Opinion
No. 05-05-01035-CV.
Filed February 1, 2007.
On Appeal from the 68th Judicial District Court Dallas County, Texas, Trial Court Cause No. 02-08820-C.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER Opinion By Justice FitzGerald
MEMORANDUM OPINION
Texas Pari-mutuel Management, Inc. ("Texas Pari-mutuel") appeals the trial court's judgment incorporating the jury's verdict in favor of AAF-McQuay Service Air Conditioning ("McQuay") in this suit on a contract. Texas Pari-mutuel raises two issues on appeal, arguing first that it was not a party to the contract on which liability is predicated and alternatively that the trial court's judgment improperly includes awards of attorney's fees and pre-verdict interest. The proceedings and facts related to this case are known to the parties, so we do not recite them here in detail. Further, because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm the trial court's judgment. Gulf Greyhound Park is a facility near LaMarque, Texas that hosts dog races. Its interior viewing area is cooled by a system that includes four chillers. The chillers were manufactured by appellee McQuay, and — for the yearly payment of $24,324 — McQuay provided maintenance as outlined in an Assured Maintenance Agreement (the "Agreement"). This lawsuit was triggered by the breakdown of two of the chillers in rapid succession. McQuay agreed to repair one of the chillers, but not the other, claiming the breakdown of the second unit was caused by customer negligence and was, therefore, not covered by the Agreement. In response to McQuay's refusal to repair the second chiller, Gulf Greyhound Park wrote a letter terminating the Agreement one year early.
Ultimately, Hartford Steam Boiler Inspection and Insurance Company ("Hartford"), Texas Pari-mutuel's insurer, paid to repair the second chiller. Texas Pari-mutuel then sued McQuay to recover those funds for its insurer, alleging McQuay breached the Agreement by refusing to repair the second chiller. McQuay counterclaimed against Texas Pari-mutuel, also alleging breach of the Agreement, in an attempt to recover the final year's payment. The jury found (1) no breach of the Agreement by McQuay, but (2) a breach of the Agreement by Texas Pari-mutuel. The trial court entered judgment ordering Texas Pari-mutuel to pay $24,324 to McQuay, along with $15,762.96 in pre-verdict interest and attorneys' fees. Texas Pari-mutuel appeals.
In its first issue, Texas Pari-mutuel argues it was not a party to the Agreement. The Agreement, by its terms, defines obligations between McQuay and its "Customer"; the "Customer" is identified in the body of the document as "Gulf Greyhound Park." In this Court, Texas Pari-mutuel argues the Agreement's Customer was Gulf Greyhound Park, Ltd. ("GGP, Ltd."); McQuay argues the Customer was Texas Pari-mutuel. However, in the trial court, Texas Pari-mutuel never contested the allegation that it was party to the Agreement until after the jury returned its unfavorable verdict. On the contrary, the "FACTS" section of each of Texas Pari-mutuel's petitions, including the Second Amended Original Petition filed the morning trial began, stated unequivocally that:
Neither party argues that "Gulf Greyhound Park" is a third legal entity, separate from GGP, Ltd. and Texas Pari-mutuel.
Defendant [McQuay] contracted with Plaintiff [Texas Pari-mutuel] to maintain these chillers pursuant to a comprehensive maintenance agreement contract (hereinafter referred to as "The Agreement").
"Assertions of fact, not plead in the alternative, in the live pleadings of a party are regarded as formal judicial admissions." Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (quoting Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983)). A fact admitted in this way is conclusively established in the case without the introduction of the pleadings or presentation of other evidence. Musick, 650 S.W.2d at 767. Thus, Texas Pari-mutuel was bound conclusively by its pleading's clear and unequivocal assertion that it was party to the Agreement, and it was barred from later disputing that fact. See Wolf, 44 S.W.3d at 568.
Texas Pari-mutuel argues that it did offer evidence disputing its party status without objection by McQuay, rendering the judicial admission ineffective. See Musick, 650 S.W.2d at 769 (party relying on opponent's pleadings as judicial admissions of fact must protect record by objecting to introduction of evidence contrary to admission of fact). We disagree that Texas Pari-mutuel offered evidence disputing its party status. Our review of the record reveals no probative evidence that the Agreement's Customer was really GGP, Ltd. Indeed, we find absolutely no reference to GGP, Ltd. (or, more generally, to a "limited partnership") anywhere in the testimony or arguments before the jury. We conclude Texas Pari-mutuel judicially admitted it was party to the Agreement. We decide Texas Pari-mutuel's first issue against it. In its alternative appellate issue, Texas Pari-mutuel argues the trial court erred in awarding Agreement-based attorneys' fees and pre-verdict interest to McQuay. The attorneys' fees argument is rooted in two sections of the Agreement. Paragraph 2 of the Agreement states in relevant part:
McQuay Services will provide the above-described services for that sum and in accordance with the payment terms herein . . . . McQuay Services reserves the right to add to any account outstanding more than 30 days interest at 1 ½ % per month or the highest rate allowed by law. Customer agrees to pay all costs of collection incurred by McQuay Service including, but not limited to, collection agency fees, attorneys' fees and court costs.
Paragraph 6 deals with termination of the Agreement by the parties and includes the following provision concerning payment on termination:
If this Agreement is terminated for any reason, other than a breach by McQuay Service, Customer shall pay, in addition to all sums currently due and owing, the entire remaining balance due for the term of this Agreement . . . .
Texas Pari-mutuel argues these two paragraphs provide mutually exclusive remedies for different circumstances. It argues that its liability stems from termination of the Agreement and thus is governed only by paragraph 6. Because the provision for recovering attorneys' fees stems from a different paragraph, Texas Pari-mutuel avers, that provision is not applicable to this case.
Texas Pari-mutuel strains to draw a distinction between collection of accounts under paragraph 2 of the Agreement and liability for early termination under paragraph 6 of the Agreement. In the circumstances of this case, this is a distinction without a difference. When Texas Pari-mutuel terminated the Agreement, it became obligated by paragraph 6 to pay amounts due and owing at the time of termination plus the final year's payment for services. It refused to make those payments. Thus, its account was outstanding within the meaning of paragraph 2 of the Agreement. According to the plain meaning of the words of paragraph 2, Texas Pari-mutuel was then bound to pay all costs of collection, including attorneys' fees. The trial court did not err in ordering Texas Pari-mutuel to pay those fees.
Finally, Texas Pari-mutuel argues the trial court erroneously calculated pre-verdict interest from the Agreement-termination date, rather than from the date McQuay filed its counterclaim. Texas Pari-mutuel cites to the Minnesota statute concerning pre-verdict interest, which states that interest is to be computed "from the time of the commencement of the action . . . or the time of a written notice of claim, whichever occurs first." Minn. Stat. § 549.09(b) (2005). However, this statutory directive is specifically predicated on the introductory phrase of the above-quoted section and sentence: "Except as otherwise provided by contract or allowed by law . . ." Id. (emphasis added). The statute, on its face, is intended to yield to the parties' own agreement on the issue of accrual of pre-verdict interest. The Agreement states that interest can be added to "any account outstanding more than 30 days." We reject Texas Pari-mutuel's argument that it should be governed by the interest statute instead of its own contract. We decide Texas Pari-mutuel's second issue against it as well.
We affirm the trial court's judgment.