Totran Transportation Services, Ltd v. Fitzley, Inc, No. 5:2008cv00125 - Document 34 (S.D. Tex. 2010)
Court Description: ORDER granting in part and denying in part 33 Motion for Summary Judgment. Totran is ORDERED to file an advisory, by June 18, 2010, stating whether it seeks damages beyond $200,000.00. If it does not, then the Court will enter judgment in fa vor of Totran. With respect to attorney's fees, Totran's motion for summary judgment is DENIED without prejudice to Totran filing a post-judgment motion according to Rule 54 and Local Rule 54.2. The materials Totran has already submitted regarding its fees may be incorporated by reference in a post-judgment motion. (Signed by Judge George P. Kazen) Parties notified. (dmorales)
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Totran Transportation Services, Ltd v. Fitzley, Inc Doc. 34 o IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS LAREDO DIVISION TOTRAN TRANSPORTATION SERVICES, § § LTD, § § Plaintiff, VS. § § § FITZLEY, INC, § § Defendant, CIVIL ACTION NO. L-08-125 MEMORANDUM AND ORDER Plaintiff Totran Transportation Services, Ltd., sues Defendant Fitzley, Inc., for breach of a contract to ship gas heating equipment from Laredo, Texas, to Tamazunchale, San Luis Potosi, Mexico. ¶ 3.) The (Pl. Original Compl. ¶¶ 7-10; Court rendered summary judgment Dkt. 3, Answer for Totran on liability for the loss of the equipment in a Memorandum and Order of February 8, 2010. 12.) (Dkt. 32, Order of Feb. 8, 2010, 10, Pending is Totran’s amended motion for summary judgment regarding damages and attorney’s fees. (Dkt. 33, Pl. Am. MSJ.) The facts set forth below are based on the evidence contained in the record as supplemented by Totran’s amended motion. has not responded to that motion. Fitzley Nevertheless, the Court is obliged to consider whether Totran has adequately documented its alleged loses before rendering summary judgment. Dockets.Justia.com I. BACKGROUND The lost heating equipment consisted of a “Pre-Heater Vessel,” serial no. 3912-H3, and a “Pre-Heater Flame Arrested Burner,” serial no. 063-824 (collectively “Heater 3912-H3/063824”). Kocken Heater 3912-H3/063-824 was one of three heaters that Sistemas De Energia, Inc. purchaser GES Scada, S.A. de C.V. Invoice No. $200,000.00. three KSEI-2105.) sold to Mexican (Dkt. 33-1 at 18, Commercial price for each heater was The price for the removable accessories for all heaters transportation their The (Kocken) was $124,809.00. broker, accessories to Tamazunchale, Mexico. Kocken to arrange for the be shipped from hired three Calgary, Totran, heaters Alberta, a and to (Dkt. 33-10 at pp. 1 (¶ 3), 6 (¶¶ 2-3).) The heaters were to be shipped by road, with each heater on a separate truck. (Dkt. 33-1 at 19-20.) A fourth truck carried the removable accessories for all three heaters. Totran engaged Fitzley, a Laredo, Texas, transportation company, to arrange the Laredo—Tamazunchale leg of the heaters’ journey. (Dkt. 33-1, Miller Aff. ¶ 2, Feb. 18th, 2010; Pl. Original Compl. ¶¶ 7-10; Answer ¶¶ 2-5.) On or about September 25, 2006, the truck carrying Heater 3912-H3/063-824 was (Dkt. 33-1 at 15.) involved in accident in Mexico. Lloyd’s Agency cargo surveyors inspected the accident site on September 30, 2006. 2 / 8 an (Dkt. 33-1 at 15.) The surveyors found Heater 3912-H3/063-824 lying on its side, about ten meters from the highway. repair. (Dkt. 33-1 at 13.) evidence nor made any The heater was damaged beyond Neither party has submitted any allegations regarding what became of Heater 3912-H3/063-824’s accessories, or the extent to which the accessories lost value after Heater 3912-H3/063-824 was destroyed.1 The accident occurred while Heater 3912-H3/063-824 was in the custody of Transportes Ragat, SA de CV, a Mexican entity which Fitzley had hired to transport the load to Tamazunchale. (Pl. Original Compl. ¶ 10; Answer. ¶ 5; Dkt. 8, Def. 3rd Party Compl. ¶¶ 5.1-5.2, 5.4; Dkt. 25, Def. Resp. re. Pl. 1st MSJ ¶ 6.) Kocken sued Totran for the value of Heater 3912-H3/063-824 and its accessories in the Court of Queen’s Bench of Alberta, Judicial District of Calgary, Action No. 0701-10752. at 3; Dkt. 33-10 at 9.) (Dkt. 33-1 Kocken and Totran reached a settlement under which Totran paid Kocken $88,000.00, and Kocken released its claim against Totran and assigned Totran any claims arising from the destruction of the heater. at 3-4, 8-12.) 1 remaining (Dkt. 33-1 Totran then filed this action against Fitzley in One removable accessory, the heater’s chimney, could either be shipped with its heater or loaded on the accessories truck. (Dkt. 33-1 at 20.) The record does not indicate how Heater 3912-H3/063-824’s chimney was shipped. However there is no mention of a separated chimney in the Lloyd’s cargo surveyors’ report of Heater 3912-H3/063-824’s wreckage. 3 / 8 the United States District Court for the Northern District of Texas, on September 5, 2008. (Dkt. 1, Pl. Original Compl.) Finding no connection to the Northern District of Texas, that Court transferred the case to the Southern District of Texas on September 15, 2008. (Dkt. 1, Order of Venue Transfer 2.) II. SUMMARY JUDGMENT STANDARD The Court should render summary judgment “if the pleadings, the discovery affidavits and show disclosure that there materials is no on genuine file, issue and any to any as material fact and that the movant is entitled to judgment as a matter of Catrett, law.” 477 U.S. Fed. R. Civ. 317, 322–23 P. 56(c); (1986); Celotex Little v. Corp. Liquid v. Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). If summary judgment the should cannot determine be rendered what on facts the are whole not action, genuinely at Court issue. Rule 56(d)(1). III. APPLICABLE LAW A common carrier that breaches a carriage contract “is liable for damages resulting from the violation as at common law.” Texas Transportation Code § 5.005(e). At common law, common carriers are liable for any damage to goods entrusted to them for negligent. 4 / 8 shipment, regardless of whether the carrier was Mo. Pac. R.R. Co. v. Elmore & Stahl, 368 S.W.2d 99, 101 (Tex. 1963); Bennett Truck Transp. v. Williams Bros., 256 S.W.3d 730, 733 (Tex.App. 2008). Generally, the measure of damages for loss or destruction of goods is based on the market value of the goods at the destination point, at the time the goods should have been delivered, with interest on the value from the date the delivery should have been made. Nat’l Moving & Storage, Inc. v. Vargo, 501 S.W.2d 452, 454 (Tex.Civ.App. 1973). However, a shipper may not recover incidental and consequential damages that were not the usual and reasonably foreseeable result of the carrier’s failure to deliver the goods undamaged, unless contracting damages. of the the carrier special was on notice circumstances at that the lead time to of such Mo., K. & T. Ry. Co. of Texas v. Belcher, 35 S.W. 6, 7 (Tex. 1896) (carrier without notice of special circumstances at time of contracting not liable for injuries occurring outside the ordinary course of business); Nat’l Moving & Storage, 501 S.W.2d at 454. IV. DISCUSSION A. Damages for the Destruction of Heater 3912-H3/063-824 Totran seeks $241,603.00 in damages for the destruction of Heater 3912-H3/063-824. To support this figure, Totran offers an Miller, affidavit by Robert Aff., Feb. 18, 2010.) 5 / 8 Totran’s President. (Miller Miller bases the $241,603.00 figure on (Id. at calculations in the Lloyd’s cargo surveyors’ report. ¶ 2.) That report, however, reaches the $241,603.00 figure by simply taking the total sale price ($724,809.00) for the three heaters and their (Dkt. 33-1 at 17.) accessories and dividing it by three. The invoice for Kocken’s sale of the heaters indicates that GES Scada paid $200,000.00 for each heater, with an additional accessories (Dkt. 33-1 Accordingly, $124,809.00 ($41,603.00 at 20, for for Miller’s three each Commercial $241,603.00 accessories were a total loss. assumption. all heaters’ heater’s Invoice damage removable accessories). No. figure KSEI-2105.) assumes the The record does not support that There is no indication that Heater 3912-H3/063- 824’s accessories were involved in the accident or that the truck carrying the three heaters’ accessories did not arrive safety in Tamazunchale. Nor is there any evidence of the extent to which Heater 3912-H3/063-824’s accessories lost value when the heater was destroyed. The summary judgment record cannot support a finding regarding the value of Heater 3912H3/063-824 in excess of $200,000.00. B. Attorney’s Fees Rule 54(d)(2), Fed. R. Civ. P., and Local Rule 54.2 control when a party may move this Court for attorney’s fees under Texas Civil Practice and Remedies Code § 38.001. See Pierce v. Barnhart, 440 F.3d 657, 663 (5th Cir. 2006) (Rule 54 and the 6 / 8 district court’s local rules govern the timing of a party’s motion for attorney’s fees if the statute entitling the party to fees does not provide an explicit time limit). Rule 54(d)(2) states that a motion for attorney’s fees must be “(i) filed no later than 14 days after the entry of judgment; [and] (ii) specify the judgment . . . entitling the movant to the award . . . . .” Local Rule 54.2 states that “[w]hen attorney’s fees are taxable as costs, an application for them must be made with the application for other costs.” Cf. Pierce, 440 F.3d at 660 (before premature under both rules. judgment, a motion for A pre-judgment motion for fees is fees under 28 U.S.C. § 2412(d)’s provision stating that a party “shall” move for fees within 30 days of judgment is premature). V. CONCLUSION The Court GRANTS Totran’s motion for summary judgment (Dkt. 33) to the extent that it is established for trial that Heater 3912-H3/063-824 was entirely destroyed in the accident and that its value was no less than $200,000.00. remaining damages for beyond trial that in this amount. case is Totran the is The only issue extent of Totran’s ORDERED to file an advisory, by June 18, 2010, stating whether it seeks damages beyond $200,000.00. 7 / 8 If it does not, then the Court will enter judgment in favor of Totran in the amount of $200,000.00, with interest according to law. With respect to attorney’s fees, Totran’s motion for summary judgment (Dkt. 33) is DENIED without prejudice to Totran filing a post-judgment motion according to Rule 54 and Local Rule 54.2. The materials Totran has already submitted regarding its fees may be incorporated by reference in a post-judgment motion. DONE at Laredo, TX, this 1st day of June, 2010. ___________________________________ George P. Kazen Senior United States District Judge 8 / 8
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