Totran Transportation Services, Ltd v. Fitzley, Inc

Filing 36

MEMORANDUM. (Signed by Judge George P. Kazen) Parties notified. (dmorales) Modified text on 7/14/2010 (dmorales).

Totran Transportation Services, Ltd v. Fitzley, Inc

Doc. 36

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS LAREDO DIVISION TOTRAN TRANSPORTATION SERVICES, § § LTD, § Plaintiff, § VS. § § § FITZLEY, INC., § Defendant, § MEMORANDUM Plaintiff Totran Transportation Services, Ltd, sues

CIVIL ACTION NO. L-08-125

Defendant Fitzley, Inc., for breach of a contract to ship gas heating equipment from Laredo, Texas, to Tamazunchale, San Luis Potosi, Mexico. Answer ¶ 3.) (Dkt. 1, Pl. Original Compl. ¶¶ 7­10; Dkt. 3,

The Court rendered summary judgment 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,

In a Memorandum and Order of June 1, 2010, the Court summary judgment that the value of the destroyed

rendered

equipment was no less than $200,000.00. 1, 2010, 7­8.) reads:

(Dkt. 34, Order of June

The penultimate paragraph of the June 1 Order

The only issue remaining for trial in this case is the extent of Totran's damages beyond that amount. 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 favor of Totran in the amount of $200,000.00, with interest according to law.

Dockets.Justia.com

(Id.)

On June 2, 2010, Totran filed an advisory stating that it (Dkt. 35.)

does not seek damages exceeding $200,000.000.

A. Pre-Judgment Interest State law governs the award of pre-judgment interest in diversity cases. 607 F.3d 161, Meaux Surface Protection, Inc. v. Fogleman, 172 (5th Cir. 2010). Texas's pre-judgment

interest statute applies only to judgments in condemnation suits and judgments for wrongful death, personal injury, or property damage. TEX. FIN. CODE §§ 304.102, 304.201; Johnson & Higgins of

Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 530 (Tex. 1998). interest, In the absence of a statutory right to pre-judgment Texas law allows for an award of equitable pre-

judgment interest. 607 F.3d at 172.

Johnson & Higgins, 962 S.W.2d at 528; Meaux,

The equitable pre-judgment interest rate is the same as Texas courts' post-judgment Johnson & interest Higgins, rate. S.W.2d TEX. at FIN. 532;

CODE § 304.103;

962

International Turbine Services, Inc. v. VASP Brazilian Airlines, 278 F.3d 494, 499­500 (5th Cir. 2002). judgment interest in rate is set with by Texas courts' postthe Consumer Financial Credit Code,

Commissioner

accordance

Texas

2/5

§ 304.003(c).

That

rate

is

currently

5%.1

Equitable

pre-

judgment interest is computed as simple interest. Higgins, 962 S.W.2d at 532. A common carrier that breaches a carriage

Johnson &

contract

"is

liable for damages resulting from the violation as at common law." TEX. TRANSP. CODE § 5.005(e). At common law, a carrier was

subject to pre-judgment interest on the value of the shipment 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.-- Amarillo 1973, writ ref'd n.r.e.). However, the Texas Supreme

Court has ruled that the time at which equitable pre-judgment interest accrues should conform to the accrual formula in the Texas Legislature's 2003 amendments to the pre-judgment interest statute applicable to wrongful death, personal injury, property damage, and condemnation actions. at 532. Johnson & Higgins, 962 S.W.2d

Under that formula, pre-judgment interest begins to

accrue on the earlier of (1) 180 days after the date a defendant receives written notice of a claim or (2) the date the suit is filed. 532. TEX. FIN. CODE § 304.104; Johnson & Higgins, 962 S.W.2d at

1

http://www.occc.state.tx.us/pages/int_rates/Index.html visited, July 14, 2010). 3/5

(last

B. Post-Judgment Interest Federal F.3d at law governs Title post-judgment United interest. Code, Meaux, Section 607 1961

173.

28,

States

provides that post-judgment interest "shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average by 1-year Board constant of maturity of Treasury the yield, as

published

the

Governors

Federal

Reserve

System, for the calendar week preceding. [sic] the date of the judgment." For the week ending on July 9, 2010, the average 1A judgment

year constant maturity Treasury yield was 0.31%.2

creditor is entitled to post-judgment interest on the entire amount of the final judgment, including pre-judgment interest. See Fuchs v. Lifetime Doors, Inc., 939 F.2d 1275, 1280 (5th Cir. 1991).

C. Judgment Interest in this Case This suit was filed on September 5, 2008. The earliest

time at which the record indicates that Fitzley had notice of Totran's claim was May 23, 2008, when Totran brought a third party claim against Fitzley in related litigation in Alberta, Canada. 10752.)
2

(Dkt. 33-10, Notice to Third Party in Action No. 0701Accordingly, the Judgment will include simple pre-

http://www.federalreserve.gov/Releases/H15/Current/(last visited July 14, 2010); http://www.txs.uscourts.gov/interest/ (last visited July 14, 2010).

4/5

judgment interest accrued since September 5, 2008, at a rate of 5%.3 Post-judgment interest shall accrue at a rate of 0.31%.

Post-judgment interest shall be computed daily to the date of payment, and shall compound annually. 28 U.S.C. § 1961(b).

DONE at Laredo, TX, this 14th day of July, 2010.

___________________________________ George P. Kazen Senior United States District Judge

3

One hundred and eighty days from May 23, 2008, was November 19, 2008. 5/5