CAUSE NO. CV PLAINTIFF S MOTION FOR ENTRY OF JUDGMENT. Plaintiff FMC Technologies, Inc., ( FMCTI ) moves this Court to enter judgment

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1 CAUSE NO. CV FMC TECHNOLOGIES, INC., v. Plaintiff, FRAC TECH SERVICES, LTD., F/K/A FRAC TECH SERVICES, L.L.C., Defendants. IN THE DISTRICT COURT OF ERATH COUNTY, TEXAS 266 TH JUDICIAL DISTRICT PLAINTIFF S MOTION FOR ENTRY OF JUDGMENT TO THE HONORABLE DONALD JONES: Plaintiff FMC Technologies, Inc., ( FMCTI ) moves this Court to enter judgment upon the verdict in the above-referenced case and in support would show the following: I. JURY VERDICT On March 7, 2011, this case came to trial. The parties appeared through their respective counsel of record and a jury of twelve qualified jurors was duly selected, empanelled, and sworn to try the case. On March 17, 2011, this case was submitted to the jury on thirteen questions. The jury returned a unanimous verdict in favor of FMCTI on all issues. The jury awarded FMCTI $4,850,000 in actual damages. The foreperson of the jury affirmed that the decision was unanimous. The verdict of the jury is attached as Exhibit A. Accordingly, the verdict was complete and ripe for judgment at the time it was received by the Court. The proposed judgment contains five components: 1) actual damages; 2) prejudgment interest; 3) post-judgment interest; 4) costs; and 5) attorney s fees. PLAINTIFF S MOTION FOR ENTRY OF JUDGMENT PAGE 1

2 II. ACTUAL DAMAGES FMCTI moves for entry of judgment in the principal amount of $4,849, This amount was supported by sufficient evidence and summarized in Plaintiff s Exhibit ( PX ) 198. See Ex. B. This amount was uncontested by Frac Tech Services, Ltd. ( Frac Tech ). Cindy Winsett, Controller for FMCTI, testified further to as to how PX 198 was created and how she calculated the amount owed under the contract. Based upon her testimony, the uncontested evidence presented at trial, and the information contained in PX 198, the jury had sufficient credible evidence to render its verdict for this amount. The jury s verdict slightly exceeds the sum reflected in its invoicing and FMCTI offers remittitur. Tex. R. Civ. P III. CONTRACTUAL INTEREST Parties are free to agree by contract to set the rate of pre-judgment interest. Triton Oil & Gas Corp. v. E.W. Moran Drilling Co. 509 S.W.2d 678, (Tex. Civ. App. Fort Worth 1974, writ ref'd n.r.e.). Where they do, the contractual rate and terms govern instead of the statutory rate and terms otherwise applicable. See Pineda v. PMI Mortgage Ins. Co., 843 S.W.2d 660, (Tex. App. Corpus Christi 1992, writ denied). See also InsureSuite Inc. v. MJS Mktg., L.P., No CV, 2006 WL , at *6 (Tex. App. Austin July 28, 2006, no pet.) (not designated for publication) (stating the standards of Kenneco and Texas Finance Code govern each case unless a different standard is provided by contract. ). The parties to this contract selected the highest lawful rate. See Ex. C, 1. See also Dodson v. Citizens State Bank, 701 S.W.2d 89, (Tex. App. Amarillo 1986, writ ref d n.r.e.) (holding that the language highest legal rate invokes the limits of PLAINTIFF S MOTION FOR ENTRY OF JUDGMENT PAGE 2

3 recoverable interest). When a contract provides for recovery at the highest or maximum amount allowed by law, the applicable interest rate varies between 18% and 28% per annum. All Seasons Window and Door Mfg., Inc. v. Red Dot Corp., 181 S.W.3d 490, (Tex. App. Texarkana 2005, no pet.); Bair Chase Prop. Co. v. S & K Dev. Co., 260 S.W.3d 133, 139 (Tex. App. Austin 2008, pet. denied). See also TEX. FIN. CODE , (a)-(c) (current statutory ceilings range between 18% and 28%). It is error for a court to impose a rate less than 18% percent in a contract of this kind. All Seasons, 181 S.W.3d at 499; Castle Tex. Prod. LP v. Long Trusts, 134 S.W.3d 267, 288 (Tex. App. Tyler 2003, pet. denied). FMCTI has pled for this interest rate. See Plaintiff s Second Amended Petition at 4 ( FMCTI seeks a judgment against the Defendants for the $4,849, for the well service pumps delivered to Defendants as well as the service charge, pursuant to the terms of the contract, on all past due accounts at the highest rate permitted by law and the contract of the parties. ). See also Plaintiff s First Amended Responses to Defendant s Request for Disclosure at 5 (specifically noting that FMCTI will seek 18% interest on its past due accounts). The period upon which interest is to be calculated, like the rate, may also be altered by contract. Pineda, 843 S.W.2d at Although the normal statutory accrual date is 180 days after written demand, the contract alters this date and begins to accrue the service charge when the account is past due. See Ex. C, 1. The contract defines the account as past due when payment is not made within thirty days of delivery. See Ex. C, 1. PLAINTIFF S MOTION FOR ENTRY OF JUDGMENT PAGE 3

4 Frac Tech paid a 20% deposit at the beginning of the contract and FMCTI amortized that down payment throughout 2007 as it delivered pumps. A portion of the down-payment remained as of default. FMCTI applied all of Frac Tech s remaining down payment and other credits to outstanding invoices as they became past due, then applied 18% simple interest thereafter. See Ex. D. See also TEX. FIN. CODE (noting that pre-judgment interest is simple interest). For the Court s convenience, Exhibit D also includes a per diem amount of interest to adjust the recovery from April 19, 2011, until the date of final entry of judgment. Therefore, FMCTI moves this Court to award $2,927, in pre-judgment interest owed to FMCTI as of April 19, IV. POST-JUDGMENT INTEREST The parties agreed interest rate applies to the post-judgment period as well. It applies to both principal and to the prejudgment interest which has accumulated at the time of judgment. TEX. FIN. CODE Therefore, the post-judgment interest rate simply continues on the sum of the principal and contractual pre-judgment interest award at a rate of 18%. Under the Texas Finance Code, however, post-judgment interest is not simple interest but rather compounds annually. TEX. FIN. CODE Therefore, FMCTI moves this Court to award post-judgment interest on the aggregate amount of the principal and the contractual pre-judgment interest at 18% interest compounded annually. V. COSTS FMCTI requests that the Court award $22, for FMCTI s costs of court and taxable costs. As the prevailing party, FMCTI may recover the costs it incurred in this PLAINTIFF S MOTION FOR ENTRY OF JUDGMENT PAGE 4

5 litigation. Tex. R. Civ. P. 131; TEX. CIV. PRAC. & REM. CODE (b); Furr s Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 378 (Tex. 2001). FMCTI s Verified Statement of Costs is attached as Exhibit E and incorporated as if fully repeated here. FMCTI is also entitled to and requests post-judgment interest on its costs at the rate of 5% per annum compounded annually. TEX. FIN. CODE , VI. ATTORNEYS FEES FMCTI requests: 1) the award of $1,449, in attorney s fees through presentation of this Motion and response to any post-judgment motions; 2) an additional $80,000 in the event of appeal to the Texas Court of Appeals in Eastland by Frac Tech that is ultimately unsuccessful; 3) $25,000 if a petition for review is filed with the Texas Supreme Court that is denied; and 4) $50,000 if that petition for review is heard but relief is not ultimately granted. FMCTI attorney s fees are both reasonable and necessary. This case was hotly contested. Through December 2010, Frac Tech s attorney s fees exceeded those of FMCTI at a rate of $939, to $1,076, Frac Tech s attorney s fees through trial and this motion have been requested and will be subpoenaed for the hearing as they support this fee award. There were 67 original motions and 33 depositions in this case. Not only were employees subject to deposition, former employees, third-party buyers, and even vendors were deposed. Extensive expert designations were made and expert reports created. At pre-trial, Frac Tech offered 960 exhibits into the record. At the time of trial, Frac Tech had identified 987 exhibits (6,485 total pages) as potential trial exhibits and named 34 trial witnesses (though called only two). PLAINTIFF S MOTION FOR ENTRY OF JUDGMENT PAGE 5

6 Attached to this motion and incorporated as if fully laid out here is Exhibit F, which is the affidavit of Charles Miers in support of FMCTI s fee application. Mr. Miers is available to testify to the conclusions reached in his affidavit. Alternatively, since this matter has been submitted to the Court instead of the jury, this Court may take judicial notice of what constitutes a reasonable fee. TEX. CIV. PRAC. & REM. CODE In Mr. Miers opinion, a reasonable appellate fee will be $80,000 for the Court of Appeals, $25,000 in the event a petition for review is filed in the Texas Supreme Court and an additional $50,000, if that petition is granted. The proposed judgment reflects each of these sums. Furthermore, FMCTI requests post-judgment interest on its attorney s fees at a rate of 5% compounding annually. TEX. FIN. CODE , VII. PRAYER FMCTI moves this Court to enter judgment in its favor for the principal amount of $4,849, FMCTI requests the service charge of $2,927, be added to the judgment principal amount as contractual pre-judgment interest. FMCTI requests postjudgment interest at 18% per annum compounding annually on the aggregate amount of the principal and pre-judgment interest awarded by this Court. FMCTI requests recovery of its costs as the prevailing party in the amount of $22, FMCTI further requests that this Court award post-judgment interest on its costs at a rate of 5% per annum compounding annually. FMCTI requests $1,449, as its reasonable and necessary attorneys fees for services rendered through trial. In the event of an unsuccessful appeal by Frac Tech, FMCTI requests $80,000 as a reasonable attorney fee. If Frac Tech files a petition for review in the Texas Supreme Court that is ultimately denied, FMCTI requests $25,000 as a reasonable attorney fee. If Frac Tech s petition PLAINTIFF S MOTION FOR ENTRY OF JUDGMENT PAGE 6

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8 CERTIFICATE OF SERVICE The undersigned certifies a true and correct copy of the foregoing document was served upon counsel of record in accordance with the Texas Rules of Civil Procedure via certified mail, return receipt on April 6, 2011: Marshall M. Searcy, Jr. Hugh G. Connor, II Michael D. Anderson Kelly Hart & Hallman LLP 201 Main Street, Suite 2500 Fort Worth, TX William A. Hicks Frac Tech Services, Ltd. P. O. Box 1587 Cisco, TX Garry Lewellen Lewellen Law 157 South Graham Street Stephenville, TX Thomas M. Fulkerson PLAINTIFF S MOTION FOR ENTRY OF JUDGMENT PAGE 8