Preview
FILED
DALLAS COUNTY
9/11/2018 2:04 PM
FELICIA PITRE
DISTRICT CLERK
NO. DC-17-11360
SCRAPSOURCE, LLC § IN THE 192ND JUDICIAL
Plaintiff, §
§
v. §
§ DISTRICT COURT
FORTIS METAL §
MANAGEMENT, LLC, §
MITCHELL WOLFF AND §
JASON WOLFF §
Defendants. § OF DALLAS COUNTY, TEXAS
DEFENDANTS’ REPLY TO PLAINTIFF’S
PROPOSED ATTORNEYS FEES
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Defendants, Fortis Metal Management, LLC, Mitchell Wolff,
and Jason Wolff, who file this reply to the Plaintiff’s proposed attorneys’ fees
award, and hereby shows the following:
I. The Fish and the Loaves
1. The Plaintiff in this case has thrice sought attorneys’ fees in support of
a final judgment. On June 18, 2018, the Plaintiff, on page 24 of 25 of its Motion
for Summary Judgment, prayed that it be awarded $26,469.38 in attorney’s fees.
On September 4, 2018, in Plaintiff’s exhibits 30-54, Plaintiff sought $61,091.00 in
attorneys’ fees. Four business days later, Plaintiff sought $83,021.00, or in the
alternative $100,782.00(!?) in attorneys’ fees. This claims that the Plaintiff
incurred at least $18,000 in fees, or alternatively $35,000(?!) in “reasonable”
1|D e f e n d a n t s ’ R e p l y t o P l a i n t i f f ’ s P r o p o s e d Attorneys’ Fees, DC-17-11360
attorneys’ fees between Tuesday morning (one day of trial) and filing a post-trial
submission of attorneys’ fees three days later. That doesn’t even include the
$75,000.00 in future trial level and appellate fees that have not been earned, and
may never be earned.
II. “Reasonable” is Subject to this Court’s Broad Discretion
2. Fixing a reasonable attorney's fee is a matter within the sound
discretion of the trial court, and its judgment will not be reversed on appeal absent
a clear abuse of discretion. See Rowley v. Lake Area Nat. Bank, 976 S.W.2d 715,
724 (Tex. App.–Houston [1st Dist.] 1998, pet. denied). Whether attorney's fees are
reasonable and necessary is a fact question. See Garcia v. Gomez, 319 S.W.3d 638,
642 (Tex. 2010). Thus, an abuse of discretion does not occur where the trial court
bases its decision on conflicting evidence. See Davis v. Huey, 571 S.W.2d 859, 862
(Tex. 1978). The fact finder can consider the nature and complexity of the case, the
amount in controversy, the amount of time and effort required, and the expertise of
counsel in arriving at a reasonable amount of attorney's fees. See, e.g., Murrco
Agency, Inc. v. Ryan, 800 S.W.2d 600, 607 (Tex. App.–Dallas 1990, no
writ) (factors to be considered include nature of the case, time spent, and skill and
experience required).
3. The amount and reasonableness of attorney's fees also involves
several intangible factors, and the trial court can draw on its own expertise in that
2|D e f e n d a n t s ’ R e p l y t o P l a i n t i f f ’ s P r o p o s e d Attorneys’ Fees, DC-17-11360
decision-making. See id. at 606–07. The party seeking attorney's fees has the
burden of proof on the amount and reasonableness of the fees sought. El Apple I,
Ltd. v. Olivas, 370 S.W.3d 757, 762–63 (Tex. 2012). “A ‘reasonable’ attorney's fee
‘is one that is not excessive or extreme, but rather moderate or fair.’ ” Sullivan v.
Abraham, 488 S.W.3d 294, 299 (Tex. 2016).
III. May the Defendants recover Attorneys’ Fees?
4. A party may recover attorney's fees only when permitted by statute or
contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006).
The “Second Settlement Agreement” incorporates by reference paragraph 16 of the
“First Settlement Agreement,” which provides that “if any action in law or in
equity is brought to enforce this Settlement agreement, the prevailing party in such
action shall recover his or its reasonable attorneys’ fees and costs, in addition to
any actual damages, if any.” Plaintiff’s Exhibit 3 page 12, Plaintiff’s Exhibit 15,
SS000205. Therefore, the prevailing party in both causes of action for breach of
contract shall be awarded reasonable attorneys’ fees.
5. A court's primary concern when interpreting a contract is to ascertain
and give effect to the intent of the parties as expressed in the contract. Seagull
Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006). Unless
defined in the contract itself, terms therein are given their plain, ordinary, and
generally accepted meanings. Valence Operating Co. v. Dorsett, 164 S.W.3d 656,
3|D e f e n d a n t s ’ R e p l y t o P l a i n t i f f ’ s P r o p o s e d Attorneys’ Fees, DC-17-11360
662 (Tex.2005). The agreement here does not define “party prevailing”; thus, we
assume the parties intended the phrase's ordinary meaning to apply. See Intercont'l
Group P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653
(Tex.2009); Fitzgerald v. Schroeder Ventures II, Inc., 345 S.W.3d 624, 629–30
(Tex.App.-San Antonio 2011, no pet.).
6. The term “prevailing party” is defined by Black's Law Dictionary as
“[a] party in whose favor a judgment is rendered, regardless of the amount of
damages awarded ... [a]lso termed successful party.” BLACK'S LAW
DICTIONARY 1154 (8th ed. 2004) (emphasis in original). According to Webster's
Dictionary, the word “prevail” means: (1) to gain ascendancy through strength or
superiority: triumph; (2) to be or become effective or effectual; (3) to use
persuasion successfully. WEBSTER'S NINTH NEW COLLEGIATE
DICTIONARY 932 (9th ed. 1991).
7. Texas Courts have previously interpreted “prevailing party” in similar
contract provisions to mean the party that prevails on the “main action” or the
“main issue” in the litigation. See, e.g., Parkway Dental Assocs. v. Ho & Huang
Props., L.P., 391 S.W.3d 596, 612 (Tex.App.-Houston [14th Dist.] 2012, no pet.
h.); Chevron Phillips Chem. Co. v. Kingwood Crossroads, L.P., 346 S.W.3d 37, 72
(Tex.App.-Houston [14th Dist.] 2011, pet. filed); Emery Air Freight Corp. v. Gen.
Transp. Sys., Inc., 933 S.W.2d 312, 315–16 (Tex.App.-Houston [14th Dist.] 1996,
4|D e f e n d a n t s ’ R e p l y t o P l a i n t i f f ’ s P r o p o s e d Attorneys’ Fees, DC-17-11360
no pet.), disapproved of on other grounds by Evanston Ins. Co. v. ATOFINA
Petrochems., Inc., 256 S.W.3d 660 (Tex.2008). For a defendant, this would mean
successfully defending on the main action. E.g., Parkway Dental Assocs., 391
S.W.3d at 612; Chevron Phillips Chem., 346 S.W.3d at 72; Emery Air Freight, 933
S.W.2d at 315–16. Typically, this would mean obtaining a take-nothing judgment
on the main issue or issues in the case. See Old HH, Ltd. v. Henderson, No. 03–10–
00129–CV, 2011 WL 6118570, at *4 (Tex.App.-Austin December 09, 2011, no
pet.) (mem. op.); Fitzgerald, 345 S.W.3d at 630; Silver Lion, Inc. v. Dolphin Street,
Inc., No. 01–07–00370–CV, 2010 WL 2025749, at *18 (Tex.App.-Houston [1st
Dist.] May 20, 2010, pet. denied) (mem. op.).
III. “How do I know that from the record?”
8. Plaintiff’s September 7, 2018 post trial submission as to attorneys’
fees was accompanied by a letter that made claims about the evidence admitted
during the trial. The Plaintiff claims, on page 3-4 of that letter, that “ScrapSource
presented uncontroverted testimony of Larry Olschwanger that ScrapSource stands
ready willing and able to perform its obligations…” That is false. No such
testimony was offered. The Court will also recall making the statement heading
this section of this Reply, sua sponte, when the Plaintiff claimed that it had been
damaged. Specifically, the Plaintiff claimed that it had offered evidence of some
monetary damage, and the Court stated “How do I know that from the record?”
5|D e f e n d a n t s ’ R e p l y t o P l a i n t i f f ’ s P r o p o s e d Attorneys’ Fees, DC-17-11360
Any contrary claims are not only contrary to the evidence presented at trial, they
come close being a deliberate misstatement of the trial record. The Court will
recall the evidence admitted at trial.
WHEREFORE, PREMISES CONSIDERED, Fortis Metal Management,
LLC, Mitchell Wolff, and Jason Wolff, Movants, request that this Court enter
judgment in accordance with the Defendants’ Proposed Final Judgment filed
Friday, September 7, 2018.
Respectfully submitted,
LAW OFFICE OF BILL PEDERSEN, III, PLLC
By: /s/ Bill Pedersen, III
Bill Pedersen, III
Texas Bar No. 24030011
Email: bill@bpedlaw.com
3800 Maple Avenue, Suite 380
Dallas, Texas 75219
Tel. (214) 630-4554
Fax. (214) 630-9264
Attorney for Defendants
CERTIFICATE OF SERVICE
I certify that on September 11, 2018 a true and correct copy of Defendant's
Reply to Plaintiff’s Proposed Attorneys’ Fees was served on all partied in
accordance with the Texas Rules of Civil Procedure.
/s/ Bill Pedersen, III
Bill Pedersen, III
6|D e f e n d a n t s ’ R e p l y t o P l a i n t i f f ’ s P r o p o s e d Attorneys’ Fees, DC-17-11360
Preview
FILED DALLAS COUNTY 9/11/2018 2:04 PM FELICIA PITRE DISTRICT CLERK NO. DC-17-11360 SCRAPSOURCE, LLC § IN THE 192ND JUDICIAL Plaintiff, § § v. § § DISTRICT COURT FORTIS METAL § MANAGEMENT, LLC, § MITCHELL WOLFF AND § JASON WOLFF § Defendants. § OF DALLAS COUNTY, TEXAS DEFENDANTS’ REPLY TO PLAINTIFF’S PROPOSED ATTORNEYS FEES TO THE HONORABLE JUDGE OF SAID COURT: COME NOW Defendants, Fortis Metal Management, LLC, Mitchell Wolff, and Jason Wolff, who file this reply to the Plaintiff’s proposed attorneys’ fees award, and hereby shows the following: I. The Fish and the Loaves 1. The Plaintiff in this case has thrice sought attorneys’ fees in support of a final judgment. On June 18, 2018, the Plaintiff, on page 24 of 25 of its Motion for Summary Judgment, prayed that it be awarded $26,469.38 in attorney’s fees. On September 4, 2018, in Plaintiff’s exhibits 30-54, Plaintiff sought $61,091.00 in attorneys’ fees. Four business days later, Plaintiff sought $83,021.00, or in the alternative $100,782.00(!?) in attorneys’ fees. This claims that the Plaintiff incurred at least $18,000 in fees, or alternatively $35,000(?!) in “reasonable” 1|D e f e n d a n t s ’ R e p l y t o P l a i n t i f f ’ s P r o p o s e d Attorneys’ Fees, DC-17-11360 attorneys’ fees between Tuesday morning (one day of trial) and filing a post-trial submission of attorneys’ fees three days later. That doesn’t even include the $75,000.00 in future trial level and appellate fees that have not been earned, and may never be earned. II. “Reasonable” is Subject to this Court’s Broad Discretion 2. Fixing a reasonable attorney's fee is a matter within the sound discretion of the trial court, and its judgment will not be reversed on appeal absent a clear abuse of discretion. See Rowley v. Lake Area Nat. Bank, 976 S.W.2d 715, 724 (Tex. App.–Houston [1st Dist.] 1998, pet. denied). Whether attorney's fees are reasonable and necessary is a fact question. See Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010). Thus, an abuse of discretion does not occur where the trial court bases its decision on conflicting evidence. See Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). The fact finder can consider the nature and complexity of the case, the amount in controversy, the amount of time and effort required, and the expertise of counsel in arriving at a reasonable amount of attorney's fees. See, e.g., Murrco Agency, Inc. v. Ryan, 800 S.W.2d 600, 607 (Tex. App.–Dallas 1990, no writ) (factors to be considered include nature of the case, time spent, and skill and experience required). 3. The amount and reasonableness of attorney's fees also involves several intangible factors, and the trial court can draw on its own expertise in that 2|D e f e n d a n t s ’ R e p l y t o P l a i n t i f f ’ s P r o p o s e d Attorneys’ Fees, DC-17-11360 decision-making. See id. at 606–07. The party seeking attorney's fees has the burden of proof on the amount and reasonableness of the fees sought. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762–63 (Tex. 2012). “A ‘reasonable’ attorney's fee ‘is one that is not excessive or extreme, but rather moderate or fair.’ ” Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016). III. May the Defendants recover Attorneys’ Fees? 4. A party may recover attorney's fees only when permitted by statute or contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006). The “Second Settlement Agreement” incorporates by reference paragraph 16 of the “First Settlement Agreement,” which provides that “if any action in law or in equity is brought to enforce this Settlement agreement, the prevailing party in such action shall recover his or its reasonable attorneys’ fees and costs, in addition to any actual damages, if any.” Plaintiff’s Exhibit 3 page 12, Plaintiff’s Exhibit 15, SS000205. Therefore, the prevailing party in both causes of action for breach of contract shall be awarded reasonable attorneys’ fees. 5. A court's primary concern when interpreting a contract is to ascertain and give effect to the intent of the parties as expressed in the contract. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006). Unless defined in the contract itself, terms therein are given their plain, ordinary, and generally accepted meanings. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 3|D e f e n d a n t s ’ R e p l y t o P l a i n t i f f ’ s P r o p o s e d Attorneys’ Fees, DC-17-11360 662 (Tex.2005). The agreement here does not define “party prevailing”; thus, we assume the parties intended the phrase's ordinary meaning to apply. See Intercont'l Group P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653 (Tex.2009); Fitzgerald v. Schroeder Ventures II, Inc., 345 S.W.3d 624, 629–30 (Tex.App.-San Antonio 2011, no pet.). 6. The term “prevailing party” is defined by Black's Law Dictionary as “[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded ... [a]lso termed successful party.” BLACK'S LAW DICTIONARY 1154 (8th ed. 2004) (emphasis in original). According to Webster's Dictionary, the word “prevail” means: (1) to gain ascendancy through strength or superiority: triumph; (2) to be or become effective or effectual; (3) to use persuasion successfully. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 932 (9th ed. 1991). 7. Texas Courts have previously interpreted “prevailing party” in similar contract provisions to mean the party that prevails on the “main action” or the “main issue” in the litigation. See, e.g., Parkway Dental Assocs. v. Ho & Huang Props., L.P., 391 S.W.3d 596, 612 (Tex.App.-Houston [14th Dist.] 2012, no pet. h.); Chevron Phillips Chem. Co. v. Kingwood Crossroads, L.P., 346 S.W.3d 37, 72 (Tex.App.-Houston [14th Dist.] 2011, pet. filed); Emery Air Freight Corp. v. Gen. Transp. Sys., Inc., 933 S.W.2d 312, 315–16 (Tex.App.-Houston [14th Dist.] 1996, 4|D e f e n d a n t s ’ R e p l y t o P l a i n t i f f ’ s P r o p o s e d Attorneys’ Fees, DC-17-11360 no pet.), disapproved of on other grounds by Evanston Ins. Co. v. ATOFINA Petrochems., Inc., 256 S.W.3d 660 (Tex.2008). For a defendant, this would mean successfully defending on the main action. E.g., Parkway Dental Assocs., 391 S.W.3d at 612; Chevron Phillips Chem., 346 S.W.3d at 72; Emery Air Freight, 933 S.W.2d at 315–16. Typically, this would mean obtaining a take-nothing judgment on the main issue or issues in the case. See Old HH, Ltd. v. Henderson, No. 03–10– 00129–CV, 2011 WL 6118570, at *4 (Tex.App.-Austin December 09, 2011, no pet.) (mem. op.); Fitzgerald, 345 S.W.3d at 630; Silver Lion, Inc. v. Dolphin Street, Inc., No. 01–07–00370–CV, 2010 WL 2025749, at *18 (Tex.App.-Houston [1st Dist.] May 20, 2010, pet. denied) (mem. op.). III. “How do I know that from the record?” 8. Plaintiff’s September 7, 2018 post trial submission as to attorneys’ fees was accompanied by a letter that made claims about the evidence admitted during the trial. The Plaintiff claims, on page 3-4 of that letter, that “ScrapSource presented uncontroverted testimony of Larry Olschwanger that ScrapSource stands ready willing and able to perform its obligations…” That is false. No such testimony was offered. The Court will also recall making the statement heading this section of this Reply, sua sponte, when the Plaintiff claimed that it had been damaged. Specifically, the Plaintiff claimed that it had offered evidence of some monetary damage, and the Court stated “How do I know that from the record?” 5|D e f e n d a n t s ’ R e p l y t o P l a i n t i f f ’ s P r o p o s e d Attorneys’ Fees, DC-17-11360 Any contrary claims are not only contrary to the evidence presented at trial, they come close being a deliberate misstatement of the trial record. The Court will recall the evidence admitted at trial. WHEREFORE, PREMISES CONSIDERED, Fortis Metal Management, LLC, Mitchell Wolff, and Jason Wolff, Movants, request that this Court enter judgment in accordance with the Defendants’ Proposed Final Judgment filed Friday, September 7, 2018. Respectfully submitted, LAW OFFICE OF BILL PEDERSEN, III, PLLC By: /s/ Bill Pedersen, III Bill Pedersen, III Texas Bar No. 24030011 Email: bill@bpedlaw.com 3800 Maple Avenue, Suite 380 Dallas, Texas 75219 Tel. (214) 630-4554 Fax. (214) 630-9264 Attorney for Defendants CERTIFICATE OF SERVICE I certify that on September 11, 2018 a true and correct copy of Defendant's Reply to Plaintiff’s Proposed Attorneys’ Fees was served on all partied in accordance with the Texas Rules of Civil Procedure. /s/ Bill Pedersen, III Bill Pedersen, III 6|D e f e n d a n t s ’ R e p l y t o P l a i n t i f f ’ s P r o p o s e d Attorneys’ Fees, DC-17-11360