Opinion
NUMBER 13-16-00307-CV
06-22-2017
STAR TEX GASOLINE & OIL DISTRIBUTORS, INC., Appellant, v. STERLING PERSONNEL INC., Appellee.
On appeal from the 117th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, Benavides
Memorandum Opinion by Justice Contreras
In this contract dispute, appellant Star Tex Gasoline & Oil Distributors, Inc. (Star Tex) contends the trial court erred in granting two summary judgments in favor of appellee, Sterling Personnel, Inc. (Sterling). By two issues, Star Tex argues the trial court erred in granting (1) Sterling's traditional motion for summary judgment on Sterling's suit on sworn account (the first motion for summary judgment) and (2) Sterling's traditional motion for summary judgment on its failure-to-mitigate defense on Star Tex's DTPA counterclaim (the second motion for summary judgment). We affirm.
I. BACKGROUND
The following background facts were taken from Sterling's original petition and motion for summary judgment. Sterling provides staffing and recruiting services to companies in Corpus Christi, Texas and surrounding areas. On or about May 5 or 6, 2014, Star Tex contacted Sterling requesting Sterling's services in filling several positions, including an in-house CPA position. On May 7, 2014, the parties signed a letter agreement (the agreement) stating that Sterling would provide candidates to Star Tex and Star Tex agreed to pay Sterling 17% of the yearly salary of any of Sterling's candidates hired by Star Tex. Sterling also agreed to offer a "60-day replacement guarantee" on a candidate from the date of hire. The agreement was signed by Sterling's staffing coordinator and Ronnie King, president of Star Tex.
We note that the "Statement of Facts" section in appellant's brief consists only of a brief procedural history of the case. Sterling argues that Star Tex has waived its issues on appeal because its statement of facts is inadequately briefed. See TEX. R. APP. P. 38.1(g) (providing that "[t]he brief must state concisely and without argument the facts pertinent to the issues or points presented. In a civil case, the court will accept as true the facts stated unless another party contradicts them. The statement must be supported by record references"). We decline to find that appellant has waived its issues and proceed to address its issues on the merits.
On September 16, 2014, Star Tex interviewed one of Sterling's candidates, Wendy Pullin, for an in-house CPA position. That same day, Star Tex notified Pullin and Sterling that it wanted to hire Pullin at $80,000 a year and wanted her to start the next day. Sterling ordered a "rush" background check and received the results the same day. Sterling learned that Pullin had three misdemeanor convictions. Pullin explained to Sterling that the convictions were for several bounced checks that resulted from her ex-husband's failure to pay child support. Sterling contacted King the following morning and notified him of the findings. King hired Pullin despite the findings, and she worked for Star Tex from September 17, 2014 until June 6, 2015.
King's affidavit stated that he hired Pullin on September 16, 2014 and "subsequently" learned of the convictions from Pullin.
Sterling sent Star Tex an invoice dated September 24, 2014 for $13,600, an amount representing 17% of Pullin's salary. Star Tex failed to pay the invoice.
On June 4, 2015, Sterling sued Star Tex, alleging suit on a sworn account, breach of contract, and quantum meruit. Star Tex filed a verified denial and a supplemental answer, in which it specifically pled the affirmative defense of failure of consideration. On October 27, 2015, Sterling filed the first motion for summary judgment. Star Tex filed a response to Sterling's motion, in which it asserted that Sterling breached the agreement with Star Tex by failing to "properly screen and interview" Pullin and that Star Tex's hiring of Pullin damaged Star Tex. Star Tex also objected to several of Sterling's summary judgment exhibits.
On November 19, 2015, Star Tex filed a Deceptive Trade Practices Act ("DTPA") counterclaim, in which it asserted that: (1) it hired Pullin before learning of her criminal convictions; and (2) Sterling's failure to properly screen Pullin violated the DTPA. See TEX. BUS. & COM. CODE ANN. §§ 17.01 et seq. (West, Westlaw through Ch. 49 2017 R.S.).
On November 23, 2015, the trial court overruled Star Tex's evidentiary objections and granted summary judgment in Sterling's favor on its first motion for summary judgment on its suit for sworn account.
On December 17, 2015, Sterling filed an amended answer to Star Tex's DTPA claim, in which it asserted the affirmative defenses of estoppel, waiver, laches, and failure to mitigate damages. Also on December 17, 2015, Sterling filed the second motion for summary judgment on Star Tex's DTPA claim, in which it argued that Star Tex failed to mitigate its damages by failing to use the remedy outlined in the agreement and, therefore, that it cannot show the damage element of its DTPA claim. In support of its motion, Sterling attached the agreement, several affidavits, and Pullin's time records. Star Tex filed a response, in which it asserted many of the same objections to Sterling's summary judgment evidence that had already been overruled by the trial court.
On January 27, 2016, the trial court granted Sterling's second motion for summary judgment and ordered that Star Tex take nothing on its DTPA claims. The only remaining claim was Sterling's quantum meruit claim, which it nonsuited on May 5, 2016. That same day, the trial court signed a final judgment in Sterling's favor, awarding it $13,600 in damages plus pre- and post-judgment interest and attorney's fees. This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court's decision on a motion for summary judgment de novo. Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015). In a traditional motion for summary judgment, the movant has the burden of showing no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Katy Venture, 469 S.W.3d at 163. Evidence raises a genuine issue of material fact if "reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented." Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). In addition, a defendant who conclusively negates at least one of the essential elements of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010)
To prevail in a cause of action on sworn account, a party must show: (1) that there was a sale and delivery of the merchandise or performance of the services; (2) that the amount of the account is just, that is, that the prices were charged in accordance with an agreement or in the absence of an agreement, they are the usual, customary and reasonable prices for that merchandise or services; and (3) that the amount is unpaid. Day Cruises Mar., LLC v. Christus Spohn Health Sys., 267 S.W.3d 42, 53 (Tex. App.—Corpus Christi 2008, pet. denied); Worley v. Butler, 809 S.W.2d 242, 245 (Tex. App.—Corpus Christi 1990, no writ).
We review a trial court's ruling on the admissibility of summary judgment evidence for an abuse of discretion. Fred Loya Ins. Agency, Inc. v. Cohen, 446 S.W.3d 913, 926 (Tex. App.—El Paso 2014, pet. denied). When reviewing matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court. Id. at 927. We will find an abuse of discretion only when the court acts without reference to any guiding rules or principles or its decision is arbitrary and unreasonable. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
III. DISCUSSION
A. First Motion for Summary Judgment
By its first issue, Star Tex argues that the trial court erred in granting Sterling's first motion for summary judgment because: (1) Sterling breached the agreement by failing to properly screen and interview Pullin; (2) the trial court erred in overruling Star Tex's objection to the affidavit of Cheryl Garcia, Sterling's bookkeeper, on grounds that she failed to "state the basis for her statements"; and (3) the trial court erred in overruling Star Tex's objections to the affidavit of Adrienne Forgue, Sterling's staffing coordinator, on grounds that it contains "hearsay and conclusory statements," fails to "state the basis for her statements," and "presents unsupported conclusions."
In support of its first summary judgment motion, Sterling attached the following: (1) Garcia's affidavit; (2) the agreement; (3) Sterling's invoice to Star Tex in the amount of $13,600; (4) Forgue's affidavit; (5) business records including emails between the parties; (6) Star Tex's responses to Sterling's discovery requests; (7) the affidavit of James D. Egbert, Sterling's counsel, stating that Sterling incurred $2,344 in reasonable attorney's fees pursuing this matter; (8) Sterling's demand letter to Star Tex dated January 29, 2015, demanding payment of $13,600; and (9) Pullin's time sheets reflecting that she worked for Star Tex for approximately nine months.
Garcia's affidavit states that: (1) Sterling provided services to Star Tex as reflected in the agreement; (2) Star Tex promised to pay for the services as reflected in the agreement; (3) Star Tex failed to pay; (4) Sterling has a liquidated money demand against Star Tex in the amount of $13,600 as shown in the invoice; (5) interest accrues at 5% per year, and as of June 4, 2015, a total of $14,076 was due, inclusive of principal and interest but exclusive of attorney's fees; and (6) that all offsets, payments, and credits have been allowed and the account remains unpaid. Garcia's affidavit also states that: (1) she is Sterling's bookkeeper; (2) she is personally familiar with Star Tex's account; (3) she is a custodian of Sterling's records and is "familiar with the manner in which Sterling's records are created and maintained by virtue of [her] duties and responsibilities"; and (4) the records attached to the affidavit (the agreement and the invoice) are Sterling's business records.
An affidavit supporting a motion for summary judgment must "be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." TEX.R. CIV. P. 166a(f); Hydroscience Techs., Inc. v. Hydroscience, Inc., 401 S.W.3d 783, 791 (Tex. App.—Dallas 2013, pet. denied). Thus, for a summary judgment affidavit to have probative value, the affiant must swear the facts in the affidavit reflect his personal knowledge. Hydroscience, Inc., 401 S.W.3d at 791 (citing Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550, 552 (Tex. App.—Houston [14th Dist.] 2010, no pet.)). An affiant's position or job responsibilities can qualify him to have personal knowledge of facts and establish how he learned of the facts. Id. References to true and correct copies of documents in support of an affidavit also establish personal knowledge. Id. at 792.
Here, Garcia's affidavit established that she was familiar with the manner in which Sterling's business records were created and maintained by virtue of her duties and responsibilities as Sterling's bookkeeper. She identified the agreement and the invoice to Star Tex for $13,600, and stated that the account remained unpaid. We conclude that the trial court did not abuse its discretion in overruling Star Tex's objections and in considering Garcia's affidavit. See id.; see also Cohen, 446 S.W.3d at 926; Rogers v. RREF II CB Acquisitions, ___ S.W.3d ___, ___, 2016 WL 6804451, at **5-6 (Tex. App.—Corpus Christi Nov. 17, 2016, no pet.).
We next consider Star Tex's challenges to relevant portions of Forgue's affidavit. Forgue's affidavit states that she was a staffing coordinator for Sterling, was personally familiar with Star Tex's account, was a custodian of Sterling's records, and was familiar with the manner in which Sterling's business records were created and maintained by virtue of her duties and responsibilities. Attached to her affidavit are forty-seven pages of Sterling's business records. The affidavit also states, in pertinent part:
2. . . . . On May 6, 2015 I provided Mr. King with a copy of a contract for staffing services. The terms stated that Sterling would provide Mr. King with candidates for his accounting position and if he wanted to hire any of the candidates he would pay Sterling 17% of the projected annual salary. Sterling also provided a 60-day replacement guarantee on the candidates from the date of hire. A true and correct copy of the agreement signed by Mr. King is attached to Plaintiffs Motion for Summary Judgment as Exhibit A-1.
3. From May 7, 2015 through September 16, 2015 I provided Mr. King with candidates for various positions. I sent Mr. King an email with each candidate[']s resume and set up interviews for Mr. King with each candidate. On September 16, 2015, I set up an interview for Mr. King with Wendy Pullin for an in-house CPA position. Mr. King wanted to offer Mrs. Pullin a job as an in-house CPA with a projected annual salary of $80,000 and wanted her to start the next day, September 17, 2015. Sterling's standard practice is to conduct a background check on any candidate that [a] client wants to hire. In this case, since Mr. King wanted Mrs. Pullin to start the next day[,] I ordered a rush background check.
4. Around closing time on September 16, 2015, I received the background check. The check revealed that Mrs. Pullin had 3 misdemeanors on her criminal history. I immediately called Mrs. Pullin to talk to her about the convictions. . . . First thing the next morning, I called Mr. King and informed him of Mrs. Pullin's convictions and her explanation. Mr. King said it wasn't a big deal and he wanted to move forward hiring Mrs. Pullin. Mrs. Pullin began work as scheduled with Star Tex on September 17, 2014.
Star Tex objected to Forgue's affidavit on grounds that it contained "hearsay and conclusory statements" and failed to state the basis for her statements. Specifically, Star Tex objected to Forgue's statements: (1) that King wanted to offer Pullin a job as an in-house CPA and wanted her to start the next day; (2) regarding what Pullin told her about the criminal convictions (which we have omitted above); and (3) regarding what King said when he was told of Pullin's convictions. Star Tex also objected to several statements as "unsupported conclusions."
We conclude that Star Tex's objection that Forgue's affidavit failed to state the basis for her statements to be without merit. Forgue's following statements are sufficient to establish her personal knowledge of facts and how she learned of the facts: (1) she was Sterling's staffing coordinator; (2) she was personally familiar with Star Tex's account; (3) she was a custodian of Sterling's business records; (4) she was familiar with the manner in which Sterling's business records are created and maintained by virtue of her duties and responsibilities; and (5) she was familiar with forty-seven pages of Sterling's business records (which consist primarily of emails between the parties and resumes of potential candidates for Star Tex positions). See Hydroscience, Inc., 401 S.W.3d at 791-92.
We next consider Star Tex's hearsay objection to the statements that King wanted to offer Pullin a job and that he wanted to move forward in hiring Pullin. Assuming, but not deciding, that the trial court erred in overruling the objection, we find the error, if any, to be harmless. See TEX. R. APP. P. 44.1. One of the documents in Sterling's business records (and attached as summary judgment evidence) is an email dated September 16, 2014 from King to Forgue and Pullin stating "we are happy to offer Wendy a position with Star Tex @ 80k per year and would like her to start on 9-17-14." Moreover, Pullin's time cards reflect that she began working for Star Tex on September 17, 2014. Considering this evidence, we conclude that any error in overruling the hearsay objection to Forgue's affidavit would not have probably caused the rendition of an improper judgment. See id.
Finally, we consider Star Tex's hearsay objection to Forgue's statement regarding what Pullin told her regarding the convictions. Again, assuming, without deciding, that the trial court erred in overruling the objection, we find the error, if any, to be harmless. See id. In King's November 12, 2015 affidavit, which Sterling submitted in support of its second motion for summary judgment, he attested to the same information—what Pullin told him regarding the convictions—that he objected to in Forgue's affidavit.
Sterling's summary judgment evidence established (1) that Sterling provided services to Star Tex; (2) that the price charged was in accordance with an agreement; and (3) that the amount was unpaid. See Day Cruises Mar., LLC, 267 S.W.3d at 53. Star Tex did not produce any evidence creating a fact issue. Accordingly, Sterling met its burden of showing no genuine issue of material fact and that it was entitled to judgment as a matter of law. See Katy Venture, 469 S.W.3d at 163. The trial court did not err in granting the first motion for summary judgment in Sterling's favor on its suit for sworn account. We overrule Star Tex's first issue.
B. Second Summary Judgment Motion
By its second issue, Star Tex contends the trial court erred in granting Sterling's second motion for summary judgment. Star Tex asserts that Sterling breached the agreement by failing to properly screen and interview Pullin between the time that Pullin signed a release authorizing a background check and September 16, 2014, the date she was referred to Star Tex. Star Tex also objects to Forgue's affidavit on the same grounds that it asserted against the affidavit as evidence supporting the first motion for summary judgment.
Sterling's second motion for summary judgment is predicated on the affirmative defense of failure to mitigate damages. According to Star Tex's counterclaim, Star Tex suffered damages because it was unable to utilize Pullin for the position for which she was hired. Sterling argues that, even assuming Star Tex's claim as true, Star Tex failed to mitigate its damages by failing to use the remedy outlined in the agreement: request a replacement for Pullin within sixty days of her hire. Instead of availing itself of the remedy in the agreement, Star Tex employed Pullin for nine months.
As summary judgment evidence, Sterling attached most of the same documents it attached to its first motion for summary judgment: the agreement, Garcia's and Forgue's affidavits, business records, and Pullin's time sheets. In addition, Sterling attached King's November 12, 2015 affidavit, in which he stated that he hired Pullin on September 16, 2014 and "subsequently" learned (from Pullin) of her misdemeanor convictions. According to King, he had already announced Pullin's hiring "and was placed in an awkward position by Sterling given that I hired someone for the purpose of acting as Star Tex's CPA but subsequently had learned enough to realize that I would not be able to utilize her for the purposes for which I hired her due to her background." King neither mentioned the "60-day replacement guarantee" in the agreement nor otherwise explained why Star Tex did not mitigate its damages by utilizing the remedy.
Sterling also attached the affidavit of its attorney and records in support of its request for attorney's fees. Star Tex does not challenge the award of attorney's fees on appeal.
A DTPA plaintiff—or here, counter-plaintiff—is required to mitigate damages. Pinson v. Red Arrow Freight Lines, Inc., 801 S.W.2d 14, 15 (Tex. App.—Austin 1990, no writ). When an injured party fails to comply with the duty to mitigate damages, recovery is not permitted as to that part of damages that could have been avoided or was incurred as a result of the failure to mitigate. Id.; see Baber v. Pigg, No. 14-10-00065-CV, 2011 WL 3667835, at *4 (Tex. App.—Houston [14th Dist. Aug. 23, 2011, no pet.) (mem. op.). The duty to mitigate damages is an affirmative defense. Taylor Foundry Co. v. Wichita Falls Grain Co., 51 S.W.3d 766, 774 (Tex. App.—Fort Worth 2001, no pet.). Here, Star Tex could have avoided any damages allegedly incurred by hiring Pullin if it had simply requested, within sixty days of her hire, that Sterling provide a replacement for her.
We conclude that Sterling conclusively established its mitigation-of-damages defense and was therefore entitled to summary judgment. See Frost Nat'l Bank, 315 S.W.3d at 508; Pinson, 801 S.W.2d at 15. We hold that the trial court did not err in granting Sterling's second motion for summary judgment. We overrule Star Tex's second issue.
IV. CONCLUSION
We affirm the trial court's judgment.
We note that Sterling filed a Motion to Strike Exhibits to Star Tex's reply brief on the ground that the documents were outside the record. None of the documents that Sterling complains of are necessary to our analysis. In Star Tex's response to Sterling's second motion for summary judgment, it included a second affidavit by King dated January 19, 2016. It appears that the parties disagreed over whether the trial court considered the affidavit. The affidavit appears in the record before us, we have reviewed it, and it does not change our analysis. We deny Sterling's motion to strike as moot.
DORI CONTRERAS
Justice Delivered and filed the 22nd day of June, 2017.