Rebecca Isaac v. Jon Wright d/b/a Jon Wright Industries, Roofing, Siding, and Windows, 05-24-00340-CV, October 20, 2026.
On appeal from 471st Judicial District Court, Collin County, Texas
Synopsis
Texas Rule of Civil Procedure 193.6 requires exclusion of untimely disclosed attorney’s-fee evidence unless the offering party establishes good cause or lack of unfair surprise or prejudice. Because JWI made neither showing and its untimely evidence was the only support for the fee award, the Dallas Court of Appeals reversed the $108,020 award and rendered judgment that JWI take nothing on attorney’s fees.
Relevance to Family Law
Attorney’s-fee claims are routine in divorces, suits affecting the parent-child relationship, enforcement proceedings, property disputes, and post-decree litigation. This opinion confirms that a trial court’s broad discretion to award fees does not excuse a party from complying with discovery obligations governing fee witnesses, opinions, documents, and calculations. Even when the parties agree to submit fees after the merits phase, Rule 193.6 may still require exclusion if the evidence was not timely disclosed and the proponent cannot carry its burden to establish good cause or lack of unfair surprise or prejudice.
For family-law litigators, the practical consequence is significant: entitlement to fees and admissible proof of fees are separate matters. A statutory or equitable basis for an award does not supply the evidence necessary to support the amount awarded.
Case Summary
Fact Summary
Rebecca Isaac retained Jon Wright d/b/a Jon Wright Industries, Roofing, Siding, and Windows (“JWI”) to replace the roof on her residence. During the project, workers punctured water and gas lines that had been installed close to the underside of the roof deck. A plumbing contractor, Ed Kelly, was retained to address the gas-line problem and perform additional work, but disputes arose concerning who hired Kelly, the quality and scope of his work, and responsibility for his invoices.
Kelly eventually filed a lien against the property. Isaac obtained injunctive relief and pursued separate litigation against Kelly to invalidate the lien, incurring substantial attorney’s fees. She prevailed in that litigation and received an award of fees.
JWI later sued Isaac for the unpaid balance under the roofing contract and asserted several alternative theories of recovery. Isaac counterclaimed, including on a promissory-estoppel theory based on alleged promises that JWI would handle legal matters involving Kelly. JWI asserted waiver as an affirmative defense.
Before trial, the parties executed a Rule 11 agreement stating that they intended to ask the trial court to bifurcate attorney’s fees and establish a post-verdict briefing schedule. The liability issues were tried to a jury, while the attorney’s-fee issue was reserved for submission to the court.
JWI subsequently offered attorney’s-fee evidence in support of its request. Isaac objected under Texas Rule of Civil Procedure 193.6, contending that the evidence had not been timely disclosed. The trial court did not expressly sustain the objection and considered the evidence in awarding JWI $108,020 in attorney’s fees.
The amended final judgment also awarded JWI $44,347.05 in damages and denied Isaac relief on her counterclaims. Isaac appealed, challenging the waiver finding and the attorney’s-fee award.
Issues Decided
The Dallas Court of Appeals decided:
- Whether legally and factually sufficient evidence supported the jury’s finding that Isaac waived the right asserted through her promissory-estoppel counterclaim to recover fees incurred in the separate Kelly litigation.
- Whether Rule 193.6 required exclusion of JWI’s untimely attorney’s-fee evidence.
- Whether the trial court abused its discretion by impliedly overruling, or failing to rule expressly on, Isaac’s Rule 193.6 objection and then considering the challenged evidence.
- Whether consideration of the untimely evidence probably caused the rendition of an improper judgment.
- Whether reversal and rendition, rather than remand, was the appropriate disposition when no admissible evidence supported the attorney’s-fee award.
- Whether the fee award should alternatively be reversed for failure to segregate recoverable from unrecoverable fees.
Rules Applied
Rule 193.6’s mandatory-exclusion rule. Texas Rule of Civil Procedure 193.6 generally prohibits a party from introducing material or information that was not timely disclosed in a discovery response. The rule is mandatory unless the offering party establishes either:
- good cause for the failure to make, amend, or supplement the discovery response timely; or
- that the failure will not unfairly surprise or unfairly prejudice the opposing party.
Burden on the proponent. The party seeking to use the untimely evidence bears the burden of proving an exception to exclusion. The trial court must be able to find support in the record for good cause or lack of unfair surprise or prejudice.
Bifurcation does not eliminate discovery obligations. An agreement to try or submit attorney’s fees after the merits does not, standing alone, establish that fee evidence need not be disclosed in accordance with the governing discovery rules and deadlines. The procedure for presenting evidence and the obligation to disclose that evidence are distinct.
Abuse-of-discretion review. A trial court’s ruling concerning admission or exclusion under Rule 193.6 is reviewed for abuse of discretion. A court abuses its discretion when it considers evidence that Rule 193.6 required it to exclude without the necessary predicate showing.
Preservation through an implicit ruling. When a trial court proceeds to consider challenged evidence and bases its judgment on that evidence, its action may constitute an implicit adverse ruling sufficient to preserve the complaint for appellate review.
Harm and appellate disposition. Erroneous consideration of evidence is reversible when it probably caused the rendition of an improper judgment. When the excluded evidence constitutes the only evidentiary support for an attorney’s-fee award, the proper disposition is rendition of a take-nothing judgment on that claim rather than a remand for another opportunity to supply the missing proof.
The court also applied the governing legal- and factual-sufficiency standards to the jury’s waiver finding. It reviewed the evidence supporting the finding and deferred to the jury’s resolution of evidentiary conflicts within the limits of those standards.
Application
The parties’ Rule 11 agreement addressed how attorney’s fees would be presented: the issue would be separated from the liability trial and submitted afterward under a schedule established by the trial court. But that procedural agreement did not resolve whether JWI had timely disclosed the evidence it intended to use in the later submission.
When JWI offered its fee evidence, Isaac invoked Rule 193.6. That objection shifted the focus to the rule’s exceptions. JWI, as the proponent of the untimely evidence, was required to establish good cause for the disclosure failure or demonstrate that the failure would not unfairly surprise or prejudice Isaac. The appellate court concluded that JWI did not make the required showing.
The trial court nevertheless considered the evidence and included $108,020 in attorney’s fees in the amended judgment. Whether characterized as an implicit overruling of the objection or a failure to make an express ruling before considering the evidence, the result was the same: the trial court relied on evidence that Rule 193.6 required it to exclude.
The error was harmful because the untimely evidence was not cumulative of other admissible fee proof. Once that evidence was removed from the record, no admissible evidence remained to support the amount of the fee award. The court therefore did not merely reverse and remand for a new fee presentation. It rendered judgment that JWI take nothing on its attorney’s-fee claim.
Separately, the court reviewed Isaac’s challenge to the jury’s waiver finding. It concluded that the record contained legally and factually sufficient evidence supporting the finding and left the judgment intact on that issue. Because the fee award failed entirely under Rule 193.6, the alternative complaint concerning segregation did not provide a basis for preserving any part of the award.
Holding
The court held that Rule 193.6 required exclusion of JWI’s untimely attorney’s-fee evidence because JWI failed to establish either good cause for the untimely disclosure or lack of unfair surprise or prejudice. The trial court abused its discretion by considering that evidence on submission.
The court further held that the error was reversible. Because the excluded evidence was the only evidence supporting the $108,020 attorney’s-fee award, the court reversed that portion of the amended judgment and rendered judgment that JWI take nothing on its claim for attorney’s fees.
The court also held that legally and factually sufficient evidence supported the jury’s waiver finding against Isaac. It therefore affirmed the remainder of the judgment addressed by that challenge.
Practical Application
In family-law litigation, fee issues are often postponed until after the merits, heard by the court after a jury verdict, or resolved through affidavits and briefing. This opinion cautions that a later fee hearing or submission is not a discovery safe harbor. Counsel should identify fee witnesses, opinions, billing records, allocation methodologies, and anticipated amounts within the applicable discovery framework and supplement those disclosures as the case develops.
The rule can be outcome-determinative in several recurring settings:
- Divorce trials: A spouse requesting fees under the Family Code must still present admissible evidence supporting reasonableness, necessity, recoverability, and the amount sought. A post-verdict fee submission does not cure untimely disclosure.
- SAPCR proceedings: When fees are sought in conservatorship, possession, or support litigation, trial counsel should disclose the testifying attorney’s opinions and supporting materials even if the judge will decide fees after the principal issues.
- Enforcement and contempt proceedings: Accelerated settings do not automatically excuse incomplete discovery responses. If timing makes compliance impracticable, counsel should seek an agreement, amended scheduling order, leave, or an on-the-record Rule 193.6 finding before offering the evidence.
- Post-decree property litigation: Fee evidence associated with enforcement, clarification, division of omitted property, or contractual claims may implicate different legal bases for recovery. Timely disclosure and segregation should be addressed together.
- Temporary-orders proceedings: Although discovery schedules may be compressed, the proponent should not assume that the setting itself establishes good cause. Build the record explaining why evidence could not reasonably have been disclosed earlier.
- Prove-ups and default proceedings: The absence of an active opponent does not eliminate the need for competent evidence. The court must still have admissible proof supporting the amount awarded.
- Hybrid jury and bench trials: A Rule 11 agreement reserving fees for the court should expressly address deadlines, supplementation, the form of proof, objections, and whether live testimony will be permitted. Bifurcation alone does not modify disclosure obligations.
Counsel opposing untimely fee evidence should make a specific Rule 193.6 objection before the trial court considers the evidence. The objection should identify the deficient discovery response or missed deadline and emphasize that the proponent bears the burden of establishing an exception. Counsel should also obtain an express ruling when possible and object to any proposed judgment incorporating the challenged fees.
Checklists
Preparing Your Attorney’s-Fee Proof
- Identify every legal basis authorizing recovery of fees.
- Designate the attorney who will provide fee testimony or affidavit evidence.
- Disclose the witness’s opinions concerning reasonableness and necessity.
- Disclose the anticipated amount sought and supplement it as fees accrue.
- Produce or identify billing records, invoices, time summaries, and supporting exhibits.
- Address the applicable reasonableness factors in the disclosure and ultimate proof.
- Separate trial-level fees from conditional appellate fees.
- Distinguish fees incurred on recoverable claims from fees incurred on nonrecoverable claims.
- Develop and disclose the methodology for segregation or explain why claims are so intertwined that segregation is not required.
- Calendar all discovery, supplementation, pretrial, and affidavit deadlines.
Structuring a Post-Trial Fee Submission
- State in the Rule 11 agreement or scheduling order that fees will be decided separately.
- Specify whether the fee issue will be presented through live testimony, affidavits, declarations, billing records, or briefs.
- Establish deadlines for opening evidence, objections, responses, and replies.
- Address whether supplementation through the date of the fee submission is permitted.
- Specify whether previously undisclosed evidence may be offered.
- Preserve all objections to admissibility, timeliness, segregation, and legal entitlement.
- Do not assume that bifurcation extends or supersedes existing discovery deadlines.
- Obtain a written order incorporating any agreed modifications to the disclosure schedule.
Responding to Untimely Fee Evidence
- Identify the discovery request requiring disclosure.
- Locate the response, amendment, or supplementation showing the omission or delay.
- Confirm the applicable discovery and supplementation deadlines.
- Object expressly under Texas Rule of Civil Procedure 193.6.
- State that exclusion is mandatory unless the proponent carries its burden.
- Require the proponent to establish good cause or lack of unfair surprise or prejudice.
- Oppose conclusory assertions that the opponent “already knew” fees were being sought.
- Explain how the timing affected discovery, expert preparation, cross-examination, or the ability to retain a rebuttal witness.
- Request an express ruling before the trial court considers the evidence.
- Object to findings, conclusions, and proposed judgments relying on the excluded material.
- Make a clear record that no other admissible evidence supports the requested amount.
Establishing a Rule 193.6 Exception
- Identify precisely why the evidence was not disclosed timely.
- Present evidence—not merely attorney argument—supporting good cause.
- Explain when the information became available.
- Show diligence in supplementing after the information became available.
- Establish what the opposing party already received and when it was received.
- Demonstrate why the delay did not impair preparation, investigation, cross-examination, or rebuttal.
- Request an express finding of good cause or lack of unfair surprise or prejudice.
- If necessary, request a continuance or other curative measure before the evidence is admitted.
- Ensure the record contains the materials needed to support the trial court’s finding on appeal.
Preserving the Issue for Appeal
- Make the Rule 193.6 objection on the record.
- Identify the specific evidence subject to exclusion.
- Secure an express ruling whenever possible.
- If the court proceeds without an express ruling, clarify that the objection remains pending.
- Renew the objection when the evidence is offered or submitted.
- Object to the proposed fee award and proposed final judgment.
- Request findings of fact and conclusions of law when appropriate.
- Establish whether the challenged evidence is the only support for the award.
- Argue for rendition when exclusion leaves no admissible evidence of fees.
Citation
Rebecca Isaac v. Jon Wright d/b/a Jon Wright Industries, Roofing, Siding, and Windows, No. 05-24-00340-CV, slip op. (Tex. App.—Dallas Oct. 20, 2026, no pet. h.) (mem. op.).
Full Opinion
Family Law Crossover
The crossover mechanism is Rule 193.6’s mandatory exclusion of evidence that was not timely disclosed in response to a proper discovery request. Once an opponent demonstrates that the evidence was not timely disclosed, the proponent must establish good cause or lack of unfair surprise or prejudice. Without that predicate, the court may not simply consider the evidence because it is relevant, because fees were reserved for a later hearing, or because all parties knew that attorney’s fees would be requested.
In a Texas family-law matter, the issue may arise when a party waits until trial or a post-trial submission to provide a fee affidavit, billing records, expert opinions, segregation analysis, or conditional appellate-fee testimony. It may also arise when the amount sought increases substantially without supplementation or when a newly retained attorney attempts to offer previously undisclosed fee opinions.
The procedural lesson is to treat the fee phase as an evidentiary proceeding governed by the same disclosure and admissibility rules as the merits. If fee evidence is late, the proponent should request a Rule 193.6 determination and build a record supporting an exception before the evidence is considered. If the evidence is excluded and no other admissible proof supports the amount awarded, the resulting appellate remedy may be rendition of a take-nothing judgment on fees—not another opportunity to prove them.
~~9bf44263-5879-45e5-a64d-cc7db44d7d9e~~
Share this content: