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Toshiba Machine Co.11/10/2005
aste Disposal Act and Clean Water Act permitted "enhancement" of lodestar attorney's fees where the attorney's fees were contingent. Dague at 559, 112 S.Ct. at 2639. The Supreme Court held that such enhancement was not permitted under the statutes in question. Id. at 567, 112 S.Ct. at 2648. Since this case involves neither of those statutes, Dague offers little guidance and imposes no restrictions here. Moreover, Texas courts consistently allow the use of a multiplier based upon the contingent nature of a fee under Texas statutes allowing recovery of attorney's fees. Dillard Dept. Stores, Inc. v. Gonzales, 72 S.W.3d 398, 413 (Tex. App.--El Paso 2002, pet. denied).
Nor is Toshiba's argument supported by PPG Industries. In that DTPA case, the trial court awarded a "bonus" of $300,000 on top of the plaintiff's lodestar attorney's fee. PPG Indus. 41 S.W.3d at 285. The court of appeals held that the trial court had no authority to consider the result obtained as a basis for awarding the bonus against the defendant. Id. But the court went on to affirm the bonus because there was some evidence, besides the result obtained, to show that the attorney's fee, including the bonus, was reasonable. Id. The court concluded that the trial court had not abused its discretion in awarding the bonus. Id.
In our case, as in PPG Industries, there is some evidence that the trial court's award of attorney's fees to SPM is reasonable. We hold that the trial court did not abuse its discretion by awarding those fees to SPM. We overrule Toshiba's eighth issue.
6. Did the trial court err by failing to submit Toshiba's counterclaim to the jury?
In its ninth and tenth issues, Toshiba argues that the trial court erred by failing to submit Toshiba's counterclaim to the jury and failing to direct the verdict on the counterclaim. Toshiba sued SPM for the unpaid balance of the BMC-800. The amount of the unpaid balance, $658,800, was not disputed.
A buyer must pay at the contract rate for any goods accepted. TEX. BUS. & COM. CODE ANN. ยง 2.607(a). Toshiba argues that it was entitled to a directed verdict on its counterclaim because SPM accepted the BMC-800 as a matter of law. But the jury failed to find that SPM accepted the BMC-800, and we have already concluded that Toshiba failed to prove acceptance as a matter of law. Thus, Toshiba was not entitled to a directed verdict.
Nor did the trial court err by refusing to submit Toshiba's counterclaim to the jury. Since the amount of the counterclaim was undisputed, the only question for the jury to decide was whether SPM accepted the BMC-800. If the jury had found that SPM accepted the machine and did not revoke its acceptance, Toshiba would be entitled to judgment for the amount of its counterclaim. But because the jury failed to find that SPM accepted the BMC-800, SPM is not liable for the unpaid balance.
We overrule Toshiba's ninth and tenth issues.
7. SPM's Non-Contract Claims
In its third and fifth issues, Toshiba argues that the trial court erred by submitting SPM's breach of warranty, fraud, and negligent misrepresentation claims to the jury. Because we affirm the judgment on SPM's breach of contract claims, we need not consider these two issues. See TEX. R. APP. P. 47.1.
B. SPM's Issue: When did prejudgment interest begin to accrue?
In its sole issue, SPM complains that the trial court chose the wrong date from which to calculate prejudgment interest. The trial court chose February 29, 2000, the date SPM filed suit. SPM contends that prejudgment interest began to accrue on May 3, 1999, 180 days after SPM sent Toshiba what SPM claims was notice of i
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