                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00517-CV


DALLAS AREA RAPID TRANSIT                                           APPELLANTS
(“DART”) AND FORT WORTH
TRANSPORTATION AUTHORITY
(THE “T”)

                                        V.

AGENT SYSTEMS, INC.                                                    APPELLEE


                                     ----------

          FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 236-226246-07

                                     ----------

                         MEMORANDUM OPINION 1

                                     ----------

      DART and the T appeal from a judgment on a jury verdict in favor of Agent

Systems, Inc.    In six issues, appellants challenge the standard of review

applicable to Agent’s claims, the trial court’s jury charge, the sufficiency of the


      1
       See Tex. R. App. P. 47.4.
evidence, and the award of prejudgment and postjudgment interest. 2 We affirm

in part, and we reverse in part and remand for a recalculation of prejudgment and

postjudgment interest.

                     Factual and Procedural Background

      In 1999, appellants entered into an Interlocal Agreement to acquire

technology for a vehicle business system, or VBS, in their respective buses, to

be funded largely by the federal government. The VBS was to include integrated

components, such as cameras, passenger counting systems, and other

equipment, that would allow information to be exchanged more readily between

appellants, as well as between appellants and the public. In conjunction with the

VBS, appellants sought bids for the delivery and installation of new bus

fareboxes that would integrate with the VBS.      At the time, the buses used

registering fareboxes, which do not distinguish among the types of coins or bills

inserted and do not store electronic information. Appellants sought bids for the

delivery and installation of validating fareboxes, which at the time was a fairly

new technology for buses. A validating farebox uses electronic technology to

distinguish among the types of bills and coins and is supposed to reject any

items that are not bills or coins; it also keeps an internal record of amounts

received.



      2
        Appellants initially raised seven issues, but they conceded their second
issue in their reply brief.


                                       2
      After receiving a bid for validating fareboxes from Agent, DART performed

tests on Agent’s prototype in its engineering facility.   Although the prototype

boxes did not meet all of the threshold requirements set by DART, appellants

nevertheless decided to enter into a contract with Agent. The parties signed a

contract in August 2000. Detailed specifications for the fareboxes were included

in the contract documents.

      In accordance with the contract, Agent installed boxes conforming to the

prototype in twenty T buses; however, the installation began and was completed

later than called for in the contract schedule. The contract provided that upon

installation of these first twenty boxes, the parties would engage in field testing

them, a process called the in-service qualification test (ISQT). The ISQT was to

be administered by the T in cooperation with Agent, with review by DART.

During the ISQT, the fareboxes repeatedly failed to meet the benchmark

performance standards agreed to by the parties, but appellants and Agent

dispute the reasons and the actual results of some of the tests. Nevertheless,

Agent continued to modify the product in response to the observed problems.

The parties extended the time for the ISQT to be completed several times, and at

one point, appellants suspended the ISQT. When the ISQT was reinstated, the

parties continued to work on modifications to the fareboxes.           Eventually,

however, appellants decided that Agent’s proposed corrective actions were

unacceptable to them and sent Agent a letter suspending the ISQT indefinitely.




                                        3
      Because Agent had preordered parts and supplies to fulfill its obligation to

install approximately 1,100 fareboxes after completion of the ISQT and could not

pay its outstanding invoices, it filed for Chapter 11 bankruptcy in November 2001.

While the bankruptcy was pending, appellants sent an accountant to Agent’s

premises to confirm what expenses appellants would have to pay if they

terminated the contract under the termination for convenience clause.

Additionally, the parties settled Agent’s claim for payment of invoices for the

completed fareboxes that had been installed in the T buses. The T bid for new

registering fareboxes from a different vendor in 2002.

      After completion of the bankruptcy proceedings, Agent, having received no

contract termination notice from appellants, sued appellants for amounts due

under the termination for convenience provision of the contract.       Appellants

responded by sending Agent a written notice terminating the contract under the

default provision.    In 2004, the trial court granted appellants’ pleas to the

jurisdiction for Agent’s failure to exhaust administrative remedies. The parties

then submitted the dispute to an administrative law judge, in accordance with the

T’s procurement regulations, which were incorporated into the contract. The ALJ

determined that appellants had terminated the contract for convenience rather

than for Agent’s default; nevertheless, the ALJ declined to award Agent any

amounts over and above what appellants had already paid by settlement or

otherwise. Although Agent obtained a continuance to file a motion for rehearing

of the ALJ’s decision, it did not do so.


                                           4
      Agent subsequently filed this suit in 2007, bringing substantially the same

claims it brought in 2003. Although DART filed a plea to the jurisdiction, the trial

court denied it, and this court affirmed the trial court’s order as to the breach of

contract claim. DART v. Agent Sys., Inc., No. 02-08-156-CV, 2008 WL 4938097,

at *1, *4 (Tex. App.––Fort Worth Nov. 20, 2008, pet. denied) (mem. op.).

Thereafter, Agent filed its fourth amended petition, in which it claimed that

appellants’ immunity from suit and liability on its breach of contract claims is

waived in accordance with chapter 271 of the government code.

      A jury found that both appellants and Agent had failed to comply with the

contract but that appellants’ failure to comply was not excused. The jury found

that Agent should be awarded damages of $850,000 for its “costs, including

contract close-out costs incurred . . . but not including profit.” The trial court

rendered judgment against appellants, jointly and severally, for that amount, plus

$566,397 in prejudgment interest, all bearing postjudgment interest at six

percent.

           Substantial Evidence Standard of Review Does Not Apply

      In their first issue, appellants contend that the trial court erred by

conducting a trial de novo on Agent’s claims rather than conducting a substantial

evidence review of the ALJ’s decision.

      In the prior appeal, this court held that the contract’s dispute resolution

procedures did not deprive the trial court of jurisdiction over the suit. Id. at *3.

The contract requires Agent to exhaust its administrative remedies under chapter


                                         5
10 of the T’s procurement regulations or the disputes clause of the contract “prior

to seeking judicial relief of any type in connection with any matter related to . . .

any dispute under any resulting contract.”            [Emphasis added.]      Id.    The

procurement regulations provide that “[s]ubject only to reconsideration under

Rule 29, the decisions will be final and not subject to review or modification by

the Authority’s Executive Committee” and that the parties may seek “judicial

review” of the ALJ’s decision “under the standard of review permitted by the

Disputes Clause [of the contract].” [Emphasis added.] Id. The disputes clause

in the contract between appellants and Agent does not set forth any standard of

review for judicial review of the ALJ’s decision. However, it also provides that

          [t]he duties and obligations imposed by [the contract] . . . , and the
          rights and remedies thereunder shall be in addition to and not a
          limitation of any duties, obligations, rights and remedies otherwise
          imposed or available by law. No action or failure to act by the T shall
          constitute a waiver of any right or duty afforded either party under
          the contract, nor shall any such action or failure to act constitute an
          approval of or acquiescence in any breach under . . . any such
          contract, except as may be specifically agreed in writing. [Emphasis
          added.]

          We previously held that the contract does not prohibit subsequent judicial

relief.    Id.   Appellants contend, however, that the only form of judicial relief

available under the contract and procurement regulations is judicial review of the

ALJ’s decision pursuant to the substantial evidence rule only and not a trial de

novo.       Appellants do not dispute that Agent exhausted its administrative

remedies under chapter 10 of the T’s procurement regulations.




                                            6
      DART argues that the procurement regulations have the force and effect of

statute. See Lewis v. Jacksonville Bldg. & Loan Assoc., 540 S.W.2d 307, 310

(Tex. 1976). Thus, according to DART, we must use the substantial evidence

standard of review under government code section 2001.174, which provides

that, in a contested case before a state agency, if the law does not define the

scope of judicial review, the review is under the substantial-evidence standard.

Tex. Gov’t Code Ann. § 2001.174 (West 2008). However, section 2001.174 does

not apply to DART because it is not a state agency. See id. § 2001.003(7) (West

2008).

      Administrative rules, such as the T’s procedural regulations here, are

ordinarily construed like statutes. TGS-NOPEC Geophysical Co. v. Combs, 340

S.W.3d 432, 438 (Tex. 2011). In statutes, the word “may” is discretionary and

grants permission or power.      See Tex. Gov’t Code Ann. § 311.016(1) (West

2013). Thus, the procurement regulations allow a party in its discretion to seek

judicial review of an ALJ’s decision, and they also defer to the specific contract to

provide a standard of review. We find no law imposing a gapfiller standard of

judicial review in the absence of an agreement otherwise. The parties could

have chosen to include in their contract that any ALJ decision would be reviewed

under the substantial evidence rule, but they did not. See, e.g., Fairfield Ins. Co.

v. Stephens Martin Paving, LP, 246 S.W.3d 653, 664 (Tex. 2008) (noting general

rule that parties may contract as they see fit so long as agreement does not




                                         7
violate law or public policy). We conclude and hold that the trial court did not err

by holding a trial de novo, and we overrule appellants’ first issue.

                              Jury Charge Was Proper

         In their third issue, appellants claim the trial court erred by refusing to

include a question in the jury charge asking which party breached the contract

first.

         The charge included a question asking if appellants had failed to comply

with the contract, a separate question asking if Agent had failed to comply with

the contract, and a third question asking whether, if appellants had failed to

comply, that failure was excused. The jury found that both appellants and Agent

had failed to comply with the contract, but it also found that appellants’ failure to

comply was not excused.

         The charge instructed the jury that “failure to comply by [appellants] is

excused if [Agent] was in default under the contract.” [Emphasis added.] Thus,

to find that appellants’ failure to comply was excused, the jury had to find that at

the time of appellants’ failure to comply, Agent “was [already] in default.” Cf. Tex.

Gov’t Code Ann. § 311.011 (West 2013) (providing that when construing

statutes, words and phrases must be construed according to the rules of

grammar and common usage); Standley v. Sansom, 367 S.W.3d 343, 350 (Tex.

App.––San Antonio 2012, pet. denied) (explaining that words of ordinary

meaning need not be defined in jury charge). Because the submitted question

does not differ in substance from appellants’ requested instruction, but merely in


                                          8
wording, the trial court did not err. See Tex. R. App. P. 44.1(a); Tex. R. Civ. P.

277, 278 (“A judgment shall not be reversed because of the failure to submit . . .

different shades of the same question.”); H.E. Butt Grocery Co. v. Warner, 845

S.W.2d 258, 260 (Tex. 1992) (holding that trial court’s failure to submit requested

broad-form question was not reversible error when submitted granulated-form

instruction “fairly submitted to the jury the disputed issues of fact and . . .

incorporated a correct legal standard for the jury to apply”); Sewing v. Bowman,

371 S.W.3d 321, 340–41 (Tex. App.––Houston [1st Dist.] 2012, pet. dism’d); PIC

Realty Corp. v. Southfield Farms, Inc., 832 S.W.2d 610, 613 (Tex. App.––Corpus

Christi 1992, no writ). We overrule appellants’ third issue.

          Trial Court Did Not Err in Refusing to Submit Instructions

      Appellants argue in their fourth issue that the trial court erred by failing to

submit questions in the jury charge on acceptance, rejection, and revocation of

acceptance under the UCC when sufficient evidence supported these

instructions. See Tex. Bus. & Com. Code Ann. §§ 2.105(f), 2.601, 2.606 (West

2009). Appellants tendered proposed instructions to the trial court. The first

instruction asked, “Did [appellants] accept the fareboxes not delivered to

[appellants],” followed by an explanation of when acceptance occurs.            The

second instruction stated that if the fareboxes failed to conform in any way to the

contract, appellants could either revoke acceptance, accept all of the fareboxes,

or accept some of the fareboxes and reject the rest. Finally, the third proposed

instruction asked whether appellants revoked their acceptance.


                                         9
      Appellants’ requested instructions, while correct under the UCC, are not

pertinent to the case as pled. See Tex. R. Civ. P. 278 (providing that court must

give instructions raised by written pleadings); Tex. Workers’ Comp. Ins. Fund v.

Mandibauer, 34 S.W.3d 909, 912 (Tex. 2000) (op. on reh’g). Agent did not seek

the unpaid contract price for the remaining fareboxes; instead, it sought to

recover the damages outlined in the termination for convenience provision of the

contract, which provides that if appellants terminated the contract for

convenience, and not default, Agent could recover “its costs, including contract

close-out costs.” Agent’s evidence regarding costs consisted of items such as

parts and labor supply costs, as well as leasing and facilities costs. Agent did not

seek reimbursement for the contract price for the remainder of the boxes that

were to be installed in the rest of the T buses and the DART buses, but were not.

We therefore conclude and hold the trial court’s refusal to submit these proposed

instructions was not reversible error. See, e.g., Houghton v. Port Terminal R.R.

Ass’n, 999 S.W.2d 39, 45 (Tex. App.––Houston [14th Dist.] 1999, no pet.).

      Accordingly, we overrule appellants’ fourth issue.

     Trial Court Did Not Err by Denying Judgment Notwithstanding the
                Verdict and Appellants’ Motion for Judgment

      In their fifth issue, appellants contend that the trial court erred by denying

their motion for judgment and motion for judgment notwithstanding the verdict

(JNOV) because the great weight and preponderance of the evidence shows that

Agent breached the agreement first and, alternatively, because no evidence



                                        10
exists that appellants committed the first material breach of the contract.

According to Agent, appellants committed the first material breach after deciding

they no longer wanted validating fareboxes, improperly issuing the stop order,

and thereafter refusing to pay the costs set forth in the termination for

convenience provision of the contract.

Standard of Review

      A trial court cannot disregard a jury’s answer and render a JNOV because

the answer is against the great weight and preponderance of the evidence. Alm

v. Aluminum Co. of Am., 717 S.W.2d 588, 594 (Tex. 1986); Duncan Land &

Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 325 (Tex. App.—Fort Worth

1998, pet. denied). In such a situation, the trial court may only grant a new trial.

Alm, 717 S.W.2d at 594; see also Tex. R. Civ. P. 301 (providing that court may

disregard jury finding that has no evidentiary support). Thus, a great weight and

preponderance complaint must be brought in a motion for new trial. E.g., Murphy

v. McDaniel, No. 05-03-01045-CV, 2004 WL 2404518, at *4 (Tex. App.––Dallas

Oct. 28, 2004, no pet.) (mem. op.). Because appellants’ issue seeks a review of

whether the trial court erred by denying the motion for judgment or JNOV, not a

motion for new trial, we will consider appellants’ alternative argument that there is

no evidence that their failure to comply occurred before Agent’s in the context of

that discussion. However, because appellants also preserved their great weight

and preponderance complaint in a motion for new trial, we will review it under the

appropriate standard of review. See id.


                                         11
JNOV Standard

      A trial court may disregard a jury verdict and render judgment

notwithstanding the verdict (JNOV) if no evidence supports the jury finding on an

issue necessary to liability or if a directed verdict would have been proper. See

Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003); Fort

Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). A

directed verdict is proper only under limited circumstances:      (1) when the

evidence conclusively establishes the right of the movant to judgment or negates

the right of the opponent; or (2) when the evidence is insufficient to raise a

material fact issue. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29

S.W.3d 74, 77 (Tex. 2000); Playoff Corp. v. Blackwell, 300 S.W.3d 451, 454

(Tex. App.—Fort Worth 2009, pet. denied) (op. on reh’g).

      To determine whether the trial court erred by rendering a JNOV, we view

the evidence in the light most favorable to the verdict under the well-settled

standards that govern legal sufficiency review.     See Ingram v. Deere, 288

S.W.3d 886, 893 (Tex. 2009); Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706,

709 (Tex. 2003). We must credit evidence favoring the jury verdict if reasonable

jurors could and disregard contrary evidence unless reasonable jurors could not.

See Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009);

Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007).




                                       12
Great Weight and Preponderance Standard

       When the party without the burden of proof on a fact issue complains of an

adverse fact finding, that party must show that there is “insufficient evidence”

supporting the finding, that is, that the credible evidence supporting the finding is

too weak or that the finding is against the great weight and preponderance of the

credible evidence contrary to the finding. See Garza v. Alviar, 395 S.W.2d 821,

823 (Tex. 1965); W. Wendall Hall, Hall’s Standards of Review in Texas, 42

St. Mary’s L.J. 3, 41–42 (2010).

Theories of the Case

       Agent’s theory of the case is that appellants decided after the signing of

the contract and the installation of the first fareboxes on the T buses that they no

longer wanted validating fareboxes and that they started looking for another

company to reinstall registering fareboxes.           Instead of terminating for

convenience as a result and paying what they owed under that provision,

appellants waited, failed to pay, and eventually attempted to terminate the

contract for default to avoid paying the amounts under the convenience

provision. 3

       Appellants’ theory of the case is that Agent delivered a defective product

from the beginning, that they only started looking for an alternative to Agent’s


       3
       Agent’s proposed charge instructed that appellants “failed to comply with
the [c]ontract” if “[t]he termination of the [c]ontract was a termination for
convenience and not for default.”


                                         13
fareboxes when those boxes repeatedly failed the ISQT, that they tried to see if

they could terminate for convenience because they do not like to default

contracts, but that they eventually had to terminate for Agent’s default in

providing a defective product because they could not properly verify the amounts

in the termination for convenience provision due to Agent’s faulty recordkeeping.

Evidence at Trial

      Agent’s Witnesses

      Brian Waters, Agent’s president from 2000 to 2003, testified that DART

solicited bids for validating fareboxes to be put into their buses; formerly the

buses had registering fareboxes. Registering fareboxes only identify that a coin

or paper has been put into the system; validating fareboxes rely on imaging and

recognize the difference between types of bills and coins.          DART wanted

validating fareboxes that would integrate with other computer technology it was

going to install on its buses pursuant to a federal government grant.

      DART tested Agent’s prototype and even though it did not perform

perfectly in the warehouse, DART cleared it for purposes of entering into a

contract with Agent. According to Waters, the contract Agent signed with DART

was not a typical government contract; Agent had the burden to pay for all pre-

installation parts and expenses before payment. After they signed the contract

and DART issued a notice to proceed, Agent ordered everything needed to

assemble and install 1,100 validating fareboxes; the lead time to assemble a box

is ninety to one hundred twenty days.


                                        14
      Once the initial twenty fareboxes were installed on the T buses, physical

security became an issue because the T discovered a theft ring of employees

who had targeted the registering fareboxes.         At that point, the T demanded

modifications to Agent’s fareboxes to increase their physical security.         Agent

succeeded in modifying the boxes so that a T supervisor could not breach them

even after working for a half hour or more.

      Waters testified that an ISQT is “a shakeout test to validate every . . .

phase of what’s going to be required to roll out the equipment system wide” and

that it involved not only the installation but also the training of the people at the T

and DART who would be working with them. According to Waters, typically any

deficiencies in a product during an ISQT are resolved by corrective action and

additional testing, not by terminating the contract. He disputed that the fareboxes

failed the ISQT tests. Waters testified that he would never enter into a contract in

which the authorities could terminate for default based upon failures during the

ISQT because “it would defeat the purpose of the [ISQT], which is to enable the

authority and the contractor to measure the performance of the equipment in a

real life environment and modify it if necessary so the equipment can be rolled

out and installed system wide.” He also said Agent would never have entered

into this contract if appellants could terminate for default because of failures

during the ISQT. Appellants had tried to include such a provision in the contract

and he refused. Finally, Waters testified that there was nothing unusual about

the failure rate of the boxes during the ISQT:          it was inherent in the new


                                          15
technology, and only two companies were doing that type of technology at the

time.

        Waters testified that DART and the T made up seventy-five percent of

Agent’s expenses and work. Because appellants did not reimburse Agent under

the convenience clause when it had expended so much money for materials up

front, Agent had to file for bankruptcy. Waters explained in detail how the auditor

sent by appellants to investigate a possible termination for convenience could

have determined from the records they made available to him which expenses

were attributable to the contract with appellants.

        On cross-examination, Waters admitted that Agent was late on all

scheduled deadlines in the contract.

        The president and executive director of the T testified that he had been

hired in February 2003 and signed the termination for default letter in December

2003. He had not been personally acquainted with the contract; his staff told him

the contract was being terminated for default because the fareboxes did not work

when they were tested in the buses. When questioned about the accounting

report, he said that the T questioned costs they believed should not be

reimbursed and that needed to be examined further.

        A governmental accounting expert testified that Agent’s professed method

of keeping accounting records was acceptable in a government contract

situation.    Agent’s accountant testified about how he calculated Agent’s




                                         16
reimbursable expenses; he also explained that its accounting system was very

typical for a company its size.

      The jury heard excerpts from the deposition of Deanna Anderson, the

director of planning and scheduling for the T from 1994 to July 2002. Anderson

testified that after the discovery of the theft ring at the T in spring 2001, security

of the fareboxes became a more significant issue and as a result appellants

requested or discussed modifications with Agent.            She also agreed that

adjustments had to be made to the original design to accommodate the security

concern. Anderson recalled that at that time, the T contacted a competitor of

Agent’s, GFI, to do a demo for registering fareboxes while the ISQT with Agent

was in progress.

      Appellants’ Witnesses

      Chris Patrick, a DART manager in the IT department, testified that he

worked on the lab testing of the fareboxes in 2000; the boxes had problems with

the O rings breaking and not being strong enough to move dollar bills.             In

addition, the coin mechanism would jam. Appellants experienced similar issues

during the ISQT. He said that DART liked the system at first and that it would

interface with other technology in the buses. But that type of system became

less critical when the security issues became paramount; appellants became

worried about anyone accessing the stored information in the fareboxes and so

they would not be able to use the fareboxes for their intended purpose.            In




                                         17
addition, after September 11, 2001, sales tax revenue dropped, and the federal

government reduced its funding, so appellants had to “scrap” the VBS project.

      Patrick verified that one of the tests, which required an on-bus attendant to

hold proferred bills so that they could be checked against the fareboxes’

electronic record, was suspended because one of the on-bus administrators was

robbed of the bills he was holding for the test. However, he also agreed that

such a test was important so that the parties would know why certain bills had

been rejected by the fareboxes. According to Patrick, the agreement to suspend

that test was mutual.

      Donald Warner, a former senior manager of technical services for DART

who worked on the ISQT, testified that he was the project manager with the final

decision and he chaired the failure review board. According to Warner, he was

not told to “submarine” the contract. He was neither in charge of nor involved

with the cancelling of the contract. He testified that there were disputes between

appellants and Agent over whether tests were passed; he said his only job was

to make sure that mechanical items fit specified performance requirements.

There were too many failures.

      Rebecca Thornton, assistant vice president of accounting at the T at the

time of trial, testified that the T needed new boxes in its buses regardless of

whether it used validating or registering fareboxes. The T agreed to be the in-

service testing fleet because its fleet was smaller, installation would be faster,

and installation could be accomplished more quickly. She was concerned about


                                       18
the project schedule because of the short turn-around time between the

scheduled ISQT and full installation of the boxes. When she expressed these

concerns to Waters, he said Agent was willing to assume the risk of purchasing

the materials necessary to meet the aggressive deadlines. Her understanding

was that the boxes had to pass the ISQT before being installed in the entire fleet.

      According to Thornton,       Agent     was behind on deadlines        almost

immediately; it installed the first twenty boxes over a weekend and she had

operations people yelling at her the first thing Monday morning. Some buses

could not leave for their routes because of problems with the software. Other

problems were the cash box shaking and falling on the bus floors, deep bill jams,

and lanyards coming loose.

      According to Thornton, Agent agreed to postpone the ISQT in November

2000 because of these problems. Agent and appellants had lots of meetings in

November and December 2000 and were trying to fix recurring concerns.

However, according to Thornton, progress was “a little bit on the slow side.” In

March 2001, the T rejected a proposal for a new ISQT because it called for a

person on each vehicle to observe the testing, and the T did not have the staff or

resources to provide that. However, the T eventually decided to hire temporaries

for the job. In a March 16, 2001 email, Thornton wrote: “We have resolved

many of the issues that we had with [the] farebox system and need to move

forward on this project.” She clarified what she meant in her testimony: “[W]e

were getting closer to having everything resolved and being ready to get . . . to


                                        19
the next phase of the project, meaning installed on all vehicles. We felt like we

were getting towards that point.”        Thornton also said that in March 2001,

appellants still had the intent to continue the ISQT and finish installation.

      The T uncovered a theft ring on its buses in spring 2001.                 After the

discovery, on April 13, 2001, Thornton sent the following email––entitled “After

the recent farebox theft incident BC Craddock felt that it was necessary to test

the security”––to the then-general manager and CEO of the T:

             Under the contract we have with Agent, I believe we will have
      to provide Agent with an opportunity to make modifications to the
      farebox system. How long these modifications will take is something
      I don’t know.

             In the mean[]time, I would like to get a GFI Odyssey box on
      property for BC to test. If BC determines that the Odyssey box
      would be more secure than the Agent Box then we would need to
      proceed with canceling the Agent contract and doing a sole source
      procurement with GFI. Phyllis will need to be brought in to the
      picture to verify that this is how we can proceed.

            Ron Anderson is contacting GFI today to see if they will
      provide a GFI box for us to review.

Thornton explained that she was merely being prudent in responding to the

security incident the T had just discovered. She had not questioned the security

of the Agent boxes until that happened and had assumed that Agent’s fareboxes

had “top notch” security. She did say that appellants gave Agent the opportunity

to correct the security issue, and it did so satisfactorily.

      During the same time period, the parties were negotiating the restart of the

ISQT, which they agreed to resume effective April 16, 2001.             According to



                                           20
Thornton, after the ISQT resumed, the fareboxes did not meet the revenue

accuracy test.   She testified that their performance was measured using an

“industry standard,” but there was other evidence that this was a new technology

and only two companies were providing it. Thornton stated that she could not

substantiate Waters’s claim about money not being backed out of a certain test

because Agent did not fill out the proper form and Waters never told her about it.

She could never reconcile her numbers from the testing and Waters’s.

      An April 30, 2001 letter to Waters from appellants––along with Capital

Metro, with whom Agent also had a contract to install validating fareboxes––sets

forth two major concerns with the progress of the resumed ISQT:

      Agent has failed to perform in a satisfactory manner on any of the
      installations. The three Authorities are working together to assist
      Agent in meeting its responsibilities under these contracts. The
      purpose of this letter is to describe the substantive guidelines the
      Authorities expect Agent to meet if the installations are to go
      forward. Nothing in this letter is intended to relieve Agent of any of
      its responsibilities under its contracts with the Transit Authorities.

            There are two tracks on which Agent must move to resolve the
      outstanding issues. First, Agent must produce immediate results in
      addressing two “fatal flaws”. Second, Agent must develop a plan
      acceptable to the Transit Authorities for addressing all open
      technical issues.

            The “fatal flaws” that must be corrected are:

      1.    Physical security of all components of the farebox system.
            This must be addressed by Agent having all security issues
            resolved to the satisfaction of the Transit Authorities by
            May 16, 2001.

      2.    Demonstration of Agent’s ability to perform its obligations
            under its contracts and for the system to meet the


                                       21
      specification requirements. In order to resolve this “fatal flaw”'
      Agent Systems, Inc. must accomplish and allow the following:

      •   An internal audit team (provided by the Authorities) will
          review the current financial statements of Agent Systems,
          Inc. to determine that Agent has the financial stability to
          continue with this project. This review must be acceptable
          to the Authorities by May 23, 2001.

      •   Successful completion of the current T/DART ISQT and
          RMAT tests, which are scheduled to conclude on May 16,
          2001.

      •   The Authorities shall conduct a manufacturing review of
          Agent Systems, Inc. This review will involve inspecting
          your facility to make sure that Agent Systems, Inc. has the
          ability for mass production. This review will be conducted
          by May 23, 2001. Agent must identify a point of contact for
          this review and provide its quality plan to the Transit
          Authorities by May 3, 2001.

      •   Agent will provide staffing plans, updated project schedules
          and a plan for supporting the project commitments for the
          T/DART and Capital Metro installations by May 16, 2001.
          The staffing plans shall include the resumes of all its
          employees to ensure that adequate experienced personnel
          are being provided to support the product. Also, a list of
          subcontractors shall be provided. These lists must be
          provided to the Authorities by May 16, 2001.

         Attached is a list of outstanding technical issues the
Authorities have been attempting to resolve with Agent. Should
Agent be successful in addressing the “fatal flaws” above, all of
these issues must be addressed within the time frames established
on the list. It is anticipated that additional items will be added to the
list if the installation proceeds.

      The Transit Authorities realize the benefit of implementing the
Agent farebox system. Having a competitive alternative in the
marketplace is good for the industry. The promise of the Agent
farebox system also is great. However, that promise only can be
achieved if Agent performs. Failure to comply with the above issues



                                   22
      may result in termination of our contracts. It is not our desire to
      proceed with this action, but we will do so if necessary.

      The trial court admitted a report prepared for the T and issued in May

2001, assessing the security of the T’s older, registering fareboxes. The report

indicates failure and security issues with those fareboxes, not only as to their

physical aspect, but also as to how they were being serviced and counted. The

report also made specific recommendations regarding necessary changes to

security procedures with respect to the older fareboxes.

      Thornton acknowledged that Agent eventually resolved the security

concerns about its fareboxes, but she testified that the parties continued to have

mechanical problems even after the security issues were addressed.

      Thornton testified that the T considered Agent in default on June 4, 2001.

On that day, the assistant general manager of the T sent Waters a letter, in which

he outlined the “fatal flaws” that appellants believed Agent had not addressed

and stated, “[U]nless within 10 days from its receipt of this notice, Agent . . .

shows good cause why this contract should not be terminated, the contract for

the purchase of the farebox will be terminated.”

      Thornton did not think appellants’ concern was the performance of

validating boxes in general, just the particular ones that Agent had installed. She

agreed, however, that ninety percent of the failed revenue test was attributable to

one day, which Waters had disputed.          Thornton said that even though the

contract provided that the parties would retest and take corrective action during



                                        23
the ISQT, she said that the T would not allow corrective action it did not agree

with. She said Waters never proposed a different corrective action acceptable to

the T.

         Despite appellants’ June 4, 2001 letter threatening to terminate the

contract, Deanna Anderson sent Waters a letter dated June 12, 2001, in which

she confirmed a telephone conversation that day and stated, “We would like to

proceed with the Proposed Engineering Changes #1209 and 1210. . . .

Furthermore, we would like to analyze any recent security changes made to the

cashbox and farebox . . . [on] June 13, 2001 . . . at the T.”

         On June 15, 2001, Waters responded in detail to the June 4 letter,

outlining Agent’s attempted corrective actions to improve the farebox design. He

concluded, “The system now performs as the Authorities requested.              Agent

Systems has cooperated at every step. Agent Systems has met its obligations,

and looks to the Authorities to complete the contract.”         Additionally, Agent’s

attorney sent the T’s assistant general manager a letter setting forth Agent’s

position that there was no cause for termination.

         Waters continued corresponding with appellants throughout June and July

with proposed corrective measures.

         On July 5, 2001, the parties met so that Agent could demonstrate some of

the proposed corrective actions. Nevertheless, on August 9, 2001, appellants

sent Agent a letter directing that all work on the project be ceased:




                                         24
             After considering the corrective actions proposed by Agent
      Systems, the T and DART have concluded that such actions will not
      eliminate the causes of the ISQT/RMAT test failures and that further
      testing is not in the best interest of the T and DART. Accordingly, in
      accordance with paragraph 8.7 of the ISQT/RMAT Test Plan, the
      Test is determined to have been failed and the corrective action
      rejected.

            Agent Systems is therefore directed to immediately suspend
      all work on the subject contract, including development, installation,
      production and support efforts. Further, you will take all actions
      necessary to minimize costs, including, but not limited to,
      suspension of work on subcontracts and orders which have been
      placed until such time as a decision is communicated to you
      concerning the continuation of subject contract.

      Thornton attended a meeting on August 28, 2001 with Waters, Patterson,

Craddock, Deanna Anderson, and other T and DART representatives. 4 Thornton

took notes documenting Anderson’s introduction to the meeting:

      Brian and everybody, thanks for coming. Brian, The T and DART
      have met and decided how to proceed with the contract. We, the T
      and DART, want to go our separate ways with Agent Systems. We
      propose the way to do this is a No-Cost Termination. We will pay
      the invoice amount of $543,857.85 and walk away with no
      grievances. If this is not an option, then we will talk to our senior
      management and proceed with termination by default.

Thornton described this proposal as meaning, “Everybody, here’s what we owe.

You can verify it. Everybody’s happy, and we will walk away.”

      When asked whether the T had simply decided to contract with a different

company, Thornton said that the parties had put so much work into the product

already and could not make it work. Thornton admitted that appellants had to

“scrap” the VBS project after September 11, 2001 because of reduced federal

      4
      A recorded version of the meeting was also played for the jury.

                                       25
funding and reduced revenue. She further admitted that the T competitively bid

registering fareboxes from a competitor of Agent for all of its fleet in 2002.

      BC Craddock worked for the T as the VBS coordinator. He recalled that in

the beginning of the collaboration with Agent, there was a sense that Agent’s

fareboxes were just what was needed, but the T had problems with them on the

first day. By March 16, 2001, many security issues had been resolved, but the T

was still having mechanical issues.

      John Loving is a CPA whose specialty is government contracting. DART

hired him in mid 2002, and he issued his report in January 2003. He had issues

with the way Agent did its accounting and had trouble getting the information he

needed. He did not think he needed to look at Agent’s bill of materials for items.

He left the decision of whether to decide if it would be reasonable to pay for costs

incurred after the stoppage of work to the contracting officer. In a communication

from Loving to DART, Loving referred to his analysis as being for a “termination

for convenience program.” He prepared a report and dated it January 8, 2003;

DART told him around 2006 that they had never seen it.

Pertinent Contract Provisions

      The contract itself sets forth two termination methods. The first, entitled

“Termination for Convenience,” states,

      The T may terminate, in whole or in part, for its convenience and at
      any time, any contract resulting from or related to this solicitation by
      giving written notice to the contractor specifying that the termination
      is for the convenience of the T, and the termination date. Contractor
      shall be paid its costs, including contract close-out costs, and profit


                                         26
      on work performed up to the time of termination. Contractor shall
      promptly submit its termination claim to the T to be paid. If the
      contractor has any property in its possession belonging to the T,
      contractor will account for the same, and dispose of it in the manner
      the T directs.

The “Termination for Default” subsection immediately follows:

      If contractor fails to deliver conforming goods, materials, or supplies
      in accordance with the contract delivery schedule specified in this
      solicitation or in any contract resulting from or related to this
      solicitation (when the contract involves the purchase or procurement
      of such items) or contractor fails to perform in the manner called for
      in this solicitation or in any such contract (when the contract involves
      performing work or rendering services) or contractor fails to comply
      with any other provision of any such contract, the T may terminate
      such contract(s) for default. Termination shall be effected by serving
      a notice of termination on contractor setting forth the manner in
      which contractor is in default and the effective date of termination.
      Contractor will be paid only the contract price for conforming goods,
      materials, or supplies delivered and accepted, or the actual value to
      the T of work completed or services performed up to the time of
      termination in accordance with the manner of performance set forth
      in the contract. Contractor shall promptly submit its termination
      claim to the T and the parties shall negotiate the termination
      settlement, if any, to be paid to contractor. The contractor shall
      account for any property in its possession paid for from funds
      received from the T, and property supplied to the contractor by the T.

      The contract also provides that “[s]uccessful completion of the [ISQT] shall

be a prerequisite for full installation rollout of the fare collection system.” Further,

in the test plan that resumed April 16, 2001, the parties agreed:

            The Test may be suspended at the discretion of the agency
      when it is deemed an unsatisfactory number of failures or incidents
      have occurred. Restarting at the beginning of the test shall be at the
      discretion of the agency only after satisfactory resolution and
      corrective action of the failures/incidents. In no case would the test
      be extended beyond 90 days.




                                          27
            In the event that any of the four (4) specified tests fail, Agent
      Systems shall propose to the Authorities a corrective action that will
      eliminate the source of the test failure. It shall be the option of the
      Authorities to:

            ○    accept the proposed corrective action and deem the
      Test successfully completed, or

            ○     approve the corrective action and restart the test as
      described below, or

              ○      reject the proposed corrective . . . action and fail the
      Test.

              ....

             If the Authorities elect to approve the corrective action and
      restart the Test, only the portion of the test that failed previously will
      be restarted. If the Authorities elect to restart the Test, the Test shall
      be extended in 7-day increments until such time as the Test
      requirements are met in a contiguous 14 day period.

      Although the ISQT plan does indicate that appellants could reject the

corrective action and fail the test, nothing in the contract makes failure of the

ISQT an event of default; instead, Agent’s passing the ISQT was a prerequisite

to full production and installation of the remaining fareboxes. Thornton herself

acknowledged this in her April 13, 2001 email, in which she noted that under the

contract Agent should be provided an opportunity to make modifications even

though she was recommending that GFI be contacted for possible replacement

boxes. Waters also testified that in March 2001, appellants had tried to negotiate

a contract modification that would have allowed them to terminate the contract for

“cause” if the requirements of the ISQT had not been met by April 9, 2001; Agent

refused the modification.


                                         28
Analysis

      The jury could have reasonably inferred from the evidence presented that

appellants were willing to continue the ISQT––and considered the repeated test

failures and resulting modifications part of the testing process in accordance with

the contract––until they decided that validating fareboxes were not what they

needed and would not be substantially funded by federal funds, and that

appellants at that point would have terminated the contract regardless of what

changes were made. Additionally, the jury could have reasonably inferred that,

having decided to terminate the contract, appellants investigated a termination

for convenience but after deciding it would be too costly, failed to act in good faith

by attempting to terminate for default instead. 5 Accordingly, we conclude and

hold that the evidence is both legally and factually sufficient to support the jury’s

verdict and, thus, that the trial court did not err by denying the JNOV and motion

for new trial. See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.

2005); McKenzie v. Positive Action Int’l, Inc., No. 01-10-01073-CV, 2012 WL

1454478, at *14–15 (Tex. App.––Houston [1st Dist.] Apr. 26, 2012, pet. denied)

(mem. op.). We overrule appellants’ fifth issue.




      5
       The court’s charge instructed the jury on good faith as follows: “In
addition to the language of the agreement, the law imposes on a party to a
contract a duty to perform or enforce the contract in good faith. In that
connection, good faith means honesty in fact and the observance of reasonable
commercial standards of fair dealing.”


                                         29
                       Question on Damages Appropriate

      Appellants contend in their sixth issue that the trial court erred by

overruling their motion for instructed verdict, by including a jury question on

damages, and by entering judgment on the jury’s verdict for Agent because local

government code section 271.153(a) limits a damage award to “the balance due

and owed” under the contract.

      Section 271.153(a) provides, “[T]he total amount of money awarded in an

adjudication brought against a local governmental entity for breach of a contract

subject to this subchapter is limited to the following: (1) the balance due and

owed by the local governmental entity under the contract as it may have been

amended . . . .” Tex. Loc. Gov’t Code Ann. § 271.153(a) (West Supp. 2014).

Appellants claim that they owed Agent only for delivery and installation of the first

twenty fareboxes and that they already paid that amount in the settlement during

Agent’s bankruptcy. Appellants’ sixth issue is predicated on their argument that

they do not owe the amounts articulated in the termination for convenience

clause of the contract. Because we have determined that the evidence supports

Agent’s contention that appellants owed additional money under the termination

for convenience clause, we likewise conclude and hold that section 271.153(a)

does not preclude the jury’s damage award. See Zachry Constr. Corp. v. Port of

Houston Auth. of Harris Cnty., No. 12-0772, 2014 WL 4472616, at *7 (Tex. Aug.

29, 2014) (“A ‘balance due and owed . . . under the contract’ is simply the




                                         30
amount of damages for breach of contract payable and unpaid.”). We overrule

appellants’ sixth issue.

                    Prejudgment and Postjudgment Interest

      In their seventh issue, appellants contend the trial court erred by awarding

prejudgment interest at the rate of six percent on the damage award because

neither the contract nor any statute allows the recovery of prejudgment interest.

      The version of section 271.153(a)(3) of the local government code

applicable to this contract provided for the recovery of “interest as allowed by

law.” Act of May 23, 2005, 79th Leg., R.S., ch. 604, § 1, 2005 Tex. Gen. Laws

1548, 1549. Agent argues on appeal, and argued at trial, that it is entitled to

prejudgment interest under either section 302.002 of the finance code or section

304.103 of the finance code.

      Agent was not entitled to recover prejudgment interest in accordance with

finance code section 304.103 because that section applies only to wrongful

death, property damage, or personal injury cases, not breach of contract cases.

Tex. Fin. Code §§ 304.101, .103 (West 2006); see Johnson & Higgins of Tex.,

Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528, 530 (Tex. 1998) (op. on

reh’g). Additionally, Agent cannot recover prejudgment interest under section

302.002 of the finance code; that section does not apply to a party who is solely

a judgment creditor.       Tex. Fin. Code Ann. § 302.002 (West 2006); Smith v.

Huston, 251 S.W.3d 808, 827–28 (Tex. App.––Fort Worth 2008, pet. denied).




                                         31
      Appellants contend that “allowed by law” means “permitted by the

Agreement or a statute” only. 6 However, even in the absence of a statute or

contractual provision providing for the recovery of prejudgment interest,

prejudgment interest may be awarded on a breach of contract claim under

common law equitable principles; in such a case, prejudgment interest accrues at

the rate of postjudgment interest and is computed as simple interest. Johnson &

Higgins, 962 S.W.2d at 532 (holding that breach of contract claim was not claim

for property damage); see also Tex. Fin. Code Ann. § 304.003 (West 2006).

“The commonly understood meaning of ‘law’ includes judicial decisions and rules

promulgated by the judiciary, such as rules of procedure and evidence.” In re

City of Georgetown, 53 S.W.3d 328, 332 (Tex. 2001) (orig. proceeding)

(construing term “other law” in Open Records Act).         Because the term “law”

includes common law in the absence of some indication otherwise, the language

in section 271.153(a) authorizes the imposition of prejudgment interest in this

case according to common law equitable principles. We conclude and hold that

the trial court did not err by including prejudgment interest in the judgment.

      Appellants also dispute the six percent interest rate applied by the trial

court to both prejudgment and postjudgment interest; they contend that it should

      6
        Both cases appellants cite are inapposite; likewise, the federal case is not
controlling authority. See GLF Constr. Corp. v. DART, 546 F. App’x 429, No. 12-
11017, 2013 WL 5433777 (5th Cir. Oct. 1, 2013); Port Neches-Groves ISD v.
Pyramid Constructors, L.L.P., 281 S.W.3d 142, 150 (Tex. App.––Beaumont
2009, pet. denied); see also Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992)
(orig. proceeding).


                                         32
have been no more than five percent. Section 304.003(c)(2) of the finance code

provides that the postjudgment interest rate on a money judgment to which

section 304.002 does not apply is “five percent a year if the prime rate as

published by the Board of Governors of the Federal Reserve System . . . is less

than five percent.” Tex. Fin. Code Ann. § 304.003(c)(2). We may take judicial

notice of the correct published rate on appeal, which is published on the Office of

the Consumer Credit Commissioner’s website. Office of Pub. Util. Counsel v.

Pub. Util. Comm’n of Tex., 878 S.W.2d 598, 600 (Tex. 1994); Tenn. Gas Pipeline

Co. v. Technip USA Corp., No. 01-06-00535-CV, 2008 WL 3876141, at *25 (Tex.

App.––Houston [1st Dist.] Aug. 21, 2008, pets. denied) (mem. op. on reh’g).

That website shows that the historical postjudgment interest rate during the entire

year of 2012 when the trial court signed this judgment was five percent.

Judgment     Rate     Summary,     Office    of   Consumer      Credit     Comm’r,

www.occc.state.tx.us/pages/int_rates/ratesummaries.html      (follow     “Judgment”

hyperlink). Therefore, we conclude and hold that the trial court should have

calculated prejudgment and postjudgment interest at the rate of five percent

instead of six percent.

      Finally, appellants dispute the date from which the trial court calculated

prejudgment interest. As adopted by the supreme court in Johnson & Higgins,

common law prejudgment interest begins to accrue “on the earlier of (1) 180

days after the date a defendant receives written notice of a claim or (2) the date

suit is filed.” Johnson & Higgins, 992 S.W.2d at 531; DaimlerChrysler Motors Co.


                                        33
v. Manuel, 362 S.W.3d 160, 194 (Tex. App.––Fort Worth 2012, no pet.). A claim

in this notice context is a demand for compensation or an assertion of a right to

be paid. Johnson & Higgins, 962 S.W.2d at 531. The trial court appears to have

awarded prejudgment interest at six percent from either August 26 or 27, 2001

through October 4, 2012, the day before the judgment was rendered. However,

there is no evidence of a written notice of a claim being made as soon as

February 2001; appellants did not issue the stop work order halting the ISQT until

August 2001. It appears that the trial court’s prejudgment interest calculation

was erroneously based on Agent’s assertion that section 302.002 applies to this

case.    See Tex. Fin. Code Ann. § 302.002 (calculating prejudgment interest

“beginning on the 30th day after the date on which the amount is due”).

Accordingly, we conclude and hold that although Agent was entitled to

prejudgment interest, the amount of prejudgment interest awarded was

calculated erroneously. See Pringle v. Moon, 158 S.W.3d 607, 611–12 (Tex.

App.––Fort Worth 2005, no pet.). Because neither party has briefed what date

should apply, and because appellants claim that they are entitled to the tolling of

the accrual of interest while a settlement offer was open, we will remand the

issue to the trial court for a recalculation of the correct amount of prejudgment

interest. See id.

        We overrule appellant’s seventh issue in part and sustain it in part.




                                          34
                              Agent’s Cross Point

      Agent has raised a cross point complaining about the trial court’s denial of

one of its requested jury instructions. Because we have not sustained any of

appellant’s issues related to liability, we need not address the cross point. See

Tex. R. App. P. 47.1; Pettus v. Pettus, 237 S.W.3d 405, 420 n.12 (Tex. App.––

Fort Worth 2007, pet. denied).

                                   Conclusion

      Having overruled the majority of appellant’s issues, we affirm the trial

court’s judgment except for the award of prejudgment and postjudgment interest.

Having sustained appellant’s seventh issue in part, we modify the award of

postjudgment interest to be five percent, and we remand this case to the trial

court solely to determine the date from which prejudgment interest should begin

to accrue and to recalculate that interest from the accrual date at the rate of five

percent rather than six percent.


                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: November 26, 2014




                                        35
