Case 4:15-cv-00764-ALM Document 144 Filed 07/10/17 Page 1 of 7 PageID #: 3354
`
`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`
`
`SHAWN MINSHALL, LISA VICTORIA
`MINSHALL, LAUREN VICTORIA
`MINSHALL
`
`v.
`
`HARTMAN EQUINE REPRODUCTION
`CENTER, P.A.
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`
`
`Civil Action No. 4:15-CV-764
`Judge Mazzant
`
`MEMORANDUM OPINION AND ORDER
`
`Pending before the Court is Plaintiffs’ Motion to Reconsider Memorandum Opinion and
`
`Order Denying Plaintiffs’ Motion for Entry of Judgment and Motion to Amend Final Judgment
`
`(Dkt. #137). Having considered the pleadings, the Court finds the motion should be denied.
`
`BACKGROUND
`
`
`
`On April 26, 2017, the Court entered a Memorandum Opinion and Order (Dkt. #135) and
`
`Final Judgment (Dkt. #136) finding that Plaintiffs’ damages were limited to $3,000. As discussed
`
`in the Court’s Memorandum Opinion and Order (Dkt. #135), the jury returned a verdict in this
`
`case on March 7, 2017, finding Plaintiffs proved by a preponderance of the evidence that
`
`Defendant’s negligence proximately caused Plaintiffs’ damages (Dkt. #131, Question 7). The jury
`
`found no liability against Defendant as to Plaintiffs claims for violations of the Texas Deceptive
`
`Trade Practices Act, negligent misrepresentation, fraud, joint enterprise, civil conspiracy, and
`
`aiding and abetting (Dkt. #131).
`
`At the conclusion of the evidence, the Court submitted final instructions to the jury
`
`providing specific factors for the jury to consider when awarding damages for each specific cause
`
`of action (Dkt. #124). The Court instructed the jury that if it found Defendant negligent, in
`
`awarding damages it should consider “the difference, if any, in the market value of Otto and the
`
`

`

`Case 4:15-cv-00764-ALM Document 144 Filed 07/10/17 Page 2 of 7 PageID #: 3355
`
`market value Otto would have had if he had not been HERDA-affected.” (Dkt. #124 at p. 23). For
`
`the other causes of action Plaintiffs alleged, the Court instructed the jury that it could consider
`
`additional factors in determining damages, such as the reasonable and necessary expenses related
`
`to foaling, raising, boarding, and training Otto in the past and future and Plaintiffs’ lost profits
`
`(Dkt. #124 at p. 21-24).
`
`As requested by the parties, the verdict form contained one question regarding
`
`compensatory damages (Dkt. #131, Question 14). The question instructed the jury to answer “what
`
`sum of money . . . would fairly and reasonably compensate Plaintiffs for their damages, if any, that
`
`were a producing or proximate cause of the occurrence in question” (Dkt. #131, Question 14).
`
`This question pertained to damages for all alleged causes of action, not just to damages for a
`
`finding of negligence (Dkt. #131, Question 14).
`
`On March 7, 2017, the jury found Defendant’s negligence proximately caused Plaintiffs’
`
`damages, but found Defendant was not liable under any other cause of action (Dkt. #131). The
`
`jury awarded damages in the amount of $30,000 for the difference in the market value Otto would
`
`have had if he had not been HERDA-affected (Dkt. #131, Question 14). The jury then awarded
`
`additional categories of compensatory damages, including the cost of caring for Otto and lost
`
`profits (Dkt. #131, Question 14). The jury awarded a total of $163,408 in compensatory damages
`
`(Dkt. #131, Question 14). The jury further found that Defendant was ten percent responsible for
`
`Plaintiffs’ injury (Dkt. #131, Question 19).
`
`On March 30, 2017, Plaintiffs filed a motion for entry of judgment (Dkt. #132). Plaintiffs
`
`argued they were entitled to $16,340.80 in damages, or ten percent of the total compensatory
`
`damages awarded by the jury. Plaintiffs argued that “notwithstanding the jury instruction on
`
`negligence, compensatory damages for economic losses proximately caused by a party’s
`
`
`
`2
`
`

`

`Case 4:15-cv-00764-ALM Document 144 Filed 07/10/17 Page 3 of 7 PageID #: 3356
`
`negligence are available to the prevailing party as a matter of law in Texas.” (Dkt. #132 at p. 3).
`
`On March 31, 2017, Defendant filed a response stating Plaintiffs were entitled to $3,000 in
`
`damages, or ten percent of the difference, if any, in the market value of Otto and the market value
`
`Otto would have had if he had not been HERDA-affected (Dkt. #133). Defendant argued this
`
`amount was consistent with the Court’s instruction to the jury regarding negligence.
`
`On April 26, 2017, the Court held that Plaintiffs were entitled to $3,000 in damages
`
`(Dkt. #135). The Court noted that the general rule for measuring damages to personal property is
`
`the difference in the market value immediately before and immediately after the injury to such
`
`property. Pasadena State Bank v. Isaac, 228 S.W.2d 127 (Tex. 1950); J & D Towing, LLC v. Am.
`
`Alternative Ins. Corp., 478 S.W.3d 649, 661 (Tex. 2016). The Court noted that while economic
`
`damages are also available to a prevailing party in a negligence action, see Nobility Homes of
`
`Texas, Inc. v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977), Plaintiffs did not object to the Court’s
`
`instruction limiting negligence damages to the difference in the market value of Otto (Dkt. #135
`
`at p. 4). The Court further noted that the jury’s award of additional compensatory damages was in
`
`response to questions the jury should not have answered because the jury only found Defendant
`
`negligent and did not find liability under other potential theories of recovery (Dkt. #135 at p. 4).
`
`The Court further denied Plaintiffs’ request for attorneys’ fees because Plaintiffs’ Third
`
`Amended Complaint did not seek recovery of attorneys’ fees under Texas Civil Practice and
`
`Remedies Code § 38.001(6) and the jury did not make any findings regarding whether Otto was
`
`“injured” for purposes of Section 38.001(6) (Dkt. #135 at p. 5).
`
`On May 9, 2017, Plaintiffs filed the pending motion to reconsider (Dkt. #137). On May
`
`15, 2017, Defendant filed a response (Dkt. #141).
`
`
`
`
`
`3
`
`

`

`Case 4:15-cv-00764-ALM Document 144 Filed 07/10/17 Page 4 of 7 PageID #: 3357
`
`LEGAL STANDARD
`
`A motion seeking “reconsideration” may be construed under either Federal Rule of Civil
`
`Procedure 59(e) or 60(b). Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n. 1 (5th Cir. 2004); see
`
`also Milazzo v. Young, No. 6:11-cv-350-JKG, 2012 WL 1867099, at *1 (E.D. Tex. May 21, 2012).
`
`Such a motion “‘calls into question the correctness of a judgment.’” Templet v. HydroChem Inc.,
`
`367 F.3d 473, 478 (5th Cir. 2004) (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th
`
`Cir. 2002)).
`
`
`
`“If a motion for reconsideration is filed within 28 days of the judgment or order of which
`
`the party complains, it is considered to be a Rule 59(e) motion; otherwise, it is treated as a Rule
`
`60(b) motion.” Milazzo, 2012 WL 1867099, at *1; see Shepherd, 372 F.3d at 328 n. 1; Berge
`
`Helene Ltd. v. GE Oil & Gas, Inc., No. H-08-2931, 2011 WL 798204, at *2 (S.D. Tex. Mar. 1,
`
`2011)). Plaintiffs filed their motion for reconsideration within 28 days of the final judgment;
`
`therefore, the motion will be considered a Rule 59(e) motion.
`
`
`
`A Rule 59(e) motion is “not the proper vehicle for rehashing evidence, legal theories, or
`
`arguments that could have been offered or raised before the entry of judgment.” Templet, 367 F.3d
`
`at 479 (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). “Rule 59(e) ‘serve[s]
`
`the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly
`
`discovered evidence.’” Id. (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir.
`
`1989)). “Relief under Rule 59(e) is also appropriate when there has been an intervening change
`
`in the controlling law.” Milazzo, 2012 WL 1867099, at *1 (citing Schiller v. Physicians Res. Grp.,
`
`342 F.3d 563, 567 (5th Cir. 2003)). “Altering, amending, or reconsidering a judgment is an
`
`extraordinary remedy that courts should use sparingly.” Id. (citing Templet, 367 F.3d at 479). A
`
`party is not entitled to a “second bite at the apple” and “a chance to reargue” its previously made,
`
`
`
`4
`
`

`

`Case 4:15-cv-00764-ALM Document 144 Filed 07/10/17 Page 5 of 7 PageID #: 3358
`
`and rejected, arguments. Krim v. pcOrder.com, Inc., 212 F.R.D. 329, 331 (W.D. Tex. 2002).
`
`ANALYSIS
`
`
`
`Plaintiffs argue that the Court should reconsider the final judgment because Texas law
`
`permits recovery of all damages proximately caused by a defendant’s negligence (Dkt. #137 at
`
`pp. 1–3). Plaintiffs further argue the jury granted damages for the difference in the market value
`
`of Otto as well as additional compensatory damages. Essentially, Plaintiffs argue the Court should
`
`grant Plaintiffs ten percent of the total compensatory damages award because the jury awarded
`
`additional compensatory damages and Texas law permits such damages for a finding of negligence
`
`(Dkt. #137 at p. 4–4).
`
`However, as stated in the Court’s Memorandum Opinion and Order, the negligence
`
`instruction the parties agreed to limited damages for negligence to the difference, if any, in the
`
`market value of Otto and the market value Otto would have had if he had not been HERDA-
`
`affected. (Dkt. #124 at p. 23). That Plaintiffs could have obtained additional damages under Texas
`
`law does not mean Plaintiffs are entitled to damages which they did not request.
`
`Further, the additional damages the jury awarded pertained to causes of actions for which
`
`the jury did not find Defendant liable. As Defendant correctly notes, the compensatory damages
`
`question instructed the jury to award a sum that would “fairly and reasonably compensate Plaintiffs
`
`for their damages, if any, that were a producing or proximate cause of the occurrence in question”
`
`(Dkt. #131, Question 14). This question, which the parties agreed to, was not limited to negligence
`
`and allowed the jury to award additional compensatory damages, such as lost profits and the cost
`
`of caring for Otto, for other causes of action. However, the Court’s instructions to the jury limited
`
`damages for negligence to the difference in Otto’s market value and made clear that other
`
`compensatory damages pertained to other causes of action.
`
`
`
`5
`
`

`

`Case 4:15-cv-00764-ALM Document 144 Filed 07/10/17 Page 6 of 7 PageID #: 3359
`
`Although the jury awarded additional compensatory damages, the jury did not find
`
`Defendant liable for the causes of action corresponding to these compensatory damages. As
`
`discussed in the Court’s Memorandum Opinion and Order, the award of additional compensatory
`
`damages were thus superfluous answers contrary to the Court’s instructions. Plaintiffs’ motion to
`
`reconsider the award of $3,000 in damages is therefore denied.
`
`Plaintiffs next argue that the Court should reconsider the denial of Plaintiffs’ request for
`
`attorneys’ fees. “State law applies in determining whether attorney’s fees should be awarded in
`
`state-law cases.” CK DFW Partners Ltd. v. City Kitchens, Inc., 541 F. Supp. 2d 839, 840 (N.D.
`
`Tex. 2008). Under Texas law, if a party “pleads a specific ground for recovery of attorneys’ fees,
`
`the party is limited to that ground and cannot recover attorney’s fees on another, unpleaded
`
`ground.” Heritage Gulf Coast Props. v. Sandalwood Apts., Inc., 2013 WL 5323983 (Tex. App. –
`
`Houston [14th Dist.] Sept. 24, 2013, no pet. h.).
`
`Plaintiffs’ Third Amended Complaint requested attorneys’ fees pursuant to Texas Civil
`
`Practice and Remedies Code § 38.001(8) and Texas Business and Commerce Code § 17.50(d)
`
`(Dkt. #38 at p. 21). Plaintiffs did not plead an award of attorneys’ fees under Texas Civil Practice
`
`and Remedies Code § 38.001(6) for killed or injured stock. Further, contrary to Plaintiffs’
`
`argument, the jury did not implicitly find that Otto was “injured.” The jury found that Plaintiffs
`
`suffered damage because of Defendant’s negligence. Plaintiffs’ motion to reconsider the award of
`
`attorneys’ fees is therefore denied.
`
`CONCLUSION
`
`It is therefore ORDERED that Plaintiffs’ Motion to Reconsider Memorandum Opinion
`
`and Order Denying Plaintiffs’ Motion for Entry of Judgment and Motion to Amend Final Judgment
`
`(Dkt. #137)is hereby DENIED.
`
`
`
`6
`
`

`

`Case 4:15-cv-00764-ALM Document 144 Filed 07/10/17 Page 7 of 7 PageID #: 3360
`C%s%4:15-cv;00764-ALM Document 144 Filed 07/10/17 Page 7 of 7 PagelD #: 3360
`I NED thls 10th ay of July, 2017.
`
`AMOS L. MAZZANT % ,2
`
`UNITED STATES DISTRICT JUDGE
`
`