Motion-Secondary: FIRST BANK vs. KOPPER FUNDING CORPORATION

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                                FIRST BANK                                                §             IN      THE      DISTRICT         COURT

                                                                            §
                                                                            §             HARRIS         COUNTY,          TEXAS

                  KOPPER FUNDING CORPORATION and                            §
                  NICOLAS M. BAZAN, P.C.                                    §             165th      JUDICIAL        DISTRICT

                                                       FIRST BANK’S RESPONSE TO
                        DEFENDANTS’ OBJECTIONS TO DESIGNATION OF EXPERT WITNESSES

                  TO THE HONORABLE JUDGE OF THIS COURT:

                           COMES NOW, Plaintiff and Counter-Defendant FIRST BANK (“First Bank”), and would

                  show the Court the following:

                           1.       Defendants KOPPER FUNDING CORPORATION, NICOLAS M. BAZAN, P.C.,

                  AND     NICOLAS       M.  BAZAN,      individually,    (“Defendants”)     have   now   objected   to  First  Bank’s

                  designation of Donald Turbyfill and Vicki Hart (“First Bank’s Experts”) as First Bank’s experts as

                  to  attorney’s   fees.   Defendants     claim   that  First Bank’s    Experts’    methodology      is “flawed    and

                  unreliable” because Plaintiff has made“excessive demand” on Defendants by demanding payment

                  of  “significant”    late fees in the amount of $6,042.63 that were allegedly waived.                 First Bank’s

                  evidence shows that Defendants currently owe $132,815.12, which includes unwaived late fees,



                           2.       Such assertions are simply an attempt by Defendants to bring an affirmative defense

                  that they have failed to plead timely, and is, therefore, waived.            A party must affirmatively plead

                  “excessive demand” as a defense to a claim for attorney’s fees or it is waived.               Kurtz v. Kurtz, 158

                  S.W.3d 12, 19 (Tex. App.–Houston [14th Dist.] 2004, no pet. h.); Allstate Ins. Co. v. Lincoln, 976

                  S.W.2d 873, 879 (Tex. App.–Waco 1998,no pet. h.).
                           WHEREFORE, PREMISES CONSIDERED, Plaintiff and Counter-Defendant FIRST BANK

                  requests that this Court overrule Defendants’ Objections to the Designation of the Plaintiffs’ Expert

                  Witnesses, and grant Plaintiff and Counter-Defendant FIRST BANK such other and further relief

                  to which it may show itself entitled.

                                                                        Respectfully submitted,

                                                                        DEVLIN, NAYLOR & TURBYFILL, P.L.L.C.


                                                                        DONALD L. TURBYFILL
                                                                        State Bar of Texas # 20296380
                                                                        dturbyfill@dntlaw.com [E-MAIL
                                                                        VICKI W. HART
                                                                        State Bar of Texas # 24046037
                                                                                                 E-MAIL
                                                                        5120 Woodway, Suite 9000
                                                                        Houston, Texas      77056-1725
                                                                                              HONE
                                                                                              ACSIMILE
                                                                        ATTORNEYS FOR PLAINTIFF
                                                                        AND COUNTER-DEFENDANT
                                                                        FIRST BANK

                                                           CERTIFICATE OF SERVICE

                           The undersigned does hereby certify that a true and correct copy of the above and foregoing instrument
                  was served upon the following parties either electronically through an electronic filing manager or in the alternative
                  served by fax prior to 5:00 p.m., in person, by mail, commercial delivery service, or email on October 3, 2018:

                  Nicholas M. Bazan
                  nbazan@nmblaw.com [E-MAIL]
                  notify@nmblaw.com [E-MAIL]
                  Nicolas M. Bazan, P.C.
                  14614 Falling Creek, Ste. 150
                  Houston, Texas 77068
                  (281) 444-3600 [PHONE]
                  (281) 444-3670 [FACSIMILE]
                  ATTORNEY FOR DEFENDANTS
                  AND COUNTER-PLAINTIFFS
                  KOPPER FUNDING CORPORATION,
                  NICOLAS M. BAZAN, P.C., AND
                  NICOLAS M. BAZAN

                                                                        ___________________________________
                                                                        VICKI W. HART

                  First Bank’s Response to Defendants’ Objections to Designation of Expert Witnesses                            Page 5