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Toshiba Machine Co.11/10/2005
reasonably obtained and installed by SPM.
Toshiba's argument on cover amounts to a no-evidence issue; its argument on mitigation is a conclusive evidence issue. Under either standard, we must affirm if there is more than a scintilla of evidence in SPM's favor.
With regard to cover, SPM produced evidence at trial to show that it purchased two Goss Trevisan machines as cover when it became clear that the Toshiba machines would not perform as represented. Once both Goss Trevisan machines were fully operational, SPM stopped using the Toshiba machines. This is some evidence of that SPM made reasonable efforts to limit its consequential damages and is enough to support the jury's award.
With regard to mitigation, SPM produced evidence to show that it limited its damages by using the Toshiba machines to the extent possible. Although the Toshiba machines did not perform as expected, they cut the time it took SPM to make a fluid end from 115 hours to 100 hours. This fifteen hour savings, when multiplied by SPM's shop rate of $150 per hour, yielded a reduction in SPM's damages of $2,250 per fluid end. Gilbert's damage computation properly accounted for this savings.
Toshiba argues that by using the Toshiba machines, SPM aggravated its damages, not mitigated them. Toshiba reasons that SPM's damage model multiplied the number of hours SPM used the Toshiba machines by the shop rate; thus every hour SPM used the Toshiba machines increased SPM's damages by $150. But SPM claimed no such thing. SPM claimed as damages the difference between 100 hours--the time it actually took a make a fluid end with the help of the Toshiba machines--and thirty-five hours--the time Toshiba said it would take the machines to make a fluid end--and multiplied the difference by SPM's $150 per hour shop rate. If SPM had not used the Toshiba machines, its damages would have been the difference between 115 hours and thirty-five hours, multiplied by the $150 per hour shop rate. Thus, by using the Toshiba machines, SPM mitigated its damages by $2,250--15 hours times the shop rate--for every fluid end produced.
We hold that SPM presented some evidence on the question of cover and that Toshiba failed to prove conclusively that SPM did not mitigate its damages. We overrule Toshiba's issue 7b.
5. Did the trial court err in awarding attorney's fees to SPM?
In its eighth issue, Toshiba complains that the trial court erred by awarding attorney's fees to SPM. Toshiba's complaint has two components: First, that SPM is not entitled to attorney's fees because it did not prevail on its breach of contract claim; and second, that the trial court impermissibly enhanced SPM's "lodestar" attorney's fees.
A party may recover reasonable attorney's fees for a valid breach of contract claim. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (Vernon 1997). Texas courts weigh the eight factors recited in rule 1.04 of the rules of professional conduct to determine the reasonableness and necessity of attorney's fees. TEX. DISCIPLINARY R. PROF'L CONDUCT1.04(b), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (Vernon 2005) (TEX. STATE BAR R. art. X § 9); Miller v. Kennedy & Minshew, Prof. Corp., 142 S.W.3d 325, 336-37 (Tex. App.--Fort Worth 2003, pet. denied). Those factors are (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the t
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