Preview
5/21/2019 4:02 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 33754297
By: Raven Hubbard
Filed: 5/21/2019 4:02 PM
CAUSE NO. 2018-33925
RECEP ALAY § IN THE DISTRICT COURT
§
V. §
§ 281ST JUDICIAL DISTRICT
AMERICAN SPEED INC. D/B/A §
MANCUSO HARLEY-DAVIDSON, §
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MOTORCYCLE RENTALS OF HOUSTON, §
L.P. D/B/A MRH RIDER TRAINING §
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JOHN DOE AND JANE DOE § HARRIS COUNTY, TEXAS
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DEFENDANT’S COMBINED RESPONSE TO PLAINTIFF’S OBJECTION TO THE
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MOTION FOR SUMMARY JUDGMENT AFFIDAVIT OF MOVANT’S COUNSEL AND
REPLY TO PLAINTIFF’S RESPONSE AND OBJECTIONS TO DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
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TO THE HONORABLE JUDGE OF SAID COURT:
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NOW COMES MOTORCYCLE RENTALS OF HOUSTON, L.P. D/B/A MRH RIDER
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TRAINING (hereinafter “MRH” or “Defendant”), and submits this Combined Response to
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Plaintiff’s Objection to the Motion for Summary Judgment Affidavit of Movant’s Counsel and
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Reply to Plaintiff’s Response and Objections to Defendant’s Motion for Summary Judgment
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(collectively referred to as “Plaintiff’s Response briefs”), and states as follow:
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The Release and Waiver Is Enforceable as A Matter of Law
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Plaintiff’s Response brief offers essentially only two arguments: (1) Plaintiff claims not to
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have understood the Waiver and Indemnification Agreement; and (2) the indemnity language was
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not expressed or defined more thoroughly. Neither argument is sufficient as a matter of law to
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withstand summary judgment.
Regarding the first argument, Plaintiff claims there is a question of fact whether Plaintiff
understands English. Plaintiff makes the above argument despite knowing that (a) he signed the
nearly identical agreement on two separate occasions (one being after the accident) and (b) he
routinely signs agreements indicating that he understands English. Plaintiff has not distinguished
any of the authority cited by Defendant that is directly on point. Contrary to Plaintiff’s argument,
under Texas law it does not matter whether the individual signing a pre-injury release and waiver
either reads or understands the agreement. EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex.
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1996); In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005) (per curiam) (the agreement signed
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recited: "THIS IS A BINDING CONTRACT. I HAVE READ IT CAREFULLY BEFORE
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SIGNING"); Royston, Rayzor, Vickery, & Williams, LLP v. Lopez. 467 S.W.3d 494, 500 (Tex.
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2015), reh’g denied (Sept. 11, 2015) (absent fraud, misrepresentation, or deceit, one who signs a
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contract is deemed to know and understand its contents and is bound by its terms); Van Duren v.
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Chife, No. 01-17-00607-CV, 2018 Tex. App. LEXIS 3494 (Tex. App.—Houston [1st Dist.] May
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17, 2018, no pet. history) (“absent some evidence that the [the plaintiffs] were tricked into signing
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the contract …their failure to read the final version of the contract before signing it is not a ground
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for avoiding the enforcement of its terms”); Tate v. RCI, LLC, Civil Action No. H-17-290, 2018
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WL 4282845 (S.D Tex. Sept. 7, 2018) (enforcement of the release is not predicated on the ability
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of the person signing the legally binding document to speak or read the language); Tamez v.
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Southwestern Motor Transport, Inc., 155 S.W.3d 564, 570 (Tex. App. - San Antonio 2004, no
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pet.); Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 17 (Tex. App. - San Antonio 1998, no
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pet.)(“It is well settled that illiteracy will not relieve a party of the consequences of a contract” and
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“if a party is unable to read the contract, he must have it read to him”).
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Regarding the second argument, Plaintiff never really explains how or why the release fails
to satisfy the express negligence doctrine, and Plaintiff fails to consider the recent decisions that
follow the more recent ruling by the Supreme Court of Texas regarding releases in Dresser Indus.,
Inc. v. Page Petroleum, Inc., 853 S.W.2d 505 (Tex.1993)(holding a release operates to extinguish
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a claim or cause of action, is an absolute bar to the released matter, and any release is required
only to mention the specific claims to be released). See Grijalva v. Bally Total Fitness
Corporation, NO. 01–14–00217–CV, 2015 WL 1544582 (Tex. App. - Houston [1 Dist.] April 2,
2015)(granting summary judgment under similar circumstances when the release includes any
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injury arising from use of the facility and equipment, and negligent services rendered or failed to
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be rendered); Benavidez v. University of Texas-Pan American, No. 13–13–00006–CV, 2014 WL
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5500469, at *6 (Tex. App.— Corpus Christi–Edinburg, October 30, 2014) (granting summary
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judgment under similar circumstances). Instead, rather than focus on any one particular word, the
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Court should review the entirety of the release and waiver. The court is bound to read all parts of
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a contract together to ascertain the agreement of the parties. Benavidez, 2014 WL 5500469, at *6
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(citing Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 180 (Tex.1965).
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In the present matter, the language in the waiver and release clearly and expressly provides:
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I fully understand and acknowledge that: (a) there are DANGERS AND RISK OF
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INJURY, DAMAGE, OR DEATH that exist in my use of motorcycles and
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motorcycle equipment and my participation in the Motorcycle Safety Course
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activities; (b) my participation in such activities and/or use of such equipment may
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result in injury or illness including, but not limited to, BODILY INJURY,
DISEASE, STRAINS, FRACTURES, PARTIAL OR TOTAL PARALYSIS,
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OTHER AILMENTS THAT COULD CAUSE SERIOUS DISABILITY, OR
DEATH… (d) by participating in these activities and/or using the equipment, I, on
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behalf of myself, my personal representatives and my heirs, hereby assume all
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risks and all responsibility, and agree to release the Safety Course Providers
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for any injuries, losses and/or damages.
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(See Exhibit “1” highlighting in the original). The agreement goes on to provide that Plaintiff
agreed “to hold harmless, defend, and indemnify the Safety Course Providers from any and all
claims, suits, or causes of action by others for bodily injury, property damage, or other damages
which may arise out of my use of motorcycles and motorcycle equipment or my participation in
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the Motorcycle Safety Course activities, including claims arising from the Safety Course
Providers’ or any other party’s negligence.” Plaintiff has not cited any authority for the proposition
that all activities, including “Motorcycle Safety Course activities”, must be specifically defined.
Similar bolding, capitalization, and underlining in the release has been held to easily
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satisfies the requirements of fair notice by reciting specifically that the Defendant is being released
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from its own negligence and by using contrasting type to satisfy the conspicuousness requirement.
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Tamez v. Southwestern Motor Transport, Inc., 155 S.W.3d 564, 570 (Tex. App. - San Antonio
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2004, no pet.)(“A release encompasses the contractual element of mutual intent and whether the
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minds of the parties have met.”). To satisfy the express negligence test, the release must mention
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all claims it purports to release. Plaintiff claims Bu
that the language in the release is not specific
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enough. See Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex.1987) (holding that
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indemnification provision did not expressly state the party was seeking indemnity for its own
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negligence so as to satisfy express negligence test). The rule is only that the release must mention
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the specific claims and subject matter to be released. The provisions in the subject release and
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waiver does just that. The claims specifically mentioned in the release include bodily injury and
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fractures resulting from the use of motorcycles and motorcycle equipment and participation in the
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Motorcycle Safety Course activities. It is difficult to imagine how the language could have been
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any more specific.
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Attorney Fees
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Plaintiff was on notice from the outset that Defendants were seeking to recover attorney
fees and costs. In this regard, Defendants’ original and amended answers asserted a counter-claim
for breach of the parties’ written agreement by prosecuting this lawsuit, and sought damages for
costs, expenses, and attorneys’ fees pursuant to Section 38.001(8) of the Texas Civil Practice &
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Remedies Code. A “valid claim” under the statute relating to enforcement of an oral or written
contract “is not limited to an action for monetary damages and may include an action for specific
performance. See Rasmusson v. LBC PetroUnited, Inc., 124 S.W.3d 283, 287 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied) (citing Jones v. Kelley, 614 S.W.2d 95, 96, 100-01 (Tex.
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1981)).” Chevron Phillips Chemical Co. LP v. Kingwood Crossroads, L.P., 346 S.W.3d 37, 69
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(Tex. App. - Houston [14th Dist.] 2011, pet. denied)
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In fact, Plaintiff actually caused and increased the cost of this litigation by taking an
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untenable position that he could not understand the English language or the consequences of the
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parties’ agreement (1) despite the fact that he has passed numerous tests requiring comprehension
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of the English language, and (2) despite the fact that such argument is legally insufficient under
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Texas law. To the contrary, although Plaintiff has obviously met with his attorneys (clearly
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without the aid of a Turkish interpreter), Plaintiff claims that nobody has ever explained that he
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might be responsible for attorney fees and costs. See Exhibit “5” at pp. 47-49. (In fact, Plaintiff
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took a break during his deposition to speak to his attorney without the interpreter when questioned
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about such matters).
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Only five (5) pages of Plaintiff’s responsive pleadings relate to the Waiver and
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Indemnification Agreement. Whereas, eight (8) pages of the responsive pleadings relate to
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Plaintiff attempting to avoid attorney fees and cost associated with continuing to litigate this
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matter. In the present matter, Plaintiff gambled by bringing an action despite the plain language
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of the Waiver and Indemnification Agreement, which agreement also allowed for recovery of fees.
Plaintiff should have read the entirety of the agreement and realized it was not worth the risk or
exposure. “First, the idea behind awarding attorney’s fees in fee-shifting situations is to
compensate the prevailing party generally for its reasonable losses resulting from the litigation
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process. See generally In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168, 173 (Tex. 2013)
(orig. proceeding) (observing that although attorney’s fees are not awarded as damages, they can
be viewed as compensating the prevailing party for its losses because the award helps make the
party whole).
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The agreement provides expressly states, inconsideration of being furnished with services,
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equipment (including use of a motorcycle), and being allowed to participate in the Motor Cycle
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Safety Course, Plaintiff agreed “to hold harmless, defend, and indemnify Defendant for any and
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all “claims, suits, or causes of action”, agreed “To ACCEPT LEGAL RESPONSIBILITY AND
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PAY FOR ANY LOSS FOR CLAIMS OR LAWSUIT”, and therefore Plaintiff is liability for all
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the costs and attorneys’ fees incurred in this lawsuit. Bu
(See Exhibit “1” highlighting in the original).
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Based on the above language, Plaintiff breached the parties’ agreement by filing the present
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litigation and is responsible for such damages.
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Plaintiff agreed to pay all damages associated with the present lawsuit. Similar to the
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present matter, the Supreme Court of Texas recently recognized in Venture v. UTSW DVA
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Healthcare, LLP, No. 16-0006, ––– S.W.3d ––––, ––––, 2019 WL 1873428, at *8 (Tex. Apr. 26,
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2019) the parties’ agreement provided for a fee-shifting arrangement whereby the prevailing party
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shall be entitled to an award for its reasonable attorneys’ fees” from the non-prevailing party in
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any action to enforce the terms of the agreement.
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Plaintiff also misinterprets the law and the nature of the present proceedings. Defendant
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could recover the amount of expenses that they incurred as damages in defense of their suit or the
court could take judicial notice of reasonableness of such fees. See Crimson Exploration, Inc. v.
Intermarket Management, LLC, 341 S.W.3d 432, 445 (Tex. App. [1 Dist.] 2010); Haden v. David
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J. Sacks, P.C., 332 S.W.3d 503, 516 (Tex. App. - Houston [1 Dist.] 2009, pet. denied)(noting the
presumption of reasonableness under TEX. CIV. PRAC. & REM. CODE ANN. § 38.003).
“Historically, claimants have proven reasonableness and necessity of attorney’s fees
through an expert’s testimony—often the very attorney seeking the award—who provided a basic
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opinion as to the requested attorney’s fees.” Venture, 2019 WL 1873428, at *13. In this regard,
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Plaintiff’s objections to the affidavit of the attorney that provided the services with respect to the
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amount of fees are unfounded. The affidavit is sufficient as it states:
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“The facts stated in this affidavit are within my personal knowledge and are true and
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correct.
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“The customary and usual hourly charge for the legal services provided by attorneys with
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Mr. Chamberlain and Mr. Taylor's levels of experience for a case such as this in Harris
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County, Texas is $195-$400 per hour.
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The affidavit states that the amount of time expended is “based on my involvement in the
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case and my review of our firm's billing records ….”
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There is no requirement that every attorney that worked on the case provide sworn
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evidence. To the contrary, expert’s typically review and rely upon time entries by other
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attorneys that actually worked on the case.
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Just because affiant, Scott Taylor, presently works for a firm in Austin as opposed to
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Houston does not mean that he is not familiar with or able to testify with usual or customary
charges of attorneys in Houston, Texas.
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It appears to be that Plaintiff’s objection is that all the matters are not set forth in detail
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within the “four corners” of the affidavit or that billing records are not attached. Therefore,
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Plaintiff is making a hearsay objection because the billing records are not attached to the affidavit.
There is no requirement that such billing records be attached to the affidavit, but Defendant is
making the billing records available to the Court and Plaintiff for examination.
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The lodestar figure used by Defendant, multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate, is presumptively reasonable. Venture,
2019 WL 1873428, at *15 (citing Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d
891 (1984)(noting there remain other considerations that may lead the district court to adjust the
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fee upward or downward). “The lodestar analysis requires an assessment of the evidence of hours
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worked for each attorney multiplied by their respective hourly rates to determine the total fee. See
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Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014) (per curiam). There must be evidence of the
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time expended on particular tasks. See id. at 254–55; see also El Apple I, Ltd. v. Olivas, 370 S.W.3d
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757, 763 (Tex. 2012)(under Texas jurisprudence that time estimates cannot be based on
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generalities). The evidence must be sufficiently specific to allow the fact finder to determine the
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amount of time spent on each particular task and to decide whether that length of time was
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reasonable. El Apple I, 370 S.W.3d at 763.” Sloane v. Goldberg B’Nai B’Rith Towers, No. 14-17-
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00557-CV, 2019 WL 2000484--- S.W.3d ---- *8 (Tex. App. – Houston [14th Dist.] 2019, no pet.).
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Defendant has agreed to make the billing records available to the Court and Plaintiff for
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examination and Plaintiff is certainly free to cross-exam Scott Taylor on any of the matters.
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Plaintiff argues the attorney fees are “conclusory”. Of course, the attorney fees are
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conclusory because lodestar figure involves application of a simple formula. All that is required
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is that Defendant prove the reasonableness and necessity of the requested attorney’s fees. Venture,
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2019 WL 1873428, at *8 (“When fee-shifting is authorized, whether by statute or contract, the
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party seeking a fee award must prove the reasonableness and necessity of the requested attorney’s
fees.”). In Venture the jury determined a reasonable fee was $800,000 for representation in the
trial court, $150,000 in the court of appeals, and $75,000 for appealing to the Supreme Court of
Texas).
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Having improperly or unwisely invoked litigation, and without any reference to any legal
authority, Plaintiff now claims that Defendant must offer proof that fees were incurred out of
necessity. The fees would not have been necessary but for Plaintiff wrongfully filing the present
litigation. Plaintiff also argues certain fees, such as (1) traveling to and from the taking of
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Plaintiff’s deposition were unreasonable because the deposition could have been done via Skype,
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or (2) presenting oral argument and evidence of fees incurred, were not actually necessary.
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Defendant does not know what evidence Plaintiff may offer or what arguments might be made.
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Contrary to the actions of Plaintiff in bringing the present litigation, it certainly is not unreasonable
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for Defendant to take Plaintiff’s deposition or present whatever argument is required.
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Even if Defendant did not properly support the claim for fees in the affidavit, which it has,
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the remedy is for the Court to conduct an evidentiary hearing and not to simply deny any of the
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amounts requested. To this end, in Sloane the court recognized that the proper remedy in cases
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where the evidence fails to satisfy the standards for determining fees under the lodestar method is
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to remand the issue for a redetermination of fees. Sloane, at *9 (citing Long, 442 S.W.3d at 256;
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Hong, 551 S.W.3d at 893).
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WHEREFORE, PREMISES CONSIDERED, Defendant requests hearing hereon and prays
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that upon such hearing that the Court grant summary judgment, and further prays for its attorneys’
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fees, costs, and for all and for such other and further relief, at law or in equity to which it may
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show itself justly entitled.
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Respectfully submitted,
CHAMBERLAIN ♦ MCHANEY
301 Congress Avenue, 21st Floor
Austin, Texas 78701
(512) 474-9124
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(512) 474-8582 FAX
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By: /s/ Scott R. Taylor
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DAVID E. CHAMBERLAIN
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State Bar No. 04059800
dchamberlain@chmc-law.com
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SCOTT TAYLOR
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State Bar No. 24012173
staylor@chmc-law.com
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ATTORNEYS FOR DEFENDANTS
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AMERICAN SPEED INC. D/B/A
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MANCUSO HARLEY-DAVIDSON
AND MOTORCYCLE RENTALS OF
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HOUSTON, L.P. D/B/A MRH RIDER
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TRAINING
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CERTIFICATE OF SERVICE
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I certify by my signature above that a true and correct copy of the above and foregoing has
been served on all attorneys of record as listed below on the 21st day of May, 2019:
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Paul A. Higdon
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J. Kevin Shaw
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HIGDON LAWYERS
2929 Allen Parkway, Ste. 200
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Houston, Texas 77019
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Preview
5/21/2019 4:02 PM Marilyn Burgess - District Clerk Harris County Envelope No. 33754297 By: Raven Hubbard Filed: 5/21/2019 4:02 PM CAUSE NO. 2018-33925 RECEP ALAY § IN THE DISTRICT COURT § V. § § 281ST JUDICIAL DISTRICT AMERICAN SPEED INC. D/B/A § MANCUSO HARLEY-DAVIDSON, § k ler MOTORCYCLE RENTALS OF HOUSTON, § L.P. D/B/A MRH RIDER TRAINING § tC JOHN DOE AND JANE DOE § HARRIS COUNTY, TEXAS ric ist DEFENDANT’S COMBINED RESPONSE TO PLAINTIFF’S OBJECTION TO THE sD MOTION FOR SUMMARY JUDGMENT AFFIDAVIT OF MOVANT’S COUNSEL AND REPLY TO PLAINTIFF’S RESPONSE AND OBJECTIONS TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT es rg TO THE HONORABLE JUDGE OF SAID COURT: Bu NOW COMES MOTORCYCLE RENTALS OF HOUSTON, L.P. D/B/A MRH RIDER n ily TRAINING (hereinafter “MRH” or “Defendant”), and submits this Combined Response to ar M Plaintiff’s Objection to the Motion for Summary Judgment Affidavit of Movant’s Counsel and of Reply to Plaintiff’s Response and Objections to Defendant’s Motion for Summary Judgment e ffic (collectively referred to as “Plaintiff’s Response briefs”), and states as follow: O The Release and Waiver Is Enforceable as A Matter of Law y op C Plaintiff’s Response brief offers essentially only two arguments: (1) Plaintiff claims not to ial have understood the Waiver and Indemnification Agreement; and (2) the indemnity language was fic of not expressed or defined more thoroughly. Neither argument is sufficient as a matter of law to Un withstand summary judgment. Regarding the first argument, Plaintiff claims there is a question of fact whether Plaintiff understands English. Plaintiff makes the above argument despite knowing that (a) he signed the nearly identical agreement on two separate occasions (one being after the accident) and (b) he routinely signs agreements indicating that he understands English. Plaintiff has not distinguished any of the authority cited by Defendant that is directly on point. Contrary to Plaintiff’s argument, under Texas law it does not matter whether the individual signing a pre-injury release and waiver either reads or understands the agreement. EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex. k ler 1996); In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005) (per curiam) (the agreement signed tC recited: "THIS IS A BINDING CONTRACT. I HAVE READ IT CAREFULLY BEFORE ric SIGNING"); Royston, Rayzor, Vickery, & Williams, LLP v. Lopez. 467 S.W.3d 494, 500 (Tex. ist sD 2015), reh’g denied (Sept. 11, 2015) (absent fraud, misrepresentation, or deceit, one who signs a es contract is deemed to know and understand its contents and is bound by its terms); Van Duren v. rg Chife, No. 01-17-00607-CV, 2018 Tex. App. LEXIS 3494 (Tex. App.—Houston [1st Dist.] May Bu 17, 2018, no pet. history) (“absent some evidence that the [the plaintiffs] were tricked into signing n ily the contract …their failure to read the final version of the contract before signing it is not a ground ar M for avoiding the enforcement of its terms”); Tate v. RCI, LLC, Civil Action No. H-17-290, 2018 of WL 4282845 (S.D Tex. Sept. 7, 2018) (enforcement of the release is not predicated on the ability e ffic of the person signing the legally binding document to speak or read the language); Tamez v. O Southwestern Motor Transport, Inc., 155 S.W.3d 564, 570 (Tex. App. - San Antonio 2004, no y op pet.); Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 17 (Tex. App. - San Antonio 1998, no C pet.)(“It is well settled that illiteracy will not relieve a party of the consequences of a contract” and ial fic “if a party is unable to read the contract, he must have it read to him”). of Un Regarding the second argument, Plaintiff never really explains how or why the release fails to satisfy the express negligence doctrine, and Plaintiff fails to consider the recent decisions that follow the more recent ruling by the Supreme Court of Texas regarding releases in Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505 (Tex.1993)(holding a release operates to extinguish 2 a claim or cause of action, is an absolute bar to the released matter, and any release is required only to mention the specific claims to be released). See Grijalva v. Bally Total Fitness Corporation, NO. 01–14–00217–CV, 2015 WL 1544582 (Tex. App. - Houston [1 Dist.] April 2, 2015)(granting summary judgment under similar circumstances when the release includes any k ler injury arising from use of the facility and equipment, and negligent services rendered or failed to tC be rendered); Benavidez v. University of Texas-Pan American, No. 13–13–00006–CV, 2014 WL ric 5500469, at *6 (Tex. App.— Corpus Christi–Edinburg, October 30, 2014) (granting summary ist sD judgment under similar circumstances). Instead, rather than focus on any one particular word, the es Court should review the entirety of the release and waiver. The court is bound to read all parts of rg a contract together to ascertain the agreement of the parties. Benavidez, 2014 WL 5500469, at *6 Bu (citing Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 180 (Tex.1965). n ily In the present matter, the language in the waiver and release clearly and expressly provides: ar M I fully understand and acknowledge that: (a) there are DANGERS AND RISK OF of INJURY, DAMAGE, OR DEATH that exist in my use of motorcycles and e motorcycle equipment and my participation in the Motorcycle Safety Course ffic activities; (b) my participation in such activities and/or use of such equipment may O result in injury or illness including, but not limited to, BODILY INJURY, DISEASE, STRAINS, FRACTURES, PARTIAL OR TOTAL PARALYSIS, y op OTHER AILMENTS THAT COULD CAUSE SERIOUS DISABILITY, OR DEATH… (d) by participating in these activities and/or using the equipment, I, on C behalf of myself, my personal representatives and my heirs, hereby assume all ial risks and all responsibility, and agree to release the Safety Course Providers fic for any injuries, losses and/or damages. of Un (See Exhibit “1” highlighting in the original). The agreement goes on to provide that Plaintiff agreed “to hold harmless, defend, and indemnify the Safety Course Providers from any and all claims, suits, or causes of action by others for bodily injury, property damage, or other damages which may arise out of my use of motorcycles and motorcycle equipment or my participation in 3 the Motorcycle Safety Course activities, including claims arising from the Safety Course Providers’ or any other party’s negligence.” Plaintiff has not cited any authority for the proposition that all activities, including “Motorcycle Safety Course activities”, must be specifically defined. Similar bolding, capitalization, and underlining in the release has been held to easily k ler satisfies the requirements of fair notice by reciting specifically that the Defendant is being released tC from its own negligence and by using contrasting type to satisfy the conspicuousness requirement. ric ist Tamez v. Southwestern Motor Transport, Inc., 155 S.W.3d 564, 570 (Tex. App. - San Antonio sD 2004, no pet.)(“A release encompasses the contractual element of mutual intent and whether the es minds of the parties have met.”). To satisfy the express negligence test, the release must mention rg all claims it purports to release. Plaintiff claims Bu that the language in the release is not specific n enough. See Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex.1987) (holding that ily indemnification provision did not expressly state the party was seeking indemnity for its own ar M negligence so as to satisfy express negligence test). The rule is only that the release must mention of e the specific claims and subject matter to be released. The provisions in the subject release and ffic waiver does just that. The claims specifically mentioned in the release include bodily injury and O fractures resulting from the use of motorcycles and motorcycle equipment and participation in the y op Motorcycle Safety Course activities. It is difficult to imagine how the language could have been C ial any more specific. fic Attorney Fees of Un Plaintiff was on notice from the outset that Defendants were seeking to recover attorney fees and costs. In this regard, Defendants’ original and amended answers asserted a counter-claim for breach of the parties’ written agreement by prosecuting this lawsuit, and sought damages for costs, expenses, and attorneys’ fees pursuant to Section 38.001(8) of the Texas Civil Practice & 4 Remedies Code. A “valid claim” under the statute relating to enforcement of an oral or written contract “is not limited to an action for monetary damages and may include an action for specific performance. See Rasmusson v. LBC PetroUnited, Inc., 124 S.W.3d 283, 287 (Tex. App.— Houston [14th Dist.] 2003, pet. denied) (citing Jones v. Kelley, 614 S.W.2d 95, 96, 100-01 (Tex. k ler 1981)).” Chevron Phillips Chemical Co. LP v. Kingwood Crossroads, L.P., 346 S.W.3d 37, 69 tC (Tex. App. - Houston [14th Dist.] 2011, pet. denied) ric ist In fact, Plaintiff actually caused and increased the cost of this litigation by taking an sD untenable position that he could not understand the English language or the consequences of the es parties’ agreement (1) despite the fact that he has passed numerous tests requiring comprehension rg Bu of the English language, and (2) despite the fact that such argument is legally insufficient under n Texas law. To the contrary, although Plaintiff has obviously met with his attorneys (clearly ily without the aid of a Turkish interpreter), Plaintiff claims that nobody has ever explained that he ar M might be responsible for attorney fees and costs. See Exhibit “5” at pp. 47-49. (In fact, Plaintiff of e took a break during his deposition to speak to his attorney without the interpreter when questioned ffic about such matters). yO Only five (5) pages of Plaintiff’s responsive pleadings relate to the Waiver and op C Indemnification Agreement. Whereas, eight (8) pages of the responsive pleadings relate to ial Plaintiff attempting to avoid attorney fees and cost associated with continuing to litigate this fic matter. In the present matter, Plaintiff gambled by bringing an action despite the plain language of Un of the Waiver and Indemnification Agreement, which agreement also allowed for recovery of fees. Plaintiff should have read the entirety of the agreement and realized it was not worth the risk or exposure. “First, the idea behind awarding attorney’s fees in fee-shifting situations is to compensate the prevailing party generally for its reasonable losses resulting from the litigation 5 process. See generally In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168, 173 (Tex. 2013) (orig. proceeding) (observing that although attorney’s fees are not awarded as damages, they can be viewed as compensating the prevailing party for its losses because the award helps make the party whole). k ler The agreement provides expressly states, inconsideration of being furnished with services, tC equipment (including use of a motorcycle), and being allowed to participate in the Motor Cycle ric ist Safety Course, Plaintiff agreed “to hold harmless, defend, and indemnify Defendant for any and sD all “claims, suits, or causes of action”, agreed “To ACCEPT LEGAL RESPONSIBILITY AND es PAY FOR ANY LOSS FOR CLAIMS OR LAWSUIT”, and therefore Plaintiff is liability for all rg the costs and attorneys’ fees incurred in this lawsuit. Bu (See Exhibit “1” highlighting in the original). n Based on the above language, Plaintiff breached the parties’ agreement by filing the present ily litigation and is responsible for such damages. ar M Plaintiff agreed to pay all damages associated with the present lawsuit. Similar to the of e present matter, the Supreme Court of Texas recently recognized in Venture v. UTSW DVA ffic Healthcare, LLP, No. 16-0006, ––– S.W.3d ––––, ––––, 2019 WL 1873428, at *8 (Tex. Apr. 26, yO 2019) the parties’ agreement provided for a fee-shifting arrangement whereby the prevailing party op C shall be entitled to an award for its reasonable attorneys’ fees” from the non-prevailing party in ial any action to enforce the terms of the agreement. fic of Plaintiff also misinterprets the law and the nature of the present proceedings. Defendant Un could recover the amount of expenses that they incurred as damages in defense of their suit or the court could take judicial notice of reasonableness of such fees. See Crimson Exploration, Inc. v. Intermarket Management, LLC, 341 S.W.3d 432, 445 (Tex. App. [1 Dist.] 2010); Haden v. David 6 J. Sacks, P.C., 332 S.W.3d 503, 516 (Tex. App. - Houston [1 Dist.] 2009, pet. denied)(noting the presumption of reasonableness under TEX. CIV. PRAC. & REM. CODE ANN. § 38.003). “Historically, claimants have proven reasonableness and necessity of attorney’s fees through an expert’s testimony—often the very attorney seeking the award—who provided a basic k ler opinion as to the requested attorney’s fees.” Venture, 2019 WL 1873428, at *13. In this regard, tC Plaintiff’s objections to the affidavit of the attorney that provided the services with respect to the ric ist amount of fees are unfounded. The affidavit is sufficient as it states: sD “The facts stated in this affidavit are within my personal knowledge and are true and es correct. rg “The customary and usual hourly charge for the legal services provided by attorneys with Bu Mr. Chamberlain and Mr. Taylor's levels of experience for a case such as this in Harris n County, Texas is $195-$400 per hour. ily ar The affidavit states that the amount of time expended is “based on my involvement in the M case and my review of our firm's billing records ….” of There is no requirement that every attorney that worked on the case provide sworn e evidence. To the contrary, expert’s typically review and rely upon time entries by other ffic attorneys that actually worked on the case. O Just because affiant, Scott Taylor, presently works for a firm in Austin as opposed to y op Houston does not mean that he is not familiar with or able to testify with usual or customary charges of attorneys in Houston, Texas. C It appears to be that Plaintiff’s objection is that all the matters are not set forth in detail ial fic within the “four corners” of the affidavit or that billing records are not attached. Therefore, of Un Plaintiff is making a hearsay objection because the billing records are not attached to the affidavit. There is no requirement that such billing records be attached to the affidavit, but Defendant is making the billing records available to the Court and Plaintiff for examination. 7 The lodestar figure used by Defendant, multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate, is presumptively reasonable. Venture, 2019 WL 1873428, at *15 (citing Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)(noting there remain other considerations that may lead the district court to adjust the k ler fee upward or downward). “The lodestar analysis requires an assessment of the evidence of hours tC worked for each attorney multiplied by their respective hourly rates to determine the total fee. See ric Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014) (per curiam). There must be evidence of the ist sD time expended on particular tasks. See id. at 254–55; see also El Apple I, Ltd. v. Olivas, 370 S.W.3d es 757, 763 (Tex. 2012)(under Texas jurisprudence that time estimates cannot be based on rg generalities). The evidence must be sufficiently specific to allow the fact finder to determine the Bu amount of time spent on each particular task and to decide whether that length of time was n ily reasonable. El Apple I, 370 S.W.3d at 763.” Sloane v. Goldberg B’Nai B’Rith Towers, No. 14-17- ar M 00557-CV, 2019 WL 2000484--- S.W.3d ---- *8 (Tex. App. – Houston [14th Dist.] 2019, no pet.). of Defendant has agreed to make the billing records available to the Court and Plaintiff for e ffic examination and Plaintiff is certainly free to cross-exam Scott Taylor on any of the matters. O Plaintiff argues the attorney fees are “conclusory”. Of course, the attorney fees are y op conclusory because lodestar figure involves application of a simple formula. All that is required C ial is that Defendant prove the reasonableness and necessity of the requested attorney’s fees. Venture, fic 2019 WL 1873428, at *8 (“When fee-shifting is authorized, whether by statute or contract, the of Un party seeking a fee award must prove the reasonableness and necessity of the requested attorney’s fees.”). In Venture the jury determined a reasonable fee was $800,000 for representation in the trial court, $150,000 in the court of appeals, and $75,000 for appealing to the Supreme Court of Texas). 8 Having improperly or unwisely invoked litigation, and without any reference to any legal authority, Plaintiff now claims that Defendant must offer proof that fees were incurred out of necessity. The fees would not have been necessary but for Plaintiff wrongfully filing the present litigation. Plaintiff also argues certain fees, such as (1) traveling to and from the taking of k ler Plaintiff’s deposition were unreasonable because the deposition could have been done via Skype, tC or (2) presenting oral argument and evidence of fees incurred, were not actually necessary. ric Defendant does not know what evidence Plaintiff may offer or what arguments might be made. ist sD Contrary to the actions of Plaintiff in bringing the present litigation, it certainly is not unreasonable es for Defendant to take Plaintiff’s deposition or present whatever argument is required. rg Bu Even if Defendant did not properly support the claim for fees in the affidavit, which it has, n the remedy is for the Court to conduct an evidentiary hearing and not to simply deny any of the ily amounts requested. To this end, in Sloane the court recognized that the proper remedy in cases ar M where the evidence fails to satisfy the standards for determining fees under the lodestar method is of e to remand the issue for a redetermination of fees. Sloane, at *9 (citing Long, 442 S.W.3d at 256; ffic Hong, 551 S.W.3d at 893). yO WHEREFORE, PREMISES CONSIDERED, Defendant requests hearing hereon and prays op C that upon such hearing that the Court grant summary judgment, and further prays for its attorneys’ ial fees, costs, and for all and for such other and further relief, at law or in equity to which it may fic show itself justly entitled. of Un 9 Respectfully submitted, CHAMBERLAIN ♦ MCHANEY 301 Congress Avenue, 21st Floor Austin, Texas 78701 (512) 474-9124 k (512) 474-8582 FAX ler By: /s/ Scott R. Taylor tC DAVID E. CHAMBERLAIN ric State Bar No. 04059800 dchamberlain@chmc-law.com ist SCOTT TAYLOR sD State Bar No. 24012173 staylor@chmc-law.com es ATTORNEYS FOR DEFENDANTS rg AMERICAN SPEED INC. D/B/A Bu MANCUSO HARLEY-DAVIDSON AND MOTORCYCLE RENTALS OF n HOUSTON, L.P. D/B/A MRH RIDER ily TRAINING ar M of CERTIFICATE OF SERVICE e ffic I certify by my signature above that a true and correct copy of the above and foregoing has been served on all attorneys of record as listed below on the 21st day of May, 2019: yO Paul A. Higdon op J. Kevin Shaw C HIGDON LAWYERS 2929 Allen Parkway, Ste. 200 ial Houston, Texas 77019 fic of Un 10