Erick Lopez v. Adam Huron D/B/A Adam's Mexican Food Products
04-15-00327-CV
| Tex. App. | Sep 2, 2015Background
- Plaintiff (Adam Huron d/b/a Adam’s Mexican Food Products) purchased pre‑formed plastic bags through Defendant Erick Lopez; bags were manufactured by A.J. Plastics, Inc. Lopez did not manufacture the bags.
- Huron alleged the bags were defective; a large shipment returned by a retailer (H‑E‑B) spoiled, and Huron claimed replacement costs and related losses.
- Jury found the bags unfit for ordinary and particular purposes, awarded Huron $16,199.07, and apportioned fault 80% to A.J. Plastics and 20% to Lopez.
- Jury found no recovery on Lopez’s counterclaims; awarded Huron $30,000 in trial attorney’s fees for prosecuting claims against both defendants, $20,000 for defending against Lopez’s Texas Theft Liability Act (TLA) counterclaim, and specified appellate fee estimates.
- Lopez appealed, arguing (1) as a non‑manufacturing seller he was immune under Tex. Civ. Prac. & Rem. Code § 82.003 because Huron failed to plead/prove any statutory exception, (2) Huron cannot recover prosecutorial fees because Huron did not prevail against Lopez, and (3) Huron failed to segregate defensive fees attributable solely to the TLA counterclaim, requiring reversal/remand.
Issues
| Issue | Plaintiff's Argument (Huron) | Defendant's Argument (Lopez) | Held (trial court) |
|---|---|---|---|
| 1. Liability of non‑manufacturing seller under Tex. Civ. Prac. & Rem. Code § 82.003 | Huron pleaded DTPA and warranty claims against Lopez and obtained jury findings of breach of implied warranties | Lopez asserts § 82.003 precludes liability of non‑manufacturing sellers unless claimant pleads/proves one of seven exceptions; Huron did not plead/prove any exception | Jury / trial court found Lopez 20% liable for damages from defective bags |
| 2. Recovery of attorneys’ fees for prosecuting affirmative claims | Huron seeks fees under Tex. Civ. Prac. & Rem. Code § 38.001 and Tex. Bus. & Com. Code § 17.50(d) as prevailing consumer | Lopez contends Huron did not prevail against him (because § 82.003 bars recovery) so statutory fee awards are unavailable | Trial court awarded Huron $30,000 for prosecuting claims against both defendants |
| 3. Recovery of defensive attorneys’ fees for TLA counterclaim | Huron seeks fees for defending the TLA counterclaim (a fee‑shifting claim) | Lopez argues Huron failed to segregate fees attributable solely to TLA defense from fees defending non‑fee‑shifting counterclaims, so award must be reversed/remanded | Trial court awarded Huron $20,000 for defensive fees against Lopez’s TLA counterclaim |
| 4. Waiver / omitted‑issue doctrine under Tex. R. Civ. P. 279 | Huron might argue any omitted § 82.003 elements should be deemed found if related elements were submitted | Lopez argues omitted § 82.003 elements are independent and unsupported by even scintilla of evidence, so Huron waived recovery against him | Trial court did not require a jury finding on § 82.003 exceptions and entered judgment in Huron’s favor against Lopez |
Key Cases Cited
- Ramos v. Frito‑Lay, Inc., 784 S.W.2d 667 (Tex. 1990) (omitted jury issues that are part of an independent ground may be deemed found if related issues were submitted and supported by some evidence)
- Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) (party must segregate attorney fees that relate solely to unrecoverable claims; discrete services advancing both recoverable and unrecoverable claims may be nonsegregable)
- Green Int’l v. Solis, 951 S.W.2d 384 (Tex. 1997) (to recover attorneys’ fees under § 38.001, a party must prevail on a claim for which fees are recoverable and obtain damages)
- City of Denton v. Page, 683 S.W.2d 180 (Tex. App.—Fort Worth 1985) (discussing standard for deemed findings where some elements omitted)
- Integrated of Amarillo, Inc. v. Kirkland, 424 S.W.3d 131 (Tex. App.—Amarillo 2014) (conclusory expert testimony unsupported by explanation is insufficient evidence to carry burden on segregation)