Progressive Transp., LLC v. Republic Nat'l Indus. of Tex., LP
| Decision Date | 05 February 2015 |
| Docket Number | No. 06-14-00030-CV,06-14-00030-CV |
| Parties | PROGRESSIVE TRANSPORTATION, LLC, Appellant v. REPUBLIC NATIONAL INDUSTRIES OF TEXAS, LP, AND REPUBLIC CORPORATION, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the County Court at Law Harrison County, Texas
Before Morriss, C.J., Moseley and Carter*, JJ.
Much is murky in this collection dispute between Progressive Transportation, LLC, and Republic National Industries of Texas, LP (Republic).1 What is clear, however, resulted in a summary judgment that Progressive take nothing in its suit against Republic and that Progressive owed Republic overpayments and attorney fees. We modify the judgment to strike Republic's recovery of attorney fees from Progressive; and, as modified, the judgment is affirmed both as to the denial of Progressive's claims against Republic and the recovery by Republic from Progressive on its non-attorney-fee claims. We reach that result because, as a matter of law, (1) denying Progressive's claims was proper, (2) awarding Republic recovery on its overpayments was proper, and (3) Republic was not entitled to recover attorney fees.
Pursuant to an assignment of accounts from freight carrier BMB Logistics, Inc., Progressive billed Republic for freight services that Progressive alleged were provided by BMB to Republic. Republic paid several invoices before concluding that Progressive was billing for work that was actually completed by another freight carrier, Tenco Transportation, Inc., which had not assigned any accounts to Progressive. After Republic refused to pay additional invoices, Progressive filed a suit on sworn account for the unpaid invoices and claims for breach of contract and quantum meruit. In response, Republic filed a counterclaim for money had and received, arguing that it was entitled to reimbursement for payments made on the initial invoicesto Progressive on the mistaken belief that Progressive was billing for Tenco's work and that Progressive had an assignment to collect Tenco's accounts.
Republic filed a motion for summary judgment seeking to negate at least one essential element of each of Progressive's claims and another traditional motion for summary judgment on its counterclaim. The trial court granted both motions in Republic's favor and entered a final judgment declaring that Progressive take-nothing on its claims, ordering Progressive to return the money Republic paid to Progressive for work completed by Tenco, and awarding attorney fees to Republic. On appeal, Progressive argues that summary judgment was improper on the breach of contract and quantum meruit causes of action because there was a genuine issue of material fact as to whether BMB completed the work referenced in the invoices instead of Tenco.2
We review de novo the grant of a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To prevail on a traditional motion for summary judgment, the movant bears the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). If a defendant conclusively negates one of the essential elements of a cause of action, then the defendant is entitled to summary judgment as to that cause of action. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Davis v. Education Serv. Ctr., 62 S.W.3d 890, 893 (Tex. App.—Texarkana 2001, no pet.). Once the defendant produces evidence entitling it tosummary judgment, the burden then shifts to the plaintiff to present evidence that creates a fact issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).
We review the summary judgment evidence in the light most favorable to the party against whom summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002).
The factual background leading to this lawsuit is critical to the parties' arguments on appeal. We begin by explaining Republic's relationship with Tenco—the company Republic claims actually performed the freight services referenced in Progressive's invoices.
Republic manufactures and installs cabinets, but does not deliver them to its customers. Instead, it engages the transportation services of third-party independent contractors. On April 6, 2008, Republic entered into an Independent Transportation Agreement (Agreement) with Tenco—then a Texas general partnership—to carry and transport Republic's goods to its customers. Specifically, Tenco agreed "to provide supervision and management of all of Republic's transportation and transportation-related activities from facilities owned or leased by Republic."
The Agreement contained two provisions allowing Republic to offset the cost for Tenco's transportation services. First, because Tenco used Republic's tractors and trailers under the Agreement, Republic was authorized to offset the value attributed to Tenco's use of this equipment against the amount owed by Republic to Tenco for transportation services, therebyreducing the total amount owed by Republic to Tenco for transportation.3 Second, the Agreement also referenced a $117,833.10 promissory note executed by Tenco in Republic's favor and allowed Republic to "set off and deduct any amount due to it under the Promissory Note from any amounts it owes [Tenco] under this Agreement."
Both the promissory note and the Agreement bound Tenco's "successors and assigns," yet prohibited assignment of Tenco's obligations unless Republic agreed to the assignment in writing. The promissory note, signed by Tenco on the same date that it signed the Agreement, also referenced the setoff provision in the Agreement and stated, "This Note will be binding on MAKER and MAKER's respective . . . successors and assigns, and shall not be assigned by anyMAKER without the prior written consent of HOLDER." The Agreement, which was "binding on . . . the parties . . . and their respective successors," also stated, "Neither party to this Agreement may assign or subcontract all or any portion of its obligations hereunder to another party without the prior written consent of the other party." The Agreement was effective for thirty months, and thereafter on a month-to-month basis until terminated on ninety days written notice by either party.
At the time that the Agreement was signed, Tenco's partners were Billy Michael Doty and Ben Standridge. Although he was not a Republic employee, Doty officed at Republic's headquarters and assisted in the day-to-day business operations of Republic. Doty testified that Republic's in-house counsel, Mike Duncan, assisted Tenco in changing its corporate form from a general partnership into a Texas limited liability corporation. According to Doty, Tenco was doing business with Republic under the same Agreement.4
All of Tenco's transactions with Republic were documented by "Load Out Sheets" that listed the name of the carrier, unique assigned load number, ship date, mileage traveled, delivery date and time, recipient, and details of the load delivered.5 When Republic's cabinets were delivered to the customer, the customer or person receiving the load signed a bill of lading confirming the delivery. After the load delivery, Tenco would send Republic an invoice, and Republic would pay the invoice after applying any offsets allowed under the Agreement.Republic's offsets under the agreement continued as contemplated by the Agreement until it began receiving Progressive invoices in June 2011.
Progressive's business is to collect accounts that are assigned to it by third parties. Robert Whitaker, Progressive's treasurer and vice president of finance, explained that independent agents use Progressive's load management system to input delivery data so that Progressive can bill and collect payment on the agent's behalf.6
Republic received invoices on Progressive letterhead from June through late July 2011, totaling $60,436.67. The face of the invoices did not mention the name of the carrier, and most simply stated that the carrier's accounts had been assigned. Each Progressive invoice contained the unique assigned load number and separately attached Republic's Load Out Sheets. It is undisputed that all of the load numbers on the invoices and the matching and attached Load Out Sheets pointed to Tenco as the carrier. Because it believed that Progressive was billing for Tenco's work and because the invoices contained language of assignment, Republic paid the June-July invoices. But then, questions arose about Progressive's role in the matter.
The invoices Republic received from Progressive from August 3 to October 17, 2011, also did not contain the name of the carrier. Unlike the June-July invoices, language evidencing any assignment was omitted from invoices dating August 24 through October 12, 2011. Nevertheless, Republic still believed that Progressive was billing for Tenco's services due to the unique assigned load numbers on the invoices that suggested Tenco was the carrier and the attached Load Out Sheets listing Tenco as the carrier. This time, however, according to Republicemployee Marsha Durham, Republic did not pay the invoices as a result of offsets allowed under the Agreement.
From October 18 to October 31, 2011, Republic received Progressive invoices that—for the first time—contained a BMB logo and identified the carrier as BMB.7 Republic's employee, Joey Keith Little, testified that the loads identified by the invoices had been hauled, but that Republic did not pay the invoices because it was not aware of BMB as a separate entity from Tenco.8 Again, the unique assigned load numbers on the...
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