# Loeb-Defever v. Strategic Construction, Ltd.

> District Court, S.D. Texas · July 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10675600

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** July 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10675600

## How later opinions describe it (automated extraction)

- rejecting claim for nominal damages when evidence showed plaintiff suffered no economic damage
- holding that the district court did not abuse its discretion by refusing to treat as an evidentiary admission an interrogatory answer which was in the nature of an alternative pleading

## Opinion text

UNITED STATES DISTRICT COURT July 14, 2022
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

ZELMA M. LOEB-DEFEVER, et al., §
§
Plaintiffs, §
VS. § CIVIL ACTION NO. 4:20-CV-1981
§
STRATEGIC CONSTRUCTION, LTD. §
d/b/a FCI MULTI-FAMILY, et al., §
§
Defendants. §

MEMORANDUM OPINION AND ORDER

This is a copyright infringement case brought by an architecture firm against a
multitude of defendants that were involved in the development of a senior living facility
called Woodhaven Village. In their live complaint, the plaintiffs—Zelma Loeb-Defever
(“Loeb-Defever”) and her company, Loeb Architects, LLC (collectively “Loeb”)—sued
24 defendants under 17 U.S.C. § 501 for copyright infringement and under 17 U.S.C. §
1202 for violating the Digital Millennium Copyright Act. (Dkt. 96 at pp. 1–11, 49–52).
Loeb also sued Defendant Padua Realty (“Padua”) for breach of contract. (Dkt. 96 at pp.
52–53).
The Court has dismissed Loeb’s claims brought under 17 U.S.C. § 501 and 17
U.S.C. § 1202. (Dkt. 223). The sole claim remaining in the case is Loeb’s claim against
Padua for breach of contract. Padua has moved for summary judgment on that claim, and
Padua’s motion (Dkt. 230) is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Court fully set out the relevant facts of this case in its prior opinion dismissing
Loeb’s copyright claims and here will repeat only the facts that are necessary to its

discussion of Loeb’s breach of contract claim. Loeb’s lawsuit arises out of the
development of a senior living facility in Conroe, Texas called Woodhaven Village. In
2011, Loeb and Padua entered into two contracts whereby Loeb performed preliminary
design work on two sections of Woodhaven Village in exchange for $10,800.00. (Dkt.
159-2; Dkt. 159-3). Prior to execution of the contracts, Loeb had sent Padua a bid to

handle all design work on Woodhaven Village for $232,000.00, but Padua did not accept
that bid. (Dkt. 159-4 at p. 66; Dkt. 162-20 at p. 2).
The contracts outlined seven phases of development for the two Woodhaven
Village sections. (Dkt. 159-2 at p. 2; Dkt. 159-3 at p. 2). The contracts specifically said
that Padua was only hiring Loeb for “Phases One and Two[,]” which the contracts

defined as “Code Research, Site Diagnostics, Building Design Parameters, plus
Schematic Building, Site Design, and with Exterior Elevation.” (Dkt. 159-2 at p. 2; Dkt.
159-3 at p. 2). Phases one and two, according to the contracts, comprised roughly 10% of
the total design work on the projects. (Dkt. 159-2 at p. 2; Dkt. 159-3 at p. 2). The
contracts did not require that Loeb agree to or be compensated for the use of its

documents to complete design phases three through seven of the projects, and the
contracts did not require Padua to hire Loeb for design phases three through seven of the
projects. (Dkt. 159-2 at p. 6; Dkt. 159-3 at p. 6).
Loeb-Defever testified that her company provided the schematics as required by
the contracts. (Dkt. 159-4 at pp. 66, 71). Padua paid Loeb the full $10,800.00 contract
price for design phases one and two of the Woodhaven Village projects. (Dkt. 159-2 at p.

3; Dkt. 159-3 at p. 3; Dkt. 159-4 at p. 26). Padua then hired a different architectural firm,
Defendant Ted Trout Architects, Ltd. (“Trout”), to handle the subsequent design work.
(Dkt. 160-1 at p. 26; Dkt. 162-10 at p. 11; Dkt. 162-20 at p. 2).
Loeb filed this lawsuit after Loeb-Defever learned from an acquaintance that
Padua had hired Trout and that Trout had drawn up plans for the Woodhaven Village

projects. (Dkt. 159-4 at pp. 55–57, 129–35). When the acquaintance sent Loeb-Defever a
copy of the Trout plans, Loeb-Defever compared the Trout plans to her own and
concluded that her plans had provided a “starting point” for the Trout plans. (Dkt. 159-4
at pp. 55–57, 129–35, 137–39).
Loeb pleads that Padua breached four separate provisions of the Loeb/Padua

contracts. Loeb’s description of Padua’s breaches is somewhat light on detail; it
comprises only one short paragraph of Loeb’s 55-page live complaint, with the balance of
the complaint devoted to Loeb’s now-dismissed copyright claims. In its entirety, the
breach-of-contract paragraph reads:
Padua Realty has failed to comply with the 2010 agreement and the 2011
agreement in at least the following respects:

 it did not “Furnish” to Loeb Architects “and coordinate services of those
Consultants,” in particular, Trout, “not included in the Scope of Services.”

 it did not “Acknowledge the professional services provided by the Architect
(e.g., publications, renderings, and other news releases).”
 it did not “consult with Architect prior to release of advertising/document
for required copyright and legal verbiage notations.”

 it did not “inform Architect of all information known to Owner about the
site or building that otherwise may affect either the Architect’s performance
of [sic] their contractual obligations.”
Dkt. 96 at pp. 48–49.

Loeb’s description of its breach-of-contract damages is equally sparse; Loeb’s
complaint simply claims that Padua’s alleged breaches “caused damages to Loeb
Architects.” (Dkt. 96 at p. 49). Loeb has not pled lost profits or any other specific
measure of breach-of-contract damages. (Dkt. 96 at pp. 49, 53).
Padua has moved for summary judgment on the damages element of Loeb’s
breach of contract claim, contending that “Loeb has no evidence of breach of contract
damages and that Loeb did not disclose a theory, basis or amount for damages during the
discovery period for this case for the two allegedly breached contracts.” (Dkt. 230 at p. 8;
Dkt. 234 at p. 7). Fact discovery closed in this case over a year ago, on May 24, 2021.
(Dkt. 137).
II. SUMMARY JUDGMENTS
Padua has moved for summary judgment under Federal Rule of Civil Procedure
56. Summary judgment is appropriate if the movant establishes that there is no genuine
dispute about any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). Disputes about material facts are genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). The moving party is entitled to
judgment as a matter of law if “the nonmoving party has failed to make a sufficient
showing on an essential element of her case with respect to which she has the burden of
proof.” Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986).
A party moving for summary judgment “must ‘demonstrate the absence of a

genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per
curiam) (quoting Celotex, 106 S. Ct. at 2553). The movant may meet its burden by
pointing out the absence of evidence supporting the non-movant’s case. Duffy v. Leading
Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995). “If the moving party fails to meet

this initial burden, the motion must be denied, regardless of the nonmovant’s response.”
Little, 37 F.3d at 1075. If the moving party meets this burden, Rule 56(c) requires the
nonmovant to go beyond the pleadings and show by affidavits, depositions, answers to
interrogatories, admissions on file, or other admissible evidence that specific facts exist
over which there is a genuine issue for trial. Id. The nonmovant “must do more than

simply show that there is some metaphysical doubt as to the material facts.” Matsushita
Electric Industrial Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986).
Generally, in reviewing the evidence “the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Products, Inc.,

120 S. Ct. 2097, 2110 (2000). That said, however, the court resolves factual controversies
in favor of the nonmovant “only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts.” Little, 37 F.3d at 1075. “Such
facts must consist of more than conclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic argumentation.” Jones v.
Lowndes County, Miss., 678 F.3d 344, 348 (5th Cir. 2012) (brackets and quotation marks
omitted); see also Little, 37 F.3d at 1075 (“[The nonmovant’s] burden is not satisfied

with some metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.”) (quotation marks and
citations omitted). “[S]ummary judgment is appropriate in any case where critical
evidence is so weak or tenuous on an essential fact that it could not support a judgment in
favor of the nonmovant.” Little, 37 F.3d at 1075 (emphasis removed).

Furthermore, “Rule 56 does not impose upon the district court a duty to sift
through the record in search of evidence to support a party’s opposition to summary
judgment.” Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). Evidence not referred
to in the response to the motion for summary judgment is not properly before the Court,
even if it exists in the summary judgment record. Id.

III. ANALYSIS
Padua has moved for summary judgment on the damages element of Loeb’s
breach of contract claim, contending that “Loeb has no evidence of breach of contract
damages and that Loeb did not disclose a theory, basis or amount for damages during the
discovery period for this case for the two allegedly breached contracts.” (Dkt. 230 at p. 8;

Dkt. 234 at p. 7). In response, Loeb points out that “there is a distinction between the
necessity for proof of legal damage and proof of the amount thereof and, while
uncertainty as to existence of legal damages is fatal to recovery, uncertainty as to the
amount is not.” (Dkt. 232 at p. 6). Loeb argues that Padua’s summary judgment motion
equates the amount of damages to the fact of damages and that Loeb only needs proof of
the latter to establish a triable issue of fact. (Dkt. 232 at p. 6). According to Loeb, proof
that Padua’s alleged contract breaches harmed Loeb exists in four places: (1) the joint

pretrial order; (2) evidence that Padua breached the contracts; (3) Loeb’s responses to
interrogatories; and (4) the reports of two defense expert witnesses. (Dkt. 232 at pp. 6–7).
The Court disagrees with Loeb and will address each of its arguments in turn.
A. Padua’s statements in the joint pretrial order are not judicial or evidentiary
admissions.

First, Loeb contends that Padua judicially admitted in the joint pretrial order that
Loeb suffered some damages in an as-yet-undetermined amount as a result of Padua’s
alleged contract breaches. (Dkt. 232 at pp. 7–9). In Loeb’s words, Padua “is bound by its
admissions in the joint pretrial order that there is a fact question on [Loeb’s] damages for
breach of contract.” (Dkt. 232 at p. 7).
Loeb claims that Padua made its judicial admission through Contested Issue of
Fact No. 107 of the joint pretrial order, which was “The amounts of any damages.” (Dkt.
189 at p. 34; Dkt. 232 at p. 7). Loeb further claims that Padua conceded contract-breach-

related harm to Loeb by saying in the joint pretrial order that Loeb’s “damages are
limited by [Loeb’s] failure to mitigate” and that “[Loeb’s] recovery of damages should
bar” Loeb’s claim for “a permanent injunction pursuant to 17 U.S.C. § 502 or otherwise.”
(Dkt. 189 at pp. 13–14; Dkt. 232 at p. 8). Loeb also points to Padua’s proposed jury
instructions, which include instructions and a question regarding damages for contract

breaches. (Dkt. 189-7 at pp. 39–40; Dkt. 190-1 at p. 43; Dkt. 232 at pp. 7–8).
The Court disagrees with Loeb. “To qualify as a judicial admission, the statement
must be (1) made in a judicial proceeding; (2) contrary to a fact essential to the theory of
recovery; (3) deliberate, clear, and unequivocal; (4) such that giving it conclusive effect

meets with public policy; and (5) about a fact on which a judgment for the opposing party
can be based.” Heritage Bank v. Redcom Laboratories, Inc., 250 F.3d 319, 329 (5th Cir.
2001). Padua did not deliberately, clearly, and unequivocally concede in the joint pretrial
order that Loeb suffered harm from Padua’s alleged contract breaches. To the contrary,
Padua explicitly contended in the joint pretrial order “that it did not breach its contracts

with Loeb” and “that [Loeb] ha[d] no actual damages and ha[d] put forth no evidence of
actual damages.” (Dkt. 189 at p. 13). At most, Loeb has highlighted inconsistent
statements in the joint pretrial order that can be analogized to alternative pleadings—
Padua is clearly saying that its alleged contract breaches (the existence of which Padua
also does not concede) caused no harm to Loeb but that if the jury were to find that its

alleged contract breaches caused harm to Loeb, then the amount of damages would
remain contested, the damages would be limited by Loeb’s failure to mitigate them, the
recovery of damages would bar the entry of a permanent injunction, and the jury should
receive a properly worded question regarding damages.
“[C]ourts have generally recognized that pleadings made in the alternative do not

constitute a judicial admission.” True Believers Ink 2, Corp. v. Russell Brands, LLC, No.
4:18-CV-432, 2019 WL 4039888, at *2 (E.D. Tex. Aug. 27, 2019) (collecting cases); see
also Boulle, Ltd. v. De Boulle Diamond & Jewelry, Inc., No. 3:12-CV-1462, 2014 WL
4261994, at *7 (N.D. Tex. Aug. 29, 2014) (“Plaintiffs’ statements in the Amended
Complaint and in the Joint Pretrial Order are not binding judicial admissions, given the
inconsistent statements Plaintiffs provide in their answers.”). “To be sure, where a party’s
pleadings are inconsistent—e.g., pled in the alternative—any ‘admission’ cannot be

unequivocal.” True Believers, 2019 WL 4039888 at *2. Accordingly, the statements from
the joint pretrial order that Loeb highlights, which are essentially alternative pleadings,
do not constitute judicial admissions by Padua.
For the same reasons, to the extent that Loeb is arguing that Padua’s statements
constitute evidentiary admissions, the Court also rejects that argument. See Dartez v.

Owens-Illinois, Inc., 910 F.2d 1291, 1294 (5th Cir. 1990) (“Procedural context may also
prevent the use as admissions of statements made by a party in the trial court. For
example, in a motion to transfer venue a defendant may make statements that are not
concessions for all purposes, but merely operating assumptions which must be taken as
true in order to resolve the collateral issue. Such statements should not later be regarded

as an admission by the party.”) (quotation marks, ellipsis, brackets, and citation omitted);
McNeese v. Reading and Bates Drilling Co., 749 F.2d 270, 274–75 (5th Cir. 1985)
(holding that the district court did not abuse its discretion by refusing to treat as an
evidentiary admission an interrogatory answer which was in the nature of an alternative
pleading).

B. Evidence of breach does not create a presumption of harm.
Loeb next contends that “it is undisputed that [Padua] broke its contracts with
Loeb[.]” (Dkt. 232 at p. 12). As a result, the argument continues, the Court must deny
Padua’s motion because “[i]t is settled law that the courts tend to find some way in which
damages can be proved and awarded where a wrong has been committed.” (Dkt. 232 at p.
10).
The Court disagrees with Loeb. Even assuming that there is some evidence of a

contract breach by Padua, cases interpreting Texas contract law give no indication that
the law allows the Court to presume the existence of harm from the simple fact of breach.
Sport Supply Group, Inc. v. Columbia Casualty Co., 335 F.3d 453, 465 (5th Cir. 2003)
(“The plaintiff bears the burden of demonstrating that he suffered a loss as a result of the
breach.”). As the Sixth Court of Appeals of Texas has stated in an apt summary of the

general law of damages in Texas breach-of-contract actions:
the plaintiff in a breach of contract action must also demonstrate damages
resulting from the breach.

. . .

It is a general rule of law that the victim of a breach of contract should be
restored to the position it would have been in had the contract been
performed. Determining that position involves finding what additions to the
injured party’s wealth have been prevented by the breach and what
subtractions from its wealth have been caused by the breach. The measure
of damages is just compensation for the loss actually sustained. The burden
is on the complaining party to establish his right to recover compensatory
damages by proving he suffered a pecuniary loss as a result of the
breach. The burden is on the plaintiff to allege and prove the loss resulting
from the alleged breach. Such loss must be established with a reasonable
degree of certainty and cannot be left to speculation.
Taub v. Houston Pipeline Co., 75 S.W.3d 606, 616–17 (Tex. App.—
Texarkana 2002, pet. denied) (citations omitted; emphasis in Taub) (cited in
Sport Supply).

Loeb has not shown how evidence of breach alone meets this standard here.
But what about nominal damages? Loeb mentions in one sentence of its summary
judgment response that “Texas also allows nominal damages for breach of contract.”
(Dkt. 232 at p. 25). However, Loeb’s statement of the law is incomplete. Under Texas
law, nominal damages “are for cases in which there are no damages, or none that could
ever be proved.” MBM Financial Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d

660, 665 & n.21 (Tex. 2009). “[I]n recent decades the rule in Texas has been that nominal
damages are not available when the harm is entirely economic and subject to proof (as
opposed to non-economic harm to civil or property rights).” Id. It is the plaintiff’s burden
to establish, through pleading and proof, that the case is one in which nominal damages
are appropriate. See Chehab v. First Service Credit Union, No. 14-18-00969-CV, 2020

WL 5241060, at *4–5 (Tex. App.—Houston [14th Dist.] Sept. 3, 2020, no pet.)
(affirming summary judgment on damages element of claim for breach of contract)
(“Chehab first argues that Texas law recognizes nominal damages for breach of contract,
presumably alleviating a requirement that Chehab produce evidence of damages. . . .
Chehab has not pleaded for nominal damages for non-economic harm, such as harm to

civil or property rights. Therefore, the fact that nominal damages can generally be
recovered in a breach-of-contract action does not create a fact issue as to whether Chehab
produced evidence of actual damages.”); Gulf Coast Investment Corp. v. Rothman, 506
S.W.2d 856, 857–58 (Tex. 1974) (rejecting claim for nominal damages when evidence
showed plaintiff suffered no economic damage) (“The court of civil appeals ruled that

Rothman’s proof that Gulf Coast breached its contract to give notice of delinquent
accounts entitled Rothman at least to nominal damages. As we view the record, however,
the trial court correctly ruled that Rothman take nothing. . . . The trial court correctly
ruled that Rothman did not prove that he sustained any damages.”).
Loeb did not plead for nominal damages and has not explained why the record
establishes that such damages are available in this case. Loeb’s entire discussion of the
subject amounts to one sentence in a summary judgment response stating that Texas law

sometimes allows nominal damages in breach-of-contract cases. That is not enough to
avoid summary judgment on the damages element of a breach-of-contract claim. Chehab,
2020 WL 5241060 at *4–5.
C. Loeb’s interrogatory responses do not create a triable fact issue.

Loeb next contends that evidence of its contract damages can be found in its
answers to Padua’s interrogatories. (Dkt. 232 at p. 16). Specifically, Loeb points to its
answer to Padua’s first interrogatory, which sought “the details including calculations of
[Loeb’s] best and most accurate belief, contention, estimate /or [sic] understanding of
what [Loeb’s] revenues and net income (i.e., revenues minus expenses) would have been
had [Loeb] done all phases of the [Woodhaven Village design work].” (Dkt. 232 at p. 16;

Dkt. 232-9 at p. 2). Loeb responded to Padua’s first interrogatory with an estimate of the
fees that Loeb would have charged for design phases three through seven of the
Woodhaven Village project. (Dkt. 232 at pp. 16–17; Dkt. 232-9 at pp. 2–3). Loeb argues
that this estimate creates a triable fact issue on breach-of-contract damages. (Dkt. 232 at
pp. 16–20).

The Court disagrees. Estimates of the revenue that Loeb lost when Padua did not
hire Loeb to complete design phases three through seven of the Woodhaven Village
project are irrelevant. As the Court has previously explained both in its first summary
judgment opinion and earlier in this opinion, the contracts that Padua and Loeb signed
unambiguously did not require Padua to hire Loeb for design phases three through seven,
so Padua did not breach its contracts with Loeb by hiring someone else to complete those
phases. In fact, Loeb did not even allege in its live complaint that Padua’s hiring someone

else was a breach of contract. Loeb has not presented any evidence tying its lost-revenue
estimates (or any other harm) to any breach of the contracts, and Texas law requires Loeb
to prove that connection. Taub, 75 S.W.3d at 617 (“The measure of damages is just
compensation for the loss actually sustained. . . . The burden is on the plaintiff to allege
and prove the loss resulting from the alleged breach.”) (emphasis in Taub).

Loeb also asserts that its answer to Padua’s first interrogatory creates a fact
question on breach-of-contract damages because that answer is incorporated into Loeb’s
damage model for its copyright claims. Citing from a footnote in Looney Ricks Kiss
Architects, Inc. v. State Farm Fire & Casualty Co., 677 F.3d 250, 257 (5th Cir. 2012),
Loeb argues that its allegations of copyright infringement constitute allegations of per se

breach of the contracts between Loeb and Padua, making evidence of copyright damages
necessarily probative of breach-of-contract damages. The Court disagrees. Leaving aside
the question of whether Louisiana contract and insurance law provide any meaningful
interpretive guidance here,1 the Court has already concluded as a matter of law that there
was no copyright infringement because Loeb granted both an express and an implied

license to use its preliminary schematics. (Dkt. 223). So even if Loeb’s per-se-contract-
breach theory—which Loeb did not plead and is raising for the first time in response to

1 In Looney, the Fifth Circuit addressed the question of whether a breach-of-contract exclusion
precluded coverage under Louisiana insurance law.
Padua’s summary judgment motion—is viable, the claim based on that theory fails
because the record evidence conclusively establishes that there was no breach.
Accordingly, the lost-revenue estimates outlined in Loeb’s answer to Padua’s first

interrogatory do not relate to any extant claims and have no weight as summary judgment
evidence. Lexxus International, Inc. v. Loghry, 512 F. Supp. 2d 647, 665–66 & n.14
(N.D. Tex. 2007) (granting summary judgment on the damages element of a breach-of-
contract claim) (“Plaintiffs’ references to evidence of damages stemming from Plaintiffs’
product disparagement claim . . . are unavailing. The court has already determined that

Loghry is entitled to judgment as a matter of law on Plaintiffs’ product disparagement
claim.”).
Loeb’s answer to Padua’s first interrogatory does not create a triable fact issue.
D. The expert opinions cited by Loeb do not provide evidence of breach-of-
contract damages.

Loeb’s final contention is that evidence of breach-of-contract damages can be
found in the reports of two defense experts, John Bone (“Bone”) and Bryce Cook
(“Cook”) (Dkt. 232 at pp. 20–23). The Court disagrees.
Bone was retained by defendants who have been dismissed, and Cook was
retained by Padua.2 (Dkt. 232 at pp. 20–21). Loeb argues that the following passage from
Bone’s report provides evidence of breach-of-contract damages:

2 Padua has objected to and moved to strike Bone’s opinions on the basis that they are hearsay
and that, given the dismissal of the parties that designated Bone, they are no longer admissible as
statements made by a party opposed to Loeb. See Fed. R. Evid. 801(d)(2). (Dkt. 233 at p. 3).
Padua further notes that Bone was not cross-designated as an expert and is not on Loeb’s trial
witness list. (Dkt. 233 at p. 3). Loeb notes that the 2010 revision to Federal Rule of Civil
It is my understanding that Loeb provided architectural services in
connection with the first two (of seven) phases, of the Woodhaven
Development project. Plaintiff’s actual damages are limited to the amount
Loeb would have earned, less incremental costs, had she provided the
architectural services for phases 3 through 7 of the Woodhaven
Development.

In October 2010, Loeb provided an architectural and interior fee estimate of
$232,000 to Antonio Padua for all 7 phases of architectural services related
to the Woodhaven Development. As Loeb was compensated $10,800 for
work completed for phase 1 and phase 2, I concluded that the remaining
fees for the subsequent phases, had she won the work, would amount to
$221,200.

. . .

By applying [a] 17% profit margin to Loeb’s expected revenues for phases
3 to 7, I determined that Loeb’s actual damages would amount to as low as
$37,113, which represents Loeb’s expected profit for completing the
remaining phases of the Woodhaven Development project.
Dkt. 232 at p. 20; Dkt. 232-10 at pp. 3–4.

This passage does not help Loeb meet its burden. Again, estimates of the revenue
and profits that Loeb would have earned had it been hired to complete Woodhaven
Village are irrelevant. Padua did not breach the contracts when it hired someone other
than Loeb to complete design phases three through seven of the Woodhaven Village
project. Bone’s report does not draw any connection between any breach of the contracts
by Padua and any harm to Loeb. Bone’s report, in fact, does not even mention the

Procedure 56 has relaxed that rule’s once-rigid admissibility requirements. (Dkt. 235 at p. 3).
Both parties raise strong points. Since the Court is not convinced that Bone’s opinions should be
excluded under the 2010 revision to Rule 56, the Court will overrule Padua’s objections. See
Maurer v. Independence Town, 870 F.3d 380, 384 (5th Cir. 2017) (“After a 2010 revision
to Rule 56, materials cited to support or dispute a fact need only be capable of being presented in
a form that would be admissible in evidence.”) (quotation marks omitted; emphasis in Maurer).
contracts between Padua and Loeb—which makes sense, because the defendants who
retained Bone were only sued for copyright infringement, not for breach of contract.
Similarly, Cook’s report does not help Loeb. Loeb relies on the following passage

from Cook’s report:
Loeb’s actual damages, assuming infringement, are best measured by the
compensation (e.g., implicit charge/markup, license fee, or reasonable
royalty) she should have received from the Developer Defendants if they
had used her design and drawings with her permission.
Dkt. 232 at p. 21; Dkt. 232-13 at p. 4.

Neither this passage nor the rest of Cook’s report creates a triable issue of fact.
Although Cook mentions once in his report that Loeb “also claim[s] that . . . Padua . . .
breached agreements with Loeb[,]” the report—as one can surmise from the “assuming
infringement” language in the quote above—opines solely on “alleged copyright
infringement damages in this matter[.]” (Dkt. 232-13 at p. 3). Cook’s report does not
mention any specific breach of the contracts, much less link any breach to any harm to
Loeb. Moreover, as the Court has explained, Loeb’s copyright infringement claims have
been dismissed, so to the extent that Loeb argues that copyright infringement equates to
breach of the parties’ contract, the evidence conclusively establishes that there was no
breach.3

3 In addition to the expert reports, Loeb cites an excerpt of Loeb-Defever’s deposition in which
Loeb-Defever testified about how her business was damaged. (Dkt. 232 at p. 15). This testimony
does not help Loeb carry its burden for the same reasons that Loeb cannot rely on the experts’
reports: Loeb-Defever did not testify that any breach of the contracts caused the harm. When she
described the harm to her business, the question to which Loeb-Defever responded was, “So
what’s your best understanding of how your business was damaged by what you contend to be
the unauthorized use of your schematics at Woodhaven?” (Dkt. 232 at p. 15). The Court has
concluded as a matter of law that there was no copyright infringement and, accordingly, no
“unauthorized use” of Loeb’s schematics.
The expert reports cited by Loeb do not provide evidence of breach-of-contract
damages.
IV. CONCLUSION
Texas law requires Loeb to allege and prove the losses resulting from Padua’s
alleged breaches of the contracts between them. Loeb has not presented any evidence
showing any connection between any breach of the contracts by Padua and any harm to
Loeb. Padua’s motion for summary judgment on Loeb’s breach of contract claim (Dkt.
230) is GRANTED. Loeb’s breach of contract claim is DISMISSED WITH
PREJUDICE.
The Court will enter a separate final judgment.
SIGNED at Houston, Texas on July 14, 2022.

GEORGE C. HANKS, JR.
UNITED STATES DISTRICT JUDGE

17/17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10675600. Public record. Not legal advice.