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Austin Tapas, LP v. Performance Food Group, Inc.

Court of Appeals of Texas, Third District, Austin

August 1, 2019

Austin Tapas, LP d/b/a Malaga Tapas & Bar, and Greg Schnurr, Appellants
v.
Performance Food Group, Inc., Appellee

          FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY NO. C-1-CV-16-012359, THE HONORABLE ERIC SHEPPERD, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Kelly and Smith

          MEMORANDUM OPINION

          JEFF ROSE, CHIEF JUSTICE

         Appellants Austin Tapas, LP, d/b/a Malaga Tapas & Bar, and Greg Schnurr appeal from the trial court's judgment in favor of appellee Performance Food Group, Inc. (PFG) in its suit for breach of contract. We will affirm the judgment.

         BACKGROUND

         Austin Tapas, LP operated Malaga Tapas & Bar (since closed) in downtown Austin. PFG supplied food products to Malaga from July 2014 to early 2017. After Austin Tapas, LP failed to pay invoices totaling $6, 795.75 for goods PFG had delivered to Malaga, PFG filed a suit on a sworn account against Austin Tapas, LP to recover the invoiced amounts.[1] See Tex. R. Civ. P. 185 (suit on account). PFG also sued Greg Schnurr, alleging that he is the general partner of Austin Tapas, LP. As support for its claim, PFG attached to its petition, and later had admitted in evidence, a document titled "Customer Account Application." The application names the purchaser as having the "legal business name" of "Austin Tapas, LLC," doing business under the trade name of "Malaga Tapas & Bar." The application is signed by Schnurr and identifies him as the person "authorized to sign checks" and as "Principal Owner or Officer" of Austin Tapas, LLC, and lists his title as "General Partner."

         In response to PGF's suit, Austin Tapas, LP and Schnurr filed an unsworn answer generally denying the allegations and asserting various affirmative defenses, including that Austin Tapas, LP was not a party to the Customer Account Application because that document names "Austin Tapas, LLC" as the purchaser not Austin Tapas, LP, and that Schnurr was not individually liable for the debt because he was not a general partner of Austin Tapas, LP.

         After a bench trial, the trial court rendered judgment that Austin Tapas, LP and Schnurr were jointly and severally liable to PFG for $6, 795.75 plus interest and attorney fees. In support of its judgment, the trial court made findings of fact and conclusions of law including, among other matters not at issue here, that:

1. . . . Defendant Greg Schnurr signed a contract titled "CUSTOMER ACCOUNT APPLICATION" that identified [Schnurr] as "General Partner" and "Authorized Agent of Purchaser" and identified "Austin Tapas, LLC" as "Applicant" and "Purchaser."
2. In fact, Defendant Schnurr served as General Partner of and was employed as General Manager by Defendant Austin Tapas, LP d/b/a Malaga Tapas & Bar
3. Defendant Austin Tapas, LP proceeded to accept from and pay for goods and services provided by Plaintiff as contemplated in the contract.
4. . . . Defendant Austin Tapas, LP defaulted on its payments for goods and services it accepted from Plaintiff in the amount of $6, 795.[75].[2]
5. . . . Austin Tapas, LP admitted accepting such goods and services and to the amounts Plaintiff alleged were due and owing.

         Based on these findings, the trial court concluded that Schnurr was liable to PFG "as general partner of Austin Tapas, LP" and that Schnurr and Austin Tapas, LP were jointly and severally liable to PFG for the damages awarded by ...


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