Autobahn Imports, L.P. d/b/a Land Rover of Fort Worth v. Jaguar Land Rover North America, LLC

Filing 38

Memorandum Opinion and Order..granting in part the motion for summary judgment and the unresolved part should be severed into a separate action. Autobahn have and recover from Jaguar the sum of $951,614.40 as a trebling of its economic damages of $317,204.80. The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment in favor of Autobahn against Jaguar as to such recovery. The court further orders that a new civil action bearing c ase no. 4:17-cv-499, styled the same as the style of the instant action, is created, and the court orders that Autobahn's claims related to recovery of attorney's fees against Jaguar are severed into such new civil action; and the court fur ther orders that Autobahn file by July 5 2017 in such new civil action, and serve on Jaguar, a complaint limited to the issue of attorney's fees it seeks to recover against Jaguar, and the court further orders that by July 26 2017, Jaguar will file and serve its answer or other response to such complaint. (Ordered by Judge John McBryde on 6/20/2017) (wrb)

U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

p·

IN THE UNITED STATES DISTRIC COURT
NORTHERN DISTRICT OF TE AS
FORT WORTH DIVISION

,JtJi\1 2 Q 2017

CLEF

AUTOBAHN IMPORTS, L.P. D/B/A
LAND ROVER OF FORT WORTH,
Plaintiff,

vs.
JAGUAR LAND ROVER NORTH
AMERICA, LLC,
Defendant.

i_.CHJRT

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NO. 4:16-CV-1172-A

MEMORANDUM OPINION
and
ORDER
Before 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
separate action.
I.

Pertinent Background and Litigation History
This 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.
~~

26, 29, & 30. 1

Doc. 1-4,

Jaguar removed the action to this court. Doc.

1.

Autobahn 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 met. Id.
A 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 chargedback against Autobahn $317,204.80, representing incentive
benefits that Autobahn had received during that time period from
sales to leasing companies.

Id. at 6.

In May 2014, Autobahn initiated an administrative claim
against Jaguar for violations of certain provisions of chapter

'The "Doc._" references are to the numbers assigned to the referenced items on the docket in
this Case No. 4: 16-CV -1172-A.
2

2301 of Subtitle A of chapter 14 of the Code.
24.

Doc. 21 at 6, ,

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.

As 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.
remains unresolved.

Doc. 36 at App. 005.

The appeal

Id. at App. 050-App. 052.

Autobahn's 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
follows:
1.

The first cause of action (Count 1) is a claim by

Autobahn against Jaguar under the Texas Deceptive Trade
Practices Act
the Code.

("DTPA"), pursuant to section 2301.805(a) of

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.
, 40.

3

Id. at 8, , 29, & 12,

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.
3.

Id. at 12,

~~

41-42.

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.

Id. at 13-14,

~~

45-48.
II.

Grounds of Autobahn's Motion,
and Responsive Positions Taken by Jaguar
A.

Autobahn's Motion
Autobahn 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]."

4

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 38 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,
B.

~

2 (footnotes omitted) .

Jaguar's Response
Jaguar 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
5

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.

Jaguar 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 this action because Jaguar had not exhausted
its administrative remedies as to the relief it sought by way of
the counterclaim.

Id. at 12-13. 2

2

Jaguar included in its responsive brief objections to cet1ain statements made in an affidavit
Autobahn submitted in suppot1of its motion for summary judgment. Doc. 35 at 3-4. Rather than to do a
separate order directed to those objections, the com1 is making known that it has given to the contents of
the affidavit whatever effect it deserves from an evidentiary standpoint. The court has noted that Jaguar
does not contend that any of the statements made by the affiant are not truthful and accurate.
6

III.

Analysis
A.

The Threshold Exhaustion Issue
Jaguar's contention that Autobahn cannot pursue its claims

in this action so long as Jaguar's appeal from the Board's final
order in favor of Autobahn has not been resolved is predicated on
the following language used by the Texas Supreme Court in its
second opinion in Subaru of Am. v. David McDavid Nissan
The Board's decision becomes "final" (and thus a party
has exhausted administrative remedies) for purposes of
a party's pursuing damages in a trial court for Codebased claims: (1) after the time to seek substantialevidence review of the Board decision expires, if no
affected person seeks such review, see Tex.Rev.Civ.
Stat. art. 4413(36), § 7.01(a)-(b); or (2) after an
affected person who seeks judicial review exhausts the
substantial-evidence review avenues, see Tex.Rev.Civ.
Stat. art. 4413(36), § 7.01(a).
84 S.W.3d 212, 224

(Tex. 2002).

Jaguar reasons that so long as its appeal from the Board
decision is pending, Autobahn, according to the language used by
the Texas Supreme Court, has not exhausted its administrative
remedies for the purpose of pursuing damages in the trial court
for Code-based claims, with the consequence that this court has
no jurisdiction to resolve those claims.
Autobahn disagrees, contending that the Subaru language upon
which Jaguar relies is pure dicta, and that Jaguar's argument is

7

directly addressed by section 2301.755 of the Code, which
provides that an appeal such as Jaguar has taken from the final
Board order, does not affect the enforcement of such an order by
an action such as this action Autobahn has brought against
Jaguar, and also addressed by the more general provision of
section 2001.176(a) (3) of the Texas Government Code that the
filing of a petition to vacate a state agency decision for which
other than trial de novo is the manner of review authorized by
law does not affect the enforcement of an agency decision.
The court has concluded that Autobahn has the better of the
exhaustion of administrative remedies argument.
Autobahn is correct in saying that the language of Subaru
upon which Jaguar relies is nothing more than dicta.

The

automobile dealer which initiated Subaru in the trial court had
not sought any administrative relief before it initiated the
action.

Subaru, 84 S.W.3d at 217.

Consequently, the dealer was

faced with the barrier to judicial relief existing by reason of
the exclusive jurisdiction vested in the Board to resolve the
kinds of disputes the dealer sought to resolve judicially.

There

was no need for the Court to discuss what would have happened if
the dealer had successfully pursued his administrative remedies

8

and the losing party in the administrative process had then
sought judicial review of the Board ruling.'
In passing, the court would further note that the statutes
cited by the Court in Subaru in support of the language of that
opinion upon which Jaguar relies, do not appear to support the
language.

The Supreme Court cited sections 7.01(a) and (b) of an

earlier version (Tex.Rev.Civ.Stat. art. 4413(36) 4 ) of what is now
codified as chapter 2301 of the Code.

Subaru,

84 S.W.3d at 224.

The court cannot find anything in either of the cited sections
that supports the conclusions reached by the Subaru court in the
language under discussion.
On the other hand, the statutory provisions upon which
Autobahn relies for the bringing and prosecution of this action
against Jaguar could not be any clearer in establishing that
Autobahn had the legal right to bring this action, and now to
prosecute it.

Section 2001.176 of the Texas Government Code

makes clear that a petition to vacate the final order of a state
agency that is subject to a substantial-evidence review does not
affect the enforcement of the agency's decision.

Even more

3

The Subaru dicta on which Jaguar relies was repeated, again as dicta, in the unrepmted decision
of the Dallas Comt of Appeals in Ford Motor Co. v. Metro Ford Truck Sales, Inc., No. 05-02-00245-CV,
2002 WL 31296626 (Tex. App.-Dallas Oct. 14,2002, pet. denied)(not designated for publication).
4

Tex.Rev.Civ.Stat. art. 4413(36) (2002) is available on Westlaw "Texas Statutes AnnotatedHistorical" database. It was repealed by Acts 2001, 77th Leg., ch. 1421, § 13, eff. June I, 2003.
9

direct to this action is section 2301.755 of the Code, which
provides, subject to exceptions not applicable here,

"[a]n appeal

under this subchapter does not affect the enforcement of a final
board order . . . . " Tex. Occ. Code Ann.

§

2301.755.

There can

be no reasonable contention that the Board order Autobahn is
seeking to enforce is not a "final board order."

Jaguar hardly

could argue to the contrary, having explained in its notice of
direct appeal from the Board's order that "[Jaguar] brings this
administrative appeal seeking judicial review of the actions
taken, and a Final Order issued, by Raymond Palacios, Jr.
('Palacios') in his official capacity as the Chairman of the
Board of the Texas Department of Motor Vehicles (the 'Board') on
September 1, 2016 (the '2016 Final Order')."

Doc. 36 at App. 006

(emphasis added) .
To whatever extent Jaguar might be contending that the
institution and prosecution of this action does not constitute
"enforcement of a final board order," the court would note that
such a contention would be without merit.

Immediately following

section 2301.755 of the Code is the subchapter that defines the
"Penalties and Other Enforcement Provisions" that can be utilized
to enforce a final Board order.
Texas Codes Ann. at 182-192

Tex. Occ. Code Ann., Vernon's

(West 2012).

Included under the

"Penalties and Other Enforcement Provisions" heading is section
10

2301.805, which authorizes the bringing of a civil action of
exactly the kind Autobahn has brought here against Jaguar, and
which includes the following provision:
(b) In an action brought under this section, and
in the interest of judicial economy and efficiency, a
judgment entered in the action must give deference to
the findings of fact and conclusions of law of the
board contained in any final order that is the basis of
the action.
Code§ 2301.805(b).
Thus, the court concludes that Autobahn was entitled to
bring, and is now entitled to prosecute, this action for the
purpose of enforcing the Board's final order of September 7,
2016, resolving in favor of Autobahn its dispute with Jaguar over
the incentive payments.

If there otherwise were any uncertainty

as to when the Board order became final, it would be resolved by
the language of section 2001.144(a) (2) (A) of the Texas Government
Code, which reads in pertinent part that: "[a] decision or order
in a contested case is final

.

filed on time, on the date

the order overruling a motion

for rehearing is signed."
2001.144(a)(2)(A).

'

if a motion for rehearing is

Tex. Gov't Code Ann. §

In this case, the order overruling Jaguar's

motion for rehearing was signed October 17, 2016, Doc. 22 at 30,
more than two months before this action was initiated.

11

B.

The Affirmative Relief Sought by Autobahn
Jaguar's main resistance to Autobahn's request for summary

financial relief based on the conduct of Jaguar about which
Autobahn complains is its contention that Autobahn has not
exhausted its administrative remedies.

The court has rejected

that contention in the preceding subsection of this memorandum
opinion and order.

In its brief in response to Autobahn's

motion, Jaguar all but acknowledges that if it fails in its
exhaustion of administrative remedies contention, the findings
and conclusions of the Board support grant of the relief sought
by Autobahn.

Doc. 35 at 7-9.

Jaguar provided the following

explanation and concession in its responsive brief:
Autobahn has put forward no summary judgment
evidence concerning the facts on which this dispute is
based other than the record of the administrative
proceeding.
Indeed, Autobahn's Motion states that "all
that is asked of the Court [by Autobahn's Motion) is an
application of those facts and law [as decided by the
Board) to the causes of action afforded to Autobahn to
enforce the Board's Final Order." See Autobahn's
Motion, pp. 8-9, at ~ 16.
Perhaps in the future, after
conclusion of the pending substantial-evidence judicial
review process, that request may be appropriate, but at
this point it is not. Because Autobahn has failed to
exhaust its administrative remedies, it has failed to
establish as a matter of law that [Jaguar) has breached
a contract or that [Jaguar] has committed a false,
deceptive or unfair action which caused damage to
Autobahn. And, without a claim for breach of contract

12

or a DTPA violation, Autobahn has put forward no basis
for the recovery of attorney's fees.
Id. at 7-8

(emphasis added) .

Considering that this court has

decided that Autobahn has not failed to exhaust its
administrative remedies, there is no basis for a conclusion now
that it has failed to establish as a matter of law that Jaguar
breached a contract, that Jaguar has knowingly committed false,
deceptive and unfair acts which caused damages to Autobahn, and
that there is basis for recovery of attorney's fees.

Those

issues are discussed in more detail below.
1.

The Relief to Which Autobahn is Entitled Against Jaguar
Under Subchapter E. Chapter 17, Business & Commerce
Code

Section 2301.805 (a) (2) (A) of the Code provides as follows:
(a) Notwithstanding any other law, including
Subchapter E, Chapter 17, Business & Commerce Code, in
addition to the other remedies provided by this
subchapter, a person may institute an action under
Subchapter E, Chapter 17, Business & Commerce Code, or
any successor statute to that subchapter, and is
entitled to any procedure or remedy under that chapter,
if the person:

(2) is a franchised dealer who has sustained
damages as a result of a violation of:
(A) Subchapter J of this chapter[.]
Code

§

2301.805 (a) (2) (A).

13

Section 2301.805(a) (2) (A) applies because the Board
determined that Autobahn sustained damages as a result of
Jaguar's violations of sections of the Code found in subchapter J
of chapter 2301, specifically, sections 2301.467(a) (1) and
2301.468.

Doc. 28 at 27, 30.

And, as Autobahn's DTPA claim is a

claim under Subchapter E, Chapter 17, Business & Commerce Code,
the court must give deference to the findings of fact and
conclusions of law of the Board's final order.

Code,

§

2301. 805 (b) .
Autobahn may recover from Jaguar under the DTPA (1) the
amount of its economic damages,

(2), if the conduct of the

defendant was committed knowingly,

. . three times the amount

of economic damages, and (3) attorneys' fees.•
Code

§§

17 . 5o (b) ( 1)
a.

&

Tex.Bus. & Com.

(d) .

Economic Damages Under DTPA

The Board, by incorporating the Proposal for Decision of the
Administrative Law Judge, found that Jaguar improperly charged
back $317,204.80 against Autobahn for certain incentive payments
for sales to leasing companies.

Doc. 28 at 20, 30.

invalidated and rescinded those chargebacks.

The Board

Id. at 30.

As a

result, Autobahn claims that it is entitled to $317,204.80 in
economic damages under the DTPA as a matter of law.
13.

Doc. 27 at

On this point, Jaguar only contests Autobahn's entitlement
14

to economic damages on the basis that the Board's final order is
not final and that Autobahn has offered no summary judgment
evidence other than the Board's award against Jaguar of a DTPA
violation by Jaguar.

Doc. 35 at 8-9.

And, without conceding it

has the obligation to do so, Jaguar has credited Autobahn's
customer account in the amount of $317,203.80, subject to certain
conditions.

Id. at 10-11.

Having concluded that the Board's final order is final and
enforceable for the reasons set forth in the preceding section,
and giving deference to the findings of fact and conclusions of
law to the Board, the court concludes that the record establishes
as a matter of law that Autobahn is entitled to $317,204.80 from
Jaguar in economic damages under the DTPA.
b.

Treble Damages Under DPTA

Autobahn further contends that it is entitled to three times
the amount of economic damages under the DTPA because Jaguar's
conduct was "committed knowingly."
13-16.

Doc. 21 at 8-12; Doc. 27 at

In support, Autobahn recounts several of Jaguar's failed

arguments raised in the underlying administrative proceeding and
cites to certain findings of fact and conclusions of law
incorporated in the Board's final order that were resolved in
Autobahn's favor.

Id.

Autobahn also points out that Jaguar's

undisputed conduct subsequent to the Board's final order
15

satisfies the "committed knowingly" element.

Specifically,

Autobahn notes that Jaguar "has withheld and continues to
withhold Autobahn's money that was acquired by [Jaguar] through
wrongful chargebacks in the face of a final and enforceable order
from the Board."

Id. at 16.

In addition, Autobahn asserts that

Jaguar's counterclaim in this action, which the court dismissed
on February 27, 2017, merely "assert[ed] the same failed
arguments for subsequent Business Builder years in the face of a
final and enforceable order from the Board declaring its exact
conduct to have violated the Code .

"

"Knowingly," as defined in section 17.45 of the Texas
Business & Commerce Code, means "actual awareness, at the time of
the act or practice complained of, of the falsity, deception, or
unfairness of the act or practice giving rise to [Autobahn's]
claim .

"

The Texas Supreme Court explained that:

"Actual awareness" does not mean merely that a person
knows what he is doing; rather, it means that a person
knows that what he is doing is false, deceptive, or
unfair .
. In other words, a person must think to
himself at some point, "Yes, I know this is false,
deceptive, or unfair to him, but I'm going to do it
anyway."
St. Paul Surplus Lines Ins. Co., Inc. v. Dal-Worth Tank Co.,

974

S.W.2d 51, 53-54 (Tex. 1998).
The court has concluded that for reasons given by Autobahn,
the summary judgment record, including the findings and
16

conclusions of the Board, establishes as a matter of law that
Jaguar's conduct in issue was "committed knowingly," with the
consequence that Autobahn is entitled to receive as damages from
Jaguar treble its economic damages, or $951,614.40.

The most

reasonable inference to be drawn from the summary judgment record
is that Jaguar knew that its conduct was false, deceptive, or
unfair, but decided nevertheless to engage in that conduct.
c.

The Claim for Attorney's Fees

Autobahn claims that it is entitled to recover attorney's
fees "in the administrative case, in trial before this Court, and
on appeal of either or both proceedings."

Doc. 27 at 18.

Having

conceded that Chapter 38 of the Texas Civil Practice and Remedies
Code does not authorize an award of attorney's fees against a
limited liability company, id., Autobahn argues that it is
entitled to recover attorney's fees pursuant to section 17.50(d)
of the DTPA, which states: "Each consumer who prevails shall be
awarded court costs and reasonable and necessary attorneys'
fees."

Jaguar contends that the DTPA may, at most, entitle Autobahn
to an award of fees incurred in this action, but does not entitle
Autobahn to an award of fees incurred in the underlying
administrative proceeding.

Doc. 35 at 12.

17

The court disagrees with Jaguar.

Autobahn is entitled to

reasonable attorney's fees incurred by it in this action and in
the underlying administrative proceeding because both were
necessary to prevail in an action for damages under the DTPA.
Before instituting a DTPA action for Code-based claims in this
court, Autobahn was required to exhaust administrative remedies
before the Board.

It has done so, and is entitled to reasonable

attorney's fees incurred while it exhausted administrative
remedies as well as attorney's fees incurred in the prosecution
of this action.
The court is inclined to think that Autobahn should also
recover whatever attorney's fees it incurs in the future by
reason of the judicial review by the Austin Court of Appeals of
the Board's final order, which Jaguar set in motion in an attempt
to set aside the findings and conclusions of the Board that are
ingredients in Autobahn's successful pursuit of its claims
against Jaguar.

However, a final resolution of the issue of

attorney's fees is premature at this time.

The court has

concluded that the best course of action at this time would be to
sever Autobahn's claim for attorney's fees into a separate
action, to be resolved at an appropriate time in the future.

18

2.

The Breach of Contract Claim

Autobahn also asserts a claim for breach of contract against
Jaguar, seeking $317,204.80 in damages.

Autobahn references

certain findings of fact and conclusions of law incorporated in
the Board's final order to argue:
contract,

(1) Autobahn and Jaguar had a

(2) Jaguar is the proper party to sue for the contract,

(3) Autobahn performed under the contract,

(4) Jaguar breach the

contract, and (5) the breach damaged Autobahn in the amount of
$317,204.80.

Doc. 27 at 17.

Jaguar does not dispute the existence of a contract, but
disputes that the contract was breached, and claims that Autobahn
is not entitled to summary judgment because the Board's order is
not final.

Doc. 35 at 8.

For the same reasons discussed in

awarding Autobahn economic damages under the DTPA, the court
finds that Autobahn is entitled to summary judgment on its claim
for breach of contract.

However, because Autobahn's damages for

breach of contract are based on the same harm as its DTPA claim,
Autobahn is not entitled to double recovery under both its DTPA
and breach of contract claims.

See Waite Hill Servs., Inc. v.

World Class Metal Works, Inc., 959 S.W.2d 182, 184 (Tex. 1998),
C.

Conclusion
The court has concluded that Autobahn has exhausted its

administrative remedies, and is entitled to pursue this action
19

under the authority of sections 2301.755 and 2301.805 of the Code
and section 2001.176 of the Texas Government Code; that the
summary judgment record establishes without genuine dispute, and
as a matter of law, that Autobahn is entitled to recover economic
damages of $317,204.80 from Jaguar, and is entitled to have those
damages trebled, for a recovery of $951,614.40 from Jaguar, and
that Autobahn will be entitled to recover its attorney's fees
incurred in the administrative proceedings and in this action,
but the court is not making final determinations on the
attorney's fees issue at this time.

So that the award of

$951,614.40 in favor of Autobahn against Jaguar will be final and
appealable, the court is ordering a severance from this action
into a separate action.
The court recognizes that Jaguar contends that it has
credited to Autobahn's account $317,204.80, subject to certain
conditions.

It will be up to Jaguar to make whatever adjustments

in the conditions to the credit for it to be an unconditional
payment on the judgment award.

The court concludes that the

various arguments made by Jaguar in its response to the motion
for summary judgment in opposition to the relief that the court
is granting to Autobahn by this memorandum opinion and order are
without merit.

20

IV.
Order
Therefore,
The court ORDERS that Autobahn have and recover from Jaguar
the sum of $951,614.40 as a trebling of its economic damages of
$317,204.80.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment in favor of
Autobahn against Jaguar as to such recovery.
The court further ORDERS that a new civil action bearing
Case No. 4:17-CV-499, styled the same as the style of the instant
action, be, and is hereby, created, and the court ORDERS that
Autobahn's claims related to recovery of attorney's fees against
Jaguar be, and are hereby, severed into such new civil action;
and, the court further ORDERS that Autobahn file by July 5, 2017,
in such new civil action, and serve on Jaguar, a complaint
limited to the issue of attorney's fees it seeks to recover
against Jaguar, and the court further ORDERS that by July 26,
2017, Jaguar will file and serve its answer or other response to
such complaint.

/

SIGNED June 20, 2017.

..c/

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