Hewlett-Packard v. Benchmark Electronics
| Decision Date | 03 August 2004 |
| Docket Number | No. 14-03-01206-CV.,14-03-01206-CV. |
| Citation | 142 S.W.3d 554 |
| Parties | HEWLETT-PACKARD COMPANY, Appellant v. BENCHMARK ELECTRONICS, INC., Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 189th District Court, Harris County, Tracy Kee Christopher, J Scott P. Stolley, Dallas, for appellant.
Phillip L. Sampson, Jr., Glenn A. Ballard, Jr., Houston, for appellee.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
Appellant, Hewlett-Packard Company, appeals from a final judgment based on two summary judgments granted in favor of appellee Benchmark Electronics, Inc. Concluding the summary judgment proof does not conclusively establish limitations bars Hewlett-Packard's breach of contract claim, but does conclusively establish limitations bars Hewlett-Packard's claim for money had and received, we reverse and remand in part and affirm in part.
In May 1995, Hewlett-Packard's predecessor, Compaq Computer Corporation, as Buyer, entered into a Purchase Agreement with Avex Electronics, Inc., Benchmark's predecessor, as Seller.1 Under the Agreement, Benchmark was to assemble computer components, primarily motherboards, and sell them to Hewlett-Packard. The Agreement did not require Hewlett-Packard to purchase any minimum quantity of computer components, but "only establishe[d] the terms and conditions for such purchases if and when they occurr[ed]." The Agreement specifically stated the parties intended to enter into a "long term relationship."
To assemble the motherboards, Benchmark was to incorporate chipsets, which Hewlett-Packard obtained from Intel and had shipped directly to Benchmark. Under the Agreement:
Buyer shall issue a debit memo with respect to the purchase price of Buyer Furnished Material sold by Buyer to Seller, and Buyer immediately may apply such debit memo against any amounts then owing or that may become owing by Buyer to Seller. In the event any amount reflected in a debit memo has not been satisfied in full by means of applying the Seller's invoices against the amount owed by Buyer to Seller within 45 calendar days following the debit memo date, Seller shall pay Buyer in U.S. dollars (or such other currency as Buyer and Seller may agree upon) the remaining balance of such debit memo. To secure Seller's payment obligations hereunder, Seller hereby grants to Buyer a security interest and purchase money security interest in all Buyer Furnished Material and all accounts receivable and other proceeds thereof. Buyer may take any action (without notice, presently [sic], demand, protest, notice of protest or dishonor, notice of acceleration or notice of intent to accelerate, all of which Seller hereby waives) afforded a secured party under the Uniform Commercial Code upon the occurrence of a default by Seller, and upon such occurrence, all payment obligations of Seller to Buyer shall, upon notice by Buyer, become immediately due and payable; provided, if the Default giving rise to the foregoing remedies is attributable the Seller's insolvency or any bankruptcy related proceeding affecting Seller, all obligations of Seller to Buyer shall automatically become due and payable. Any Buyer furnished material sold by Buyer to Seller shall be sold only in amounts consistent with firm schedule requirements.
Initially, the Agreement provided, "Terms of payment shall be net 45 from the date of Seller's invoice provided that Product has been received by Buyer." The parties subsequently amended this provision:
The parties also agreed to a two-year limitations period for claims arising from the Agreement: "No action . . . regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has arisen; or, in the case of non-payment, more than two (2) years from the date the payment was due." The parties never amended or revoked this provision.
In August 1999, Benchmark acquired Avex. Shortly thereafter, Hewlett-Packard's demand for the completed motherboards decreased dramatically, and the parties began to wind down their relationship under the Agreement. According to Benchmark's summary judgment proof, Hewlett-Packard last supplied chipsets to Benchmark in October 1999, Benchmark delivered the last shipment of motherboards to Hewlett-Packard in January 2000, and Hewlett-Packard made its last payment to Benchmark in February 2000. Hewlett-Packard issued its last debit memo August 10, 2000.
For approximately two and one-half years, until at least May 2002, the parties attempted to reconcile their accounts, with each party claiming it was owed money under the Agreement. The parties apparently were not able to resolve their claims, and on August 7, 2002, Hewlett-Packard sued Benchmark for breach of the Agreement.
Four days after filing its answer, Benchmark moved for summary judgment on the ground of limitations. Benchmark relied on the two-year contractual limitations provision and argued it was undisputed Hewlett-Packard "brought its claim more than two (2) years after the claimed payments were allegedly due under the Purchase Agreement." As support, Benchmark pointed to (1) the undisputed evidence Benchmark acquired Avex in August 1999 and Hewlett-Packard's assertion it had an open claim dating back to Benchmark's acquisition of Avex; and (2) Benchmark's last delivery of motherboards to Hewlett-Packard in January, 2000, which necessarily would have occurred after Benchmark's last purchase of chipsets.
Hewlett-Packard responded, arguing that, although the Agreement provided Benchmark owed a cash payment if Hewlett-Packard had not applied the debit memo against amounts owing within 45 days, the Agreement did not contain a due date for the cash payment. Hewlett-Packard also argued its claim accrued when the parties ceased doing business. Hewlett-Packard contended this date was no earlier than August 10, 2000, when Benchmark admitted a transaction (issuance of the debit memo) occurred under the Agreement.
Benchmark replied, contending for the first time, "There is no dispute that according to the express terms of the [Agreement], Benchmark's payment of each of [Hewlett-Packard's] debit memos was due 45 days from the date of each debit memo." Benchmark argued Hewlett-Packard had the right to sue forty-five days after the date of each debit memo. Benchmark subsequently argued Hewlett-Packard's "causes" of action accrued on the forty-sixth day after the date on each of Hewlett-Packard's debit memos and conceded limitations might not preclude a claim stemming from the August 10, 2000 debit memo.
On December 9, 2002, seven days before the hearing on the motion for summary judgment, Hewlett-Packard filed an amended petition. In addition to its original breach of contract claim, Hewlett-Packard asserted claims for common law fraud and fraudulent promise, breach of contract for failure to reconcile accounts, and, in the alternative, for money had and received.
On December 16, 2002, the trial court granted Benchmark's motion for summary judgment in part. The trial court ordered that, with the exception of Hewlett-Packard's claim under the August 10, 2000 debit memo, Hewlett-Packard's breach of contract claim was barred and dismissed with prejudice.
Benchmark then filed a motion for summary judgment on the additional claims asserted in the amended petition. The trial court granted the motion on all claims. Finally, the trial court severed the breach of contract claim based on the August 10, 2000 debit memo from the remaining claims, making the summary judgments final.2 On appeal, Hewlett-Packard challenges only the summary judgments on its breach of contract claim for non-payment of the debit memos and its claim for money had and received.
In a single issue, Hewlett-Packard contends the trial court erred in granting summary judgment in favor of Benchmark. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). When deciding whether there is a disputed material fact issue precluding summary judgment, the appellate court must take as true all evidence favorable to the non-movant. Id. at 548-49. The reviewing court must indulge every reasonable inference in favor of the non-movant and resolve any doubts in her favor. Id. at 549.
We are limited to those grounds expressly set forth in the motion to determine whether the summary judgment was properly granted. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993). When the trial court's summary judgment order does not specify the grounds for its summary judgment, this court must affirm the judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003). Our review of a summary judgment is de novo. Id. at 215.
When a movant seeks summary judgment because limitations expired, it is the movant's burden to conclusively establish the bar of limitations, including when the cause of action accrued. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); Brown v. Shores, 77 S.W.3d 884, 887 (Tex. App.-Houston [14th Dist.] 2002, no pet.). If the movant establishes the statute of limitations bars the action, the non-movant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. KPMG Peat Marwick, 988 S.W.2d at 748.
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