Triton 88, L.P. F/K/A Triton 88, L.L.C and Triton 2000, L.L.C. v. Star Electricity , L.L.C. D/B/A Startex Power
2013 Tex. App. LEXIS 10090
| Tex. App. | 2013Background
- Triton (owner of five commercial buildings) contracted with StarTex (retail electric provider) under an Electric Services Agreement (ESA) in 2006, later amended (2007, 2008) to extend term and change to MCPE variable pricing through May 2011.
- The ESA expressly permitted StarTex to invoice based on estimated TDSP (CenterPoint) meter readings when actual readings were unavailable and to reconcile "as soon as practical" after receipt of actual data.
- Triton complained about repeated estimated billing and alleged billing errors, then terminated the contract in October 2008 and obtained electricity from another provider.
- StarTex sued for breach of contract (unpaid invoices and early termination), seeking $319,094.11 (including $105,034.18 unpaid invoices and $197,323.25 liquidated damages) plus attorney’s fees; StarTex moved for summary judgment.
- The trial court granted summary judgment to StarTex: awarded $105,034.18 (unpaid electricity), $197,323.25 (liquidated/early termination fee), $12,000 in attorney’s fees, and entered turnover/receivership orders; Triton appealed.
- The court of appeals affirmed: held ESA unambiguous, StarTex proved entitlement to unpaid invoices and valid liquidated-damages calculation, Triton failed to raise fact issues on material breach, offsets, or attorney-fee reasonableness.
Issues
| Issue | Plaintiff's Argument (StarTex) | Defendant's Argument (Triton) | Held |
|---|---|---|---|
| Whether StarTex proved breach for unpaid invoices | Invoices and corporate affidavits conclusively show StarTex supplied electricity and Triton owes $105,034.18 | Triton challenged invoice accuracy, estimation practices, and sought offsets/credits | StarTex proved elements; Triton failed to present particularized disputes or follow contract dispute procedure — judgment for StarTex affirmed |
| Whether StarTex’s estimated billing constituted a prior material breach excusing Triton | ESA permitted estimated invoicing when TDSP data absent; StarTex reconciled later | Triton alleged repeated improper consecutive estimates and parol modification promises to stop estimates | Court found ESA unambiguous allowing estimates; CenterPoint emails blamed Triton for access problems; no fact issue on material breach |
| Enforceability and calculation of the early-termination (liquidated damages) clause | MCPE price volatility and customer "shape" make actual damages difficult to calculate; clause reasonably forecasts compensation; used three highest monthly bills | Clause is an unenforceable penalty; calculation relied on unidentified invoices and estimates | Clause enforceable under Phillips test and Tex. Bus. & Com. Code §2.718; mark-to-market impracticable; calculation by three highest bills reasonable; award affirmed |
| Attorney’s fees award and pre-suit demand defense | Contingency fee agreement and counsel affidavit establish reasonableness; demand before suit not excessive | Fee affidavit insufficiently detailed; StarTex’s pre-suit demand was excessive, barring fees | Counsel’s affidavit met summary-judgment support requirements; Triton submitted no controverting evidence; pre-suit demand not shown to be excessive; $12,000 fee award affirmed |
| Receivership and turnover orders (ancillary relief) | Needed to enforce judgment and collect rents/revenues | Orders improper because summary judgment was erroneous; confidential records and funds should be returned | Because summary judgment affirmed, trial court did not err in appointing receiver or turnover order |
Key Cases Cited
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (standard for de novo review of summary judgment)
- M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22 (Tex. 2000) (movant must conclusively establish elements to shift burden)
- Phillips v. Phillips, 820 S.W.2d 785 (Tex. 1991) (two-part test for enforceability of liquidated-damages clause)
- Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004) (material breach discharges other party)
- Henry v. Masson, 333 S.W.3d 825 (Tex. App.—Houston [1st Dist.] 2010) (definition of breach and materiality principles)
- Haden v. David J. Sacks, P.C., 332 S.W.3d 503 (Tex. App.—Houston [1st Dist.] 2010) (attorney affidavit can support fee award in summary judgment)
- Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997) (factors for evaluating reasonableness of attorney’s fees)