Totran Transportation Services, Ltd v. Fitzley, Inc

Filing 34

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)

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; rendered summary judgment Dkt. 3, Answer for Totran on

Court

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 (Dkt. 33, Pl. Am. MSJ.)

regarding damages and attorney's fees.

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.

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. (Kocken) sold to Mexican

purchaser GES Scada, S.A. de C.V. Invoice No. KSEI-2105.) The

(Dkt. 33-1 at 18, Commercial price for each heater was

$200,000.00. three heaters

The price for the removable accessories for all was $124,809.00. to be arrange shipped Kocken for from the hired three Totran, heaters Alberta, a and to

transportation their

broker, to

accessories

Calgary,

Tamazunchale, Mexico.

(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 Totran engaged

the removable accessories for all three heaters.

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 involved in an accident in Mexico.

(Dkt. 33-1 at 15.)

Lloyd's Agency cargo surveyors inspected the (Dkt. 33-1 at 15.) The

accident site on September 30, 2006.

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surveyors found Heater 3912-H3/063-824 lying on its side, about ten meters from the highway. repair. evidence (Dkt. 33-1 at 13.) nor made any The heater was damaged beyond Neither party has submitted any regarding what became of

allegations

Heater 3912-H3/063-824's accessories, or the extent to which the accessories destroyed.1 lost value after Heater 3912-H3/063-824 was

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 remaining (Dkt. 33-1

claims arising from the destruction of the heater. at 3-4, 8-12.)

Totran then filed this action against Fitzley in

1

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 show and disclosure there is materials no on file, issue as and to any any

affidavits

that

genuine

material fact and that the movant is entitled to judgment as a matter of law." U.S. Fed. 317, R. Civ. P. 56(c); Celotex v. Corp. v. Air

Catrett,

477

322­23

(1986);

Little

Liquid

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). judgment should cannot determine be rendered facts on the whole not action,

If summary the at Court issue.

what

are

genuinely

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 shipment, regardless of whether the carrier was

negligent.

Mo. Pac. R.R. Co. v. Elmore & Stahl, 368 S.W.2d 99,

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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, contracting damages. unless of the carrier was on notice at the lead time to of

the

special

circumstances

that

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. an affidavit by Robert To support this figure, Totran offers Miller, Totran's President. (Miller

Aff., Feb. 18, 2010.)

Miller bases the $241,603.00 figure on

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calculations in the Lloyd's cargo surveyors' report. ¶ 2.)

(Id. at

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 accessories and dividing it by three.

(Dkt. 33-1 at 17.)

The invoice for Kocken's sale of the heaters

indicates that GES Scada paid $200,000.00 for each heater, with an additional $124,809.00 ($41,603.00 at 20, for for all each three heaters' removable

accessories (Dkt. 33-1 Accordingly,

heater's No. figure

accessories). KSEI-2105.) assumes the

Commercial $241,603.00

Invoice damage

Miller's

accessories were a total loss. assumption.

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

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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." premature under both rules. judgment, a motion for A pre-judgment motion for fees is Cf. Pierce, 440 F.3d at 660 (before 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 trial that in this case is the is The only issue of to Totran's file an

extent ORDERED

beyond

amount.

Totran

advisory, by June 18, 2010, stating whether it seeks damages beyond $200,000.00. If it does not, then the Court will enter

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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

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