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Star Tex Gasoline & Oil Distributors, Inc. v. Sterling Personnel Inc.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 22, 2017

STAR TEX GASOLINE & OIL DISTRIBUTORS, INC., Appellant,
v.
STERLING PERSONNEL INC., Appellee.

On appeal from the 117th District Court of Nueces County, Texas.

          Before Justices Rodriguez, Contreras, Benavides Memorandum Opinion by Justice Contreras

          MEMORANDUM OPINION

          DORI CONTRERAS Justice.

         In this contract dispute, appellant Star Tex Gasoline & Oil Distributors, Inc. (Star Tex) contends the trial court erred in granting two summary judgments in favor of appellee, Sterling Personnel, Inc. (Sterling). By two issues, Star Tex argues the trial court erred in granting (1) Sterling's traditional motion for summary judgment on Sterling's suit on sworn account (the first motion for summary judgment) and (2) Sterling's traditional motion for summary judgment on its failure-to-mitigate defense on Star Tex's DTPA counterclaim (the second motion for summary judgment). We affirm.

         I. Background

         The following background facts were taken from Sterling's original petition and motion for summary judgment.[1] Sterling provides staffing and recruiting services to companies in Corpus Christi, Texas and surrounding areas. On or about May 5 or 6, 2014, Star Tex contacted Sterling requesting Sterling's services in filling several positions, including an in-house CPA position. On May 7, 2014, the parties signed a letter agreement (the agreement) stating that Sterling would provide candidates to Star Tex and Star Tex agreed to pay Sterling 17% of the yearly salary of any of Sterling's candidates hired by Star Tex. Sterling also agreed to offer a "60-day replacement guarantee" on a candidate from the date of hire. The agreement was signed by Sterling's staffing coordinator and Ronnie King, president of Star Tex.

         On September 16, 2014, Star Tex interviewed one of Sterling's candidates, Wendy Pullin, for an in-house CPA position. That same day, Star Tex notified Pullin and Sterling that it wanted to hire Pullin at $80, 000 a year and wanted her to start the next day. Sterling ordered a "rush" background check and received the results the same day. Sterling learned that Pullin had three misdemeanor convictions. Pullin explained to

          Sterling that the convictions were for several bounced checks that resulted from her ex-husband's failure to pay child support. Sterling contacted King the following morning and notified him of the findings.[2] King hired Pullin despite the findings, and she worked for Star Tex from September 17, 2014 until June 6, 2015.

         Sterling sent Star Tex an invoice dated September 24, 2014 for $13, 600, an amount representing 17% of Pullin's salary. Star Tex failed to pay the invoice.

         On June 4, 2015, Sterling sued Star Tex, alleging suit on a sworn account, breach of contract, and quantum meruit. Star Tex filed a verified denial and a supplemental answer, in which it specifically pled the affirmative defense of failure of consideration. On October 27, 2015, Sterling filed the first motion for summary judgment. Star Tex filed a response to Sterling's motion, in which it asserted that Sterling breached the agreement with Star Tex by failing to "properly screen and interview" Pullin and that Star Tex's hiring of Pullin damaged Star Tex. Star Tex also objected to several of Sterling's summary judgment exhibits.

         On November 19, 2015, Star Tex filed a Deceptive Trade Practices Act ("DTPA") counterclaim, in which it asserted that: (1) it hired Pullin before learning of her criminal convictions; and (2) Sterling's failure to properly screen Pullin violated the DTPA. See Tex. Bus. & Com. Code Ann. §§ 17.01 et seq. (West, Westlaw through Ch. 49 2017 R.S.).

         On November 23, 2015, the trial court overruled Star Tex's evidentiary objections and granted summary judgment in Sterling's favor on its first motion for summary judgment on its suit for sworn account.

         On December 17, 2015, Sterling filed an amended answer to Star Tex's DTPA claim, in which it asserted the affirmative defenses of estoppel, waiver, laches, and failure to mitigate damages. Also on December 17, 2015, Sterling filed the second motion for summary judgment on Star Tex's DTPA claim, in which it argued that Star Tex failed to mitigate its damages by failing to use the remedy outlined in the agreement and, therefore, that it cannot show the damage element of its DTPA claim. In support of its motion, Sterling attached the agreement, several affidavits, and Pullin's time records. Star Tex filed a response, in which it asserted many of the same objections to Sterling's summary judgment evidence that had already been overruled by the trial court.

         On January 27, 2016, the trial court granted Sterling's second motion for summary judgment and ordered that Star Tex take nothing on its DTPA claims. The only remaining claim was Sterling's quantum meruit claim, which it nonsuited on May 5, 2016. That same day, the trial court signed a final judgment in Sterling's favor, awarding it $13, ...


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