United States District Court, N.D. Texas, Fort Worth Division
AUTOBAHN IMPORTS, L.P. D/B/A LAND ROVER OF FORT WORTH, Plaintiff,
JAGUAR LAND ROVER NORTH AMERICA, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
McBRYDE United States District Judge.
the court for consideration and decision is the motion of
plaintiff, Autobahn Imports, L.P., d/b/a Land Rover of Fort
Worth ("Autobahn"), for summary judgment. After
having considered the motion, the response thereto of
defendant, Jaguar Land Rover North America, LLC
("Jaguar"), Autobahn's reply, the record of
this action, and applicable legal authorities, the court has
concluded that plaintiff's motion should be granted in
part, and that the unresolved part should be severed into a
Background and Litigation History
action was filed by Autobahn in state court to recover
damages and attorney's fees based on Jaguar's alleged
violations of sections 2301.467(a)(1) and 2301.468 of the
Texas Occupations Code ("Code") and Jaguar's
alleged violation of section 1750.50(b)(1) of the Texas
Business & Commerce Code. Doc. 1-4, ¶¶26, 29,
&30. Jaguar removed the action to this court.
is a retailer/dealer of vehicles of which Jaguar is a
distributor/manufacturer. Doc. 22 at 5. Jaguar had an
incentive-based program, which it referred to as the
"Business Builder, " contingent, among other
things, on a dealer's sales. Id. Under the
program, Jaguar paid its dealers a percentage of the
manufacturer's suggested retail price ("MSRP")
on each Land Rover vehicle sold if certain requirements were
dispute arose between Autobahn and Jaguar as to whether
Autobahn's sales of vehicles to leasing companies
qualified Autobahn to receive the incentive benefits
contemplated by the Business Builder program. Following an
audit of Autobahn's sales from February 1, 2013, through
January 31, 2014, Jaguar charged-back against Autobahn $317,
204.80, representing incentive benefits that Autobahn had
received during that time period from sales to leasing
companies. Id. at 6.
2 014, Autobahn initiated an administrative claim against
Jaguar for violations of certain provisions of chapter 2301
of Subtitle A of chapter 14 of the Code. Doc. 21 at 6, ¶
24. On September 7, 2016, the Board of the Texas Department
of Motor Vehicles ("Board"), acting through its
Chairman, issued a final order resolving in favor of Autobahn
its dispute with Jaguar over the incentive payments. Doc. 22
at 28. Jaguar filed a motion for rehearing, which was denied
by the Board by decision and order issued October 17, 2016.
Id. at 30.
authorized by section 2301.751(a)(2) of the Code, Jaguar
sought judicial review of the Board's final order by a
document filed in the Court of Appeals for the Third Judicial
District of Texas on November 16, 2016. Doc. 36 at App. 005.
The appeal remains unresolved. Id. at App. 050-App.
live pleading in this action is its first amended complaint.
Doc, 21. Its allegations clarify the causes of action
Autobahn is asserting against Jaguar, by stating them as
1. The first cause of action (Count 1) is a claim by Autobahn
against Jaguar under the Texas Deceptive Trade Practices Act
("DTPA"), pursuant to section 2301.805(a) of the
Code. Doc. 21 at 4, ¶ 15, & 8-11, ¶¶
29-40. By this cause of action, Autobahn seeks to recover
from Jaguar $317, 204.80, trebled to $951, 614.40. IcL at 8,
¶ 29, & 12, ¶ 40.
2. Autobahn seeks by its second cause of action (Count 2) to
recover $317, 204.80 from Jaguar for breach of contract,
claiming that Jaguar breached its contract with Autobahn by
charging back against Autobahn the $317, 204.80 mentioned
above. Id. at 12, ¶¶ 41-42.
3. Count 3 of the amended complaint seeks a declaratory
judgment. The court does not consider that count to be
relevant to the court's ruling on Autobahn's motion
for summary judgment.
4. Autobahn's fourth cause of action (Count 4) seeks
recovery of attorney's fees incurred by it in pursuing
its administrative claim against Jaguar and in pursuit of
this action. IcL. at 13-14, ¶¶ 45-48.
of Autobahn's Motion, and Responsive Positions Taken by
seeks by its motion for summary judgment a summary
adjudication in its favor of the first, second, and fourth
causes of action described above, which Autobahn refers to in
the motion as "its three causes of action against
[Jaguar]." Doc. 27 at 4, ¶ 2. It describes in a
general way the summary adjudications it seeks as follows:
Autobahn is entitled to summary judgment on each of its three
causes of action against [Jaguar], which it asserted in this
matter following an administrative proceeding before the
Texas Motor Vehicle Board (the "Board"). First,
[Jaguar]'s violations of Chapter 2301 of the Texas
Occupations Code (the "Code"), as found by the
Board, establish Autobahn's claim under the Texas
Deceptive Trade Practices Act ("DTPA") as a matter
of law, by virtue of a DTPA tie-in statute contained in the
Code. Second, the Board expressly found that the underlying
agreements in this matter collectively constitute valid and
enforceable contracts that [Jaguar] breached by virtue of
wrongful chargebacks. Finally, although Chapter 3 8 of the
Texas Civil Practices and Remedies Code may not allow an
award of attorneys' fees against a limited liability
company, Autobahn is still entitled to recover its
attorneys' fees by prevailing on its claims for violation
of the DTPA.
Id. at 4-5, ¶ 2 (footnotes omitted).
starts its response with its contention that Autobahn is not
entitled to pursue this action because it has not exhausted
its administrative remedies. Doc, 35 at 1-3 & 5-9. It
maintains that Autobahn's administrative remedies have
not been exhausted until Jaguar's appeal from the
Board's final order has been concluded. Id. at
7. Alternatively, Jaguar argues that even if Autobahn had the
authority to pursue this action, there would be no basis for
an award of treble damages because Autobahn has not
established that the conduct of Jaguar about which Autobahn
complains was committed knowingly, as contemplated by the
pertinent section of the DTPA (section 1750.50(b)(1) of the
Texas Business & Commerce Code). Id. at 9-11.
Jaguar notes that it has credited Autobahn's customer
account with the amount of $317, 204.80 (subject to a full
reservation of rights), with the consequence, Jaguar argues,
that it cannot be considered to have knowingly continued to
withhold Autobahn's money. Id. at 10-11.
adds that even if Autobahn were entitled to recover
attorney's fees, its recovery should be limited to
attorney's fees incurred in the prosecution of this
action, and should not include fees incurred in the Board
proceeding or in Jaguar's state court appeal from the
Board's final order. Id. at 11-12, Finally,
Jaguar takes the position that Autobahn's motion for
summary judgment would be inconsistent with a ruling the
court earlier made that Jaguar could not assert a
counterclaim against Autobahn in ...