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

Opinion

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