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Dutton-Lainson Co. v. Do It Best Corp.9/28/2005
attorney's fees, costs and expenses incurred in the defense of Do it Best Corp. from June 24, 2004 forward until final resolution of this cause.
Under the Texas Products Liability Act, the seller is entitled to indemnification for "court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages incurred by the seller to enforce the seller's right to indemnification under this section." Tex. Civ. Prac. & Rem. Code Ann. ยง 82.002(g) (Vernon 2005) (emphasis added). In its order, the trial court determined DIB was entitled to indemnity as a matter of law, but left unresolved the amount of indemnity. The trial court clearly did not intend its order to dispose of the case because the effect of the order was to permit DIB to recover additional expenditures made in defending its indemnity claim. See Lehmann, 39 S.W.3d at 205 (requiring a clear indication that the trial court intends an order to completely dispose of the entire case for it to be considered final and appealable). Because the trial court's June 30 order did not constitute final judgment, we overrule Dutton-Lainson's third issue.
Attorney's Fees and Costs
In its fourth issue, Dutton-Lainson contends there is insufficient evidence to support DIB's indemnity award of $29,000.64 in the trial court's interlocutory order. At the time of the September 30, 2003 hearing on DIB's motion for interlocutory summary judgment, DIB submitted the affidavit of Dwayne Day requesting indemnity for $21,805.35. Several months after the court took DIB's motion under consideration, DIB filed Day's second affidavit proving $29,000.64 in costs through June 24, 2004. Dutton-Lainson complains that Day's second affidavit was untimely filed after the summary judgment hearing and that we must presume the trial court did not consider that evidence.
A movant's summary judgment affidavit should be filed at least twenty-one days before the hearing. Tex. R. Civ. P. 166a(c). For an untimely affidavit to be considered summary judgment evidence, the record must indicate affirmatively that the trial court permitted late filing of the affidavit. Vasquez v. Carmel Shopping Ctr. Co., 777 S.W.2d 532, 535 (Tex. App.---Corpus Christi 1989, writ denied). Here, the record indicates the trial court accepted the late filing of Day's updated affidavit. The trial court's interlocutory order awards more than was requested in DIB's motion and specifically states that DIB shall recover $29,000.64 for "product liability losses accrued through June 24, 2004." We overrule Dutton-Lainson's argument that there was insufficient evidence to support the award of $29,000.64.
Dutton-Lainson also contends DIB was not entitled to any additional attorney's fees or appellate attorney's fees because Day's third affidavit was filed after the court's plenary power expired. We disagree. As discussed previously, the trial court's June 30, 2004 was interlocutory. The record reflects that DIB submitted Day's affidavit supporting DIB's requested appellate attorney's fees and the additional award of $7,062.61 with its motion for final summary judgment on October 15, 2004. Dutton-Lainson received proper notice and an opportunity to file responsive evidence and objections in compliance with Rule 166a. We overrule Dutton-Lainson's fourth issue.
Conclusion
Having overruled all of Dutton-Lainson's appellate issues, we affirm the judgment of the trial court.
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