George Fleming and Fleming & Associates, LLP v. the Kirklin Law Firm, P.C., Charles Kirklin and Stephen Kirklin ( 2015 )

Assocs., Inc. v. Moore McCormack Petroleum, Inc., 734 S.W.2d 653, 655 (Tex.
1987) (explaining the canon’s meaning: “the naming of one thing
FILED excludes
IN
14th COURT OF APPEALS
HOUSTON, TEXAS
another”). 4/13/2015 12:16:02 PM
CHRISTOPHER A. PRINE
The written agreement addresses expenses by providing for oneClerk
and only
one category of expenses to fall purely on Appellant. It provides for “the Fleming
firm’s payment of the costs of echocardiograms.” But it does not mention any
litigation expenses other than the echo charges. Nor does any contract language
excuse the Kirklins from paying expenses other than the named echo charges that
Appellant agreed to pay. The only reasonable conclusion is that the echo costs and
no others would fall exclusively on Appellant.
The expressio unius rule has been applied to contracts that address expenses.
In Gunderson v. Wells Fargo Bank, No. 02-09-171-CV, 2010 WL 2636162 (Tex.
App.—Fort Worth July 1, 2010, no pet.), the contract allowed for a certain manner
of collection of attorney’s fees incurred in certain legal actions: “Any fees or
expenses (including attorney’s fees and expenses) the Bank incurs in responding to
any such legal process may be charged against any account you maintain with the
Bank.” Id. at *5. The court of appeals applied the expressio unius rule:
By its terms, the agreement covers only one manner by which Wells
Fargo is entitled to collect attorney’s fees for responding to the legal
process it was faced with—the tax levy sent to it by the Board. By
specifically including this manner only—and purposely excluding all
other manners of pursuing fees—the parties in this case contracted the
17
Exhibit 3
1,12112(594,18)220018114/13/2015 12:00:00 AM10:06:13.1887913