AFFIRM in Part, REVERSE in Part, and REMAND; Opinion Filed January 22, 2019.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00175-CV

                          TOP CAT READY MIX, LLC, Appellant
                                        V.
                          ALLIANCE TRUCKING, L.P., Appellee

                      On Appeal from the 191st Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-15-07419

                             MEMORANDUM OPINION
                          Before Justices Myers, Molberg, and Osborne
                                   Opinion by Justice Molberg
       The trial court granted summary judgment in favor of Alliance Trucking, L.P. (Alliance)

on its suit on a sworn account against Top Cat Ready Mix, LLC (Top Cat) and awarded Alliance

$315,087.21 in actual damages, $198,739.63 for “contractual pre-judgment interest,” attorney’s

fees of $70,000 in the trial court and $25,000 for an unsuccessful appeal by Top Cat to this Court,

and post-judgment interest on actual damages “at the contractual rate of 18% per annum.”

       In two issues, Top Cat contends the trial court erred by awarding Alliance (1) the

“contractual [interest] rate of 18% per annum” because the summary judgment evidence did not

conclusively establish Top Cat agreed to pay the interest rate and the interest rate awarded is

usurious, and (2) attorney’s fees because Top Cat is not an entity subject to an attorney’s fees
award under section 38.001 of the civil practice and remedies code and Alliance failed to

conclusively establish it was entitled to the amount of fees awarded by the trial court.

          Top Cat has not challenged the trial court’s grant of summary judgment in favor of Alliance

on its suit on a sworn account and on Top Cat’s counterclaims against Alliance. Accordingly, we

affirm the trial court’s summary judgment that Alliance recover from Top Cap $315,087.21 in

actual damages on its suit on a sworn account and Top Cat take nothing on its counterclaims. We

reverse the trial court’s summary judgment to the extent it awards Alliance eighteen percent per

annum pre-judgment and post-judgment contractual interest and attorney’s fees and remand those

issues to the trial court for further proceedings.

                                                    Procedural Background

          Alliance is a trucking company that provides commercial transportation and delivery

services for construction industry materials. Top Cat is a concrete mixing company. Top Cat

contracted with Alliance to source, purchase, and deliver aggregate materials needed to make

concrete.1 From approximately July 7, 2013, to October 13, 2013, Alliance mailed twelve invoices

to Top Cap for purchases and deliveries of aggregate materials. Each invoice stated, “Interest will

accrue at the rate of 1.5% per month starting 60 days from INVOICE DATE.” Top Cat made

partial payment on the first invoice, but made no subsequent payments.

          Alliance sued Top Cat on a sworn account and for breach of contract, or alternatively

quantum meruit. Alliance sought to recover $391,087.21, consisting of the unpaid balance of the

invoices and contractual interest, and attorney’s fees. Top Cat filed a verified denial that Alliance

had applied “all lawful offsets, payments, and credits” to the account. Top Cat specifically asserted

that, because Alliance delivered substandard or defective materials, Top Cat was forced to

purchase replacement materials. Top Cat also raised the affirmative defenses of offset, discharge


   1
       Aggregates are the raw materials needed to make concrete, such as gravel, sand, and limestone.

                                                                     –2–
due to Alliance’s material breach of contract, and express contract. Top Cat brought counterclaims

against Alliance for breach of contract, fraud by nondisclosure, and breach of implied warranties.

       Alliance filed an amended third motion for no-evidence and traditional summary judgment

(motion for summary judgment). Alliance moved for traditional summary judgment on its sworn

account suit and for no-evidence and traditional summary judgment on Top Cat’s counterclaims.

Finding there was no genuine issue of material fact as to the claims between Alliance and Top Cat,

the trial court granted Alliance’s motion for summary judgment; awarded Alliance $315,087.21 in

actual damages, $198,739.63 in “contractual pre-judgment interest,” post-judgment interest on

actual damages at an annual “contractual rate of 18%,” post-judgment interest on all other damages

at “the rate of 5% per annum,” $70,000 in attorney’s fees through entry of summary judgment, and

$25,000 in attorney’s fees in the event of an unsuccessful appeal by Top Cat to this Court; and

ordered Top Cat take nothing on its counterclaims against Alliance.

                                       Standard of Review

       In this appeal, Top Cat challenges only the trial court’s award of contractual interest and

attorney’s fees, issues on which Alliance moved for traditional summary judgment. We review

the trial court’s ruling on a motion for summary judgment de novo. Lujan v. Navistar, Inc., 555

S.W.3d 79, 84 (Tex. 2018). To prevail on a traditional motion for summary judgment, the movant

has the burden to demonstrate there is no genuine issue of material fact and it is entitled to

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Lujan, 555 S.W.3d at 84. Once the

movant produces sufficient evidence to establish its right to judgment, the burden shifts to the non-

movant to come forward with competent controverting evidence sufficient to raise a genuine issue

of material fact. Lujan, 555 S.W.3d at 84.

       In reviewing a summary judgment, we consider the evidence in the light most favorable to

the non-movant, making every reasonable inference and resolving all doubts in the non-movant’s

                                                –3–
favor. Id. We credit evidence favorable to the nonmovant if a reasonable factfinder could, and

disregard contrary evidence unless a reasonable factfinder could not. Samson Exploration, LLC v.

T.S. Reed Props., Inc., 521 S.W.3d 766, 774 (Tex. 2017). Evidence raises a genuine issue of fact

if reasonable and fair-minded jurors could differ in their conclusions in light of all the summary

judgment evidence. Lakshmi Realty, LLC v. Firewheel Brokerage PLLC, No. 05-17-00142-CV,

2018 WL 1602583, at *2 (Tex. App.—Dallas Apr. 3, 2018, no pet.).

                                                   Interest Rate Award

          In its first issue, Top Cat argues the trial court erred by awarding Alliance contractual

interest because the interest rate is usurious and the summary judgment evidence does not

conclusively establish Top Cat agreed to pay an interest rate of eighteen percent per annum.

                                                              Usury

          Usury as a matter of avoidance should be pleaded as an affirmative defense. Apodaca v.

Rios, 163 S.W.3d 297, 305 (Tex. App.—El Paso 2005, no pet.); see also TEX. R. CIV. P. 94; Roark

v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991). Further, rule of civil procedure

93 requires an affirmative defense of usury to be verified by affidavit. TEX. R. CIV. P. 93(11);

Apodaca, 163 S.W.3d at 305. “[P]arties who do not follow rule 93’s mandate waive any right to

complain about the matter on appeal.” Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925

S.W.2d 659, 662 (Tex. 1996). Top Cat did not file a verified answer asserting the affirmative

defense of usury. Therefore, it failed to preserve its complaint on appeal that the interest rate

charged by Alliance was usurious. See id.2

                                                    Contractual Interest

          Top Cat also complains that Alliance failed to conclusively prove Top Cat agreed to pay

contractual interest of eighteen percent per annum. To prove a sworn account, the plaintiff must


     2
       See also Chrissokos v. Chrissikos, No. 05-00-01548-CV, 2002 WL 342653, at *5 (Tex. App.—Dallas Mar. 6, 2002, pet. denied) (not
designated for publication).

                                                               –4–
show: (1) the sale and delivery of merchandise or performance of services, (2) the amount or

prices were either charged in accordance with an agreement or were customary and reasonable,

and (3) the amount is unpaid. Peerless Indem. Ins. Co. v. GLS Masonry, Inc., No. 05-16-00875-

CV, 2018 WL 3491045, at *7 (Tex. App.—Dallas July 20, 2018, no pet.) (mem. op.). Therefore,

because Alliance sought summary judgment on its claim for contractual interest based on a sworn

account, it was required to conclusively prove Top Cat agreed to pay the interest or the interest

was customary and reasonable.

       As summary judgment evidence, Alliance relied on two affidavits from Eric Dance, its

Chief Financial Officer; the affidavit of Paul Patterson, its “GM”; the deposition testimony and

affidavit of Ramõn Carrsquillo, its expert on the quality of the aggregate provided to Top Cat; the

deposition testimony of Gary Reeder, Top Cat’s general manager; the affidavit of Berlin Stoute, a

dispatcher for Alliance; and the declaration of Frank Broyles, Alliance’s attorney. As relevant to

this issue, the summary judgment evidence established: (i) Alliance provided trucking and gravel

purchasing services for Top Cat from July 1, 2013, through November 2013; (ii) Top Cat agreed

that, in exchange for Alliance’s services, it would pay Alliance’s “customary charges for its

trucking services plus the cost of the gravel purchased by [Alliance] plus a nominal mark up over

the actual cost of the gravel”; (iii) the twelve invoices Alliance mailed to Top Cat included a

statement that “interest will accrue at the rate of 1.5% per month starting 60 days from INVOICE

DATE”; (iv) Top Cat paid $18,811.27 of the $19,321.25 due on the first invoice, but made no

other payments; (v) the balance owed by Top Cat was $315,087.21; (vi) Alliance had charged

$194,233.32 in interest on the balance; and (vi) Alliance sought to recover from Top Cat

“$509,320.53 plus pre and post judgment interest of $155.39 per day from April 11, 2017 until

paid plus all recoverable litigation costs including but not limited to a reasonable and necessary




                                               –5–
attorney’s fee.” Top Cat responded to the motion for summary judgment, but offered no evidence

relating to whether it agreed to pay contractual interest on Alliance’s charges.

       There is no summary judgment evidence that Top Cat expressly agreed to pay the

contractual interest. Rather, the summary judgment evidence established only that Top Cat agreed

to pay Alliance’s “customary charges,” without stating what those charges were or that the charges

included contractual interest. The issue, therefore, is whether Alliance conclusively established

there was an implied agreement that Top Cat would pay the contractual interest.

       Relying on Preston Farm & Ranch Supply, Inc. v. Bio-Zyme, Enterprises, 625 S.W.2d 295

(Tex. 1981), which is not a summary judgment case, Alliance argues the summary judgment

evidence established a course of dealing between it and Top Cat that created an implied agreement

to pay contractual interest. In Preston Farm, Bio-Zyme sold stock feed to Ken Vanderhoof and

his corporation, Preston Farm, (collectively Preston Farm) on an open account. Id. at 296. Bio-

Zyme sent an invoice with the shipments of feed purchased by Preston Farm. Id. Each invoice

contained the statement that accounts not paid within thirty days would be charged one percent

each month. Id. Preston Farm failed to pay all the invoices, and Bio-Zyme brought suit on a sworn

account. Id. After a bench trial, the trial court found Preston Farm had agreed to pay the one

percent per month service charge. Id. at 297.

       The issue before the supreme court in Preston Farm was not whether the evidence

conclusively established the existence of an agreement; rather the court was required to determine

if there was any evidence to support the trial court’s finding an agreement existed. See id. at 298.

The supreme court noted that when the existence of an agreement is disputed, it is generally a

question of fact as to whether an agreement was reached by the parties. Id. It then considered

whether there was evidence of a course of conduct between the parties that gave rise to an

agreement to pay interest and concluded that evidence the parties had extensive dealings with one

                                                –6–
another, the sales continued for over a year, Preston Farms received a statement each month

containing the service charge provision, many of the statement plainly and conspicuously stated

that service charges had been imposed, Preston Farm continued its credit purchases and continued

to accept the goods Bio-Zyme shipped, Preston Farm never objected to the services charges,

Preston Farm paid service charges on the debt, and Vanderhoof admitted at trial that he agreed

with the charges to the account until he found out “very, very recently” that too much interest had

been charged was sufficient to support the trial court’s finding an agreement existed. Id. at 298.

       Subsequently, in Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644

S.W.2d 443, 445–56 (Tex. 1982), the supreme court addressed whether the evidence was sufficient

to raise a fact question on the existence of an implied agreement to pay contractual interest. Triton

Oil and Marine Contractors signed a letter agreement pursuant to which Triton Oil was to drill,

complete, equip, and maintain a well for the production of oil and gas. Id. at 444. Marine

Contractors failed to pay its share of the costs, and Triton Oil began charging Marine Contractors

ten percent interest on the unpaid balance and sent invoices each month reflecting that charge. Id.

After Triton Oil sued Marine Contractors, seeking to recover costs it claimed Marine Contractors

owed under the letter agreement, plus ten percent contractual interest, Marine Contractors filed a

counterclaim for usury, alleging the letter agreement did not provide for interest. Id. Because the

letter agreement did not provide for interest, and Triton Oil had charged a ten percent interest rate

on the unpaid amounts, Marine Contractors established a prima facie case of usury. Id. at 445. In

order to overcome this prima facie case and raise a fact question, Triton Oil had the burden to

produce sufficient evidence of an agreement to pay the contractual interest. Id.

       Triton Oil introduced evidence that it sent invoices to Marine Contractors containing an

interest rate of ten percent per annum, Marine Contractors never objected to the charges, and

although Marine Contractors did not pay the charges, Triton Oil deducted the charges from Marine

                                                –7–
Contractors’ share of the proceeds from the well. Id. Citing to Preston Farms, the supreme court

concluded Triton Oil’s “unilateral act” of charging interest on its invoices and deducting those

charges from what it owed to Marine Contractors was not evidence of an agreement to pay the

charged interest. Id. at 445–46. Further, although Marine Contractors did not object to the charges,

it also did not pay them. Id. at 446. The supreme court concluded Triton Oil’s evidence was

insufficient to raise a fact question as to the existence of an agreement to pay contractual interest.

Id. at 446.

        The issue before us is whether Alliance conclusively established an implied agreement by

Top Cat to pay contractual interest, an analysis controlled by Triton Oil. Alliance met its summary

judgment burden only if ordinary minds could not differ as to the conclusion to be drawn from its

evidence. Id. Unless Alliance carried this burden, Top Cat was not required to present any

summary judgment that it did not agree to pay contractual interest. See Swilley v. Hughes, 488

S.W.2d 64, 67 (Tex. 1972) (“In our summary judgment practice, the opponent’s silence never

improves the quality of the movant’s evidence.”).

        Alliance’s summary judgment evidence established Top Cat agreed to pay Alliance’s

“customary charges,” Top Cat used Alliance’s trucking services for approximately five months,

Alliance sent twelve invoices that included a provision stating contractual interest would be

charged, and Top Cat partially paid the first invoice. However, there was no evidence Top Cat

agreed to the contractual interest charge or paid any of the charges. Without evidence of conduct

by Top Cat indicating it accepted the contractual interest, Alliance’s unilateral acts of charging

interest on the invoices is not evidence of an agreement as to the contractual interest charge. See

Triton Oil & Gas Corp., 644 S.W.2d at 445–46; Int’l Metal Sales, Inc. v. Global Steel Corp., No.

03-07-00172-CV, 2010 WL 1170218, at *11 (Tex. App.—Austin Mar. 24, 2010, pet. denied). The

summary judgment evidence, therefore, did not conclusively establish an implied agreement by

                                                 –8–
Top Cat to pay the contractual interest. See Triton Oil & Gas Corp., 644 S.W.2d at 445–46;

Preston Farm & Ranch Supply, Inc., 625 S.W.2d at 298 (concluding existence of agreement is

generally question of fact).

       Because Alliance failed to meet it burden to conclusively establish Top Cat agreed to pay

contractual interest, the trial court erred by awarding Alliance eighteen percent per annum pre-

judgment and post-judgment interest. We resolve Top Cat’s first issue in its favor.

                                          Attorney’s Fees

       Before filing suit, Alliance provided notice to Top Cat that if it failed to pay the outstanding

invoices, Alliance would file suit and seek to recover its attorney’s fees under chapter 38 of the

civil practice and remedies code. Alliance moved for summary judgment on its request for

attorney’s fees. The trial court granted the motion and awarded Alliance $70,000 in attorney’s

fees through trial and an additional $25,000 in attorney’s fees in the event of an unsuccessful

appeal by Top Cat to this Court. In its second issue, Top Cat contends the trial court erred by

awarding Alliance attorney’s fees because (1) Top Cat is not an individual or corporation and thus

is not an entity against which attorney’s fees may be recovered under section 38.001 of the civil

practice and remedies code, and (2) the evidence does not conclusively establish Alliance is

entitled to the amount of fees awarded by the trial court because the award “is wholly unreasonable

and does not relate to the actual fees incurred by Alliance” and includes “recovery of nontaxable

incidental costs.”

                                    Fees Under Section 38.001

       Texas follows the American Rule with respect to recovery of attorney’s fees, meaning

“litigants may recover attorney’s fees only if specifically provided for by statute or contract.” Epps

v. Fowler, 351 S.W.3d 862, 865 (Tex. 2011). Section 38.001 of the civil practice and remedies

code provides that “[a] person may recover reasonable attorney’s fees from an individual or


                                                 –9–
corporation, in addition to the amount of a valid claim and costs, if the claim is for: . . . (7) a sworn

account; or (8) an oral or written contract.” TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (7), (8).

Under the plain language of section 38.001, a trial court cannot order limited liability partnerships,

limited liability companies, or limited partnerships to pay attorney’s fees. Phoneternet, LLC v.

Drawbridge Design, No. 05-17-00890-CV, 2018 WL 3238001, at *3 (Tex. App.—Dallas July 3,

2018, no pet.) (mem. op.) (“We conclude section 38.001 of the Texas Civil Practice and Remedies

Code does not permit recovery of attorney fees against a limited liability company.”); Alta Mesa

Holdings, L.P. v. Ives, 488 S.W.3d 438, 452-454 (Tex. App.—Houston [14th Dist.] 2016, pet.

denied) (corporations and LLCs are distinct entities, “use of the term ‘corporation’ does not

encompass an LLC” under section 38.001)

           Texas Rule of Civil Procedure 93 provides that pleadings asserting certain defenses shall

be verified by affidavit “unless the truth of such matters appear[s] of record.” TEX. R. CIV. P. 93;

see also John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645, 653 (Tex. App.—

Dallas 2013, pet. denied) (“[W]hen a case falls within one of the categories defined by rule 93, a

general denial is insufficient; the defendant must provide a verified denial, supported by an

affidavit based on personal knowledge.”). Specifically, rule 93 requires a party to file a pleading

verified by affidavit to raise the defense that “any party alleged in any pleading to be a corporation

is not incorporated as alleged.” TEX. R. CIV. P. 93(6); see also Coffin v. Finnegan’s, Inc., No. 06-

01-00171-CV, 2003 WL 21756653, at *2 (Tex. App.—Texarkana July 11, 2003, no pet.) (mem.

op.).3 “[P]arties who do not follow Rule 93’s mandate waive any right to complain about the

matter on appeal.” Nootsie, 925 S.W.2d at 662; see also John C. Flood of DC, Inc., 408 S.W.3d

at 653.



     3
       See also TEX. R. CIV. P. 52 (“An allegation that a corporation is incorporated shall be taken as true, unless denied by the affidavit of the
adverse party, his agent or attorney, whether such corporation is a public or private corporation and however created.”).

                                                                     –10–
         Alliance sued Top Cat as “a domestic, for-profit limited liability corporation authorized

to do business in the State of Texas with its principal office in Ennis, Texas.” Top Cat did not file

a rule 93 verified affidavit denying that it is a corporation as alleged and, therefore, failed to

preserve its complaint that it is not an entity against which attorney’s fees may be awarded under

section 38.001. See Nootsie, 925 S.W.2d at 662; John C. Flood of DC, Inc., 408 S.W.3d at 653.

                               Amount of Attorney’s Fees Awarded

       Top Cat next asserts Alliance failed to conclusively establish the attorney’s fees awarded

by the trial court were reasonable and necessary. Top Cat specifically argues the summary

judgment evidence is inconsistent on the amount of fees incurred and the award includes

nontaxable costs, including testifying expert witness fees, consulting expert fees, photocopying

charges, and travel and lunch expenses.

       In his declaration, Broyles, Alliance’s attorney, stated Alliance hired him to pursue the

claim against Top Cat and agreed to pay a “reasonable fee based on a lodestar formula.” He

described Top Cat as a “particularly uncooperative defendant” and stated Top Cat’s counterclaims,

third-party claims, and affirmative defenses had “added substantial complexity to this case.” “As

a result,” Broyles spent approximately 100 hours performing “necessary and reasonable activities”

in connection with the case. Broyles’s customary rate was $425 an hour and, in his opinion, this

hourly rate was reasonable. Broyles then opined that $70,000 was “a reasonable and necessary

attorneys’ fees for handling this type of case” through summary judgment and $25,000 was a

reasonable and necessary fee for handing an appeal by Top Cat to this Court.

       Attached to Broyles’s declaration were itemized fee statements for Broyles’s services as

well as a summary chart indicating Alliance had incurred $40,115.50 in attorney’s fees and

$20,781.83 for expenses. The chart specifically listed $16,000 for expert witness fees as an




                                               –11–
expense. Further, a review of Broyles’s fee statements indicates other expenses listed on the chart

included consulting expert fees, photocopying charges, and travel and lunch expenses.

       Attorney’s fees may be awarded on a summary judgment only if the evidence is conclusive.

Tex. Black Iron, Inc. v. Arawak Energy Int’l Ltd., No. 14-17-00748-CV, 2018 WL 6378520, at *17

(Tex. App.—Houston [1st Dist.] Dec. 6, 2018, no pet. h.). The affidavit of an attorney “setting

forth the attorney’s qualifications, opinion regarding reasonable attorney’s fees, and the basis for

the opinion ‘will be sufficient to support summary judgment, if uncontroverted.’” Microlaser

Therapy Corp. v. White, No. 05-17-00761-CV, 2018 WL 6845242, at *6 (Tex. App.—Dallas Nov.

16, 2018, no pet. h.) (mem. op.) (quoting Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d

372, 373 (Tex. App.—San Antonio 1999, pet. denied)); see also Triton 88, L.P. v. Star Elec.,

L.L.C., 411 S.W.3d 42, 64 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (concluding attorney’s

affidavit is “expert testimony that will support an award of attorney’s fees in a summary judgment

proceeding”). Testimony from a party’s attorney about the party’s attorney’s fees is taken as true

as a matter of law if the testimony “is not contradicted by any other witness and is clear, positive,

direct, and free from contradiction.” Blockbuster, Inc. v. C-Span Entm’t, Inc., 276 S.W.3d 482,

490 (Tex. App.—Dallas 2008, pet. granted, judgm’t vacated w.r.m.) (citing Ragsdale v.

Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (per curiam)); see also TEX. R. CIV.

P. 166a(c) (summary judgment may be based on uncontroverted testimony of expert witness “if

the evidence is clear, positive, and direct, otherwise credible and free from contradictions and

inconsistencies, and could have been readily controverted”).

       Here, Broyles’s declaration is not clear, positive, direct, and free from contraction. The

summary chart attached to Broyles’s declaration indicates Alliance incurred $40,115.50 in

attorney’s fees. However, in his declaration, Broyles states he spent approximately 100 hours on

the case at a rate of $425 per hour, which results in attorney’s fees of $42,500. Broyles then

                                               –12–
opined, with no explanation for the increased amount, that $70,000 was a reasonable and necessary

fee for his services through summary judgment. Finally, based on the summary chart, fee

statements, and the amount awarded, there is at least an issue of fact regarding whether the

attorney’s fee award included costs, such as expert witness fees, copy costs, and travel expenses,

which are not generally recoverable. See Transcon. Realty Inv’rs Inc. v. Orix Capital Mkts. L.L.C.,

No. 05-14-00588-CV, 2015 WL 3751392, at *10 (Tex. App.—Dallas June 16, 2015, pet. denied)

(mem. op.) (expenses including meals, reproduction costs, and travel expenses are not recoverable

as costs); Messier v. Messier, 458 S.W.3d 155, 168 (Tex. App.—Houston [14th Dist.] 2015, no

pet.) (expert witness fee is incidental expense in preparation for trial not recoverable as costs).

        We conclude Alliance failed to conclusively establish it was entitled to recover the amount

of attorney’s fees awarded by the trial court. Accordingly, we resolve Top Cat’s second issue in

its favor.

                                            Conclusion

        We reverse the portions of the trial court’s summary judgment awarding Alliance (1)

$198,739.63 in pre-judgment contractual interest and post-judgment interest on actual damages at

the contractual rate of eighteen percent annum and (2) attorney’s fees. We remand those issues to

the trial court for further proceedings consistent with this opinion. See Ventling v. Johnson, 466

S.W.3d 143, 152, 156–57 (Tex. 2015) (reversing portions of judgment regarding post-judgment

interest and appellate attorney’s fees and remanding those issues to trial court). In all other

respects, we affirm the trial court’s judgment.




                                                    /Ken Molberg/
180175F.P05                                         KEN MOLBERG
                                                    JUSTICE

                                                  –13–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 TOP CAT READY MIX, LLC, Appellant                  On Appeal from the 191st Judicial District
                                                    Court, Dallas County, Texas,
 No. 05-18-00175-CV         V.                      Trial Court Cause No. DC-15-07419.
                                                    Opinion delivered by Justice Molberg,
 ALLIANCE TRUCKING, L.P., Appellee                  Justices Myers and Osborne participating.

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE those portions of the trial court's
judgment awarding Alliance Trucking, L.P. $198,739.63 in pre-judgment contractual interest and
post-judgment interest on actual damages at the contractual rate of eighteen percent per annum
and attorney’s fees. In all other respects, the trial court's judgment is AFFIRMED. We
REMAND this cause to the trial court for further proceedings consistent with this opinion.

       It is ORDERED that appellant Top Cat Ready Mix, LLC recover its costs of this appeal
from appellee Alliance Trucking L.P.


Judgment entered this 22nd day of January, 2019.




                                             –14–
