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Alliance moved for traditional summary judgment on its sworn account suit and for no-evidence and traditional summary judgment on Top Cat's counterclaims.
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Top Cat brought counterclaims against Alliance for breach of contract, fraud by nondisclosure, and breach of implied warranties.Īlliance filed an amended third motion for no-evidence and traditional summary judgment (motion for summary judgment). Top Cat also raised the affirmative defenses of offset, discharge due to Alliance's material breach of contract, and express contract. Top Cat specifically asserted that, because Alliance delivered substandard or defective materials, Top Cat was forced to purchase replacement materials. Top Cat filed a verified denial that Alliance had applied "all lawful offsets, payments, and credits" to the account. Alliance sought to recover $391,087.21, consisting of the unpaid balance of the invoices and contractual interest, and attorney's fees. Each invoice stated, "Interest will accrue at the rate of 1.5% per month starting 60 days from INVOICE DATE." Top Cat made partial payment on the first invoice, but made no subsequent payments.Īlliance sued Top Cat on a sworn account and for breach of contract, or alternatively quantum meruit.
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1 From approximately July 7, 2013, to October 13, 2013, Alliance mailed twelve invoices to Top Cap for purchases and deliveries of aggregate materials. Top Cat contracted with Alliance to source, purchase, and deliver aggregate materials needed to make concrete. Procedural BackgroundĪlliance is a trucking company that provides commercial transportation and delivery services for construction industry materials.
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We reverse the trial court's summary judgment to the extent it awards Alliance eighteen percent per annum pre-judgment and post-judgment contractual interest and attorney's fees and remand those issues to the trial court for further proceedings. Accordingly, we affirm the trial court's summary judgment that Alliance recover from Top Cap $315,087.21 in actual damages on its suit on a sworn account and Top Cat take nothing on its counterclaims. Top Cat has not challenged the trial court's grant of summary judgment in favor of Alliance on its suit on a sworn account and on Top Cat's counterclaims against Alliance.
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In two issues, Top Cat contends the trial court erred by awarding Alliance (1) the "contractual rate of 18% per annum" because the summary judgment evidence did not conclusively establish Top Cat agreed to pay the interest rate and the interest rate awarded is usurious, and (2) attorney's fees because Top Cat is not an entity subject to an attorney's fees award under section 38.001 of the civil practice and remedies code and Alliance failed to conclusively establish it was entitled to the amount of fees awarded by the trial court. (Alliance) on its suit on a sworn account against Top Cat Ready Mix, LLC (Top Cat) and awarded Alliance $315,087.21 in actual damages, $198,739.63 for "contractual pre-judgment interest," attorney's fees of $70,000 in the trial court and $25,000 for an unsuccessful appeal by Top Cat to this Court, and post-judgment interest on actual damages "at the contractual rate of 18% per annum." The trial court granted summary judgment in favor of Alliance Trucking, L.P.