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Frazer Transport, Inc. v. Transafe, Inc.

Court of Appeals of Texas, First District

July 20, 2017

FRAZER TRANSPORT, INC., Appellant
v.
TRANSAFE, INC., Appellee

         On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Case No. 1056891

          Panel consists of Justices Higley, Bland, and Brown.

          MEMORANDUM OPINION

          Harvey Brown Justice

         Frazer Transport, Inc., a trucking company, hired Transafe, Inc. to provide consulting services. When Frazer failed to pay over $5, 000 in consulting fees, Transafe sued Frazer for breach of contract, seeking damages and attorney's fees. The jury found that Frazer breached the contract and awarded Transafe damages.

         In three issues, Frazer argues that the trial court erred in awarding attorney's fees to Transafe on its claim for breach of contract. We affirm.

         Background

         Transafe began invoicing Frazer for its consulting services in late 2013. By August 2014, Frazer owed over $5, 000 in unpaid invoices. Transafe sent a demand letter in November, indicating that it would seek attorney's fees if litigation were required to collect on the unpaid invoices.

         Transafe filed suit in December, asserting claims for breach of contract, quantum meruit, and suit on a sworn account. Transafe sought damages and attorney's fees. Frazer answered the suit in February 2015, asserted counterclaims for breach of contract and Deceptive Trade Practices Act violations, and sought attorney's fees.

         In its disclosure response, Transafe identified its attorney, Richard Griffin, Jr., as a fact witness and described his knowledge of relevant facts as follows: "Mr. Griffin will provide testimony that the legal fees and costs Plaintiff incurred in this matter were reasonable and necessary." Transafe did not list Griffin as an expert witness. Over the next year, there were several trial continuances. The case was eventually set for trial in August 2016.

          Transafe submitted its list of trial witnesses one month before the trial date. It identified Griffin as a witness and stated that he would testify "that the legal fees and costs Plaintiff incurred in this matter were reasonable and necessary."

         On July 20, Frazer's attorney filed with the trial court copies of email correspondence dated two months earlier in which counsel for Transafe stated, "I agree we don't need any more discovery." Frazer's position was that the earlier correspondence created a Rule 11 agreement that discovery was complete and that Transafe therefore could not supplement its discovery responses. See Tex. R. Civ. P. 11. The next day, which was 14 days before trial, Transafe filed a supplemental discovery response that identified Griffin as an expert witness who would testify on the reasonableness and necessity of attorney's fees incurred litigating the breach-of-contract action. Transafe produced Griffin's CV and copies of his invoices with the supplemental disclosure.

         Frazer objected and moved to exclude this evidence on the grounds that it was not timely produced. The trial court held a hearing. There is no reporter's record of the pretrial hearing; however, the trial transcript includes two discussions between the trial judge and counsel about that earlier hearing. In those discussions, the trial court noted, and the parties agreed, that it had permitted a late designation of Griffin as an expert on attorney's fees.

         A jury trial was held August 4, 2016. During trial, the parties entered into a stipulation on the record. Frazer's attorney explained the stipulation, stating that "both sides have agreed that reasonable and necessary attorney fees at the trial level are $24, 000." Frazer's attorney clarified that, by making this stipulation, Frazer was not also agreeing that Transafe is "entitled to recover attorney fees." Frazer informed the trial court that it intended to preserve its argument that Transafe could not recover attorney's fees due to Griffin's untimely expert designation. Given the stipulation on the attorney's fees amount, Griffin did not testify. The jury found that Frazer breached the contract and that Transafe did not. It awarded Transafe $5, 530 in damages.

         On August 10, Transafe moved for entry of judgment, seeking $5, 530 in damages, $24, 000 in stipulated attorney's fees, and costs and interest. Frazer responded, arguing that there was no evidence to support the damage award and that Transafe could not recover attorney's fees because Transafe (1) did not timely designate an expert on ...


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