On several occasions, StarTex was required to generate [Triton's] monthly invoice using estimated reads based on historical usage. This was a result of CenterPoint being unable to gain access to [Triton's] meters to obtain the actual usage amounts. All such estimated reads were reconciled on subsequent invoices once CenterPoint obtained access to the meters, such that the final invoice reflected only actual usage. All estimated reads and subsequent reconciliations were detailed on [Triton's] monthly invoices.
StarTex provided invoices and the affidavit of Robert Verhage, the Director of Credit and Collections for StarTex, substantiating these arguments. Verhage averred that the invoices attached as summary judgment evidence were true and correct copies of Triton’s monthly invoices. Verhage testified that, after Triton terminated the ESA on approximately October 19, 2008, "StarTex generated one final invoice that contained the final, outstanding balance that was reconciled to correct all estimated reads." The final invoice reflected that Triton owed $155, 034.18, and Verhage averred that Triton subsequently made $50, 000.00 in payments, leaving $105, 034.18 due and owing. Thus, StarTex argued that Triton breached the ESA when it failed to pay for $105, 034.18 worth of electricity provided under the ESA and subsequent amendments.
StarTex also asserted that Triton breached the ESA when it terminated the ESA early. StarTex stated in its motion, and Madden averred in his affidavit, that when StarTex entered into the Second Amendment extending the terms of the ESA through May 2011, it contracted with the electricity producer "to purchase enough power to service the entire thirty-six (36) month term of the Second Amendment and the purchases were tailored to fit Triton’s particular ‘shape’." Thus, the ESA contained a liquidated damages clause for early termination of the contract which entitled StarTex to $197, 323.95 in liquidated damages after Triton unilaterally terminated the contract on October 10, 2008, approximately thirty-one months before the contract term was set to expire in May 2011.
StarTex argued, based on Madden’s statements in his affidavit, that this early termination clause was a valid liquidated damages provision because, "[i]n the case of an MCPE contract, it is impossible to calculate the total damages that stem from an early termination until the term of the breached contract has expired and StarTex has been able to complete its attempts at mitigating the damages." StarTex argued that it "must continue to purchase Triton’s power from its supplier until May of 2011" and that it was required to "purchase this power in Triton’s particular ‘shape’" even though StarTex did not have another customer to sell it to because StarTex "would have to find a new customer who not only wants an MCPE contract, but has the exact same term and volume requirements and ‘shape’ as Triton." StarTex thus calculated its liquidated damages as $197, 323.25, based on the sum of Triton’s three highest monthly bills because the mark-to-market losses were incapable of calculation until May 2011.
Finally, StarTex argued that it was entitled to attorney’s fees on its breach of contract claim. It argued that, under its fee agreement with its counsel, it would incur attorney’s fees "in an amount equal to twenty-five percent (25%) of all amounts recovered from [Triton], " or $75, 589.36, and that this amount was reasonable and necessary. The summary judgment motion was accompanied by the affidavit of Rodney Drinnon, counsel for StarTex, who averred to the specific services provided by his firm and stated that the services described were reasonable and necessary and that "twenty-five percent (25%) is a reasonable contingency fee for the services provided."
On January 28, 2010, Triton amended its answer, adding claims that StarTex "materially breached the contract, which was modified by agreement, " that Triton "complied with the terms of the modified contract, " that Triton was "discharged from performing under the contract after [StarTex] materially breached same, " and that StarTex failed "to mitigate its damages as required under applicable law, limitation of warranty, limitation of liability, laches, and waiver." Triton also sought a continuance of the summary judgment hearing, which the trial court granted.
On April 5, 2010, Triton responded to StarTex’s summary judgment motion. Triton did not contest StarTex’s statements that the ESA and subsequent amendments were valid contracts. However, Triton asserted that StarTex "made several promises to [Triton] and [orally] modified the terms of the parties’ agreements." Triton argued that Michael Gary, Triton’s property manager, "had several discussions with John Bejger, a representative of StarTex, relating to StarTex’s estimated usage and Triton’s disputes over the StarTex invoices." As supported by Gary’s affidavit in Triton’s summary judgment evidence, Gary represented to Bejger that the practice of estimating electricity usage for several consecutive months was causing damage to Triton because Triton could not bill its tenants based on estimated billing. Gary also averred that Triton had "done everything in its power" to give CenterPoint access to the meters and that Triton would not continue the business relationship with StarTex "if the estimations and errors in billing continued on a month to month basis." Gary further averred that Bejger represented that the errors would be corrected, that StarTex was attempting to resolve the allegations that CenterPoint did not have access to Triton’s meters, and "that StarTex’s previous practice of estimating usage of consecutive months would not continue." Gary stated that Triton entered into the Second Amendment based on these representations by Bejger. Triton’s response asserted that Gary’s affidavit about his discussions with Bejger raised a disputed issue of material fact as to whether there was a meeting of the minds in reaching a valid modification.
Triton also argued that it was excused from performing under the ESA based on StarTex’s material breach of the agreements "when it failed to provide [Triton] with accurate and correct billings for the electricity that it actually delivered." Triton’s motion referenced the invoices sent by StarTex and provided details regarding which specific invoices were based on estimated usage, including several instances in which it was invoiced based on estimated usage in consecutive months.
Triton presented Gary’s affidavit, averring that Gary first contacted StarTex to resolve the billing problems during the original term of the ESA and that StarTex responded by saying that CenterPoint could not access and read the electricity meters in Triton’s buildings. Triton included in its summary judgment evidence various e-mails between Gary and StarTex in which Gary raised questions and disputes over the amounts billed in the invoices and StarTex provided information reconciling its charges. Gary’s e-mails did not contain any specific calculations or amounts with regard to the alleged errors or inaccuracies. StarTex’s e-mail reflects that it sent Triton a spreadsheet demonstrating how StarTex reconciled the bills and comparing Triton’s usage and rates. Triton also included an e-mail from CenterPoint to StarTex, received in response to StarTex’s inquiry regarding the difficulty of getting actual meter readings. The CenterPoint representative stated,
I disagree that CenterPoint is at fault for the estimations. Triton does not provide us unencumbered, permanent, ongoing access to our meters. The estimation reasons are specific to each address, but on some accounts Triton has their meters locked inside a mechanical room to which we’re supposed to go track down an employee and a key, apparently unsuccessfully at times, perhaps because the right employee can’t be found. On other accounts, we’re supposed to enter through a locked gate where the gate code we have on record has been changed. Triton has a responsibility to keep us updated if access arrangements change.
Triton’s summary judgment evidence also included the affidavit of Jim Phillips, the Vice President of IEA Engineering, an energy engineering company. Phillips stated that he reviewed StarTex’s billing invoices and Triton’s historical electricity usage. He averred that he found
various and repeated errors and irregularities in the billings for the Triton buildings. These errors include, without limitation:
