Trelltex, Inc. v. Intecx, L.L.C.
2016 Tex. App. LEXIS 2650
| Tex. App. | 2016Background
- Texcel and RMIT entered a Sales Representative Agreement in Aug. 2001 specifying a 9% commission for all sales and requiring written mutual acceptance for any revisions.
- Texcel unilaterally paid a 5% commission beginning Oct. 2001; parties continued under those payments until Texcel terminated the agreement effective Feb. 29, 2012.
- RMIT sued on Sept. 10, 2012 seeking unpaid commissions (primarily 2008–2012), treble damages under a Colorado statute, and attorney’s fees; Texcel asserted waiver and the four‑year statute of limitations as defenses and counterclaimed for declaratory relief.
- The trial court found Texcel underpaid commissions from Oct. 2001–Feb. 2012, awarded RMIT $21,589.88 for underpayments from Oct. 1, 2001–May 1, 2006, treble damages, and attorney’s fees, but concluded RMIT waived claims after May 1, 2006.
- On appeal the court addressed (1) whether commissions awarded for Oct. 2001–May 1, 2006 were barred by the four‑year statute of limitations and (2) whether RMIT impliedly waived claims for underpaid commissions after May 1, 2006.
Issues
| Issue | Plaintiff's Argument (RMIT) | Defendant's Argument (Texcel) | Held |
|---|---|---|---|
| Whether underpaid commissions from Oct. 1, 2001–May 1, 2006 are barred by the 4‑year statute of limitations | RMIT contends the contract was continuing and limitations did not run until termination in 2012 | Texcel argues payments were periodic installments, so each missed monthly payment accrued a separate cause of action and claims older than 4 years before suit are barred | Held for Texcel: periodic commission payments create separate causes of action; amounts before Sept. 10, 2008 (and thus Oct. 2001–May 2006 awards) are barred; trial award reversed and rendered for those claims |
| Whether treble damages and attorney’s fees tied to the barred contract recovery are recoverable | RMIT seeks treble damages under Colorado law and fees as prevailing party on breach | Texcel argues treble damages and fees fall with contract damages if limitations bar recovery | Held for Texcel: because the contract damages were barred, related treble damages and attorney’s fees were reversed (RMIT not prevailing party) |
| Whether RMIT impliedly waived its right to commissions after May 1, 2006 (i.e., for amounts not time‑barred) | RMIT argues insufficient evidence of intent or knowledge to support implied waiver; it never expressly relinquished rights and did not calculate shortfalls | Texcel argues RMIT received monthly statements showing sales and commissions, could have calculated it was paid 5%, and failed to complain for years—silence/inaction constitutes implied waiver | Held for Texcel: evidence supported trial court findings that RMIT received monthly statements, could have calculated the rate, and did not complain; implied waiver proven as intentional conduct inconsistent with asserting the 9% right, so remaining claims denied |
| Preservation and standard of review for affirmative defenses and findings | RMIT questions sufficiency of waiver findings; Texcel preserved limitations defense and requested findings | Texcel asserts it pleaded limitations and requested findings; limitation findings sufficiently preserved | Held: Texcel preserved limitations defense; appellate review de novo for legal questions and no‑evidence/insufficiency standards applied to waiver; findings sustained where supported |
Key Cases Cited
- Intermedics, Inc. v. Grady, 683 S.W.2d 842 (Tex. App.—Houston [1st Dist.] 1984) (limitations is an affirmative defense that must be pleaded and proved)
- Sears, Roebuck & Co. v. Nichols, 819 S.W.2d 900 (Tex. App.—Houston [14th Dist.] 1991) (bench‑trial party asserting affirmative defense must request findings to avoid waiver)
- Barker v. Eckman, 213 S.W.3d 306 (Tex. 2006) (breach accrues and cause of action arises immediately upon breach)
- Slusser v. Union Bankers Ins. Co., 72 S.W.3d 713 (Tex. App.—Eastland 2002) (separate cause of action for each missed installment payment)
- Davis Apparel v. Gale‑Sobel (Div. of Angelica Corp.), 117 S.W.3d 15 (Tex. App.—Eastland 2003) (installment commission contract: separate causes of action for periodic payments)
- Spin Doctor Golf, Inc. v. Paymentech, L.P., 296 S.W.3d 354 (Tex. App.—Dallas 2009) (applying installment accrual rule to periodic payments)
- Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640 (Tex. 1996) (silence/inaction may constitute waiver when party has knowledge of inconsistent conduct)
- Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773 (Tex. 2008) (elements of waiver: existing right, actual knowledge, and either actual intent to relinquish or intentional conduct inconsistent with claiming the right)
- Clear Lake Ctr., L.P. v. Garden Ridge, L.P., 416 S.W.3d 527 (Tex. App.—Houston [14th Dist.] 2013) (payments alone do not constitute waiver where payor lacked actual knowledge that charges were improper)
- Ashford Partners, Ltd. v. ECO Res., Inc., 401 S.W.3d 35 (Tex. 2012) (attorney’s fees under contract statute require recovery on a breach‑of‑contract claim)