JOHN McBRYDE, United States District Judge
Came on f or consideration the motion of defendant, Jupiter Aluminum, Inc., for summary judgment on all claims asserted by plaintiff and on Count 1 of defendant's counterclaims. The court, having considered the motion, the response of plaintiff, Century Sales, Inc., the reply, the record, the summary judgment evidence, and applicable authorities, finds that the motion should be granted.
I. Plaintiff's Claims and Defendant's Counterclaims
On June 5, 2002, plaintiff filed its original petition in the 348th Judicial District Court of Tarrant County, Texas. The action was brought before this court by notice of removal filed July 12, 2002. Plaintiff alleges that it served as a manufacturer's representative for defendant pursuant to a written contract in effect from March 1992 through December 2001 and that from "in or about 1998 through the present" defendant failed to pay commissions as required and wrongfully converted certain of plaintiff's accounts thereby depriving it of commissions due under the contract. Plaintiff asserts claims for breach of written contract and for statutory violation of § 35.84 of the Texas Business and Commerce Code, and seeks an accounting to determine the amounts owed to it.
Defendant asserts counterclaims against plaintiff with regard to two orders plaintiff took. Defendant alleges that plaintiff was negligent and breached its contract in accepting an order for Maas-Hansen made by an employee who had no authority to bind Maas-Hansen. Defendant also sues plaintiff for negligence and breach of contract regarding orders plaintiff took from Senox.
The Senox claims are not addressed by the motion for summary judgment.
II. Plaintiff's Motion for Leave to Amend
On December 2, 2002, plaintiff filed a motion for leave to file first amended petition [sic]. Plaintiff seeks to expand its damages claim to include the time period between 1993 and 1998. In addition, plaintiff seeks to add a claim for promissory estoppel. Plaintiff alleges that it was unable to make the amendment earlier "as the information regarding the losses sustained between 1993 and 1997 was only learned through discovery and most recently at the deposition of Jack Zimmermann, held on October 22, 2002." Pl.'s Mot. at 4. The court notes that Zimmermann is plaintiff's owner and sole employee; thus, the allegation that the information was not earlier known is ludicrous. The court further notes that the motion was filed after defendant filed its motion for summary judgment in an obvious attempt to defeat that motion. See Wimm v. Jack Eckerd Corp., 3 F.3d 137 (5th Cir. 1993). Having considered the summary judgment record, the court finds that the proposed amendments would be futile. Therefore, the motion will be denied.
III. Grounds of the Motion for Summary Judgment
Defendant seeks judgment on all of plaintiff's claims and on its first counterclaim. Defendant urges that plaintiff cannot prevail on its claims because (1) it cannot establish the existence of a contractual right to receive commissions at the rate of $.0l5 per pound after December 1992 and (2) plaintiff's acquiescence in a commission rate of $.0125 from September 1993 until termination of the contract bars the relief sought under the doctrines of ratification, estoppel, laches, and waiver. Defendant further asserts that plaintiff cannot establish that it had an exclusive right to service the Allmet Building Products, Inc., ("Allmet") and Texas Aluminum Industries, Inc. ("TAI") accounts and that it acquiesced in the changing of those accounts to accounts of defendant. Finally, defendant maintains that it has established as a matter of law its right to recover from plaintiff for damages sustained in regard to the Maas-Hansen transaction.
IV. Applicable Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984)
The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.Matsushita, 475 U.S. at 597.
V. Undisputed Evidence
The following is an overview of evidence pertinent to the motion for summary judgment that is undisputed in the summary judgment record:
Defendant produces and sells aluminum. By sales agreement signed March 17, 1992, plaintiff and defendant agreed that plaintiff would solicit orders for defendant's products in Texas, Oklahoma, Louisiana, Kansas, Arkansas, Mississippi, and parts of Colorado. The agreement provided for a commission rate of one-and-one-half cents per pound of invoice weight through the end of 1992. Def.'s App. at 19. The agreement further provided that it could be terminated by either party on ninety days' written notice. Id. at 20.
By memo dated July 14, 1993, defendant notified plaintiff and all of its other sales agents that effective with shipments invoiced after September 1, 1993, defendant would pay a commission of $.0125 per pound.Id. at 21. Defendant paid commissions at that rate throughout the remainder of the time that plaintiff worked for defendant. The parties hoped that the commission rate would rise again, but it never did. Plaintiff knew that commissions were being paid at the $.0125 rate and its books and records did not show that it was owed anything more.
On September 17, 2001, defendant terminated its sales agreement with plaintiff. Defendant continued to pay plaintiff commissions on all accounts through December 31, 2001. Id. at 73. Only after the contract was terminated did plaintiff claim that it was owed commissions at the higher rate for the entirety of the contract period.
Two of the accounts plaintiff serviced were Allmet and TAI. Both were acquired by Metals USA, Inc., which informed defendant in late 1999 or early 2000, that it wanted all purchasing of aluminum to be integrated on a national account basis. Defendant notified plaintiff that Allmet and TAI would be handled as in-house accounts. Plaintiff offered to work the accounts at a reduced commission or a flat fee, but defendant declined the offer.
In March 2001, plaintiff placed an aluminum order for Maas-Hansen on the word of its employee Dave Harned, who did not have authority to make the order. Plaintiff admitted that it had "screwed up" by placing the order. As a consequence, defendant incurred additional expenses and losses in the amount of $21,535.27.
VI. Law Applied to the Facts
A. Claims for Unpaid Commissions.
No matter which theory is asserted by plaintiff, the summary judgment evidence makes plain that plaintiff is not entitled to commissions in excess of what it has already been paid. The written contract between the parties established a commission rate through 1992. By the July 14, 1993, memorandum, defendant gave notice that effective September 1, 1993, it would pay commissions at a rate of $.0125 per pound. Accepting the lower rate was not an option. Def.'s App. at 9. If plaintiff wanted a higher commission, it could have gone to work for someone else. Id. at 5. There is no evidence of any promise to pay a higher rate, much less a promise that the higher rate would be reinstated retroactively. In sum, defendant gave unequivocal notice of a change in compensation and plaintiff continued working for defendant, accepting payment of the lower commission. Thus, the contract was modified. Hathaway v. General Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986); Texas Gas Utils. Co. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970).
There is no need for the court to discuss any of the affirmative defenses asserted by defendant or the constitutionality of the Texas statute governing sales commissions.
B. Allmet and TAI.
Plaintiff complains that defendant breached the contract between them by wrongfully seizing certain customers of plaintiff in 2000 and converting them to "house accounts," thereby depriving plaintiff of commissions due under their written agreement. Pl.'s Original Pet. at 2, ¶ 10. The reference is apparently to the TAI and Allmet accounts. Plaintiff does not point to any specific contract provision breached by defendant in taking the accounts in-house. In response to the summary judgment motion, plaintiff only makes a "`taint fair" argument. The summary judgment evidence establishes that Metals USA, Inc., acquired both Allmet and TAI and requested that its accounts be integrated nationally. Defendant did as Metals USA, Inc., requested.
C. Defendant's Counterclaim.
Defendant seeks judgment on Count 1 of its counterclaim that plaintiff should reimburse it for additional expenses incurred relative to the Maas-Hansen sale. The summary judgment evidence establishes that plaintiff admitted fault in taking an order from a person who was not authorized to act on behalf of Maas-Hansen. As a result, defendant suffered damages of $21,535.27. Plaintiff does not dispute the amount of damages, but argues only that the man who placed the order had apparent authority on behalf of Maas-Hansen. See Pl.'s Resp. Br. at 15-16. If plaintiff's argument is correct, it may have a claim against Maas-Hansen, but it has not shown that there is a genuine fact issue as to its liability to defendant.
VII.
ORDER
For the reasons discussed herein,
The court ORDERS that plaintiff's motion for leave to amend be, and is hereby, denied; defendant's motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on its claims against defendant; and, that such claims be, and are hereby, dismissed.
The court further ORDERS that defendant have and recover from plaintiff the sum of $21,535.27 on its first counterclaim.
The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to the claims disposed of by this memorandum opinion and order.