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COPECO, INC. D/B/A IN THE DISTRICT COURT OF
SEAMLESS SOLUTIONS
Plaintiff/Counter-Defendant,
HARRIS COUNTY, TEXAS
ENABLE TECH MANUFACTURING,
Defendants/Counter-Plaintiffs JUDICIAL DISTRICT
PLAINTIFF’S MOTION TO MODIFY AND CORRECT FINAL JUDGMENT
Pursuant to Rule 329b(g), Plaintiff Copeco, Inc. d/b/a Seamless Solutions (“Seamless”)
moves to modify, reform, or correct the Final Judgment entered on June 29, 2018, to add the
amount of attorney’s fees awarded by the jury. The trial court declined to award attorney’s fees in
the Final Judgment based on Defendants’ oral objection that Seamless failed to provide evidence
of presentment. The trial record contains such evidence, however. Furthermore, Defendants
waived any complaint about presentment by failing to object to the Charge of the Court and request
a jury determination. Therefore, the Court should modify or reform its Final Judgment and award
Seamless the amount of attorn
Seamless sued defendants KO Developing, Inc. (“KO”) and Enable Tech Manufacturing,
LLC (“Enable Tech”) for breach of contract and quantum meruit in connection with Seamless’s
provision of services and materials. The case went to jury trial beginning on June 11, 2018. On
June 13, 2018, after both plaintiff Seamless and defendants KO and Enable Tech presented
evidence that was admitted by the Court, the Jury was given the
of Seamless and against Defendants. The Court received the Jury’s verdict. The verdict found: (1)
defendant KO failed to comply with its agreement to pay Seamless for additional work and
materials, and awarded damages in the amount of $101,341.69; (2) defendant KO failed to
promptly pay Seamless for the amounts on the agreement with Seamless; (3) defendant Enable
Tech received the benefit of Seamless’s work and materials, and awarded damages in the amount
of $52,552.29; (4) Seamless incurred, or will incur, reasonable and necessary attorney’s fees in
prosecuting its claims in the amount of (a) $71,705 through trial, (b) $17,500 for representation to
the court of appeals, (c) $5,000 for the petition for review stage in the Supreme Court of Texas,
(d) $15,000 for representation at the merits briefing stage in the Supreme Court of Texas, and (e)
$6,000 for representation through oral argument and the completion of proceedings in the Supreme
Seamless moved for entry of a final judgment in accordance with the Jury’s verdict.
Defendants partially objected to the entry of the verdict, filing an objection to two aspects of the
judgment: (1) the request that the Court foreclose on the lien, and (2) the request for attorney’s
fees based on an alleged failure to plead the basis for attorney’s fees. Defendants’ Response
to Plaintiff’s Motion for Entry of Final Judgment, filed June 28, 2018 (the “Response”). In their
Response, Defendants did not object to the proposed Final Judgment on any other grounds and did
not argue that any aspect of Seamless’s proof of attorney’s fees was inadequate under section
of the Texas Civil Practices and Remedies Code.
During the subsequent hearing on Seamless’s motion for entry of judgment, Defendants
orally argued that Seamless failed to meet its burden of proof to recover attorney’s fees under
section 38.001 et seq. Specifically, Defendants argued that the trial record did not contain evidence
of presentment. The Court removed the award of attorney’s fees from the Final Judgment and
signed the Final Judgment on June 29, 2018.
ARGUMENT AND AUTHORITIES
Seamless met its burden to prove attorney’s fees at trial. Accordingly, Seamless moves to
reconsider the Court’s decision to strike the award of attorney’s fees from the Final Judgment, and
requests that the Court modify the Final Judgment to add the at
Chapter 38 of the Texas Civil Practices and Remedies Code authorizes the recovery of
attorney’s fees for the breach of an oral or written contract. §
38.001(8). Chapter 38 is to be “liberally construed to promote its underlying purpose.” . at §
38.005 (emphasis added).
ree requirements for recovery of attorney’s fees:
(1) the claimant must be r
(2) the claimant must present the claim to the opposing party or to a duly
(3) payment for the just amount owed must not have been tendered before
er the claim is presented.
RAC
In this case, the Jury found that defendant KO Developing breached a contract with
Seamless. Exhibit A at 5. At the hearing on entry of the Final Judgment, Defendants orally
challenged whether the trial ev quirement of presentment.
Presentment means “simply a demand or request for payment or performance.” Gibson v.
, 440 S.W.3d 150, 157 (Tex. App.—Houston [14 Dist.] 2013, no pet.) “All that is
The first requirement of §38.002 was undisputed. It was established by the testimony of Jason Kraus, the attorney
originally retained by Seamless in this matter. The thirdrequirement of §38.002 was also undisputed. It was
established by the testimony of multiple witnesses, including Defendants’ witnesses, that the amounts due on the oral
contracts remained unpaid.
necessary is that the party seeking attorney’s fees show that it made an assertion of a debt or claim
and a request for compliance to
claim.” Note Inv. Grp., Inc. v. Assocs. First Capital Corp., 476 S.W.3d 463, 485 (Tex. App.--
Beaumont 2015, no pet.); Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 300 (Tex. App.–
Houston [14th Dist.] 2010, no pet.). “No particular form of presentment is required.”
614 S.W.2d 95, 100 (Tex.1981). The demand can be written or or , 440 S.W.3d
“Nonpayment of a bill or invoice for thirty days satisfies the presentment requirement.”
, 481 S.W.3d 238, 251 (Tex. App.—Houston [1
The trial evidence established presentment.
The trial record contains ample evidence that Seamless presented its claim to KO
Chuck Hansen, the owner of Seamless, testified that he became involved with the
project when KO Developing failed to pay for the outstanding invoices. Hansen
testified that he discussed Seamless’s claim for payment with employees of the
Defendants on multiple occasions. See Excerpt from Trial Testimony of Chuck
Hansen testified that he discussed the unpaid amounts with KO Developing’s Chief
Hansen also testified that he discussed Seamless’s open invoices with KO
Seamless filed a lien against KO Developing’s real property, which is itself
evidence of a claim for unpaid invoices and was admitted as Plaintiff’s Exhibit 1 at
Jason Kraus, Seamless’s expert on attorney’s fees, testified during trial that he filed
the lien against Defendants’ property. Excerpt from Trial Testimony of Jason
Drew Cousin, a former Seamless employee, testified by deposition that he
presented Seamless’s invoices to the Defendants and emailed an employee of
The invoices that made up Seamless’s contract claims, and represent a written
request for payment, were admitted into evidence and multiple witnesses testified
that they were provided to Defendants. Plaintiff’s Trial Exhibits 5 and 6. Those
and
Plaintiff’s Trial Exhibit 18, which was a multipage email chain, includes a May 17,
2016 request for payment for the extra work performed by Seamle Plaintiff’s
Plaintiff’s Trial Exhibit 20 contains a June 27, 2016 email attaching the invoice for
extra work that was the basis for part of Seamless’s breach of contract claim.
The foregoing evidence establishes that Seamless presented its claim (via invoices and
jury found) that
KO Developing failed to pay the amounts due. , 481 S.W.2d
at 251 (noting that “Nonpayment of a bill or invoice for thirty days satisfies the presentment
requirement.”). Seamless therefore satisfied the requirement of section 38.002 that it present its
claim to KO Developing.
Defendants waived any challenge to the issue of presentment by not asking for a jury
Generally, presentment is an issue of fact. Genender v. USA Store Fixtures, LLC, 451
S.W.3d 916, 924 (Tex. App.–Houston [14th Dist.] 2014, no pet.). Sacks, 481 S.W.3d at 250. The
Charge of the Court did not ask the jury to determine whether Seamless presented its claim to
Defendants. And Defendants did not object to the Charge of the Court, or otherwise request such
Furthermore, Defendants’ response to the motion for entry of the final judgment did not
object to the judgment, or request a judgment notwithstanding the verdict, on the grounds that
Seamless failed to estab
When a jury awards attorney’s fees without a request for a jury finding on the issue of
presentment, Rule 279 of the Texas Rules of Civil Procedure operates so presentment is deemed
Adams v. Petrade Int'l,Inc., 754 S.W.2d 696, 720 (Tex. App.—Houston [1st Dist.]
1988, writ denied). As such, Defendants have waived any complaint about the sufficiency of the
evidence relating to presentment for the purposes of awarding attorney’s fees under Chapter 38 of
the Civil Practices and Remedies Code.
CONCLUSION AND PRAYER
Plaintiff Seamless respectfully requests that this Court (1) grant this Motion, (2) modify
the judgment to include an award of the attorney’s fees found by the Jury in the amount of (a)
$71,705 through trial, (b) $17,500 for representation to the court of appeals, (c) $5,000 for the
petition for review stage in the Supreme Court of Texas, (d) $15,000 for representation at the
merits briefing stage in the Supreme Court of Texas, and (e) $6,000 for representation through oral
argument and the completion of proceedings in the Supreme Court of Texas, and (3) grant
Seamless such other relief as it may be entitled.
Respectfully submitted,
ALVAREZ STAUFFER BREMER PLLC
Lance R. Bremer
Lance R. Bremer
Texas Bar No. 24002852
815 Walker St., Suite 1450
THE KRAUS LAW FIRM
Jason D. Kraus
Texas Bar No. 24058234
Facsimile: 281-840-5611
Counsel for Plaintiff Copeco, Inc. d/b/a
Seamless Solutions
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was served on all counsel of record
Craig Welscher
cwelscher@welscherlaw.com
nmartinez@welscherlaw.com
1111 North Loop West, Suite 702
Facsimile: 713-862-4003
/s/ Lance R. Bremer
Lance R. Bremer
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COPECO, INC. D/B/A IN THE DISTRICT COURT OF SEAMLESS SOLUTIONS Plaintiff/Counter-Defendant, HARRIS COUNTY, TEXAS ENABLE TECH MANUFACTURING, Defendants/Counter-Plaintiffs JUDICIAL DISTRICT PLAINTIFF’S MOTION TO MODIFY AND CORRECT FINAL JUDGMENT Pursuant to Rule 329b(g), Plaintiff Copeco, Inc. d/b/a Seamless Solutions (“Seamless”) moves to modify, reform, or correct the Final Judgment entered on June 29, 2018, to add the amount of attorney’s fees awarded by the jury. The trial court declined to award attorney’s fees in the Final Judgment based on Defendants’ oral objection that Seamless failed to provide evidence of presentment. The trial record contains such evidence, however. Furthermore, Defendants waived any complaint about presentment by failing to object to the Charge of the Court and request a jury determination. Therefore, the Court should modify or reform its Final Judgment and award Seamless the amount of attorn Seamless sued defendants KO Developing, Inc. (“KO”) and Enable Tech Manufacturing, LLC (“Enable Tech”) for breach of contract and quantum meruit in connection with Seamless’s provision of services and materials. The case went to jury trial beginning on June 11, 2018. On June 13, 2018, after both plaintiff Seamless and defendants KO and Enable Tech presented evidence that was admitted by the Court, the Jury was given the of Seamless and against Defendants. The Court received the Jury’s verdict. The verdict found: (1) defendant KO failed to comply with its agreement to pay Seamless for additional work and materials, and awarded damages in the amount of $101,341.69; (2) defendant KO failed to promptly pay Seamless for the amounts on the agreement with Seamless; (3) defendant Enable Tech received the benefit of Seamless’s work and materials, and awarded damages in the amount of $52,552.29; (4) Seamless incurred, or will incur, reasonable and necessary attorney’s fees in prosecuting its claims in the amount of (a) $71,705 through trial, (b) $17,500 for representation to the court of appeals, (c) $5,000 for the petition for review stage in the Supreme Court of Texas, (d) $15,000 for representation at the merits briefing stage in the Supreme Court of Texas, and (e) $6,000 for representation through oral argument and the completion of proceedings in the Supreme Seamless moved for entry of a final judgment in accordance with the Jury’s verdict. Defendants partially objected to the entry of the verdict, filing an objection to two aspects of the judgment: (1) the request that the Court foreclose on the lien, and (2) the request for attorney’s fees based on an alleged failure to plead the basis for attorney’s fees. Defendants’ Response to Plaintiff’s Motion for Entry of Final Judgment, filed June 28, 2018 (the “Response”). In their Response, Defendants did not object to the proposed Final Judgment on any other grounds and did not argue that any aspect of Seamless’s proof of attorney’s fees was inadequate under section of the Texas Civil Practices and Remedies Code. During the subsequent hearing on Seamless’s motion for entry of judgment, Defendants orally argued that Seamless failed to meet its burden of proof to recover attorney’s fees under section 38.001 et seq. Specifically, Defendants argued that the trial record did not contain evidence of presentment. The Court removed the award of attorney’s fees from the Final Judgment and signed the Final Judgment on June 29, 2018. ARGUMENT AND AUTHORITIES Seamless met its burden to prove attorney’s fees at trial. Accordingly, Seamless moves to reconsider the Court’s decision to strike the award of attorney’s fees from the Final Judgment, and requests that the Court modify the Final Judgment to add the at Chapter 38 of the Texas Civil Practices and Remedies Code authorizes the recovery of attorney’s fees for the breach of an oral or written contract. § 38.001(8). Chapter 38 is to be “liberally construed to promote its underlying purpose.” . at § 38.005 (emphasis added). ree requirements for recovery of attorney’s fees: (1) the claimant must be r (2) the claimant must present the claim to the opposing party or to a duly (3) payment for the just amount owed must not have been tendered before er the claim is presented. RAC In this case, the Jury found that defendant KO Developing breached a contract with Seamless. Exhibit A at 5. At the hearing on entry of the Final Judgment, Defendants orally challenged whether the trial ev quirement of presentment. Presentment means “simply a demand or request for payment or performance.” Gibson v. , 440 S.W.3d 150, 157 (Tex. App.—Houston [14 Dist.] 2013, no pet.) “All that is The first requirement of §38.002 was undisputed. It was established by the testimony of Jason Kraus, the attorney originally retained by Seamless in this matter. The thirdrequirement of §38.002 was also undisputed. It was established by the testimony of multiple witnesses, including Defendants’ witnesses, that the amounts due on the oral contracts remained unpaid. necessary is that the party seeking attorney’s fees show that it made an assertion of a debt or claim and a request for compliance to claim.” Note Inv. Grp., Inc. v. Assocs. First Capital Corp., 476 S.W.3d 463, 485 (Tex. App.-- Beaumont 2015, no pet.); Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 300 (Tex. App.– Houston [14th Dist.] 2010, no pet.). “No particular form of presentment is required.” 614 S.W.2d 95, 100 (Tex.1981). The demand can be written or or , 440 S.W.3d “Nonpayment of a bill or invoice for thirty days satisfies the presentment requirement.” , 481 S.W.3d 238, 251 (Tex. App.—Houston [1 The trial evidence established presentment. The trial record contains ample evidence that Seamless presented its claim to KO Chuck Hansen, the owner of Seamless, testified that he became involved with the project when KO Developing failed to pay for the outstanding invoices. Hansen testified that he discussed Seamless’s claim for payment with employees of the Defendants on multiple occasions. See Excerpt from Trial Testimony of Chuck Hansen testified that he discussed the unpaid amounts with KO Developing’s Chief Hansen also testified that he discussed Seamless’s open invoices with KO Seamless filed a lien against KO Developing’s real property, which is itself evidence of a claim for unpaid invoices and was admitted as Plaintiff’s Exhibit 1 at Jason Kraus, Seamless’s expert on attorney’s fees, testified during trial that he filed the lien against Defendants’ property. Excerpt from Trial Testimony of Jason Drew Cousin, a former Seamless employee, testified by deposition that he presented Seamless’s invoices to the Defendants and emailed an employee of The invoices that made up Seamless’s contract claims, and represent a written request for payment, were admitted into evidence and multiple witnesses testified that they were provided to Defendants. Plaintiff’s Trial Exhibits 5 and 6. Those and Plaintiff’s Trial Exhibit 18, which was a multipage email chain, includes a May 17, 2016 request for payment for the extra work performed by Seamle Plaintiff’s Plaintiff’s Trial Exhibit 20 contains a June 27, 2016 email attaching the invoice for extra work that was the basis for part of Seamless’s breach of contract claim. The foregoing evidence establishes that Seamless presented its claim (via invoices and jury found) that KO Developing failed to pay the amounts due. , 481 S.W.2d at 251 (noting that “Nonpayment of a bill or invoice for thirty days satisfies the presentment requirement.”). Seamless therefore satisfied the requirement of section 38.002 that it present its claim to KO Developing. Defendants waived any challenge to the issue of presentment by not asking for a jury Generally, presentment is an issue of fact. Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916, 924 (Tex. App.–Houston [14th Dist.] 2014, no pet.). Sacks, 481 S.W.3d at 250. The Charge of the Court did not ask the jury to determine whether Seamless presented its claim to Defendants. And Defendants did not object to the Charge of the Court, or otherwise request such Furthermore, Defendants’ response to the motion for entry of the final judgment did not object to the judgment, or request a judgment notwithstanding the verdict, on the grounds that Seamless failed to estab When a jury awards attorney’s fees without a request for a jury finding on the issue of presentment, Rule 279 of the Texas Rules of Civil Procedure operates so presentment is deemed Adams v. Petrade Int'l,Inc., 754 S.W.2d 696, 720 (Tex. App.—Houston [1st Dist.] 1988, writ denied). As such, Defendants have waived any complaint about the sufficiency of the evidence relating to presentment for the purposes of awarding attorney’s fees under Chapter 38 of the Civil Practices and Remedies Code. CONCLUSION AND PRAYER Plaintiff Seamless respectfully requests that this Court (1) grant this Motion, (2) modify the judgment to include an award of the attorney’s fees found by the Jury in the amount of (a) $71,705 through trial, (b) $17,500 for representation to the court of appeals, (c) $5,000 for the petition for review stage in the Supreme Court of Texas, (d) $15,000 for representation at the merits briefing stage in the Supreme Court of Texas, and (e) $6,000 for representation through oral argument and the completion of proceedings in the Supreme Court of Texas, and (3) grant Seamless such other relief as it may be entitled. Respectfully submitted, ALVAREZ STAUFFER BREMER PLLC Lance R. Bremer Lance R. Bremer Texas Bar No. 24002852 815 Walker St., Suite 1450 THE KRAUS LAW FIRM Jason D. Kraus Texas Bar No. 24058234 Facsimile: 281-840-5611 Counsel for Plaintiff Copeco, Inc. d/b/a Seamless Solutions CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was served on all counsel of record Craig Welscher cwelscher@welscherlaw.com nmartinez@welscherlaw.com 1111 North Loop West, Suite 702 Facsimile: 713-862-4003 /s/ Lance R. Bremer Lance R. Bremer