly judgment awarded Isaac attorney’s fees in the amount of
(1) $40,000 for trial, (2) $25,000 in appellate attorney’s fees in the event of an
unsuccessful appeal by Kelly, and (3) $15,000 in attorney’s fees in the event of an
unsuccessful petition for review to Texas Supreme Court by Kelly. Further, with
respect to Kelly’s claims under the Texas Theft Liability Act in that case, Isaac was
awarded attorney’s fees in the amount of (1) $12,000 for trial, (2) $25,000 in the
event of an unsuccessful appeal by Kelly, and (3) $15,000 in attorney’s fees in the
event of an unsuccessful petition for review to Texas Supreme Court by Kelly.
Although the judgment in the Kelly suit was not admitted into evidence, the record
makes clear that these are the same attorney’s fees that Isaac sought as reliance

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damages on her promissory-estoppel counterclaim against JWI. However, Isaac
does not point us to, nor could we find any evidence showing that she tried to collect
those attorney’s fees from Kelly and was unable to do so. Accordingly, the record
also shows that, after JWI agreed to forward the Kelly issue to his attorney, Isaac
successfully sued Kelly and was awarded her attorney’s fees, demonstrating that
Isaac engaged in conduct that was of such a nature as to mislead JWI into an honest
belief that Isaac intended or assented to the waiver. See generally US MCT, Inc.,
2001 WL 1360301, at *4 (citing Alford, Meroney & Co., 619 S.W.2d at 213) (noting
that waiver can be shown when party’s other conduct is of such nature as to mislead
opposite party into honest belief that waiver was intended or assented to).
Isaac argues that Wright’s agreement to provide legal assistance to Isaac with
respect to her dispute with Kelly constituted settlement negotiations, which are not
evidence of waiver under Walton Pond Joint Venture v. Hiawatha Savings & Loan
Association, No. 01-88-00719-CV, 1990 WL 19083, at *5 (Tex. App.—Houston
[1st Dist.] Mar. 1, 1990, writ denied) (not designated for publication), Beal Bank,
S.S.B. v. Schleider, 124 S.W.3d 640, 654 (Tex. App.—Houston [14th Dist.] 2003,
pet. denied), Lockard v. Deitch, 855 S.W.2d 104, 106 (Tex. App.—Corpus Christi–
Edinburg 1993, no writ), and Southwest Industries Import & Export, Inc. v. Wilmod
Co., Inc., 524 F.2d 468, 470 (5th Cir. 1975). However, these cases are
distinguishable because they do not address whether a party’s intentional conduct
was inconsistent with her right to rely on the other party’s promise.

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First, Walton Pond, Beal Bank, and Southwest Industrial address the waiver
of rights contained in written contracts. In Walton Pond and Beal Bank, the First
and Fourteenth Courts of Appeals reviewed waivable rights springing from
promissory notes and concluded that negotiations to extend the maturity dates of
those notes on terms other than those specified in the notes were not evidence of a
waiver of the right to rely on the terms of the notes. Walton Pond, 1990 WL 19083,
at *5 (concluding evidence of renewal negotiations did not raise fact issue on
whether Hiawatha Savings intended to waive right to demand strict compliance with
original conditions for automatic extension of note’s maturity date for purposes of
defeating summary judgment); Beal Bank, 124 S.W.3d at 654 (concluding that
evidence of oral representations that extension would not be problem and bank
would get back to Schleider were no evidence of waiver of right to enforce original
terms of note because they did not constitute binding agreement to extend maturity
date and were not inconsistent with note’s requirement that all modifications be in
writing). In Southwest Industries, the Fifth Circuit addressed whether a party’s
willingness to participate in settlement negotiations waived the seller’s contractual
right to arbitration and concluded that it did not. Southwest Industries, 524 F.2d at
470. Second, in Lockard the Thirteenth District Court of Appeals reviewed a
summary judgment and concluded that absent fraud or bad faith, settlement
negotiations between a plaintiff and a defendant do not constitute a waiver of a

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defendant’s right to assert the statute of limitations as an affirmative defense.
Lockard, 855 S.W.2d at 106.
Viewing the evidence is the light most favorable to JWI, we conclude that
there was more than a scintilla of evidence to support the jury’s finding in favor of
JWI on its affirmative defense of waiver. Also, after considering and weighing all
the pertinent record evidence, we conclude that the jury’s finding is not supported
by such weak evidence or so contrary to the overwhelming weight and
preponderance of the evidence as to be clearly wrong and manifestly unjust.
Issue one is decided against Isaac.
III. Attorney’s Fees Evidence
In issue two, Isaac argues the trial judge erred when she failed to rule on
Isaac’s objection to JWI’s attorney’s-fees evidence as untimely under Texas Rule of
Civil Procedure 193.6 and considered that evidence on submission. Isaac contends
that the record shows (1) JWI was required to provide all documents, tangible things,
reports, models, or data compilations that were provided to, reviewed by, or prepared
by or for the expert in anticipation of the expert’s testimony under Rule 194.2,
(2) despite supplementing its response to disclosure several times, JWI did not
produce its attorney’s-fees evidence until after the discovery period had closed and
after the jury had returned its verdict in the liability phase of the trial, and (3) JWI
did not argue or otherwise establish that it had good cause for its failure to timely

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make the discovery response or that its failure to timely make the discovery response
would not unfairly surprise or unfairly prejudice Isaac.
JWI responds that the parties agreed to extend the discovery period through
their Rule 11 agreement. It also argues that Isaac waived her right to object under
Rule 193.6 because her trial-court objection was untimely. Further, JWI contends
that it met its burden to establish the exception of no unfair surprise or unfair
prejudice.
A. Standard of Review
A trial judge’s decision to admit or exclude evidence under Texas Rule of
Civil Procedure 193.6 is reviewed for an abuse of discretion. See Fort Brown Villas
III Condo. Ass’n, Inc. v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009). A trial
judge abuses her discretion when she acts arbitrarily or unreasonably, without
reference to guiding rules or principles. See Iliff v. Iliff, 339 S.W.3d 74, 78
(Tex. 2011).
B. Applicable Law
Under the applicable version of Rule 194, parties could request disclosures
from other parties regarding testifying expert witnesses. TEX. R. CIV. P. 194.2(f)(4).9
The request could include a request for “all documents, tangible things, reports,
9 The lawsuit in this case was filed in 2019. We note that Rule 194.2 was amended in 2020 and
2023. All references to the initial-disclosures rule in this opinion are to the rule as it appeared
before those amendments took effect. See TEX. R. CIV P. 194.2, available on Westlaw (Aug. 5,
1998, Nov. 9, 1998, and Dec. 31, 1998, eff. Jan. 1, 1999. Amended Dec. 31, 2020).

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models, or data compilations that have been provided to, reviewed by, or prepared
by or for the expert in anticipation of the expert’s testimony.” Id. 194.2(f)(4)(A).
An amended or supplemental response must be made reasonably promptly after the
party discovers the necessity for such a response. Id. 193.5(b). An amended or
supplemental disclosure is presumed to be untimely if it was made less than 30 days
before trial. Id.
Rule 193.6 governs untimely discovery responses. This rule prescribes the
automatic exclusion of evidence and witnesses that are not timely disclosed in
response to discovery requests. Edukid, LP v. City of Plano, No. 05-23-00269-CV,
2024 WL 5244613, at *7 (Tex. App.—Dallas Dec. 30, 2024, pet. denied) (mem.
op.).
When a party has not timely made, amended, or supplemented a discovery
response, it may not introduce into evidence the information that was not timely
disclosed unless the trial court finds (1) that there was good cause for the failure to
timely make the discovery response, or (2) that the failure to timely make the
discovery response will not unfairly surprise or unfairly prejudice the other parties.
TEX. R. CIV. P. 193.6(a). The party seeking to introduce the evidence has the burden
of establishing good cause or the lack of unfair surprise or unfair prejudice. TEX. R.
CIV. P. 193.6(b). A trial judge’s finding that one of the Rule 193.6 exceptions
applies must be supported by the record. See TEX. R. CIV. P. 193.6(b).

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The good-cause exception allows a trial judge to excuse a party’s failure to
comply with discovery obligations in difficult or impossible circumstances. SJF
Forest Lane, LLC v. Phan, No. 05-22-00905, 2024 WL 2796279, at *9 (Tex. App.—
Dallas May 31, 2024, no pet.) (mem. op.). However, inadvertence, lack of surprise,
or the uniqueness of the offered evidence do not, standing alone, constitute good
cause. Id. A party who relies on the good-cause exception must make a strict
showing. Id.
An appellate court’s analysis of unfair surprise or unfair prejudice is guided
by the purposes of Rule 193.6. See id. at *10. Those purposes are: (1) to promote
responsible assessment of settlement; (2) to prevent trial by ambush; and (3) to give
the other party the opportunity to prepare rebuttal to expert testimony. Id.
Accordingly, to establish unfair surprise or unfair 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. Further,
this inquiry focuses on whether the evidence will cause unfair surprise or unfair
prejudice and not on whether the issue to which the evidence is directed will unfairly
surprise or unfairly prejudice the other parties. PopCap Games, Inc. v.
MumboJumbo, LLC, 350 S.W.3d 699, 718 (Tex. App.—Dallas 2011, pet. denied).
In other words, Rule 196.3 relates to the discovery of evidence and applies when the
existence of evidence was not disclosed in a timely matter, regardless of whether

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such evidence relates to an issue that both parties knew existed in the case. See SJF
Forest Lane, at *10.
C. JWI’s Attorney’s-Fees Evidence Should Have Been Excluded
1. Relevant Facts
The record shows the following timeline relating to the parties’ discovery
request and production:
• August 12, 2019, Isaac filed her answer incorporating her
disclosure requests for the information or material described in
Texas Rule of Civil Procedure 194.2(a)–(i), (l);
• September 12, 2019, JWI sent its responses to Isaac’s requests
for disclosures, identifying three attorney’s-fees experts and
asserting that the reasonable and necessary fees and expenses
through trial are unknown at this time;
• January 30, 2020, JWI sent its first supplemental response to
Isaac’s request for disclosure, identifying two attorney’s-fees
experts and asserting that the reasonable and necessary fees and
expenses through trial are unknown at this time;
• August 4, 2022, JWI sent its second supplemental disclosures,
identifying two attorney’s-fees experts and continuing to assert
that the reasonable and necessary fees and expenses through trial
are unknown at this time;
• September 21, 2022, JWI sent its third supplemental disclosures,
identifying two attorney’s-fees experts and continuing to assert
that the reasonable and necessary fees and expenses through trial
are unknown at this time;
• February 3, 2023, the parties signed their Rule 11 agreement
(1) that the parties intended to request the trial court to bifurcate
the issues of attorney’s fees and hear that issue after the jury
returned its verdict, and (2) the parties intended to request the
trial court to establish an acceptable briefing schedule for the
issue of attorney’s fees;

–25–
• February 6, 2023, (1) the parties informed the trial judge of their
Rule 11 agreement to bifurcate the trial and have the issue of
attorney’s fees tried by submission after the jury returned its
verdict, and (2) the bifurcated trial began;
• February 6–9, 2023, liability was tried before the jury;
• March 19, 2023, counsel for JWI sent counsel for Isaac an email
purporting to attach a spreadsheet and invoices related to their
legal fees in this case;
• March 20, 2023, the parties filed an agreed motion requesting a
briefing schedule for post-judgment submission of the
attorney’s-fees issue;
• March 21, 2023, the trial judge granted the agreed motion and
ordered (1) that the parties file and serve the documents in
support of their respective claims for attorney’s fees thirty days
after the date of the order, (2) that the parties file any responsive
documents thirty days after that, (3) that the parties are permitted
to alter any deadline in “this scheduling order” by mutual written
agreement, and (4) that there will be no reply briefing absent
express order of the trial court;
• April 20, 2023, JWI filed its application for attorney’s fees with
the affidavit of JWI’s counsel, which attached his resume and
invoices showing the date, time, and rate for his firm’s legal
services;
• May 24, 2023, Isaac filed her response to JWI’s application for
attorney’s fees, which included (1) her Rule 193.6 objection to
JWI’s evidence of attorney’s fees because it failed to timely
disclose its attorney’s fee bills, the amount of attorney’s fees
sought, and the information generally sought by expert
disclosures as they relate to attorney’s fees under Rule 194.2, and
(2) her motion to strike that evidence from the trial court’s record
under Rules 193.6 and 194.2;
• August 23, 2023, the trial judge heard the issue of attorney’s fees
by submission and signed an order awarding JWI its attorney’s
fees in the amount of $108,020.00 without expressly ruling on
Isaac’s Rule 193.6 objection to JWI’s evidence of attorney’s fees
or her motion to strike that evidence;

–26–
• September 15, 2023, the trial judge signed the final judgment,
which awarded JWI attorney’s fees of $108,020.00;
• October 16, 2023, Isaac filed her motion to modify the final
judgment and motion for new trial, objecting to the trial judge’s
refusal to rule on her Rule 193.6 objection to JWI’s evidence of
attorney’s fees and arguing that the first time JWI provided
documentary support of its attorney’s fees was on April 20,
2023;
• November 9, 2023, JWI filed its response to Isaac’s motion to
modify the final judgment and motion for new trial arguing (a) it
timely designated its attorney’s-fees experts, (b) Texas law does
not require it to produce its billing records, and (c) Isaac waived
her objection when she signed the Rule 11 agreement without
objecting to the timeliness of JWI’s production of attorney’s-fees
records; JWI did not assert that there was good cause for its
failure to timely make the discovery response or that its failure
to timely make the discovery response would not unfairly
surprise or unfairly prejudice Isaac;
• December 22, 2023, the trial judge signed an amended final
judgment that awarded JWI attorney’s fees of $108,020.00 and
that did not expressly rule on Isaac’s Rule 193.6 objection or
motion to strike JWI’s evidence of attorney’s fees;
• January 22, 2024, Isaac filed a motion to modify the amended
final judgment and motion for new trial reasserting her objection
to the trial judge’s refusal to rule on her Rule 193.6 objection to
JWI’s evidence of attorney’s fees;
• February 28, 2024, JWI filed its first response to Isaac’s motion
to modify the amended final judgment and motion for new trial
arguing in part (1) that the trial judge impliedly overruled Isaac’s
Rule 193.6 objection, (2) that JWI timely designated its
attorney’s-fees expert, (3) that Texas law does not require it to
produce its billing records, (4) that Isaac waived her objection
when she signed the Rule 11 agreement without objecting to the
timeliness of JWI’s production of attorney’s fees records, (5) that
the Rule 11 agreement deferred the attorney’s-fees issue until
after the liability phase of the trial, providing both parties the
benefit of time for trial preparation, and (6) that the final

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attorney’s fees amount was unknown until after the liability
phase of the trial;
• March 1, 2024, Isaac filed a reply in support of her motion,
responding (1) that it is undisputed that Isaac requested
disclosures including the documents relied on by testifying
experts, (2) that it is undisputed that JWI did not produce
documents supporting the opinions of its attorney’s-fees expert
as required by Rule 194 and at the start of the trial had not
disclosed any numerical amount including rates, estimates for
appeal, or hours, (3) that it is undisputed that JWI identified its
attorney’s-fees experts but that was insufficient to satisfy
Rule 194, (4) that the Rule 11 agreement did not waive her
evidentiary objections, (5) that JWI’s argument that its
production was timely because attorney’s fees cannot be known
until after trial lacks merit because, if accepted, it would vitiate
the disclosure rules, (6) that the attorney’s-fees documents relied
on by JWI date as far back as June 2019 so they were not only
untimely but JWI failed to timely supplement as required by
Rule 193.5, (7) that Isaac timely objected to JWI’s attorney’s-
fees evidence under Rule 193.6, and (8) that JWI did not respond
to Isaac’s objection by addressing the exceptions of good cause
or no unfair surprise or unfair prejudice as required by
Rule 193.6;
• March 4, 2024, JWI filed its first amended response, arguing
(1) that it turned over its attorney’s-fees records on March 19,
2023, (2) that Texas law does not require it to produce its billing
records, (3) that it produced its attorney’s fees records in
compliance with the parties’ February 2, 2023 Rule 11
agreement; (4) that it produced its attorney’s-fees records 107
days before Isaac filed her response to JWI’s application for
attorney’s fees, (5) Isaac did not timely object that JWI failed to
produce its attorney’s-fees records, (6) that any failure to timely
produce its attorney’s-fees record was harmless because Isaac
was not prejudiced, (7) that Isaac has “failed to carry her burden
to show good cause” for the trial judge to grant her motion,
(8) that Isaac waived her objection when she signed the Rule 11
agreement without objecting to the timeliness of JWI’s
production of attorney’s-fees records, and (9) that JWI timely
disclosed its attorney’s-fees expert;

–28–
• March 4, 2024, JWI filed its sur-reply to Isaac’s motion, arguing
(1) that Rule 193.6 does not apply because the parties signed a
Rule 11 agreement to bifurcate the trial, and (2) that JWI had
good cause for the failure to timely make the discovery response
because the trial judge granted the parties’ motion for a briefing
schedule and it produced its attorney’s-fees records 60 days
before its brief was due10;
• March 25, 2024, the trial judge signed an order expressly
denying Isaac’s motion to modify the final judgment, motion to
modify the amended judgment, and application for attorney’s
fees.
2. Isaac’s Rule 193.6 Objection Was Preserved for Appellate Review
First, we must determine whether Isaac’s Rule 193.6 objection was preserved
for appellate review. JWI argues that Isaac waived her right to object to the
timeliness of its attorney’s-fees evidence because her trial-court objection was
untimely. Generally, to preserve a complaint for appellate review, the record must
show (1) that the party made the complaint to the trial court by timely objection that
stated the grounds for the ruling sought with sufficient specificity to make the trial
court aware of the complaint, and (2) the trial court ruled on the objection either
expressly or implicitly, or refused to rule on the objection and the complaining party
objected to the refusal. See TEX. R. APP. P. 33.1(a).
Isaac’s response to JWI’s fee application included her Rule 193.6 objection to
JWI’s evidence of attorney’s fees because it had failed to timely disclose its
10 We note that JWI’s sur-reply included the following heading: “Good Cause exists to admit
[JWI’s] attorney’s fee evidence and there is no unfair prejudice or unfair surprise.” However, the
substance of the section argues only that there was good cause for JWI’s failure to timely make
the discovery response.

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attorney’s-fees bills, the amount of attorney’s fees sought, and the information
generally sought by expert disclosures as they related to attorney’s fees under
Rule 194.2. A party objecting to documents under Rule 193.6 must bring this
complaint to the trial judge’s attention by the time the opposing party offers the
allegedly untimely disclosed documents into evidence. See McKeehan v.
Wilmington Sav. Fund Soc’y, FSB, 554 S.W.3d 692, 696–97 (Tex. App.—Houston
[1st Dist.] 2018, no pet.); Sohani v. Sunesara, 546 S.W.3d 393, 410 (Tex. App.—
Houston [1st Dist.] 2018, no pet.); Kheir v. Progressive Mut. Ins. Co., No. 14-04-
00694-CV, 2006 WL 1594031, at *7–8 (Tex. App.—Houston [14th Dist.] June 13,
2006, pet. denied) (mem. op.). Here, Isaac timely objected under Rule 193.6 when
JWI offered the evidence for consideration on submission at the attorney’s-fees
phase of the trial. See TEX. R. APP. P. 33.1(a)(1)(A).
The trial judge signed an order awarding JWI its attorney’s fees without
expressly ruling on Isaac’s Rule 193.6 objection. In both her motion to modify the
final judgment and motion for new trial and her motion to modify the amended final
judgment and motion for new trial, Isaac objected to the trial judge’s refusal to rule
on her Rule 193.6 objection to JWI’s evidence of attorney’s fees. We conclude that
Isaac preserved her complaint because either the trial judge impliedly overruled
Isaac’s Rule 193.6 objection or Isaac objected to the trial judge’s refusal to rule.
Either is sufficient for error preservation. See TEX. R. APP. P. 33.1(a)(2).

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3. Isaac’s Rule 193.6 Objection Was Meritorious
Second, we review whether Isaac’s Rule 193.6 objection was meritorious.
Isaac objected to JWI’s attorney’s-fees evidence under Rule 193.6 on the basis that
JWI had failed to timely make, amend, or supplement its attorney’s-fees discovery
response. Isaac does not dispute that JWI timely disclosed its experts. Rather, Isaac
contends that JWI did not timely disclose all documents, tangible things, reports,
models, or data compilations that were provided to, reviewed by, or prepared by or
for its expert in anticipation of the expert’s testimony under Rule 194.2(f)(4)(A)–
(B). Even if we were to conclude that the trial judge did not abuse her discretion
because the Rule 193.5 presumption does not apply here, under Rule 193.6, Isaac
could still show that JWI’s required attorney’s-fees disclosure was untimely. All
Isaac was required to show was that JWI did not supplement its response reasonably
promptly. See TEX. R. CIV. P. 193.5(b), 193.6(a).
The evidence in question shows that JWI’s attorney generated monthly
invoices starting June 1, 2019. On March 19, 2023, counsel for JWI sent counsel
for Isaac an email purporting to attach a spreadsheet and invoices related to their
legal fees in this case. This evidence was also attached to their April 20, 2023
application for attorney’s fees. Under these facts, the trial judge could not have
reasonably concluded that JWI timely produced its attorney’s fees evidence.
Accordingly, the evidence had to be excluded, and the burden shifted to JWI to

–31–
establish either that it timely complied with Rules 194.2 and 193.5, or that it met its
burden to establish an exception under Rule 193.6(b).
4. Record Does Not Show JWI’s Discovery Response Was Timely or JWI
Established an Exception to Rule 193.6
Finally, we consider JWI’s arguments that the parties agreed to extend the
discovery period through their Rule 11 agreement or, in the alternative, that JWI met
its burden to establish the exception of no unfair surprise or unfair prejudice.
First, JWI argues that the parties’ Rule 11 agreement governed the production
of attorney’s-fees evidence and served to adjust the discovery-response deadlines.
Litigants’ Rule 11 agreements are contracts relating to litigation, so courts construe
them under the same rules as a contract. See Shamrock Psychiatric Clinic, P.A. v.
Tex. Dep’t of Health & Human Servs., 540 S.W.3d 553, 560 (Tex. 2018). An
appellate court does not give a Rule 11 agreement greater effect than the parties
intended. Id. at 560–61. If a contract can be given a certain or definite legal meaning
or interpretation, it is not ambiguous and we construe it as a matter of law. Id. at
561.
The Rule 11 agreement states:
Pursuant to Rule 11 of the Texas Rules of Civil Procedure, this letter is
intended to memorialize the Parties’ agreement to respectfully request
that the [trial judge] hear, via submission, any issues concerning an
award of attorney’s fees and costs, including any determinations as to
the amount thereof, incurred in this lawsuit to the [trial court] after the
close of evidence, outside the presence of the jury, and after the jury
returns its verdict following the trial in this matter. The Parties further
request to meet and confer with the [trial judge] to establish an
acceptable briefing schedule for same.

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(Emphasis added.) The parties do not argue, nor do we conclude that the Rule 11
agreement is ambiguous. By its own terms, the Rule 11 agreement addresses the
bifurcation of the trial, the submission of the attorney’s-fee phase to the trial judge,
and a post-liability-phase briefing schedule; it does not address or otherwise adjust
the discovery deadlines.
Further, we note that the trial judge’s order granting the parties’ agreed post-
verdict briefing schedule established the deadlines for filing and serving the
evidence supporting their respective claims for attorney’s fees; it did not adjust or
extend the discovery period.
The parties’ Rule 11 agreement and the trial court’s order granting the parties’
agreed post-verdict briefing schedule, extended the parties’ briefing schedule for
attorney’s fees; they did not extend the separate obligation to disclose under
Rule 194.2(f). We will not read into the parties’ agreement or the trial court’s order
an intent to extend the disclosure obligation deadline because those documents do
not address that matter. Accordingly, we conclude that the Rule 11 agreement did
not alter the discovery deadlines.
JWI next argues that its failure to timely disclose its attorney’s-fees records
did not unfairly surprise or unfairly prejudice Isaac. When a party has not timely
made, amended, or supplemented a discovery response, it may not introduce into
evidence the information that was not timely disclosed unless the trial court finds
(1) that there was good cause for the failure to timely make the discovery response,

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or (2) that the failure to timely make the discovery response will not unfairly surprise
or unfairly prejudice the other parties. TEX. R. CIV. P. 193.6(a). It was JWI’s burden
to establish these exceptions, and a trial judge’s finding of the lack of unfair surprise
or unfair prejudice must be supported by the record. See TEX. R. CIV. P. 193.6(b).
The record shows that the first time JWI asserted that an exception to Rule 193.6
applied was in its sur-reply to Isaac’s motion to modify the amended final judgment
and motion for new trial.11 In its sur-reply, JWI asserted only that the good-cause
exception applied; it did not argue that the unfair-surprise or unfair-prejudice
exception applied. Therefore, because JWI did not argue or produce evidence in
support of this exception, JWI did not meet its burden to prove, and the record does
not show that the lack of unfair surprise or unfair prejudice exception applied.
Accordingly, we conclude the trial judge abused her discretion to the extent she
impliedly ruled that JWI established these exceptions.
However, JWI did assert in the trial court that there was good cause for its
failure to timely make its discovery response, so Isaac must overcome that exception
on appeal. To meet the good-cause exception under Rule 193.6, JWI had the burden
to make a strict showing that its failure to comply with its discovery obligations was
due to difficult or impossible circumstances. See SJF Forest Lane, 2024 WL
2796279, at *9. This required JWI to show that its failure to comply was due to
11 The record shows that, after Isaac objected to JWI’s attorney’s-fees evidence under Rule 193.6, JWI
did not seek leave to file a reply brief or otherwise respond to Isaac’s objection.

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more than inadvertence, the fact that Isaac would not be surprised, and its attorney’s-
fees evidence was unique. See id.
As we previously noted, the record shows that this case commenced in
June 2019 and JWI purportedly produced its attorney’s-fees records for the first time
on March 19, 2023. After reviewing the record, we cannot say that it shows that
JWI met its burden to make a strict showing in the record that it established the good-
cause exception in Rule 193.6(b). Accordingly, we conclude the trial judge abused
her discretion to the extent she ruled that JWI established this exception.
5. JWI’s Evidence of Attorney’s Fees Should Have Been Excluded
We conclude that the trial judge abused her discretion when she failed to
sustain Isaac’s Rule 193.6 objection. Accordingly, under Rule 193.6, JWI’s
attorney’s-fees evidence should have been automatically excluded.
Issue two is decided in favor of Isaac. Based on our resolution of issue two,
we need not address issue three.
IV. Conclusion and Disposition
We conclude the evidence is legally and factually sufficient to support the
jury’s finding on waiver.
We also conclude that the trial judge abused her discretion when she impliedly
overruled or failed to rule on Isaac’s Rule 193.6 objection to JWI’s attorney’s-fees
evidence as untimely and considered that evidence on submission.

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We reverse the portion of the amended final judgment that awards JWI its
attorney’s fees.
We render judgment that JWI take nothing by way of its claim for attorney’s
fees.
We affirm the trial court’s amended final judgment in all other respects.
/J.J Koch/
J.J. KOCH
CHIEF JUSTICE