                                                                         ACCEPTED
                                                                     04-15-00327-CV
                                                         FOURTH COURT OF APPEALS
                                                              SAN ANTONIO, TEXAS
                                                                 9/2/2015 1:16:16 PM
                                                                      KEITH HOTTLE
                                                                              CLERK

           Case No. 04-15-00327-CV

                                                     FILED IN
                                              4th COURT OF APPEALS
         In the Court of Appeals of Texas      SAN ANTONIO, TEXAS
                  Fourth District             09/2/2015 1:16:16 PM
                                                KEITH E. HOTTLE
                                                      Clerk
                  ERICK LOPEZ
                   Appellant
                        v.
ADAM HURON D/B/A ADAM’S MEXICAN FOOD PRODUCTS
                   Appellee


               On Appeal from the
   th
224 Judicial District Court of Bexar County, Texas
     Hon. Cathleen M. Stryker, Presiding
     Trial Court Cause No. 2012-CI-18827


        APPELLANT’S BRIEF OF ERICK LOPEZ


                             JEREMY J. COOK
                             Texas Bar No. 24049709
                             DOWNS♦STANFORD, P.C.
                             2001 Bryan St., Suite 4000
                             Dallas, Texas 75201
                             Telephone: (214) 748-7900
                             Facsimile:    (214) 748-4530
                             Email: jcook@downsstanford.com


           Oral Argument Requested
                      IDENTITIES OF PARTIES AND COUNSEL

Trial Plaintiff/Appellee:                     Adam Huron d/b/a Adam’s
                                                Mexican Food Products

Trial & Appellate Counsel for Adam Huron:     Paul T. Curl
                                              Brittany M. Weil
                                              CURL & STAHL, PC
                                              700 North St. Mary’s St
                                              Suite 1800
                                              San Antonio, Texas 78205


First Trial Defendant:                        A.J. Plastics, Inc.

Trial Counsel for A.J. Plastics, Inc.:        Lawrence L. Mealer
                                              LAW OFFICE OF
                                                LAWRENCE L. MEALER
                                              Maple Plaza Law Center
                                              5353 Maple Avenue
                                              Suite 100
                                              Dallas, Texas 75235

Appellate Counsel for A.J. Plastics, Inc.:    n/a


Second Trial Defendant/Appellant:             Erick Lopez

Trial Counsel for Erick Lopez:                Mark R. Murphy
                                              Monica L. Ochoa
                                              DAVIS & SANTOS
                                              The Weston Centre
                                              112 E. Pecan St., Suite 900
                                              San Antonio, Texas 78205

Appellate Counsel for Erick Lopez:            Jeremy J. Cook
                                              DOWNS & STANFORD, PC
                                              2001 Bryan St, Suite 4000
                                              Dallas, Texas 75201


                                         i
                                        TABLE OF CONTENTS

Index of Authorities ..................................................................................... ii

Statement of the Case ................................................................................ v

Issues Presented .......................................................................................vii

Statement of Facts...................................................................................... 1

Summary of the Argument .......................................................................... 5

Argument .................................................................................................... 7

        I.       Appellant Is Not Liable To Appellee For the Plastic Bags ......... 7

                 A.      CPRC 82.003 Applies To This Case................................ 7

                 B.      Appellee Failed to Plead Or Prove Exception To
                         § 82.003 ........................................................................ 12

                 C.      Appellee Waived Any Right Of Recovery
                         From Appellant .............................................................. 12

                 D.      Conclusion..................................................................... 14

        II.      Appellant Is Not Liable For The Attorneys Fees Appellee
                 Incurred Prosecuting His Claims Against Appellant ................ 14

        III.     Appellee’s Defensive Attorneys’ Fees Require Remand ......... 16

                 A.      Appellee Was Required to Segregate............................ 16

                 B.      Appellee Failed to Segregate ........................................ 18

                 C.      Conclusion..................................................................... 19




                                                      ii
Conclusion & Prayer ................................................................................. 20

Certificate of Compliance.......................................................................... 21

Certificate of Service................................................................................. 21




                                                    iii
                                TABLE OF AUTHORITIES

Cases

Alonso v. Maytag Corp.,
   356 F.Supp.2d 757 (S.D. Tex. 2005).................................... 9, 10, 11, 12

Bogamy v. Harrison Cnty.,
  No. 2:11-cv-88-JRG, 2012 WL 13557711 (E.D. Tex. Apr. 19, 2012) ......9

Casas v. The Tire Corral, Inc., ......................................................................
  No. M-04-123, 2005 WL 6773889 (S.D. Tex. Mar. 31, 2005) ............... 11

City of Denton v. Page,
   683 S.W.2d 180 (Tex.App.—Fort Worth 1985),
   reversed on other grounds, 701 S.W.2d 831 (Tex. 1986) ..................... 13

Garcia v. LG Electronics USA Inc.,
  No. B-11-61, 2011 WL 2517141 (S.D. Tex June 23, 2011) .................... 9

Garcia v. Nissan Motor Co.,
  No. M-05-59, 2006 WL 869944 (S.D. Tex. Mar. 30, 2006) ..................... 9

Green Int’l v. Solis,
  951 S.W.2d 384 (Tex. 1997) ................................................................ 15

Integrated of Amarillo, Inc. v. Kirkland,
   424 S.W.3d 131 (Tex.App.—Amarillo 2014, no pet.) ............................ 18

Ramos v. Frito-Lay, Inc.,
  784 S.W.2d 667 (Tex. 1990) ................................................................ 13

Selexman v. Ford Motor Co.,
  No. H-14-1874, 2014 WL 6610904 (S.D. Tex, Nov. 20, 2014)................ 8

State Farm Lloyds v. Polaris Industrs., Inc.,
   No. 6-12-19, 2012 WL 3985128 (S.D. Tex. Sept. 11, 2012) ................... 9




                                                  iv
Tony Gullo Motors I, L.P. v. Chapa,
  212 S.W.3d 299 (Tex. 2006) ..................................................... 16, 18-19


Statutes

TEX. BUS. & COMM. CODE § 17.50(d) ................................................... 14, 15

TEX. CIV. PRAC. & REM. CODE § 38.001 ................................................ 14, 15

TEX. CIV. PRAC. & REM. CODE § 82.001(2) .................................................. 11

TEX. CIV. PRAC. & REM. CODE § 82.001(3) .................................................... 7

TEX. CIV. PRAC. & REM. CODE § 82.003 ........................................................ 7

Rules

TEX. R. CIV. P. 279 .......................................................................... 7, 12, 13




                                                   v
                            STATEMENT OF THE CASE

      This is a product liability case involving plastic bags, in which

Appellee Adam Huron d/b/a Adam’s Mexican Food Products, as Plaintiff

below, sought money damages from A.J. Plastics, Inc., the manufacturer of

the allegedly defective bags, and Appellant Erick Lopez, the seller of the

bags.1 Appellant Lopez, by way of counterclaims, sought money damages

from Appellee relative to the time and expenses he committed to helping

Appellee obtain a patent and arrange for the purchase of plastic bags from

A.J. Plastics, Inc.2    One such counter-claim involved the Texas Theft

Liability Act (hereinafter “TLA”).3

      The jury found that the plastic bags that A.J. Plastics, Inc.

manufactured and that Appellant provided to Appellee were not fit for the

ordinary purposes for which they were to be used and were not suitable for

a particular purpose of which Appellant had reason to know, but rejected all

other claims against Appellant.4 The jury found Appellee’s damages to be

$16,199.07, and apportioned 80% of the responsibility for Appellee’s

damages to A.J. Plastics, Inc., and 20% to Appellant.5



1
  C.R. 1-6.
2
  C.R. 7-14.
3
  C.R. 12.
4
  C.R. 19-24, 27-28.
5
  C.R. 29.


                                      vi
      The jury rejected Appellant’s counterclaims6 and found Appellee’s

trial attorneys’ fees to be in the amount of $30,000 for the prosecution of

his affirmative claims against both defendants7 and $20,000 for the defense

of Appellee against Appellant’s TLA counter-claim.8 The jury also found

that any appeal of Appellee’s affirmative claims would cost Appellee up to

$54,000 in appellate attorneys’ fees and any appeal of Appellant’s TLA

counter-claim would cost Appellee up to an additional $54,000 in appellate

attorneys’ fees.9

      On March 4, 2015, the Trial Court issued a Judgment consistent with

the Jury’s findings.10




6
  C.R. 18, 31-44.
7
  C.R. 30.
8
  C.R. 42.
9
  C.R. 30, 42.
10
   C.R. 48-53.


                                    vii
                            ISSUES PRESENTED

1.   Did the trial court err in issuing a judgment that holds Appellant Erick
     Lopez liable to Appellee for damages caused by defective plastic
     bags where Appellee neither pleaded, nor proved, nor obtained a jury
     finding that Appellant’s conduct falls within at least one of the
     exceptions in the “Non-Manufacturing Sellers Rule of Non-Liability”
     set out in Section 82.003 of the Texas Civil Practice and Remedies
     Code?

2.   If the answer to Issue No. 1 above is “yes,” did the trial court err in
     issuing a judgment that holds Appellant Erick Lopez liable in the
     amount of $30,000 for the attorney’s fees that Appellee has incurred
     and continues to incur relative to the prosecution of his affirmative
     claims?

3.   Did the trial court err in issuing a judgment that holds Appellant Erick
     Lopez liable to Appellee in the amount of $20,000 for the attorney’s
     fees that Appellee allegedly incurred defending himself against
     Appellant’s TLA counter-claim?

     The following sub-issues are key to this issue:

           a.    Was Appellee required to offer evidence segregating the
                 attorneys’ fees he incurred at the trial court (and may
                 incur at the appellate levels) defending himself against
                 Appellant’s TLA counter-claim from those attorneys’ fees
                 he incurred at the trial court (and may incur at the
                 appellate levels) defending himself against Appellant’s
                 other counter-claims, as to which Texas law does not
                 allow for the shifting of attorneys’ fees onto the non-
                 prevailing party?

           b.    If the answer to Issue No. 3a above is “yes,” did Appellee
                 present sufficient testimony of segregation relative to his
                 trial court and/or appellate level attorneys’ fees?




                                    viii
                                 STATEMENT OF FACTS

       Appellee makes and sells pre-formed gorditas and masa for making

tamales, which he sells and distributes in plastic bags that he purchases.11

       In April 2009, Appellee called Appellant and asked that he assist him

in obtaining plastic bags for his business.12                 Appellant and Appellee

reached an agreement that Appellant would provide Appellee with plastic

bags.13

       Appellee told Appellant the specifications for the bags he needed,

including the quantity, size, colors, length, width and thickness of the plastic

to be used.14 Appellant made no express representations or warranties to

Appellee about the plastic bags.15

       Appellee knew that Appellant was going to have someone else

manufacture the plastic bags, and Appellant never manufactured a single

plastic bag.16 In the June-August 2010 timeframe, Appellant contacted and

passed Appellee’s specifications to A.J. Plastics, Inc.,17 which then

manufactured the bags that Appellant ordered for Appellee.18


11
   R.R. Vol. 2, at 29:1-6; RR. Vol. 3, at 50:12-19.
12
   R.R. Vol. 3, at 53:13-22, 249:6-20.
13
   R.R. Vo. 3, at 85:25 – 86:8, 163:1-5.
14
   R.R. Vol. 3, at 54:1 – 56:9, 86:9 – 87:14.
15
   R.R. Vol. 3, at 136:7 – 137:12; R.R. Vol. 4, at 78:11 – 79:15; C.R. at 7, 8.
16
   R.R. Vol. 3, at 56:16-23, 102:17 – 103:2; R.R. Vol. 4, at 79:16-18.
17
   R.R. Vol. 4, at 83:17 – 84:1, 85:8-10, 17-20.
18
   R.R. Vol. 4, at 85:8-10, 17-20; R.R. Vol. 2, at 218:4-10.


                                             1
       From late 2010 through July 2011, pursuant to orders placed by

Appellant, A.J. Plastics, Inc. sent several shipments of plastic bags that it

had manufactured directly to Appellee.19

       In November 2011, H-E-B, the grocery store chain, contacted

Appellee and advised that a shipment of 1,695 cases of Masa Preparada,

which H-E-B had purchased from Appellee, was defective in that many of

the bags containing the masa were breaking at their seams. 20                       H-E-B

returned the entire shipment to Appellee, and Appellee replaced the

shipment.21     According to Rene Huron, Appellee’s plant manager, 22 he

inspected the returned shipment and found that the spilling of the masa out

of the bags caused the masa to dry up, spoil and become inedible, 23 and,

therefore, Appellee discarded or gave away (to farmers and others with

animals) the entire returned shipment.24

       H-E-B paid Appellee $19,373.85 for the shipment that was eventually

replaced.25




19
   R.R. Vol. 7, Exs. 2 and 3; R.R. Vol 4, at 44:1-25, 48:9-18; R.R. Vol. 2, at 71:5-8,
233:10-18.
20
   R.R. Vol. 2, at 156:23 – 160:5, 48:8-24; 49:3-15.
21
   R.R. Vol. 2, at 164:1 – 165:4, 166:16-21, 55:23-25.
22
   R.R. Vol. 2, at 29:23-25.
23
   R.R. Vol. 2, at 46:12-21, 50:16 – 51:5; 52:10-14; 54:8 – 55:10.
24
   R.R. Vol. 2, at 55:2-22.
25
   R.R. Vol. 2, at 48:25 – 49:2.


                                             2
      Appellee claimed that replacing the defective shipment harmed him in

the amount of $24,428.90, in which he included $19,373.85 for the “cost of

the shipment to H-E-B” or the “merchandise return,” $4,355.05 in overtime

wages paid to his employees to repack the new shipment, and $700 in

shipping costs.26 Appellee’s overhead in producing a shipment of masa is

“80, 90%,” so that his profit margin is only 10%. 27

      As of January 15, 2015, Appellee had incurred $49,965.08 in

attorneys’ fees, court costs and litigation expenses. 28 Appellee’s attorney,

Paul Curl, who testified on the issue of Appellee’s attorneys’ fees, indicated

that as he was calculating Appellee’s total fees at the trial court level, which

would include the not-then-billed time and expense of the trial itself, he

stopped calculating when he reached the sum of $70,000, “because the

fees… [were] out of wack,” and so he “leveled off… cut the fees to

$50,000.00.”29 Without a basis, Mr. Curl then “attributed” $30,000 of the

$50,000 to Appellees’ claims against the defendants and the remaining

$20,000 to the defense of Appellee against Appellant’s counter-claims.30



26
   R.R. Vol. 2, at 55:23 – 60:5, 60:21 – 62:13.
27
   R.R. Vol. 3, at 115:8 – 116:13.
28
   C.R. Vol. 6, Exhibit 18. [NOTE: Plaintiff’s counsel’s Invoice dated June 14, 2013
reflects payments from Appellant and A.J. Plastics, Inc. in the amounts of $1,000.00
and $900.00, respectively.]
29
   R.R. Vol. 3, at 196:16 – 199:8.
30
   R.R. Vol. 3, at 198:22 – 199:8.


                                           3
       Mr. Curl did not go through his firm’s billing entries and determine the

claim(s) to which each entry applied.31               Mr. Curl opined that it was

impossible to segregate the attorneys’ fees Appellee incurred that were

attributable to the defense of Appellant’s separate counter-claims, on the

basis that “the facts are closely intertwined” and “the work required to

defend each of those claims advances the defense of all other claims.” 32

Consistent with this opinion, Appellee offered no evidence of any kind

segregating his non-recoverable defensive fees from his TLA defense fees.

       Appellee filed his initial petition against Appellant on November 20,

2012, Appellant did not file his TLA counter-claim until August 21, 2013,

and Appellee did not file his (only) answer to Appellant’s counter-claims

until October 30, 2014.33 Within Appellee’s attorney fee invoices there are

only three time entries in which Appellant’s counter-claims are expressly

referenced, and two of them include multiple tasks so that it is impossible to

ascertain how much time was spent on the counter-claims.34 No single

time entry expressly references the TLA or the TLA counter-claim.35



31
   R.R. Vol. 3, at 210:20 – 211:5.
32
   R.R. Vol. 3, at 209:2-11.
33
   C.R. at 67, 70 & 71. As of August 21, 2013, the date on which Appellant first filed his
TLA counter-claim, Appellee had already incurred $12,134.74 in attorneys’ fees, costs
and expenses, none of which could possibly relate to the TLA counter-claim.
34
   R.R. Vol. 6, at Exhibit 18, at Bates numbers P0169, P0195 and P0277.
35
   R.R. Vol. 6, at Exhibit 18.


                                             4
                        SUMMARY OF THE ARGUMENT

      The trial court erred in issuing a judgment that holds Appellant liable

to Appellee for a 20% portion of the damages he incurred as a result of the

defective plastic bags, because Appellee neither pleaded, nor proved, nor

obtained a jury finding that Appellant’s conduct falls within one of the

enumerated exceptions set forth in the “Non-Manufacturing Sellers Rule of

Non-Liability” found in Section 82.003 of the Texas Civil Practice and

Remedies Code.

      Because Appellee cannot recover against Appellant on his breach of

warranty claims, he also cannot recover against Appellant for the attorneys’

fees he incurred in prosecuting his breach of warranty claims against

Appellant.

      This Honorable Court of Appeals should reverse and render that

portion of the trial court’s judgment that holds Appellant liable to Appellee

for a portion of the damages he incurred due to the defective plastic bags

and that potion of the judgment that holds Appellant liable to Appellee for

the attorneys’ fees he incurred at the trial court and may incur at the

appellate levels prosecuting his affirmative claims against Appellant and

A.J. Plastics, Inc.




                                      5
      The trial court also erred in issuing a judgment that holds Appellant

liable to Appellee for the attorneys’ fees he incurred at the trial court

defending himself against Appellant’s TLA counter-claim, because Appellee

presented no evidence segregating his TLA defense fees from his other

defense fees.

      This Honorable Court of Appeals should reverse that portion of the

trial court’s judgment that holds Appellant liable for the attorneys’ fees that

Appellee incurred defending himself against Appellant’s TLA counter-claim

and remand that issue back to the trial court for a hearing at which the

appropriate value of Appellee’s recoverable attorneys’ fees can be

determined subject to a proper segregation of Appellee’s defensive

attorneys’ fees.




                                       6
                                       ARGUMENT

I.       Appellant Is Not Liable To Appellee For The Plastic Bags

         Appellee neither pleaded, nor proved, nor obtained a jury finding that

Appellant’s conduct falls within at least one of the enumerated exceptions

in the “Non-Manufacturing Seller’s Rule of Non-Liability” found at Section

82.003 of the Texas Civil Practice and Remedies Code. As such, pursuant

to Rule 279 of the Texas Rules of Civil Procedure, Appellee has waived

any recovery from Appellant.

         A.    CPRC 82.003 Applies To This Case

         Under Section 82.003 of the Texas Civil Practice and Remedies

Code, “[a] seller that did not manufacture a product is not liable for harm

caused to the claimant by that product unless the claimant proves” one of

seven enumerated exceptions.36 Under Chapter 82, “seller” is defined as

“a person who is engaged in the business of distributing or otherwise

placing, for any commercial purpose, in the stream of commerce for use or

consumption a product or any component part thereof.”37




36
     TEX. CIV. PRAC. & REM. CODE § 82.003.
37
     Id. at § 82.001(3).


                                             7
      In this case, Appellee pleaded, proved and obtained a jury finding

that Appellant was a seller or merchant of the plastic bags. 38 Further, at

trial, Appellant testified that he “never” manufactured a plastic bag.39 Also,

Appellee knew that Appellant was going to have someone else

manufacture the plastic bags,40 and there was no evidence presented at

trial that would suggest, even slightly, that Appellant manufactured the

bags of which Appellee complained. Based upon the plain language of

Section 82.003, it cannot be reasonably argued in this Appeal that

Appellant is not a “non-manufacturing seller” who cannot be held liable to

Appellee unless Appellee obtained a finding that Appellant’s conduct falls

within one of Section 82.003’s enumerated exceptions.

      Further, case law supports the application of Section 82.003 to

Appellee’s claims against Appellant. In Selexman v. Ford Motor Co., the

U.S. District Court for the Southern District of Texas denied Selexman’s

motion for remand, concluding that because he had not pleaded any

exception under Section 82.003 against the dealership that had sold him

the allegedly defective car, there was no reasonable basis to predict that he

could prevail on his negligence claims against the dealership.41

38
   C.R. at 23.
39
   R.R. Vol. 4, at 79:16-18.
40
   R.R., Vol. 3, at 56:16-23, 102:17 – 103:2.
41
   No. H-14-1874, 2014 WL 6610904 (S.D. Tex, Nov. 20, 2014)(slip copy).


                                         8
      In reaching its decision, the Selexman Court cited to State Farm

Lloyds v. Polaris Industrs, Inc., in which the same court had, just two years

earlier, denied remand to State Farm on the basis that State Farm had

pleaded no viable cause of action against the dealership-defendant that

had sold the vehicle to State Farm’s subrogor-insured and then serviced it

afterward.42    In so holding, the court acknowledged that “Texas federal

courts have held that any theory of recovery pleaded against a

nonmanufacturing seller must satisfy one of the seven immunity exceptions

contained in section 82.003(a), even if the allegations would otherwise

state a valid claim under Texas law.”43

      Appellee may argue that the decision in Alonso v. Maytag Corp.44

supports his position that Section 82.003 is inapplicable to his claims

against Appellant. If so, Appellee’s reliance on Alonso will be misplaced.




42
   No. 6-12-19, 2012 WL 3985128 (S.D. Tex. Sept. 11, 2012).
43
   Id. at *2 (citing Alonso v. Maytag Corp., 356 F.Supp.2d 757, 761 (S.D. Tex. 2005),
Garcia v. Nissan Motor Co., No. M-05-59, 2006 WL 869944, at *6 (S.D. Tex. Mar. 30,
2006) and Bogamy v. Harrison Cnty., No. 2:11-cv-88-JRG, 2012 WL 13557711, at *3
(E.D. Tex. Apr. 19, 2012))(emphasis added); see also Garcia v. LG Electronics USA
Inc., No. B-11-61, 2011 WL 2517141, at *2 (S.D. Tex June 23, 2011)(“Specifically,
section 82.003 provides blanket protection for nonmanufacturing sellers of products
from liability for injuries caused by a defective product unless one of the specified
exceptions apply.” (emphases added)).
44
   356 F.Supp.2d 757 (S.D. Tex. 2005).


                                           9
      In Alonso, the U.S. District Court for the Southern District of Texas

granted the plaintiffs’ motion to remand, holding that remand was required

even though the plaintiffs’ strict products liability and negligence causes of

action were not viable since the plaintiffs had not pleaded any of the

exceptions in Section 82.003, given that the plaintiffs had pleaded that the

venue defendants committed certain “false, misleading, or deceptive acts”

under Section 17.46(b) of the Texas DTPA and Maytag had failed to offer

any evidence to challenge those factual allegations.45

      Even though Appellee, like the Alonso plaintiffs, did allege and seek

to prove DTPA claims against Appellant, Alonso is meaningfully

distinguishable. While the Alonso plaintiffs and Appellee pleaded “false,

misleading and deceptive acts” under Section 17.46(b) of the Texas DTPA,

Appellee herein failed to obtain an affirmative jury finding that Appellant

committed the alleged acts.46 Further, while the Alonso plaintiffs did not

allege any breach of an implied warranty, Appellee proved only that

Appellant had breached the implied warranties of fitness for ordinary

purposes and fitness for a particular purpose.47



45
   Id. at 762.
46
   See C.R. at 21, Jury’s Verdict, Question No. 4, answered “no.”
47
   See id. at 9-10, Jury’s Verdict, Questions 6B and 7, both answered “yes.” Notably,
Appellee failed to obtain a jury finding that Appellant had breached an express warranty.
(C.R. at 8).


                                           10
      Further, Alonso’s reasoning itself supports the application of Section

82.003 to Appellee’s claims against Appellant.              In determining that the

plaintiffs had no viable strict products liability or negligence claims against

the venue defendants, the Alonso Court specifically reviewed the definition

of “products liability action” in Section 82.001. 48 The court noted that “strict

products liability” and “negligence” are specifically included in Chapter 82’s

definition of “products liability action,” and, therefore, Section 82.003

applied to the plaintiffs’ strict products liability and negligence claims and

the plaintiffs could only recover on such claims if they proved at least one

of the exceptions in Section 82.003.49

      Importantly, the phrase “breach of express or implied warranty” is

also expressly included in Chapter 82’s definition of “products liability

action.”50 As such, under the logic in Alonso, Appellee was required to

prove an exception within Section 82.003 in order to recover on his breach

of warranty claims against Appellant.




48
   Alonso, 356 F.Supp.2d at 761; see also Casas v. The Tire Corral, Inc., No. M-04-123,
2005 WL 6773889, at *2 (S.D. Tex. Mar. 31, 2005)(acknowledging that section 82.003
applied to plaintiffs’ claims against the venue defendant, including breach of warranty,
given that the claims “are encompassed in the definition of a ‘products liability action’
under § 82.001.”).
49
   Alonso, 356 F.Supp.2d at 761.
50
   TEX. CIV. PRAC. & REM. CODE § 82.001(2).


                                           11
       B.     Appellee Failed To Plead Or Prove Exception To § 82.003

       Appellee failed to meet his burden of pleading, proving and obtaining

a jury finding that Appellant’s conduct falls within at least one of the

enumerated exceptions to immunity under Section 82.003.51

       C.     Appellee Waived Any Right Of Recovery From Appellant

       Rule 279 of the Texas Rules of Civil Procedure states that “[u]pon

appeal all independent grounds of recovery or of defense not conclusively

established under the evidence and no element of which is submitted or

requested are waived.”52 Rule 279 then adds the following exception:

              When a ground of recovery… consists of more than
              one element, if one or more of such elements
              necessary to sustain such ground of recovery…,
              and necessarily referable thereto, are submitted to
              and found by the jury, and one or more of such
              elements are omitted from the charge, without
              request or objection, and there is factually sufficient
              evidence to support a finding thereon… such
              omitted element or elements shall be deemed found
              by the court in such manner as to support the
              judgment.53




51
   C.R. at 1-6, 15-47.
52
   TEX. R. CIV. P. 279.
53
   Id.


                                        12
      Here, Appellant contends that the requisite elements to prove an

exception within Section 82.003 stand alone, such that Appellee’s failure to

obtain any finding as to any such element constitutes a full waiver of any

right of recovery against Appellant.

      Appellee may argue that the elements to prove an exception within

Section 82.003 should be viewed as “additional” and omitted elements that

Appellee was required to prove in order to recover on his breach of implied

warranty claims, such that Appellee is entitled under Rule 279’s exception

to have such omitted elements deemed as having been found by the trial

court. If so, this argument will be without merit.

      In Ramos v. Frito-Lay, Inc., the Supreme Court of Texas

acknowledged that “[w]here… issues are omitted which constitute only a

part of a complete and independent ground and other issues necessarily

referable to that ground are submitted and answered, the omitted elements

are deemed found in support of the judgment if no objection is made and

they are supported by some evidence.”54 Appellant acknowledges that

“[s]uch a deemed finding need not be supported by a preponderance of the

evidence but only by ‘some evidence’.”55


54
  784 S.W.2d 667, 668 (Tex. 1990)(emphasis added).
55
  City of Denton v. Page, 683 S.W.2d 180, 205 (Tex.App.—Fort Worth 1985), reversed
on other grounds, 701 S.W.2d 831 (Tex. 1986).


                                        13
          Thus, to invoke the exception, Appellee must show that there was at

least some evidence meeting an exception of Section 82.003.

          This he cannot do. At trial, there was no evidence, i.e., no more than

a scintilla of evidence, presented that would show that Appellant’s conduct

relative to the provision of the subject plastic bags falls within one of the

exceptions within Section 82.003. As such, Appellee is not entitled to have

the omitted elements of any exception deemed as having been found to

support the judgment.

          D.       Conclusion

          Based on the foregoing, this Honorable Court should reverse that

portion of the judgment holding Appellant liable to Appellee for a portion of

the damages he incurred due to the defective plastic bags and render that

Appellee take nothing from Appellant in that regard.

II.       Appellant Is Not Liable For The Attorneys’ Fees Appellee
          Incurred Prosecuting His Claims Against Appellant

          Appellee sought to recover the attorneys’ fees he incurred

prosecuting his affirmative claims against both trial defendants under

Section 38.001 of the Texas Civil Practice and Remedies Code and

Section 17.50(d) of the Texas Business and Commerce Code.56



56
      C.R. at 4.


                                         14
       Section 38.001 and Section 17.50(d) both required that Appellee

prevail on his claims in order to recover attorneys’ fees.57

       Because Appellee has not recovered on any claim listed among

those in Section 38.001, he cannot recover attorneys’ fees from Appellant

under that statute. Likewise, because Appellee failed to plead, prove or

obtain a jury finding meeting an exception within Section 82.003 and,

therefore, (as argued above) cannot prevail on his breach of warranty

claims against Appellant, he is unable to recover attorneys’ fees from

Appellant under Section 17.50(d) of the Texas DTPA.

       Based on the foregoing, this Honorable Court should reverse that

portion of the judgment holding Appellant liable to Appellee for the

attorneys’ fees he incurred at trial and may occur in this Appeal pursuing

his claims against Appellant and render that Appellee take nothing from

Appellant in that regard.




57
   TEX. CIV. PRAC. & REM. CODE S 38.001 (stating, “A person may recover reasonable
attorney’s fees… in addition to the amount of a valid claim and costs, if the claim is for”
one of several types of claims. (emphasis added)); TEX. BUS. & COMM. CODE S 17.50(d)
(stating, “Each consumer who prevails shall be awarded court costs and reasonable
and necessary attorneys’ fees.” (emphasis added)); see also, Green Int’l v. Solis, 951
S.W.2d 384, 390 (Tex. 1997)(stating, “To recover attorneys’ fees under §38.001, a party
must (1) prevail on a cause of action for which attorney’s fees are recoverable, and (2)
recover damages.”(emphases added)).


                                            15
III.     Appellee’s Defensive Attorneys’ Fees Require Remand

         Despite his obligation to do so, Appellee presented no evidence

segregating the attorneys’ fees he incurred defending himself against

Appellant’s TLA counter-claim (which allows fee-shifting to the prevailing

party) from those he incurred defending himself against Appellant’s other

counter-claims (which do not allow fee-shifting). As such, this Honorable

Court should reverse that portion of the trial court’s judgment holding

Appellant liable for $20,000 to Appellee relative to his un-segregated

defensive attorneys’ fees and remand the issue of Appellee’s recoverable

defensive attorneys’ fees to the trial court for a hearing on same.

         A.    Appellee Was Required To Segregate

         In the seminal case of Tony Gullo Motors I, L.P. v. Chapa, the

Supreme Court of Texas remanded the issue of the plaintiff’s recoverable

attorneys’ fees back to the Beaumont Court of Appeals, stating as follows:

               [W]e reaffirm the rule that if any attorney’s fees
               relate solely to a claim for which fees are
               unrecoverable, a claimant must segregate
               recoverable from unrecoverable fees. Intertwined
               facts do not make tort fees recoverable; it is only
               when discrete legal services advance both a
               recoverable and unrecoverable claim that they are
               so intertwined that they need not be segregated.58



58
     212 S.W.3d 299, 313-14 (Tex. 2006)(emphasis added).


                                          16
       The evidence Appellee presented at trial on the issue of his attorneys’

fees consisted of invoices from his counsel and Attorney Curl’s testimony.59

Many of the time entries in the invoices are so general in content that it is

impossible to determine whether they relate to Appellant’s TLA counter-

claim. Moreover, only three of the time entries from the invoices reference

the counter-claims, two of them include other tasks and give no indication

as to how much time was spent on the counter-claims, and no single time

entry specifically references the TLA or Appellant’s TLA counter-claim.60

As a result, a review of the invoices provides no support for the argument

that every discrete defensive legal service contained in the invoices

advanced a defense for Appellee against all of Appellant’s counter-claims.

       Mr. Curl’s testimony is also of little support to the argument. First, he

admits that he did not review each of the time entries in the invoices to

determine the claim(s) to which they applied.61 Second, his opinion that the

defense against one of the counter-claims advanced a defense of all of

them is entirely conclusory, without any explanation.62



59
   R.R. Vol. 3, at 190:20 – 212:20; R.R. Vol. 6, at Ex. 18.
60
   R.R. Vol. 6, at Exhibit 18, at Bates numbers P0169, P0195 and P0277.
61
   R.R. Vol. 3, at 210:20 – 211:5.
62
   R.R. Vol. 3, at 209:2-11; see also Integrated of Amarillo, Inc. v. Kirkland, 424 S.W.3d
131, 135 (Tex.App.—Amarillo 2014, no pet.)(“[E]ven if admitted without objection, an
expert's bare unsupported conclusion amounts to no evidence and will not support a
judgment.”)(citations omitted).


                                            17
       Moreover, as in Chapa, when Appellee’s attorneys were drafting his

pleadings in response to the non-TLA counter-claims and drafting or

reviewing proposed questions in the jury charge relating to the non-TLA

counter-claims, “there is no question those fees were not recoverable.”63 It

is, therefore, indisputable that some, if not much, of Appellee’s defensive

attorneys’ fees were incurred for legal services having nothing to do with

Appellant’s TLA counter-claim. As such, segregation was required.

       B.     Appellee Failed To Segregate

       In Chapa, the supreme court explained that the Texas standard

regarding segregation “does not require more precise proof… than for any

other claims or expenses… [and] an opinion would have sufficed that, for

example, 95 percent of [counsel’s] drafting time would have been

necessary even if there had been no fraud claim.”64

       Despite the relatively lenient standard, Mr. Curl failed to offer any

explanation or discussion on the percentage of the time and effort put

toward the TLA counter-claim, choosing instead to stand on his conclusory

opinion that segregation of the defensive fees was impossible and, thus,

not required.65       Consistent therewith, when testifying on the issue of


63
   212 S.W.3d at 313.
64
   Id. at 314.
65
   R.R. Vol. 3, at 209:2-10.


                                       18
appellate attorneys’ fees, Mr. Curl offered no opinions, explanation or

discussion as to what an appeal of the TLA counter-claim would cost

Appellee by way of attorneys’ fees when compared to what an appeal of

the non-TLA counter-claims would cost him.66

         C.     Conclusion

         Because Appellee failed to meet his burden of presenting his trial and

appellate defensive attorneys’ fees in segregated figures, this Honorable

Court should reverse that portion of the trial court judgment holding

Appellant liable for Appellee’s unsegregated defensive attorneys’ fees and

remand that issue back to the trial court for a hearing on same subject to a

proper segregation.




66
     R.R. Vol. 3, at 204:2 – 206:8.


                                        19
                            CONCLUSION & PRAYER

        Based upon the plain language of Section 82.003 and the case law

discussed and cited herein, Appellee was required to plead and prove an

exception in Section 82.003. Appellee did not do that, and, therefore, the

trial court erred in holding Appellant liable to Appellee for a portion of his

damages caused by the defective plastic bags. As a result, the trial court

judgment should be reversed to the extent that it holds Appellant liable to

Appellee relative to the plastic bags and to the extent that it holds Appellant

liable to Appellee for the $30,000 that Appellee incurred in attorneys’ fees

prosecuting his claims against Appellant. It should then be rendered that

Appellee take nothing from Appellant in these regards.

        The trial court judgment should also be reversed to the extent that it

holds Appellant liable for the $20,000 that the jury found Appellee had

incurred defending himself against Appellant’s TLA counter-claim, because

Appellee failed to present any evidence segregating his recoverable

defensive attorneys’ fees from his non-recoverable defensive attorneys’

fees.     This Honorable Court should remand the issue of Appellee’s

recoverable defensive fees to the trial court so a hearing can be held to

determine same subject to an appropriate segregation by Appellee.




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                         Certificate of Compliance

     Pursuant to Rule 9.4(i) of the Texas Rules of Appellate Procedure, I
hereby certify that this brief contains 4,151 words (exclusive of the portions
exempted from the rule).

      Signed on the 2nd day of September, 2015.

                                           /s/ jeremy j. cook
                                           JEREMY J. COOK

                           Certificate of Service

      The undersigned certifies that a copy of this brief was served on the
following counsel via e-filing in accordance with Rule 9.5 of the Texas
Rules of Appellate Procedure and this Court’s Local Rules, on the 2nd day
of September, 2015:

Trial and Appellate Counsel for Appellee Adam Huron

Paul T. Curl
Brittany M. Weil
CURL & STAHL, PC
700 North St. Mary’s St
Suite 1800
San Antonio, Texas 78205


Trial Counsel for Trial Defendant A.J. Plastics, Inc.
Lawrence L. Mealer
LAW OFFICE OF
  LAWRENCE L. MEALER
Maple Plaza Law Center
5353 Maple Avenue
Suite 100
Dallas, Texas 75235
                                           /s/ jeremy j. cook
                                           JEREMY J. COOK



                                      21
