Affirmed and Opinion filed November 26, 2013.




                                     In the

                    Fourteenth Court of Appeals

                             NO. 14-12-00635-CV

                           KEVIN ELLIS, Appellant

                                        v.

         RELIANT ENERGY RETAIL SERVICES, L.L.C., Appellee

                On Appeal from the Co. Civil Ct. at Law No. 3
                           Harris County, Texas
                    Trial Court Cause No. 985,781-002


                                OPINION


      Appellant, Kevin Ellis, challenges the trial court’s summary judgment
rendered in favor of appellee, Reliant Energy Retail Services, L.L.C. (“Reliant”),
in Reliant’s suit on a sworn account and quantum meruit claim against him. Ellis
contends the trial court erred in granting traditional summary judgment because
Reliant failed to present evidence that he engaged in meter tampering. Ellis also
argues that the Public Utility Commission (“PUC”) has exclusive or primary
jurisdiction over this dispute.    Finally, Ellis argues that even if the summary
judgment was otherwise proper, Reliant is limited to only 180 days’ worth of
damages. We affirm the judgment in part, reverse the judgment in part, and
remand for further proceedings consistent with this opinion.

                I.      FACTUAL AND PROCEDURAL BACKGROUND

        In its petition, Reliant asserted a claim for a suit on sworn account. Reliant
alleged that it had provided goods and services to Ellis on an open account, and
that Ellis accepted the goods and services and was bound to pay Reliant’s
designated charges, which Reliant contended were “reasonable and customary.”
Reliant alleged that Ellis owed it $19,645.34 for goods and services it had
provided, after allowing for all just and lawful offsets, credits, and payments.
Reliant attached to its petition invoices, which it contended set forth the goods and
services, dates of performance, quantities, and the prices of the series of
transactions, including a final invoice showing an amount due of $19,645.34.
Reliant included allegations that the electric meter at the service address had been
inspected and determined to have been tampered with. Reliant also stated a claim
for quantum meruit, alleging that Ellis had received benefits without paying for
them.

        Ellis filed a verified answer, denying Reliant’s allegations, the account set
forth by Reliant, the amount due, and that proper offsets and credits had been
given. Ellis further denied any knowledge of the operation, malfunctions, and
working of the electric meter. Ellis asserted the affirmative defenses of statute of
limitations, waiver, lack of standing, and further asserted that Reliant was required
to plead and prove existence of a valid contract since its claim was actually for
breach of contract. Ellis also asserted a counterclaim for a violation of section
17.46 of the Texas Deceptive Trade Practices Act (“DTPA”).

                                           2
      Ellis then filed a motion to dismiss for lack of jurisdiction or, in the
alternative, to abate.1 Ellis asserted that the PUC’s jurisdiction over the matter was
exclusive or, at the least, primary. Ellis also argued that Reliant was not allowed to
backbill him for more than 180 days under PUC substantive rule 25.480(e)(1) and
the PUC’s order interpreting that rule. Reliant answered Ellis’s counterclaim with
a general denial, and Ellis supplemented his answer to Reliant’s claims to assert
lack of jurisdiction.

      Reliant moved for traditional summary judgment. In its motion, Reliant
stated that Ellis had an account for electrical services at his Locke Lane address
and that Reliant provided services to Ellis there from January 8, 2002, to July 8,
2009. On or about January 30, 2009, CenterPoint Energy Houston Electric, LLC
(“CenterPoint”),2 determined that the electric meter at the Locke Lane address was
not properly recording electric service usage due to tampering or “diversion”: “a
trick outer seal and no inner seal, the disc looked jammed and the meter would
start and stop.” CenterPoint changed the meter and performed a “shop test” that
confirmed tampering on the “old meter.” CenterPoint then revised the kilowatt
hours (“kWh”) at the service address from December 7, 2006, to February 4, 2009,
and issued “diversion rebilling” and labor and equipment charges to Reliant.
Because of the meter tampering, Reliant billed Ellis $595.71 for electricity at the
service address during this 26-month period. The service address residence is
1,998 square feet; Ellis’s invoices during this time frame ranged from a low of
$0.00 to a high of $188.96, with over 10 months where the invoices were less than
$20.00. Based on CenterPoint’s revised readings, Reliant first rebilled Ellis for
updated use of electric consumption on June 3, 2009, and ultimately issued a final
      1
           The only substantive subheading within Ellis’s motion was entitled, “Plea to
Jurisdiction.” The trial court did not expressly rule on this motion.
      2
          CenterPoint was never and is not a party.

                                                 3
invoice dated July 14, 2009, in the amount of $19,645.34. Reliant asserted that
under the PUC’s substantive rules, as well as CenterPoint’s tariff, CenterPoint
properly estimated usage and Reliant properly rebilled Ellis.

      Reliant attached to its motion the affidavit of Eda Carola Mena, a Reliant
supervisor for customer operations and a custodian of records, who testified that
the “meter tampering” and “corrected” invoices attached to her affidavit accurately
set forth the goods and services that were provided, the dates of performance, and
the quantities, and “are just, that is, the usual, customary and reasonable prices for
the series of transactions at the service address.”      Mena further testified that
Reliant had performed all conditions precedent, all just and lawful offsets and
credits had been applied, and Ellis “was in default under the terms of the sworn
account by failing to make one or more payments as required thereunder.” Also
attached to Mena’s affidavit was “CenterPoint’s Field Service Report and
Equipment Summary Report” and a comparison chart of the invoices. Reliant also
attached to its motion an affidavit from its attorney detailing his $6,500 in
reasonable attorney’s fees.

      In his response to Reliant’s summary judgment motion, Ellis contended
Reliant did not present evidence establishing that he tampered with the electric
meter. Ellis also challenged Reliant’s “guesstimation” and rebilling of his electric
consumption as “presumptuous and not in accord with the procedure established by
the [PUC].” Ellis asserted that an electric utility only is entitled to rebill after it
meets its burden to establish “meter tampering.” Ellis attached to his response his
own affidavit wherein he averred that he “did not tamper with nor cause anyone to
tamper with the electric meter attached to [his] house” and that he “was unaware




                                          4
that there was a problem with the meter.”3

       The trial court granted Reliant’s traditional motion for summary judgment.4
Ellis filed a motion for rehearing.                Reliant responded to Ellis’s motion for
rehearing, asserting he had not raised a fact issue but noting that Ellis’s
counterclaim still remained at issue. Reliant also filed a motion for no-evidence
summary judgment on Ellis’s DTPA claim, asserting Ellis had provided no
evidence of the requisite element that Reliant provided false, misleading, or
deceptive information. The trial court then denied Ellis’s motion for rehearing, but
signed an “Interlocutory Summary Judgment” that granted Reliant its traditional
summary judgment. Ellis responded to Reliant’s no-evidence motion, asserting
that Reliant failed to properly maintain his electric meter, monitor his usage, bill
him for services, and notify him of any problems. Ellis attached his same affidavit.
The trial court signed a “Partial Summary Judgment” that rendered a “take nothing
judgment” against Ellis.

       In its “Final Judgment,” the trial court ordered that Reliant recover from
Ellis the outstanding principal balance of $19,645.34, as well as $6,500 in
attorney’s fees, plus conditional attorney’s fees in the event of appeal, costs, and
5% in pre- and post-judgment interest. Ellis timely appealed.

       In his appeal, Ellis presents three issues: (1) whether the trial court erred in
granting Reliant’s traditional summary judgment because Reliant failed to present
evidence that Ellis engaged in meter tampering; (2) whether the trial court properly
exercised jurisdiction over this dispute; and (3) even if granting summary judgment
was otherwise proper, whether Reliant is limited to only 180 days’ worth of

       3
           Ellis also attached his affidavit to his motion to dismiss.
       4
        The trial court stated that its summary judgment order disposed of all claims and parties,
and was meant to be a final order.

                                                    5
backbilling as damages.

                               II.       ANALYSIS

A. Jurisdiction

      To begin, we will consider Ellis’s second issue—whether the trial court
properly exercised jurisdiction over this matter.

      1. Standard of review

      Subject matter jurisdiction may not be conferred or taken away by consent
or waiver, and its absence may be raised at any time. Carroll v. Carroll, 304
S.W.3d 366, 367 (Tex. 2010) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 445 (Tex. 1993)). Whether a trial court has subject matter jurisdiction
is a question of law we review de novo. Tex. Natural Res. Conservation Comm’n
v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002).         We also review de novo the
question of law of whether a pleader has alleged facts that affirmatively
demonstrate subject matter jurisdiction.      Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe pleadings liberally in
favor of the plaintiff and look to the pleader’s intent. See id. (citing Tex. Air
Control Bd., 852 S.W.2d at 446).

      2. The PUC does not have exclusive jurisdiction.

      Ellis argues that the PUC has exclusive jurisdiction over this account dispute
between Reliant and Ellis pursuant to sections 31.001 and 32.001 of the Public
Utility Regulatory Act (“PURA”) and the Texas Supreme Court’s decision in In re
Entergy Corp., 142 S.W.3d 316 (Tex. 2004) (orig. proceeding).

      Before reviewing the specific sections cited by Ellis, we first recognize that
at the time of filing the Harris County civil courts at law exercised concurrent
jurisdiction with district courts in civil cases where the matter in controversy
                                          6
exceeded $500 but did not exceed $100,000.          See TEX. GOV’T CODE ANN.
§§ 25.0003(c)(1), 25.1032 (West 2004).       We also recognize the constitutional
presumption that district courts are authorized to resolve disputes. Entergy, 142
S.W.3d at 322 (discussing TEX. CONST. art. V, § 8). Moreover, district courts are
courts of general jurisdiction and generally have subject matter jurisdiction absent
a showing to the contrary. Id. (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71,
75 (Tex. 2000)). Therefore, keeping these presumptions in mind, we determine
whether the “Constitution or other law” conveys exclusive, appellate, or original
jurisdiction on the PUC. See Entergy, 142 S.W.3d at 322 (citing TEX. CONST. art.
V, § 8).

      There is no presumption that administrative agencies have authority to
resolve disputes. Subaru of Am. v. David McDavid Nissan, 84 S.W.3d 212, 220
(Tex. 2002). Administrative agencies may exercise only those powers the law
confers upon them in clear and express statutory language and those reasonably
necessary to fulfill a function or perform a duty that the Legislature has expressly
placed with the agency.     Id. (citations omitted); Pub. Util. Comm’n v. GTE–
Southwest, Inc., 901 S.W.2d 401, 407 (Tex. 1995) (citations omitted). An agency
has exclusive jurisdiction when a pervasive regulatory scheme indicates that the
Legislature intended for the regulatory process to be the exclusive means of
remedying the problem to which the regulation is addressed. David McDavid
Nissan, 84 S.W.3d at 221 (citation omitted). When an agency has exclusive
jurisdiction, the trial court lacks subject matter jurisdiction and must dismiss the
claims within the agency’s exclusive jurisdiction. See id.

      The Texas Supreme Court has explained that whether an agency has
exclusive jurisdiction depends on statutory interpretation. Id. Whether an agency
has exclusive jurisdiction thus is a question of law we review de novo. Id. at 222.

                                         7
When construing statutes, our objective is to determine and give effect to the
Legislature’s intent. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25
(Tex. 2003) (citing State v. Gonzales, 82 S.W.3d 322, 327 (Tex. 2002)). We look
to the “plain and common meaning of the statute’s words.” Id. (citing Gonzales,
82 S.W.3d at 327). When a statute’s meaning is unambiguous, we interpret such
statute according to its plain language. Id. (citing Gonzales, 82 S.W.3d at 327).

      Section 31.001 of PURA, Legislative Findings; Purpose of Subtitle, states:

      This subtitle is enacted to protect the public interest inherent in the
      rates and services of electric utilities. The purpose of this subtitle is to
      establish a comprehensive and adequate regulatory system for electric
      utilities to assure rates, operations, and services that are just and
      reasonable to the consumers and to the electric utilities.

TEX. UTIL. CODE ANN. § 31.001(a) (West 2007) (emphases added). In addition,
section 32.001 of PURA, Commission Jurisdiction, describes the PUC’s
jurisdiction as follows:

      Except as provided by Section 32.002 [governing municipally owned
      utilities], the Commission has exclusive original jurisdiction over the
      rates, operations, and services of an electric utility in:
      (1) areas outside a municipality; and
      (2) areas inside a municipality that surrenders its jurisdiction to the
      Commission under Section 33.002.

Id. § 32.001(a) (emphasis added). The Entergy court concluded that based on
section 31.001’s description of PURA as “comprehensive” and section 32.001’s
specific grant to the PUC of “exclusive original jurisdiction,” the Legislature
intended PURA to be the exclusive means of regulating electric utilities and thus
the PUC had exclusive jurisdiction over the contract dispute “regarding utility
rates, operations, and services” involving a newly-merged electric utility. 142


                                           8
S.W.3d at 323.5

       Reliant responds that according to PURA, it is not an electric utility, but
rather a retail electric provider (“REP”). See TEX. UTIL. CODE. ANN. § 31.002(17)
(West 2007) (defining “retail electric provider” as “a person that sells electric
energy to retail customers in this state” but “does not own or operate generation
assets”); see also 16 TEX. ADMIN. CODE § 25.5(115) (2010) (Pub. Util. Comm’n,
Definitions) (defining “retail electric provider as “[a] person that sells electric
energy to retail customers in this state” but “may not own or operate generation
assets); 16 TEX. ADMIN. CODE § 25.107 (2009) (Pub. Util. Comm’n, Certification
of Retail Electric Providers (REPs)) (defining “retail electric provider” as “[a]
person that sells electric energy to retail customers in this state”). Reliant asserts
that PURA’s definition of “electric utility” expressly excludes “retail electric
providers.” See TEX. UTIL. CODE. ANN. § 31.002(6) & (6)(H) (defining “electric
utility” as “a person or river authority that owns or operates for compensation in
this state equipment or facilities to produce, generate, transmit, distribute, sell, or
furnish electricity in this state” but does not include “retail electric providers”); see
also 16 TEX. ADMIN. CODE § 25.5(41) & (41)(H) (same). Thus, Reliant argues that
Entergy is inapplicable.

       We agree with Reliant. While the plain language of sections 31.001 and
32.001 clearly expresses the Legislature’s intent that PURA be the exclusive
means of regulating, and the PUC exercise exclusive jurisdiction with regard to,
electric utilities, Entergy, 142 S. W.3d at 323, the plain language of PURA’s own
definitions clearly expresses the Legislature’s intent that REPs are not considered
       5
         In addition to the statutory analysis, the Entergy court also considered that the contract
at issue, a merger agreement among the parties, “importantly, was the basis for the PUC’s
regulatory approval of the . . . merger. . . . [T]he very administrative character that gives the
Merger Agreement effect also gives the PUC the authority to adjudicate disputes arising from the
agreement.” 142 S.W.3d at 324.

                                                9
to be electric utilities. Therefore, Entergy’s jurisdictional analysis does not control
with regard to this case that solely involves a dispute between an REP and its
customer.

      Here, construing the petition in its favor, Reliant alleged facts indicating it is
considered an REP and not an electric utility under PURA. Reliant alleged that it
sold electrical goods and services to Ellis at a service address in Texas on an open
account.    Nothing in Reliant’s petition indicates it owned or operated any
equipment or facilities that would bring it within PURA’s definition of an electric
utility.6 Further, in Ellis’s motion to dismiss/plea to the jurisdiction, he expressly
refers to Reliant as a “retail electric provider.” Construing the PURA sections at
issue and the facts as pleaded in Reliant’s petition, we conclude that the PUC does
not have exclusive jurisdiction over this particular dispute between REP Reliant
and its customer Ellis.

      3. Ellis failed to preserve his primary jurisdiction issue.

      In the alternative, Ellis argues that the PUC has primary jurisdiction over
this matter pursuant to section 17.157 of PURA, Disputes, and thus the trial court
should have abated the matter. However, we conclude that Ellis has failed to
preserve this issue for review.

      The judicially-created doctrine of primary jurisdiction allocates power
between courts and agencies when both have the authority to make initial
determinations in a dispute. David McDavid Nissan, 84 S.W.3d at 221. Trial
courts should defer to the appropriate administrative agencies when: (1) the agency
is staffed with experts trained in handling complex problems within the agency’s
purview and (2) great benefit is derived from the agency’s uniform interpretation
      6
         Reliant alleged that it was a CenterPoint employee who inspected, removed, and
changed the electric meter at Ellis’s service address.

                                          10
of laws within its purview and the agency’s rules and regulations when courts and
juries might reach differing results under similar fact situations. Id. When an
agency has primary jurisdiction, abatement by the trial court is appropriate so that
the agency has an opportunity to act on the matter. Id.

       Despite similar terminology that has tended to confuse Texas courts, the
exclusive jurisdiction and primary jurisdiction doctrines are “distinctly different
doctrines.”    Id. at 220. Thus, the Texas Supreme Court holds that “primary
jurisdiction is prudential whereas exclusive jurisdiction is jurisdictional.” Id. In
other words, primary jurisdiction, even where it properly applies, does not divest
the trial court of its subject matter jurisdiction. Apollo Enters., Inc. v. ScripNet,
Inc., 301 S.W.3d 848, 871 (Tex. App.—Austin 2009, no pet.). Further, a trial
court’s decision to grant or deny a motion to abate is within the court’s discretion.
Tex. Mut. Ins. Co. v. Sonic Sys. Int’l, Inc., 214 S.W.3d 469, 479, 483 (Tex. App.—
Houston [14th Dist.] 2006, pet. denied) (concluding that continued abatement
based on primary jurisdiction was abuse of discretion). Thus, unlike exclusive
jurisdiction, which implicates subject matter jurisdiction and thus may be raised at
any time, because primary jurisdiction is not jurisdictional, it may be waived. TEX.
R. APP. P. 33.1(a); see David McDavid Nissan, 84 S.W.3d at 220.

       The record reflects that the trial court did not rule on Ellis’s motion to
abate.7 After the trial court granted Reliant’s traditional motion for summary
judgment, Ellis filed a motion for rehearing wherein he “re-urge[d]” abatement and
noted the “pending” motion. However, the record does not reflect that Ellis ever

       7
         The Texas Supreme Court has held that when a trial court rules on the merits of the case
“without explicitly rejecting an asserted jurisdictional attack,” the court “has implicitly denied
the jurisdictional challenge.” Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006). However,
despite the “jurisdiction” moniker, primary jurisdiction is not jurisdictional, and thus is not
subject to implicit denial for purposes of rule 33.1. See David McDavid Nissan, 84 S.W.3d at
220.

                                               11
commenced a hearing on his motion to abate. Nor does the record demonstrate
that Ellis objected to the trial court’s refusal to rule on his motion. Therefore, Ellis
failed to preserve this issue for appellate review. See Grace Interest, LLC v. Wallis
State Bank, —S.W.3d—, No. 14-12-00557-CV, 2013 WL 4604570, at *8 (Tex.
App.—Houston [14th Dist.] Aug. 29, 2013, no. pet. h.) (concluding that abatement
issue was waived).

         Therefore, we overrule Ellis’s second issue.

B. Suit on sworn account

         Reliant moved for traditional summary judgment on its sworn account and
quantum meruit claims.        The trial court granted summary judgment without
specifying any underlying ground. We conclude that Ellis raised a fact issue on his
limitations defense to preclude summary judgment on Reliant’s sworn account
claim.

         1. Standard of review

         We review the trial court’s granting of a summary judgment de novo.
Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per
curiam). To be entitled to summary judgment under rule 166a(c), a movant must
establish that there is no genuine issue of material fact so that the movant is
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In
particular, a plaintiff moving for summary judgment must conclusively prove all
essential elements of its claim. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223
(Tex. 1999); Gray v. Entis Mech. Servs., L.L.C., 343 S.W.3d 527, 529 (Tex.
App.—Houston [14th Dist.] 2011, no pet.) (citation omitted). If the movant’s
motion and summary judgment evidence facially establish its right to judgment as


                                           12
a matter of law, the burden shifts to the nonmovant to raise a material fact issue
sufficient to defeat summary judgment. Gray, 343 S.W.3d at 529 (citing M.D.
Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000)). “On
appeal, the movant still bears the burden of showing there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law.” Id. (citing
Rhone–Poulenc, Inc., 997 S.W.2d at 223). We review the evidence presented in
the motion and the response in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, and disregarding
evidence contrary to the nonmovant unless reasonable jurors could not. Mann
Frankfort, 289 S.W.3d at 848. We will affirm if any of the summary judgment
theories presented to the trial court and preserved for appellate review are
meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).

      2. Sworn account requirements

      To establish sufficient evidence to support summary disposition in a suit on
sworn account, the movant must “strictly adhere” to the provisions outlined in the
Texas Rules of Civil Procedure. PennWell Corp. v. Ken Assocs., Inc., 123 S.W.3d
756, 765 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (citing Powers v.
Adams, 2 S.W.3d 496, 498 (Tex. App.—Houston [14th Dist.] 1999, no pet.)). Rule
185 sets forth the criteria for a suit on account and defines an open account to
include “any claim . . . for personal services rendered . . . .” TEX. R. CIV. P. 185.
Thus, a plaintiff’s petition on a sworn account must contain “a systematic, itemized
statement of the goods or services sold, reveal offsets made to the account, and be
supported by an affidavit stating the claim is within the affiant’s knowledge, and
that it is ‘just and true.’” PennWell Corp., 123 S.W.3d at 765 (citing Powers, 2
S.W.3d at 498).

      Despite a defendant’s sworn denial, a plaintiff may properly obtain a

                                         13
summary judgment on its sworn account claim by filing “legal and competent
summary judgment evidence establishing the validity of its claim as a matter of
law.” Id. (citation omitted). The elements of a sworn account are: (1) the sale and
delivery of merchandise or performance of services; (2) that the amount of the
account is “just,” i.e., the prices charged are pursuant to an express agreement, or
in the absence of an agreement, that the charges are usual, customary, or
reasonable; and (3) that the outstanding amount remains unpaid. Id. at 766.

      Mena professed her personal knowledge of all the facts set forth in her
affidavit. Mena testified that Reliant provided Ellis with electrical services. She
further stated that after CenterPoint—“the Transmission and Distribution Service
Provider”—determined that the meter at Ellis’s service address had not been
properly recording electric service usage due to tampering or “diversion” and
confirmed diversion through a “shop test,” CenterPoint revised the kWh from
December 7, 2006, to February 4, 2009.         Reliant rebilled Ellis based on the
corrected kWh and issued a final invoice on July 14, 2009, in the amount of
$19,645.34. In addition to the final invoice and invoices reflecting usage since the
meter was replaced in February 2009, attached to Mena’s affidavit were the “meter
tampering” invoices reflecting the invoices originally billed for usage from
December 2006 to January 2009 and a comparison chart. Mena stated that the
attached invoices accurately set forth the services, dates, quantities, and the “just,
that is, the usual, customary and reasonable prices for the series of transactions at
the service address” and that the outstanding amount was calculated after applying
“all just and lawful offsets and credits.” Mena testified that Reliant had performed
all conditions precedent and was “entitled to collect the indebtedness arising
thereunder.” Mena also testified that Ellis “was in default under the terms of the
sworn account.” Thus, Reliant’s motion and evidence facially established its right


                                         14
to summary judgment on its sworn account as a matter of law, and the burden
shifted to Ellis to raise a fact issue to defeat summary judgment.

      3. Whether Ellis tampered with his meter does not raise a fact issue as
         to Reliant’s sworn account claim.
      In his first issue, Ellis argues that the trial court erred in granting summary
judgment in favor of Reliant because Reliant failed to present any evidence to
support its argument that he “was indebted to it as a result of meter tampering
occasioned by [him].” Essentially, Ellis’s position is that to sufficiently prove the
elements of a suit on sworn account, Reliant had to prove that Ellis tampered with
his meter or caused such tampering. Ellis submitted an affidavit with his response
to Reliant’s motion for summary judgment wherein he averred that he “did not
tamper with nor cause anyone to tamper with the electric meter attached to [his]
house.”

      We do not agree that whether Ellis engaged in any meter tampering
implicates the first sworn account element—that Reliant provided electric service
to Ellis. Whether Ellis engaged in or knew about meter tampering also does not
correlate to the second sworn account element, the justness of the amount of the
account. Nor does it bear on the third sworn account element—that Ellis had not
paid the outstanding amount. Mena’s affidavit and attached invoices constitute
sufficient evidence that Reliant sold and delivered electric service to Ellis at the
service address pursuant to his account with Reliant.           This evidence also
establishes that the prices charged in the invoices reflect the usual, customary, and
reasonable prices for the revised electrical usage, and that Ellis did not pay the
outstanding amount on the account.

      Ellis’s affidavit fails to controvert any of these elements. Although Ellis
specifically denies ever tampering with the meter or causing anyone else to do so,

                                         15
and professes that he was unaware of any meter problem, he does not place into
issue that Reliant provided electric service pursuant to an account with him at the
service address. And although Ellis states that he changed electric providers due to
his outstanding balance with Reliant, he does not controvert the justness of the
amount, or the existence, of such balance. Therefore, we overrule Ellis’ first issue.

       4. Ellis has raised a fact issue as to his affirmative defense of limitations
          sufficient to defeat summary judgment on Reliant’s sworn account
          claim.
       However, we conclude that whether Ellis engaged in meter tampering does
implicate his affirmative defense of limitations.8

       In his third issue, Ellis contends that, even if the trial court was correct in
that Reliant otherwise was entitled to summary judgment on its claims, the court
erred because it “ignored” the law by not limiting Reliant to 180 days’ worth of
backbilling damages. In his summary judgment response, as incorporated from his
motion to dismiss, Ellis asserted that, pursuant to substantive rule 25.480(e)(1),9 as
interpreted by the PUC, Reliant was not allowed to backbill him for more than 180
days from the date of the issuance of the bill in which the underbilling occurred.
Thus, Ellis relied on his affirmative defense of limitations to oppose Reliant’s
summary judgment motion. See Tello v. Bank One, N.A., 218 S.W.3d 109, 114
(Tex. App.—Houston [14th Dist.] 2007, no pet.) (nonmovant may rely on
affirmative defense to oppose summary judgment motion). Ellis as nonmovant “is

       8
          If the amount of Reliant’s backbilling had not exceeded 180 days, whether Ellis raised a
fact issue as to his tampering with the meter would not be relevant because under rule 25.480(e),
so long as charges are found to be lower than authorized, an REP can backbill for up to 180 days.
Ellis did not controvert that Reliant’s charges reflected underbilling and were subject to
correction.
       9
           This rule is contained within subchapter R, “Customer Protection Rules for Retail
Electric Service,” of chapter 25, “Substantive Rules Applicable to Electric Service Providers,” of
title 16, part 2, of the Texas Administrative Code.

                                               16
not required to prove the affirmative defense as a matter of law; raising a fact issue
is sufficient to defeat summary judgment.” See id.

      Generally, we construe administrative rules, which have the same force as
statutes, in the same manner as statutes. Rodriguez v. Serv. Lloyds Ins. Co., 997
S.W.2d 248, 254 (Tex. 1999). In construing a PUC rule, our primary objective is
to give effect to the PUC’s intent.        See id.    One of the “dominant rules of
construction” we apply “requires us to give ‘serious consideration’ to the
‘[c]onstruction of a statute by the administrative agency charged with its
enforcement.’” First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 632 (Tex.
2008) (citing Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993)).
Section 17.003 of PURA, Customer Awareness, provides that the PUC “shall
adopt and enforce rules to require . . . a retail electric provider, or an electric utility
to give clear, uniform, and understandable information to customers about rates,
terms, services, customer rights, and other necessary information as determined by
the commission.” TEX. UTIL. CODE ANN. § 17.003(c) (West 2007 & Supp. 2013).
Section 17.004 of PURA, Customer Protection Standards, provides that the PUC
“may adopt and enforce rules as necessary to carry out this section, including rules
for minimum service standards for . . . a retail electric provider, or an electric
utility.” Id. § 17.004(b). Because the Legislature has conferred authority on and
charged the PUC with enforcement of rules pertaining to information provided to
and protection standards for customers, we will uphold its interpretation “so long
as the construction is reasonable and does not contradict the plain language of the
statute.” First Am. Title Ins., 258 S.W.3d at 632 (citing Tarrant Appraisal Dist.,
845 S.W.2d at 823); see R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future &
Clean Water, 336 S.W.3d 619, 624–25 (Tex. 2011) (noting that “serious
consideration” deference applies to “formal opinions adopted after formal


                                            17
proceedings,” where language at issue is ambiguous and agency’s construction is
reasonable); see also TEX. UTIL. CODE ANN. § 17.001(b) (West 2007) (conferring
authority on PUC to adopt and enforce customer protection rules).

      While both Reliant and Ellis point to various versions of the PUC’s
substantive rules as favoring their interpretation of what must be shown with
regard to meter tampering for permissible rebilling, we attempt to construe the
rules in effect at the time of Reliant’s rebilling of Ellis, and to the extent necessary,
CenterPoint’s action in issuing diversion rebilling and related charges to Reliant.

      Specifically, Ellis maintains that PUC substantive rule 25.126(b) places the
burden of proof of meter tampering on the electric utility. Reliant does not dispute
this burden of proof, which it cited in its summary judgment motion.

      At the relevant time, rule 25.126 provided:

      (a) For purposes of these sections, meter tampering, bypass, or
      diversion shall be defined as tampering with an electric utility
      company's meter or equipment, bypassing the same, or other instances
      of diversion, such as physically disorienting the meter; attaching
      objects to the meter to divert or bypass service; inserting objects into
      the meter; and other electrical and mechanical means of tampering
      with, bypassing, or diverting electrical service.
      (b) The burden of proof of meter tampering, bypass, or diversion is on
      the electric utility. Photographic evidence or any other reliable and
      credible evidence may be used; however, any evidence must be
      accompanied by a sworn affidavit by the electric utility when any
      action regarding meter tampering as provided for in these sections is
      initiated. A court finding of meter tampering may be used instead of
      photographic or other evidence, if applicable. Meter tampering is a
      criminal offense outside the jurisdiction of the Public Utility
      Commission.

16 TEX. ADMIN. CODE § 25.126 (2009) (Pub. Util. Comm’n, Meter Tampering)



                                           18
repealed 35 Tex. Reg. 4669 (2010) (proposed January 1, 2010).10

       Ellis also asserts that, under rule 25.480(e)(1), and the PUC’s interpretation
of this rule as stated in its order in Complaint of Sonya Pantoja against
CenterPoint Energy and Reliant Energy, PUC Docket No. 35455, 2008 WL
4870585 (Oct. 29, 2008) (slip op.), Reliant is limited to backbilling him for
corrected charges for 180 days.11

       At the relevant time, rule 25.480 provided:

       (e) Underbilling by a REP. If charges are found to be lower than
       authorized by the REP’s terms and conditions of service, or if the REP
       fails to bill the customer for service, then the customer’s bill may be
       corrected.
                 (1) The customer shall not be responsible for corrected charges
                 billed by the REP unless such charges are billed by the REP
                 within 180 days from the date of issuance of the bill in which
                 the underbilling occurred. The REP may backbill a customer
                 for the amount that was underbilled beyond the timelines
                 provided in this paragraph if:
                         (A) the underbilling is found to be the result of meter
                         tampering by the customer; or
                         (B) the TDU bills the REP for an underbilling as a result
                         of meter error as provided in § 25.125 of this title
                         (relating to Adjustments Due to Meter Errors).

16 TEX. ADMIN. CODE § 25.480(e)(1) (2009) (Pub. Util. Comm’n, Bill Payment
and Adjustments).


       10
           Ellis also maintains that rule 25.126(b)(2) only permits a utility to backbill for six
months if it discovers a non-compliant meter affected by meter tampering. However, such time
limitation is reflected in the current version of rule 25.126, effective July 1, 2010, not the version
of rule 25.126 in effect at the time of the backbilling at issue. 16 TEX. ADMIN. CODE
§ 25.126(b)(2)(B) (2013) (Pub. Util. Comm’n, Adjustments Due to Non-Compliant Meters and
Meter Tampering in Areas Where Customer Choice Has Been Introduced).
       11
            Ellis attached this opinion to his motion to dismiss.

                                                   19
       The plain language of subsection (e)(1)(A) requires that the underbilling
must be found to be due to meter tampering “by the customer” for the 180-day
time frame not to apply. Id. § 25.480(e)(1). Moreover, Reliant concedes in its
brief that subsection (e)(1)(A) requires proof that Ellis was the actual person who
tampered with the meter.           In his affidavit, Ellis specifically denied having
tampered with, or having caused anyone to tamper with, his meter. Thus, we agree
with Ellis that he raised a fact issue as to whether he—“the customer”—tampered
with the meter.

       Instead, Reliant argues that subsection (e)(1)(B) does not require a showing
that Ellis was the one who tampered with the meter. Reliant contends that pursuant
to subsection (e)(1)(B), it was proper to backbill Ellis beyond the 180-day timeline
where the TDU12 (here, CenterPoint) billed the REP (Reliant) as a result of meter
error as provided in PUC substantive rule 25.125 and as permitted by
CenterPoint’s tariff with Reliant. Reliant also asserts that the PUC’s analysis in
Pantoja only applies to backbilling under subsection (e)(1)(A) and, in any event, is
not binding.

       The PUC issued the Pantoja order after a hearing on a formal complaint
filed by Sonya Pantoja against CenterPoint and Reliant.                   Pantoja presented
virtually the same factual circumstances as here. There, starting in 2004, retail
customer Pantoja’s kWh readings dropped to only about 20% of her prior usage.
Pantoja, 2008 WL 4870585, at *2. In February 2007, prompted by a showing of
negative usage, CenterPoint performed a field test of Pantoja’s meter, discovered

       12
           A “transmission and distribution utility” (“TDU”) is “a person or river authority that
owns or operates for compensation in this state equipment or facilities to transmit or distribute
electricity . . . .” TEX. UTIL. CODE ANN. § 31.002(19); 16 TEX. ADMIN. CODE § 25.5(139). Thus,
a TDU falls within the definition of an electric utility. See TEX. UTIL. CODE ANN. §§ 31.002(6),
31.002(19); 16 TEX. ADMIN. CODE §§ 25.5(41), 25.5(139). Mena describes CenterPoint as the
“Transmission and Distribution Service Provider” in her affidavit.

                                               20
tampered jewels, and replaced the meter. Id. at *3. To correct for the underbilling,
CenterPoint estimated and issued revised kWh readings for the period of January
15, 2004, to February 19, 2007. Id. CenterPoint submitted adjusted billing for that
period to Pantoja’s REP Reliant, and Reliant backbilled Pantoja for the
underbilling, which “was the result of meter tampering.” Id. Pantoja argued that
Reliant had wrongfully issued corrected bills covering a three-year period for
electricity consumption at her service address. Id. at *1.

      The PUC decided, first, it was not appropriate to apply the penal code
presumption that the person who economically benefits from meter tampering
knowingly tampered with the meter. Id.; see TEX. PENAL CODE ANN. § 28.03(c)
(West 2011) (Criminal Mischief offense). The PUC then specifically stated rule
25.480(e)(1) required “that CenterPoint and Reliant present evidence sufficient to
establish that the meter tampering was attributable to Ms. Pantoja.” Pantoja, 2008
WL 4870585, at *1. The version of rule 25.480(e)(1) interpreted by the PUC in
Pantoja included the same exact language as the version applicable in this case.13

      13
           The version of rule 25.480 applicable in Pantoja provided, in relevant part:
      (e) Underbilling by a REP. If charges are found to be lower than authorized by
      the REP’s terms and conditions of service, or if the REP fails to bill the customer
      for service, then the customer's bill may be corrected.
                (1) The customer shall not be responsible for corrected charges billed by
                the REP unless such charges are billed by the REP within 180 days from
                the date of issuance of the bill in which the underbilling occurred. The
                REP may backbill a customer for the amount that was underbilled beyond
                the timelines provided in this paragraph if:
                       (A) the underbilling is found to be the result of meter tampering by
                       the customer; or
                       (B) the TDU bills the REP for an underbilling as a result of meter
                       error as provided in § 25.125 of this title (relating to Adjustments
                       Due to Meter Errors).
16 TEX. ADMIN. CODE § 25.480(e)(1) (2007) (Pub. Util. Comm’n, Bill Payment and
Adjustments).

                                                 21
Because the evidence did not establish that Pantoja tampered with her meter,
although both CenterPoint and Reliant calculated the adjusted usage and
underbilling properly, Pantoja was “not responsible for corrected charges billed by
Reliant unless such charges are billed within 180 days from the date of issuance of
the bill in which the underbilling occurred.” Id. at *3–4. Thus, Reliant was only
permitted to backbill Pantoja for the 180 days before it issued its first bill with
corrected charges.14 Id. at *4.

       We do not agree with Reliant that Pantoja limited its analysis to subsection
(e)(1)(A), particularly where the factual circumstances, as here, also reflected that
CenterPoint as TDU had issued REP Reliant a bill for underbilling. Unless we
conclude that the PUC’s interpretation of rule 25.480(e)(1) in Pantoja is
unreasonable or inconsistent with the rule’s language, we must defer to it.

       Reliant simply cannot point to any unambiguous language in the rule or
elsewhere15 supporting its interpretation that it is entitled to backbill Ellis for 26
months, without proof that Ellis did the tampering. Reliant first points to rule
25.480(e)(1)(B). This subsection refers to rule 25.125, which does not contain any
express provision extending the time to backbill to over 180 days.

       At the relevant time, rule 25.125 provided:

       (a) If any meter is found to be not in compliance with the accuracy
       standards required by § 25.121(e)[16] of this title (relating to Meter

       14
        The first corrected bill Reliant submitted to Pantoja was dated March 26, 2007; the
PUC permitted Reliant to backbill Pantoja to September 27, 2006. Pantoja, slip op. at 5–6.
       15
          We read the words of a rule in their context, also taking note of their place in the
overall regulatory scheme. See Celadon Trucking Servs., Inc. v. Titan Textile Co., 130 S.W.3d
301, 305 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (substitute op.) (citing Food and
Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).
       16
            At the relevant time, rule 25.121 provided:
       (e) Accuracy requirements.

                                                 22
      Requirements), readings for the prior six months, or from the time the
      meter was in service since last tested, but not exceeding six months,
      shall be corrected and adjusted bills shall be rendered.
      (b) No refund is required from the electric utility except to the
      customer last served by the meter prior to the testing.
      (c) If a meter is found not to register for any period, unless bypassed
      or tampered with, the electric utility shall estimate and charge for
      units used, but not metered, for a period not to exceed three months.
      The estimated charge shall be based on amounts used under similar
      conditions during the period preceding or subsequent to the period the
      meter was found not to register, or during corresponding periods in
      previous years.

16 TEX. ADMIN. CODE § 25.125 (2009) (Pub. Util. Comm’n, Adjustments Due to
Meter Errors) repealed 35 Tex. Reg. 4669 (2010) (proposed January 1, 2010).

      Reliant specifically points to subsection (c). Inclusion of the phrase “unless
bypassed or tampered with” in rule 25.125(c) appears to express the PUC’s intent
that such three-month time limitation not apply in circumstances involving meter
bypass or tampering. However, it does not address the 180-day limitation; it only
allows rebilling for more than three months. This section also does not speak as to
who must have tampered with the meter. Reliant argues that it does not have to be
the customer under this subsection.

      But another potential reading is that the requirement of subsection (e)(1)(A)
of rule 25.480 that the customer be shown to be involved in the tampering also
applies to backbilling pursuant to subsection (e)(1)(B). While rule 25.126 on

             (1) No meter that violates the test calibration limits as set by the American
             National Standards Institute, Incorporated, shall be placed in service or left
             in service. Whenever on installation, periodic, or other tests, a meter is
             found to violate these limits, it shall be adjusted or replaced.
             (2) Meters shall be adjusted as closely as practicable to the condition of
             zero error.
16 TEX. ADMIN. CODE § 25.121(e) (2009) (Pub. Util. Comm’n, Meter Requirements).

                                              23
“Meter Tampering” does not expressly state that the electric utility’s burden is to
prove meter tampering “by the customer,” the rule provides that a court finding of
meter tampering, a criminal offense outside the PUC’s jurisdiction, may be used to
satisfy the utility’s burden of proof, where such court finding would, of course, be
limited to a specific person, or customer, not meter tampering as accomplished by
some unknown party. See 16 TEX. ADMIN. CODE § 25.126(b); TEX. PENAL CODE
ANN. § 28.03 (“A person commits [criminal mischief] if . . . .”).

       Also, reading further along in rule 25.480, subsection (e)(4) only allows the
REP to charge interest to the customer on underbilled amounts where “such
amounts are found to be the result of theft of service (meter tampering, bypass, or
diversion) by the customer.” Id. § 25.480(e)(4) (emphasis added).

       Finally, although Reliant argues that CenterPoint’s PUC-approved tariff for
retail delivery service supports its interpretation of subsection (e)(1)(B) as not
requiring a showing that the tampering be done by the customer, we believe it only
further muddies the waters. The record includes an excerpt from CenterPoint’s
tariff in place at the time:

       4.7.5 INVOICE ADJUSTMENT DUE TO METER INACCURACY
       If any Meter is determined to be outside of the accuracy standards
       established by the ANSI, unless bypassed or Tampered[17] with,

       17
            Pursuant to rule 25.214’s pro forma tariff, “tamper” or “tampering” means:
       Any unauthorized alteration, manipulation, change, modification, or diversion of
       the Delivery System, including Meter and Metering Equipment, that could
       adversely affect the integrity of billing data or the Company’s ability to collect the
       data needed for billing or settlement. Tampering includes, but is not limited to,
       harming or defacing Company facilities, physically or electronically disorienting
       the Meter, attaching objects to the Meter, inserting objects into the Meter, altering
       billing and settlement data or other electrical or mechanical means of altering
       Delivery Service.
16 TEX. ADMIN. CODE § 25.214(d)(1) Fig. (2009) (Pub. Util. Comm’n, Terms and Conditions of
Retail Delivery Service Provided by Investor Owned Transmission and Distribution Utilities)
                                                 24
       proper correction will be made of previous measurement data readings
       from the time the Meter was in service since last tested, but not
       exceeding 150 days from the current date except in the case of an
       overbilling. Meter Readings shall be corrected, adjusted, and
       corrected invoices rendered.
       In situations where the limitation on backbilling or application of
       interest is not applicable as a result of the exception for Tampering or
       theft of service, Company[18] shall provide reasonable documentation,
       including photographs, if available, to the Competitive Retailer[19]
       upon request.
       If a Meter is determined not to register for any period, unless
       bypassed or Tampered with, Company will invoice Retail
       Customer’s[20] Competitive Retailer for the Delivery Charges[21]
       associated with the amount of Electric Power and Energy delivered,
       but not Metered, for a period not to exceed 150 days from the current
       date) [sic] based on amounts used under similar conditions during a
       period preceding or subsequent thereto, or during corresponding
       periods in previous years.

See 16 TEX. ADMIN. CODE § 25.214(d)(1) Fig. (2009) (Pub. Util. Comm’n, Terms
and Conditions of Retail Delivery Service Provided by Investor Owned
Transmission and Distribution Utilities) (Chapter 4.7.5).


(Chapter 1: Definitions).
       18
           Rule 25.214’s pro forma tariff defines “company” as “[t]he transmission and
distribution utility providing Delivery Service pursuant to this Tariff, and its respective officers,
agents, employees, successors, and assigns.” 16 TEX. ADMIN. CODE § 25.214(d)(1) Fig. (Chapter
1: Definitions).
       19
          Pursuant to rule 25.214’s pro forma tariff, a “Competitive Retailer” or “CR” includes a
“Retail Electric Provider.” 16 TEX. ADMIN. CODE § 25.214(d)(1) Fig. (Chapter 1: Definitions).
       20
         Rule 25.214’s pro forma tariff defines “retail customer” as “[a]n end-use customer who
purchases Electric Power and Energy and ultimately consumes it.” 16 TEX. ADMIN. CODE
§ 25.214(d)(1) Fig. (Chapter 1: Definitions).
       21
         Rule 25.214’s pro forma tariff defines “delivery charges” as “Commission authorized
rates and charges for the use of Company’s Delivery System. Delivery Charges comprise
Delivery System Charges and Discretionary Charges.” 16 TEX. ADMIN. CODE § 25.214(d)(1)
Fig. (Chapter 1: Definitions).

                                                 25
       Once again, although this chapter of CenterPoint’s tariff includes language
that indicates invoices may be corrected beyond 150 days in cases of meter bypass
or tampering, it is silent as to who has to have done the tampering. And while this
invoice adjustment chapter does not include the phrase “by the customer,” or
similar language, CenterPoint’s tariff otherwise contains language tending to
indicate that such tampering must be attributed to a specific person, or Retail
Customer, or at least a person the Retail Customer has authorized access to the
meter, before CenterPoint can assess any tampering-related charges within its
“Rate Schedule.” See id. (Chapters 5.4.6,22 5.4.7,23 and 6.1.2.1.i24).


       22
            Rule 25.214’s pro forma tariff provides:
       5.4.6 RETAIL CUSTOMER’S DUTY REGARDING                            COMPANY’S
       FACILITIES ON RETAIL CUSTOMER’S PREMISES
       Consistent with Section 5.2, LIMITS ON LIABILITY (which limits any legal
       liability only as expressly stated therein), Retail Customer shall have a duty to
       exercise reasonable care not to damage Company Delivery System facilities on
       Retail Customer’s Premises and shall not be considered to be a bailee or to have
       possession of those facilities.
       Retail Customer shall not Tamper with Company’s facilities or the Meter on
       Retail Customer’s Premises. Company shall not be liable to Retail Customer for
       any injuries that result from such Tampering. Loss of, or damage to, Company
       Delivery System facilities on Retail Customer’s Premises caused by or arising out
       of Retail Customer’s Tampering or failure to exercise reasonable care not to
       damage such facilities shall be subject to the provisions of Section 5.2, LIMITS
       ON LIABILITY. Charges for such loss or damage shall be consistent with
       Section 6.1, RATE SCHEDULES.
       The Retail Customer’s authorization of the use of the Meter by a third party or
       designation of a Meter Owner does not relieve the Retail Customer of its
       obligations with regard to exercising care of the Delivery System or of
       prohibitions against Tampering with the Meter. Additionally, consistent with
       Section 6.1, RATE SCHEDULES, the Company may assess charges to Retail
       Customer for any damage or loss caused by the Retail Customer or by parties to
       whom Retail Customer has authorized to access the Meter.
       ....

16 TEX. ADMIN. CODE § 25.214(d)(1) Fig. (Chapter 5.4.6) (emphases added).

                                                26
       Faced with language that is “anything but clear and unambiguous,” we must
defer to the PUC’s interpretation of its rule 25.480(e)(1) in its Pantoja order “so
long as the construction is reasonable and does not contradict the plain language of
the statute.” See R.R. Comm’n of Tex., 336 S.W.3d at 625, 628–29 (“When, as


       23
            CenterPoint’s tariff, as excerpted in the record, provides:
       5.4.7 UNAUTHORIZED USE OF DELIVERY SYSTEM
       In the event of use or attempted use of the Delivery System, without Company’s
       authorization, whether by Tampering with Meter or Metering Equipment or by
       any other means, Delivery Service may be suspended by Company. Company
       must comply with all Applicable Legal Authorities and Section 5.3.7,
       SUSPENSION OF SERVICE. A person found to be using the Delivery System
       without authorization must pay the charge for restoring Delivery Service as
       provided in Company’s Rate Schedules under which that person would normally
       receive Delivery Service and may be required to pay all charges, including the
       following, before Delivery Service will be restored or initiated:
       (1) The Delivery Charges associated with the estimated amount of electricity
       delivered without Company authorization, which may be estimated based on
       amounts used under similar conditions during preceding years. Where no
       previous usage history exists at the same Premises, consumption may be
       estimated on the basis of usage levels of similar Retail Customers at similar
       Premises under similar conditions;
       (2) The cost of replacement or repair of any damaged Meter and associated
       Company equipment;
       (3) The cost of installment of protective facilities or of relocation of Meter, if
       necessary to prevent further unauthorized use; and
       (4) All other costs associated with the investigation and correction of the
       unauthorized use.
See 16 TEX. ADMIN. CODE § 25.214(d)(1) Fig. (Chapter 5.4.7) (emphases added).
       24
           Standard discretionary charge DCS.17, excerpted from chapter 6.1 “Rate Schedules” in
CenterPoint’s tariff, describes “tampering charges” to include “Delivery Charges, cost of
replacement and repair of damaged Meter and associated equipment, cost of installation of
protective facilities or relocation of the Meter, and all other costs associated with the
investigation and correction of the unauthorized use.” See 16 TEX. ADMIN. CODE § 25.214(d)(1)
Fig. (Chapter 6.1.2.1.i) (same but not assigned a charge number). Such tampering charges are
“[a]pplicable to unauthorized use of Delivery System pursuant to Section 5.4.7,
UNAUTHORIZED USE OF DELIVERY SYSTEM or other Tampering with Company metering
facilities or any theft of electric service by any person on the Retail Customer’s Premises.” See
id. (emphasis added).

                                                  27
here, a statutory scheme is subject to multiple interpretations, we must uphold the
enforcing agency’s construction if it is reasonable and in harmony with the
statute.”).   We thus conclude that the PUC’s construction is entitled to our
deference.

       Therefore, we conclude that Ellis raised a fact issue as to his affirmative
limitations defense sufficient to defeat summary judgment on Reliant’s sworn
account claim. See Tello, 218 S.W.3d at 114.

C. Quantum meruit

       Because the trial court did not specify on which claim it granted summary
judgment to Reliant, we also must determine whether we can affirm the court’s
judgment based on Reliant’s quantum meruit claim. See Cates, 927 S.W.2d at 626.
Quantum meruit is an equitable remedy based upon an implied promise to pay for
benefits received that does not arise out of a contract but is independent of it. See
AKIB Constr., Inc. v. Neff Rental, Inc., No. 14-07-00063-CV, 2008 WL 878935, at
*4 (Tex. App.—Houston [14th Dist.] Apr. 3, 2008, no pet.) (mem. op.) (citing
Vortt Exploration Co., Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex.
1990); Myrex Indus., Inc. v. Ortolon, 126 S.W.3d 548, 550 (Tex. App.—Houston
[14th Dist.] 2003, pet. denied) (citing Heldenfels Bros., Inc. v. City of Corpus
Christi, 832 S.W.2d 39, 41 (Tex. 1992)). In fact, a party generally may recover on
quantum meruit only when no express contract covers the services at issue. AKIB
Constr., 2008 WL 878935, at *4 (citing Vortt Exploration, 787 S.W.2d at 944).

       To obtain a summary judgment on its quantum meruit claim, Reliant was
required to conclusively prove, as a matter of law, that: (1) valuable services were
rendered or materials furnished; (2) for the person sought to be charged; (3) which
services and materials were accepted by the person sought to be charged, used and
enjoyed by him; (4) under such circumstances as reasonably notified the person
                                         28
sought to be charged that the plaintiff in performing such services was expecting to
be paid by the person sought to be charged. Bashara v. Baptist Mem’l Hosp. Sys.,
685 S.W.2d 307, 310 (Tex. 1985). “The ‘notice’ element focuses on what the
recipient of the services knew or should have known at the time the services were
accepted.” Myrex Indus., 126 S.W.3d at 551.

      In its motion for summary judgment, Reliant offered no distinct basis for the
trial court to grant summary judgment on its quantum meruit claim, as opposed to
its sworn account claim, arguing only that “the undisputed facts warrant
judgment.” Nor did Reliant list, much less address, the elements of quantum
meruit in its motion. In particular, Reliant offered, and Mena’s affidavit presented,
no evidence in support of the fourth quantum meruit element—that is, to prove
Ellis accepted Reliant’s electrical services under such circumstances as reasonably
notified Ellis that Reliant expected to be paid by him for 26 months of backbilled
electrical service. See Heldenfels Bros., 832 S.W.2d at 41 (affirming denial of
quantum meruit recovery in bench trial where testimony did not reveal
circumstances of reasonable notice); Myrex Indus., 126 S.W.3d at 551–52
(reversing jury finding where “there is no evidence [estimator’s] work on the
disputed projects was accepted by [steel fabricator] under such circumstances
giving reasonable notification to [steel fabricator] that [estimator] was expecting to
be paid commissions”). Reliant thus has not met its burden to show there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law
on its quantum meruit claim. See Gray, 343 S.W.3d at 529. Therefore, we
conclude that the trial court erred in granting summary judgment in favor of
Reliant on either its sworn account or its quantum meruit claim.

      We sustain Ellis’s third issue.



                                         29
                                 III.        CONCLUSION

       Accordingly, we affirm the trial court’s granting of no-evidence summary
judgment against Ellis as to his DTPA claim,25 reverse the trial court’s granting of
traditional summary judgment against Ellis as to Reliant’s claims, and remand for
further proceedings consistent with this opinion.


                                              /s/    Tracy Christopher
                                                     Justice



Panel consists of Justices Christopher, McCally, and Brown.




       25
           Although Ellis generally complains that the trial court “wrongfully dismissed” his
DTPA counterclaim within the prayer of his opening brief and requests reversal of the judgment
as to both motions for summary judgment to ensure “due process” and “equal protection” within
the conclusion of his reply brief, nowhere does he specifically challenge the trial court’s granting
Reliant’s motion for no-evidence summary judgment, or provide any argument or authority in
support. Therefore, he has waived this issue. See La China v. Woodlands Operating Co., L.P.,
—S.W.3d—, No. 14-12-00066-CV, 2013 WL 4017373, at *4 (Tex. App.—Houston [14th Dist.]
Aug. 8, 2013, no. pet. h.).

                                                30
