AFFIRMED and Opinion Filed September 7, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00262-CV
AMPM ENTERPRISES, INC., POINT TARGET ENTERPRISES, INC., AND KHAWAR ASGHAR, Appellants V. BORDERS & LONG OIL, INC., Appellee
On Appeal from the County Court Kaufman County, Texas Trial Court Cause No. 106862-CC
MEMORANDUM OPINION Before Justices Carlyle, Goldstein, and Kennedy Opinion by Justice Goldstein AMPM Enterprises, Inc., Point Target Enterprises, Inc., and Khawar Asghar
appeal the trial court’s order granting traditional summary judgment in favor of
Borders & Long Oil, Inc., on Borders’ breach of contract claim against AMPM. In
two issues, AMPM argues (1) the trial court erred in failing to sustain its objections
to Borders’ summary judgment and (2) even without having its objections sustained,
Borders failed to sustain its initial summary judgment burden, and AMPM raised a
fact issue that precluded summary judgment. We affirm the trial court’s judgment.
BACKGROUND In January 2021, Borders filed its original petition alleging that, in October
2010, Borders entered into four agreements with AMPM under which AMPM was
to purchase gasoline from Borders for resale at AMPM’s retail stores. Khawar
Asghar signed each of the agreements as AMPM’s vice president, and Asghar
personally guaranteed each agreement. In June 2017, Point Target Enterprises, Inc.,
(PTE) requested that Borders supply gasoline to one of its stores at the request of its
owner, Asghar. AMPM’s and PTE’s agreements with Borders created an open
account under which Borders delivered gasoline to the stores and AMPM and PTE
paid Borders for the gasoline and other expenses.
Borders’ petition alleged AMPM failed to pay for goods and services received
at its four stores in amounts of $17,227.28, $11,565.97, $21,628.68, and $5,727.86,
and PTE failed to pay $16,335.33. Borders conceded that, based on an oral
agreement, AMPM and PTE were entitled to a credit of one cent per gallon totaling
$30,333.30; thus, the amount of damages Borders claimed was $42,151.82, plus
interest and attorney’s fees. Borders asserted claims of suit on sworn account, breach
of contract, and quantum meruit.1
AMPM, PTE, and Asghar filed an amended answer in which they filed a
verified plea and specifically denied the sworn account allegations and asserted that,
1 Attached to Borders’ petition was the affidavit of Thomas W. Borders, III, Borders’ vice president. The affidavit stated that the copies of the agreements between Borders and AMPM and PTE and invoices related to the fuel and services delivered by Borders were true and correct, and the amount owed to Borders by AMPM and PTE was $42,151.82. –2– although Borders attached invoices to its petition alleging the invoices reflected all
just and lawful offsets, payments, and credits, Borders did not itemize those offsets,
payments, and credits, and did not verify they had been applied to the invoices
attached to the petition. AMPM and PTE also argued that Borders’ claims were
barred by the statute of limitations and the statute of frauds.
In July 2021, Borders filed a traditional motion for summary judgment2
asserting, among other things, that it was entitled to summary judgment on its breach
of contract claim against AMPM and PTE. As evidence that valid, enforceable
contracts existed between Borders and AMPM, the motion referenced copies of
those contracts attached to the motion. As to PTE, Borders argued a valid,
enforceable contract was formed between Borders and PTE when PTE requested
that Borders deliver fuel to its store and Borders complied. Borders cited attached
invoices and exhibits as evidence that Borders performed its obligations under the
contracts by delivering fuel to each of AMPM and PTE’s stores as requested. As
evidence that AMPM and PTE breached the contracts, Borders relied on Borders’
affidavit showing that AMPM and PTE’s accounts remained unpaid despite their
obligations to pay for the fuel and Asghar’s personal guarantee of such payment.
2 The summary judgment motion sought disposition on all three causes of action; the trial court granted as to the breach of contract claim but denied as to other requested relief and disposed of all parties and all claims. –3– Finally, Borders asserted that AMPM and PTE’s failure to fulfill their payment
obligations was the direct cause of Borders’ injury.
In August 2021, AMPM and PTE filed their response to Borders’ motion for
summary judgment. Among other things, AMPM and PTE objected that all of the
following documents attached as exhibits to Borders’ motion for summary judgment
constituted hearsay for which Borders offered no exception: certain invoices from
Borders for fuel, a stop payment notice sent to Borders, an invoice from Borders for
a returned draft, bills of lading for delivery of fuel, a table of figures representing
records reflecting charges incurred by AMPM and PTE, and a table reflecting the
amount of a credit agreed upon by the parties.3 AMPM and PTE also objected to
Borders’ December 23, 2020 affidavit on the grounds that certain statements in the
affidavit were conclusory and not supported by the evidence, and many of the
exhibits attached to the affidavit were hearsay for which Borders offered no
exception. Attached to the response was Asghar’s affidavit stating, among other
things, that “Charges for monthly network fees and supplies and other charges other
than fuel and incentives reimbursements were not specified or specifically permitted
in any contract between [Borders] and [AMPM, PTE, and Asghar],” and Asghar’s
June 1, 2017 request for fuel on behalf of PTE “did not specify an amount of fuel or
a price for fuel.”
3 We note without further discussion that the documents attached to the motion were not supported by affidavit, as we have determined that they are not necessary to the disposition of this appeal. –4– Borders filed a reply to AMPM and PTE’s response asserting Borders had
presented contracts, invoices, bills of lading, and other documentary evidence to
show that AMPM and PTE breached their agreements to pay for the fuel Borders
delivered to them, and AMPM and PTE presented “NO evidence at all.”
Specifically, Borders cited the affidavit of its vice president and custodian of records
stating his personal knowledge of the amounts owed, the agreements of the parties,
the delivery of the fuel to the stores, the application of offsets, the charge for a
stopped check from AMPM, and a chargeback charged to AMPM for AMPM’s
failure to maintain the proper branding of fuel at one of its stores. Borders reiterated
that AMPM and PTE provided no evidence “to controvert either the amounts that
were owed or that the fuel was delivered to each of the stores.” Borders argued the
table showing the amounts owed by AMPM and PTE was a business record
admissible as an exception to hearsay under rule of evidence 803(6) and was
supported by a business records affidavit in compliance with rule of evidence
902(10). As to AMPM and PTE’s attempt to avoid Borders’ breach of contract
claims on the basis that “certain prices or fees were not included on the face of the
contract,” Borders argued that the failure to specify a price does not leave a contract
so incomplete that it cannot be enforced when the contracting parties have done
everything else necessary to make a binding agreement, citing Fischer v. CTMI,
LLC, 479 S.W.3d 231, 240 (Tex. 2016).
–5– In January 2022, the trial court entered an order granting Borders’ traditional
motion for summary judgment on Borders’ breach of contract claim against AMPM,
PTE, and Asghar. The judgment awarded Borders $42,151.82 in damages and
$15,579.57 in attorney’s fees. AMPM, PTE, and Asghar filed a request for a ruling
on their objections to Borders’ summary judgment evidence and a motion for new
trial. In April 2022, the trial court entered separate orders denying AMPM, PTE,
and Asghar’s motion for new trial and overruling all of their objections to Borders’
summary judgment evidence. This appeal followed.
DISCUSSION
In their first issue, AMPM, PTE, and Asghar complain the trial court erred in
failing to sustain their objections to Borders’ summary judgment evidence. In their
second issue, AMPM, PTE, and Asghar argue that, even if their objections were not
sustained, Borders failed to establish its initial burden and appellants raised genuine
issues of material fact which precluded summary judgment. Because of the
interrelated nature of these two issues, we address them together.
A. Standard of Review
The movant for traditional summary judgment has the burden of proving that
there is no genuine issue of material fact and that it is entitled to summary judgment
as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548 (Tex. 1985). When, as here, the plaintiff moves for summary
judgment, the plaintiff must conclusively prove all elements of its cause of action as
–6– a matter of law. TEX. R. CIV. P. 166a(c); Kyle v. Countrywide Home Loans, Inc.,
232 S.W.3d 355, 358 (Tex. App.—Dallas 2007, pet. denied). A matter is
conclusively proven if ordinary minds could not differ as to the conclusion to be
drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply,
Inc., 644 S.W.2d 443, 446 (Tex. 1982). Once the plaintiff conclusively proves its
right to summary judgment as a matter of law, the burden then shifts to the defendant
as non-movant to present evidence that raises a genuine issue of material fact,
thereby precluding summary judgment. See Pace v. Pace, 160 S.W.3d 706, 714
(Tex. App.—Dallas 2005, pet. denied) (citing City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678–79 (Tex. 1979)). We review a grant of summary
judgment de novo. Thomann v. Lakes Reg’l MHMR Ctr., 162 S.W.3d 788, 794–95
(Tex. App.—Dallas 2005, no pet.). In reviewing the grant of a summary judgment,
we take as true all evidence favorable to the nonmovant and resolve in the
nonmovant’s favor all reasonable inferences, including any doubts. Nixon, 690
S.W.2d at 548–49.
Affidavits used to support a motion for summary judgment “shall be made on
personal knowledge, shall set forth such 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). We review a trial court’s rulings concerning
the admission or exclusion of summary judgment evidence for an abuse of
discretion. See Fairfield Fin. Group, Inc. v. Synnott, 300 S.W.3d 316, 319 (Tex.
–7– App.—Austin 2009, no pet.). An abuse of discretion occurs only when the trial court
makes a decision without reference to any guiding rules or principles or its decision
is arbitrary or unreasonable. See Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985).
B. Issues
1. Breach of Contract
The elements of a cause of action for breach of a contract are: (1) a valid
contract; (2) the plaintiff performed or tendered performance; (3) the defendant
breached the contract; and (4) the plaintiff was damaged as a result of that breach.4
McGraw v. Brown Realty Co., 195 S.W.3d 271, 276 (Tex. App.—Dallas 2006, no
pet.). A contract has been breached when a party fails to perform an act that it has
expressly or impliedly promised to perform. Id.
The proponent of hearsay bears the burden of showing that the testimony fits
within an exception to the general rule prohibiting the admission of hearsay
evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004);
see also TEX. R. EVID. 802. The Texas Rules of Evidence provide the following
hearsay exception for business records:
A . . . record . . . made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice
4 We note that appellants do not dispute the existence of the contracts, performance by delivery and receipt of fuel, or the failure to pay for fuel—elements one, two and three. As a practical matter, all that is at issue are damages. –8– of that business activity to make the . . . record . . . , all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstance of preparation indicate lack of trustworthiness.
TEX. R. EVID. 803(6). The predicate for admission of business records may be
established “by affidavit that complies with Rule 902(10).” TEX. R. EVID. 803(6).
Rule 902(10) provides that records “shall be admissible in evidence in any court in
this state upon the affidavit of the person who would otherwise provide the
prerequisites of Rule 803(6) or (7).” TEX. R. EVID. 902(10)(a). Rule 902(10)
includes a sample form of an affidavit that complies with the rule and states that “an
affidavit which substantially complies with the provisions of this rule shall
suffice[.]” TEX. R. EVID. 902(10)(b).
Here, Borders’ December 23, 2020 affidavit established that he was the vice
president of Borders and was responsible for overseeing the maintenance of Borders’
books and records of sales and accounts and was the custodian of such records. The
affidavit stated that the table showing a balance of $42,151.82 owed by AMPM and
PTE was “a true and correct copy of Borders’ records reflecting charges incurred by
AMPM and PTE for gasoline delivered to AMPM and PTE’s stores or related fees
or services incurred pursuant to the agreement of the parties,” and the table was
“created in the ordinary course of business and reflects a systematic record of the
amounts owed by AMPM and PTE to Borders.” We conclude Borders’ affidavit
was sufficient to establish that the table showing the amount owed by AMPM and
–9– PTE qualified as a business record and was admissible under rules 803(6) and
902(10). See TEX. R. EVID. 803(6), 902(10). Therefore, the trial court did not abuse
its discretion in admitting as summary judgment evidence the table showing a
balance of $42,151.82 owed by AMPM and PTE. See Synnott, 300 S.W.3d at 319.
AMPM, PTE, and Asghar do not dispute the existence of their contracts with
Borders, their receipt of fuel from Borders, or their failure to pay for fuel; rather,
they argue there was no evidence that, under the terms of the contracts with AMPM,
Borders could charge “monthly fees, network fees, and mystery shoppers fees.”
Thus, they argue, because Asghar’s guarantees related only to the terms of the
contracts, there was no evidence Asghar guaranteed any of these amounts. As to
PTE, they assert there was “no evidence of any agreed upon price or volume of
gasoline nor any evidence that the price charged for the fuel was reasonable and
consistent with the request of Point Target.”
When the parties “have done everything else necessary to make a binding
agreement . . . , their failure to specify the price does not leave the contract so
incomplete that it cannot be enforced.” Fischer, 479 S.W.3d at 240 (quoting
Bendalin v. Delgado, 406 S.W.2d 897, 900 (Tex. 1966)). “In such a case it will be
presumed that a reasonable price was intended.” Id. (quoting Bendalin, 406 S.W.2d
at 900). Moreover, we are guided by the principle that “[p]art performance under an
agreement may remove uncertainty and establish that a contract enforceable as a
–10– bargain has been formed.” Id. (quoting RESTATEMENT (SECOND) OF
CONTRACTS § 34(2)).
It is not disputed that AMPM and Asghar entered into contracts with Borders
in October 2010 to provide fuel at four locations, and Borders continued to provide
fuel, and AMPM continued to pay for it, until some time in 2017. Borders and PTE
commenced an oral relationship involving requests and delivery of fuel in 2017.
During that transactional history, AMPM, Asghar, and PTE did not complain about
fees included in the price of fuel or challenge the validity of their contracts with
Borders. Under the facts and circumstances of this case, we conclude neither the
absence of a price specified in the underlying contracts nor the absence of provisions
for the payment of “monthly fees, network fees, and mystery shoppers fees” raised
a fact issue as to the amounts owed to Borders under the contracts. See id.; Pace,
160 S.W.3d at 714. AMPM, Asghar, and PTE point to no evidence that fees were
not to be included in the price charged for fuel, and the course of dealings of the
parties over nearly seven years shows that the fees and the terms of the contracts
were not an issue until AMPM, Asghar, and PTE stopped paying for the fuel Borders
delivered.
AMPM, Asghar, and PTE, as they did in the trial court, raise numerous
challenges to individual exhibits that give background context to the course of
dealings between the parties and which were attached to Borders’ summary
judgment motion. However, we need not address the admissibility of such
–11– supporting exhibits due to our conclusion that the table was properly considered as
a business record and provided sufficient evidence in support of summary judgment.
In light of the contracts between the parties, the undisputed history of performance,
delivery, and receipt of fuel and failure to pay, and having determined that the table
showing a balance of $42,151.82 owed by AMPM and PTE was proper summary
judgment evidence, we conclude the trial court did not err in granting traditional
summary judgment in favor of Borders on Borders’ breach of contract claim. See
TEX. R. CIV. P. 166a(c); Nixon, 690 S.W.2d at 548.
2. Attorneys’ Fees
AMPM, Asghar, and PTE’s challenge the award of attorney’s fees, asserting
the statements in the affidavit of Borders’ attorney Andrew D. Lewis were
conclusory and should be excluded from consideration. Specifically, they object to
Lewis’ statements that his services and charges set out in an exhibit were “necessary
to the representation of Plaintiff,” “reasonable charges in North Texas at the time
and place where the services were provided,” and “reasonable and customary for
attorneys practicing in North Texas during the time that the work was done.”
AMPM, Asghar, and PTE also object to Lewis’ opinion that it would cost Borders
another $2500 in attorney fees and expenses to attend the hearing on its motion for
summary judgment and draft any necessary replies or responses.
In the alternative, AMPM, Asghar, and PTE assert that, even if their
objections to Lewis’ affidavit are not sustained on appeal, a genuine issue of material
–12– fact exists as to the amount of reasonable and necessary attorney’s fees. AMPM,
Asghar, and PTE complain that Borders failed to segregate its attorney’s fees
between the “completely separate” causes of action against AMPM and Asghar on
the one hand and PTE on the other. They aver that the affidavit of their attorney,
Brian E. Richardson, created a fact issue whether Borders’ attorney’s fees were
reasonable and necessary. Specifically, Richardson’s affidavit made a fee rate
comparison and asserted that Borders’ claimed attorney’s fees and costs were not
reasonable because Borders’ two attorneys charged $300 and $400 respectively per
hour, and Richardson charged the reasonable amount of $220 per hour.
Richardson’s affidavit further stated that $2500 in anticipated attorney’s fees was
unreasonable and “completely speculative.” As a result, AMPM, Asghar, and PTE
argue, fact issues existed precluding the attorney’s fees awarded in the judgment,
and reversal and remand on the issue of attorney’s fees is required.
The record shows Lewis testified in his affidavit as to his level of experience,
his personal knowledge of the facts stated therein, the type of work he and others
performed on the case, and the amount of “reasonable” and “necessary” fees based
upon his hourly rate and the time required as reflected in attached copies of billing
statements and a report showing Borders’ payments. We cannot agree with AMPM,
Asghar, and PTE that Lewis’ affidavit is conclusory. See Rohrmoos Venture v.
UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 503–05 (Tex. 2019); Ellis v.
Renaissance on Turtle Creek Condo. Ass’n, Inc., 426 S.W.3d 843, 859 (Tex. App.—
–13– Dallas 2014, pet. denied); Dodd v. Savino, No. 14–12–00555–CV, 2014 WL 242881,
at *13 (Tex. App.—Houston [14th Dist.] Jan. 16, 2014, no pet.) (rejecting argument
that attorney’s affidavit testimony was conclusory where attorney attested she is duly
licensed attorney with personal knowledge of work performed and indicated type of
work performed).
AMPM, Asghar, and PTE cite two cases, Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299, 314 (Tex. 2006), and Kinsel v. Lindsey, 526 S.W.3d 411, 427 (Tex.
2017), for the proposition that a claimant must segregate legal fees accrued for those
claims for which attorney’s fees are recoverable from those that are not. See Chapa,
212 S.W.3d at 314; Kinsel, 526 S.W.3d at 427 (citing Chapa, 212 S.W.3d at 314).
In Chapa, the court remanded the attorney’s fee issue for a new trial because
appellant did not separate unrecoverable fees associated with a fraud claim from fees
recoverable on a breach of contract claim. Chapa, 212 S.W.3d at 310; see Kinsel,
526 S.W.3d at 428 (remanding to trial court for reconsideration of attorney’s fees
award). Nevertheless, the Chapa court noted the following:
A recognized exception to this duty to segregate arises when the attorney’s fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their “prosecution or defense entails proof or denial of essentially the same facts.” Flint & Assoc. v. Intercontinental Pipe & Steel, Inc., 739 S.W.2d 622, 624–25 (Tex. App.—Dallas 1987, writ denied). Therefore, when the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are “intertwined to the point of being inseparable,” the party suing for attorney’s fees may recover the entire amount covering all claims. Gill Sav. Ass’n v. Chair King, Inc., 783 S.W.2d 674, 680 (Tex. App.—Houston [14th Dist.] 1989), modified, –14– 797 S.W.2d 31 (Tex. 1990) (remanded to the trial court for reexamination of attorney’s fee award).
Chapa, 212 S.W.3d at 311.
AMPM, Asghar, and PTE cite no authority to support their characterization
of Borders’ claims of breach of contract, sworn account and quantum meruit as
“completely separate.” On the contrary, Borders asserted essentially identical
claims, based upon the same set of facts and circumstances against all three of these
related entities. The summary judgment was only for Borders’ breach of contract
claims against AMPM, Asghar, and PTE, and attorney’s fees are recoverable on a
claim of breach of contract. See TEX. CIV. PRAC. & REM. CODE § 38.001(b)(8).
Thus, the failure to segregate attorney’s fees in this case did not create a fact issue.
See Chapa, 212 S.W.3d at 311.
The court may determine the amount of reasonable and necessary attorney’s
fees on a motion for summary judgment where the evidence is clear, direct, positive,
uncontradicted, and free from inaccuracies and “circumstances tending to cause
suspicion.” See TEX.R. CIV. P. 166a(c); Ragsdale v. Progressive Voters League,
801 S.W.2d 880, 882 (Tex. 1990) (per curiam). “[T]he affidavit of the attorney
representing a claimant constitutes expert testimony that will support an award of
attorney's fees in a summary judgment proceeding.” Ellis, 426 S.W.3d at 857
(quoting Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 513 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied).
–15– If an attorney’s affidavit regarding fees is properly controverted by an
opposing attorney, a fact issue is raised on reasonableness and summary judgment
is precluded. Cammack the Cook, L.L.C. v. Eastburn, 296 S.W.3d 884, 894 (Tex.
App.—Texarkana 2009, pet. denied). To constitute a proper controverting summary
judgment affidavit on the issue of attorney’s fees, the affidavit must be made by an
attorney and on personal knowledge, set forth facts which would be admissible in
evidence, and show the affiant’s competence. Id.; Querner Truck Lines, Inc. v. Alta
Verde Indus., Inc., 747 S.W.2d 464, 468 (Tex. App.—San Antonio 1988, no writ).
We have already concluded that Lewis’ affidavit was competent summary
judgment evidence supported by detailed billing records showing billing statements
and payments. We conclude Richardson’s statement that Borders’ claimed
attorney’s fees and costs were not reasonable due to a difference in hourly rates
charged by different attorneys, with no additional factual comparatives or challenge
based upon knowledge, skill or experience did not constitute sufficient controverting
summary judgment evidence on the issue of attorney’s fees. See Eastburn, 296
S.W.3d at 894.5 We overrule AMPM, Asghar, and PTE’s first and second issues.
5 The same holds true for Richardson’s conclusory statement that $2500 in anticipated attorney’s fees was unreasonable and “completely speculative.” –16– We affirm the trial court’s judgment.
/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE
220262F.P05
–17– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
AMPM ENTERPRISES, INC., On Appeal from the County Court, POINT TARGET ENTERPRISES, Kaufman County, Texas INC., AND KHAWAR ASGHAR, Trial Court Cause No. 106862-CC. Appellants Opinion delivered by Justice Goldstein. Justices Carlyle and No. 05-22-00262-CV V. Kennedy participating.
BORDERS & LONG OIL, INC., Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee BORDERS & LONG OIL, INC. recover its costs of this appeal from appellants AMPM ENTERPRISES, INC., POINT TARGET ENTERPRISES, INC., AND KHAWAR ASGHAR.
Judgment entered September 7, 2023.
–18–