NUMBER 13-12-00511-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

CINTAS CORPORATION, Appellant,

v.

DAVID ARRELLANO, INDIVIDUALLY,

D/B/A LAS COMADRES RESTAURANT, Appellee.

 

On appeal from the County Court at Law No. 2

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Justices Garza, Benavides, and Perkes

Memorandum Opinion by Justice Perkes

Cintas Corporation (“Cintas”) sued David Arellano, individually, d/b/a Las 

Comadres Restaurant (“Arellano”) for breach of contract. After a bench trial, the trial 

court awarded Cintas liquidated damages in the amount of $5,000.

1 On appeal, Cintas 

 

1

 In response to Cintas’s lawsuit, Arellano counterclaimed for fraud and argued he never signed 
2

argues the trial court erred by failing to award liquidated damages in accordance with the 

terms of the contract and by failing to award attorney's fees under section 38.001 of the 

Texas Civil Practice and Remedies Code. We reverse and render judgment in favor of 

Cintas for its liquidated damages and attorney's fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 28, 2009, a two-page “Standard Uniform Service Agreement” was 

signed whereby Cintas agreed to furnish various supplies for Arellano’s restaurant on a 

weekly basis.

2

 The contract was for a sixty-month term and included paper products and 

hand soap for the restrooms, and various cleaning supplies. The contract provided for a 

weekly minimum charge of $25.00 and included a liquidated-damages clause that applied

in the event of early termination. The liquidated-damages clause stated that liquidated 

damages would be paid in an amount equal to the greater of 50% of the average weekly 

invoice total multiplied by the number of weeks remaining in the unexpired term, or the

buy back of all products allocated at the then-current replacement values. The contract 

stated the liquidated damages would not be a penalty.

The record shows, and it is undisputed on appeal, that Cintas installed its soap 

dispensers in the restrooms at Las Comadres, kept them filled with soap, and otherwise 

complied with the terms of the signed contract. The evidence reflects that the rate Cintas 

billed Arellano fluctuated each week based on the amount of weekly supplies needed at 

 

a contract with Cintas. The trial court entered a take-nothing judgment against Arellano on his 

counterclaim. Arellano has not filed a notice of appeal, and has not filed a brief for consideration on appeal.

2

 The contract was front-and-back on a single piece of paper.
3

the restaurant. Arellano terminated the contract early, with 223 weeks remaining on its 

term and a $90.95 average weekly invoice. In this regard, Cintas sought to recover 

liquidated damages under the weekly invoice formula included in the contract.

3

 

 At trial, Arellano denied any knowledge of a written agreement between himself 

and Cintas.4 According to Arellano, he thought they entered a verbal agreement for 

services on a month-to-month basis. Arellano testified that while his wife Norma may 

have signed his name to the agreement, he could not say with certainty.5 

The trial court entered judgment in favor of Cintas on its breach-of-contract claim

and awarded Cintas “Liquidated damages pursuant to the Agreement in the total amount 

of $5000.00. . . .” The trial court did not award Cintas any amount for its attorney’s fees. 

Cintas requested findings of fact and conclusions of law.6 In pertinent part, the trial court 

entered the following unchallenged findings of fact concerning the contract terms:

6. Under the terms of the Facility Services Rental Services Agreement, 

termination prior to the expiration of the 60 month term would constitute a 

breach of that agreement.

. . . . 

 

3

 There is no evidence regarding the amount of damages under the buy-back provision.

4

 Monica Palmquist Cuellar was the Cintas sales representative who solicited Arellano to enter 

the contract. Cuellar testified by deposition. According to Cuellar, Norma Arellano, Arellano’s wife, 

signed his name to the contract with Arellano’s knowledge and permission. Cuellar testified that she 

overheard Arellano grant Norma permission to sign the contract for him while Norma and Arellano spoke 

on the telephone. Cuellar further testified that on the day that Norma signed the contract, Arellano later 

met with Cuellar to review the terms of the agreement.

5

 Arellano acknowledged that Cintas sent him a pre-suit demand letter in this case. Although 

Cintas received a letter in response on “Las Comadres” letterhead, at trial Arellano denied that he authored 

the response letter. Arellano testified that his wife may have written the response letter to Cintas and 

signed his name to it. But according to Arellano, he could not even be certain it was his wife who signed 

his name to the response letter.

6

 By its first issue, Cintas challenged the trial court’s failure to file findings of fact and conclusions 

of law on appeal. We abated this appeal for the entry of findings of fact and conclusions of law, and the 

trial court has since filed its findings of fact and conclusions of law. Cintas’s first issue is therefore 

overruled as moot. See TEX. R. APP. P. 47.1; TEX. R. CIV. P. 296, 297.
4

8. At the time that Mr. Arellano discontinued service with Cintas, 223 

weeks remained according to the Facility Services Rental Service 

Agreement. 

9. The weekly invoice amount for the service provided by Cintas to David 

Arellano, Individually and D/B/A Las Comadres Restaurant, was $90.95.

The trial court did not enter any fact findings that would show how it arrived at its 

award of $5,000 in liquidated damages. Rather, it entered a conclusion of law that the 

liquidated-damages clause was unenforceable because it was a penalty, without further 

discussion. 

II. LIQUIDATED DAMAGES 

By its second issue, Cintas argues the trial court erred by not awarding the amount 

of liquidated damages required under the contract language. We agree.

At the outset we note that, to the extent of any conflict between them, the trial 

court’s findings of fact concerning the contract’s terms and breach, control over its 

conclusion of law that the liquidated-damages clause in the contract is an unenforceable 

penalty. See Brown v. The State Bar of Tex., 960 S.W.2d 671, 674 (Tex. App.—El Paso 

1997, no writ) (“[W]here the trial court's findings of facts conflict with its conclusions of 

law, findings of facts will be deemed to control.”); Buzbee v. Buzbee, 870 S.W.2d 335, 

340 (Tex. App.—Waco 1994, no writ) (same); Cranetex, Inc. v. Precision Crane & Rigging 

of Houston, Inc., 760 S.W.2d 298, 301 (Tex. App.—Texarkana 1988, writ denied) (same).

Whether a contractual provision is an enforceable liquidated-damages clause or an 

unenforceable penalty is a question of law which we review de novo. See Valence 

Operating Co. v. Dorsett, 164 S.W.3d 656, 664 (Tex. 2005); Phillips v. Phillips, 820 

S.W.2d 785, 788 (Tex. 1991); see also Hydrocarbon Mgmt. v. Tracker Expl., Inc., 861 
5

S.W.2d 427, 431 (Tex. App.—Amarillo 1993, no writ) (holding appellate review of 

conclusions of law is de novo). The contract in this case involves a services agreement. 

Accordingly, the common law applies, rather than the Uniform Commercial Code. See 

TEX. BUS. & COM. CODE ANN. § 2.102 (West 2009) (stating “this chapter applies to 

transactions in goods”); Palmer v. Epsey Hutson & Assoc., 84 S.W.3d 345, 355 (Tex. 

App.—Corpus Christi 2002, pet. denied); Freeman v. Shannon Constr., Inc., 560 S.W.2d 

732, 738 (Tex. Civ. App.—Amarillo 1977, writ ref’d n.r.e.).

Generally, the party maintaining that a liquidated-damages clause is a penalty 

bears the burden of pleading and proof on the penalty defense. Phillips, 820 S.W.2d at 

789; see also Commercial Union Ins. Co. v. La Villa Indep. Sch. Dist., 779 S.W.2d 102, 

106 (Tex. App.—Corpus Christi 1989, no writ). However, there can be instances in 

which the illegal nature of a liquidated-damages clause is apparent on the face of the 

plaintiff’s pleadings so that it is unnecessary for the defendant to specially plead illegality. 

Phillips, 820 S.W.2d at 789 (holding liquidated-damages clause for ten times actual 

damages facially invalid). “[C]ourts will not enforce a plainly illegal contract even if the 

parties do not object.” Id. 

The term “liquidated damages” ordinarily refers to an acceptable measure of 

damages that the parties stipulate in advance will be assessed in the event of a contract 

breach. Flores v. Millennium Interests, Ltd., 185 S.W.3d 427, 431 (Tex. 2005) (citing 

Valence Operating Co., 164 S.W.3d at 664). The common law has long recognized a 

distinction between liquidated damages and penalties. Id. (citing Stewart v. Basey, 245 

S.W.2d 484, 485–86 (Tex. 1952)). Under the common law, if damages for the 
6

prospective breach of a contract are difficult to measure and the stipulated damages are 

a reasonable estimate of actual damages, then such a provision is valid and enforceable 

as “liquidated damages;” otherwise it is void as a “penalty.” Id. (citing Phillips, 820 

S.W.2d at 788). Thus, the parties’ right to reach their own liquidated-damages stipulation 

is limited by “the universal rule for measuring contractual damages based on just 

compensation for the loss or damage actually sustained.” Commercial Union Ins. Co., 

779 S.W.2d at 106. 

The Standard Uniform Service Agreement at issue in this case included the 

following liquidated-damages provision:

If this agreement is terminated early, the parties agree that the damages 

sustained by Company will be substantial and difficult to ascertain. 

Therefore, if this agreement is terminated by Customer prior to the 

applicable expiration date for any reason other than for documented quality 

of service reasons which are not cured as set forth above, or terminated by 

Company for cause at any time, Customer will pay to Company as 

liquidated damages and not as a penalty, the greater of 50% of the average 

weekly invoice total multiplied by the number of weeks remaining in the 

unexpired term, or buy back all Facility Services Products allocated to 

Customer at the then current replacement values.

(Emphasis added).

The evidence shows that Arellano owed Cintas a minimum of $25.00 per week 

under the contract, and that the amount owed each week fluctuated based on the actual 

amount of weekly supplies Cintas furnished the restaurant. The fluctuation in the amount 

owed Cintas under the contract is evidence that its damages would be difficult to 

ascertain. See Fid. & Dep. Co. of Maryland v. Stool, 607 S.W.2d 17, 26 (Tex. Civ. App.—

Tyler 1980, no writ) (“[T]he harm caused by [the] breach would be difficult to estimate 
7

because of the uncertainty of the fluctuations in the interest rates which, indeed, was the 

very reason why the parties negotiated the liquidated damages provision.”). 

The trial court made fact findings regarding each of the relevant terms for the 

liquidated damages under the weekly-invoice formula. The evidence and related fact 

findings show that at the time Arellano terminated the contract, the average weekly 

invoice amount was $90.95. Fifty percent of the average weekly invoice is $45.475. 

Multiplying $45.475 by the 223 weeks remaining on the contract equals $10,140.93. 

After review, the amount of liquidated damages appears to be a reasonable estimate of 

Cintas’s actual damages, and Arellano did not plead or prove penalty. See Commercial 

Union Ins. Co., 779 S.W.2d at 107; see also Cintas Corp. v. Quevado, No. 04-11-00142-

CV, 2012 WL 1940642, at *4 (Tex. App.—San Antonio May 30, 2012, no pet.) (mem. op.) 

(upholding same liquidated-damages provision based on its plain language). 

We conclude the trial court erred as a matter of law in failing to award Cintas 

liquidated damages in the amount of $10,140.93. See Valence Operating Co., 164 

S.W.3d at 664; Phillips, 820 S.W.2d at 788; see also Hydrocarbon Mgmt., Inc., 861 

S.W.2d at 431; Cintas Corp. v. Quevado, No. 04-11-00142-CV, 2012 WL 1940642, at *4. 

We sustain Cintas’s second issue on appeal.

III. ATTORNEY’S FEES 

By its third issue, Cintas argues the trial court erred by not awarding attorney's 

fees under section 38.001 of the Texas Civil Practice and Remedies Code. We agree.

We review a trial court’s decision to grant or deny attorney’s fees under an abuse 

of discretion standard. EMC Mtg. Corp. v. Davis, 167 S.W.3d 406, 418 (Tex. App.—
8

Austin 2005, pet. denied); see also Ragsdale v. Progressive Voters League, 801 S.W.2d 

880, 881 (Tex. 1990) (per curiam); Mercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 

770, 776 (Tex. App.—Corpus Christi 2007, no pet.) (citing Bocquet v. Herring, 972 S.W.2d 

19, 21 (Tex. 1998)). Section 38.001 authorizes the recovery of reasonable attorney's 

fees for a claim based on a contract. TEX. CIV. PRAC. & REM. CODE. ANN. § 38.001 

(West, Westlaw through 2013 3d C.S.). “When a prevailing party in a breach of contract 

suit seeks attorney’s fees under section 38.001, makes its proof, and meets the 

requirements of the section, an award of attorney’s fees is mandatory.” Flagship Hotel 

Ltd. v. City of Galveston, 17 S.W.3d 552, 563 (Tex. App.—Texarkana 2003, pet. denied); 

see also Bocquet, 972 S.W.2d at 20 (noting that statutes providing that a party “may 

recover” attorney’s fees are not discretionary); Mercier, 214 S.W.3d at 775.

In order to recover attorney’s fees under chapter 38, Cintas was required to show

that: (1) it was represented by counsel; (2) it presented its claim to Arellano; and (3) 

Arellano failed to pay the just amount owed within thirty days of presentment. See TEX.

CIV. PRAC. & REM. CODE. ANN. § 38.002 (West, Westlaw through 2013 3d C.S ). The 

record shows that Cintas was the prevailing party in this lawsuit and that it met each of 

the requirements for recovery of its attorney’s fees.

7

 In addition, the record reflects that 

Cintas presented testimony at trial concerning the amount of its claim for attorney's fees. 

Cintas’s trial counsel testified that it incurred $7,500.00 in reasonable and necessary 

 

7 We note the record shows, as a matter of law, that Cintas complied with the requirement that it 

present its contract claim to Arellano so as to be able to recover its attorney’s fees in its breach-of-contract 

suit. See TEX. CIV. PRAC. & REM. CODE. ANN. § 38.002 (West, Westlaw through 2013 3d C.S.); see also 

Diaz v. Attorney Gen. of State of Tex., 827 S.W.2d 19, 23 (Tex. App.—Corpus Christi 1992, no writ). 

Specifically, Cintas’s counsel presented the claim by letter more than thirty days before filing suit. In the 

letter, counsel advised that Cintas would sue and seek attorney’s fees for breach of contract if Arellano did 

not pay the claim. In his trial testimony, Arellano acknowledged his pre-suit receipt of the letter.
9

attorney's fees in the trial of this case. Counsel further testified that if an appeal was 

taken, Cintas would incur an additional $5,000.00 in reasonable and necessary attorney's 

fees. Cintas’s counsel also testified that Cintas would incur an additional $2,500 in 

reasonable and necessary attorney’s fees if Arellano filed a petition for discretionary

review in the Supreme Court of Texas, plus an additional $2,500 in reasonable and 

necessary attorney’s fees in the event such a petition were granted. Arellano did not 

cross examine Cinta’s counsel or otherwise challenge or dispute his testimony regarding 

the reasonableness, necessity, and amount of Cintas’s attorney’s fees.

When evidence of attorney's fees is not contradicted by any other witness, or 

attendant circumstances, and the evidence is clear, direct and positive, and free from 

contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it is 

taken as true, as a matter of law. Brown v. Bank of Galveston, N.A., 930 S.W.2d 140, 

145 (Tex. App.—Houston [14th Dist.] 1996, aff'd, 963 S.W.2d 511 (Tex. 1998)) (citing 

Ragsdale, 801 S.W.2d at 882). 

We conclude the trial court abused its discretion by failing to award attorney's fees. 

The evidence Cintas presented in favor of its claim for attorney's fees was clear, direct 

and positive, and free from contradiction, inaccuracies, and circumstances tending to cast 

suspicion thereon. See id. In addition, Arellano was afforded an opportunity to 

contradict this evidence, but declined to do so. See Ragsdale, 801 S.W.2d at 882;

Brown, 930 S.W.2d at 145 (concluding uncontroverted amount of attorney's fees was 

established as a matter of law; trial court erred by not awarding attorney's fees). We 
10

sustain Cintas's third issue. We award Cintas $7,500.00 in attorney's fees for the trial of 

this case, and $5,000.00 in attorney's fees for the instant appeal.

IV. CONCLUSION

We reverse the judgment of the trial court and render judgment that Arellano pay 

Cintas liquidated damages in the total amount of $10,140.93, plus attorney's fees in the 

amount of $12,500.00. See TEX. R. APP. P. 43.3 (requiring appellate courts, as a general 

rule, to render the judgment the trial court should have rendered). In the event Arellano 

files a petition for review in the Supreme Court of Texas, Cintas shall be entitled to $2,500 

in attorney’s fees from Arellano, plus an additional $2,500 in attorney’s fees in the event 

the Supreme Court of Texas grants petition for review.

GREGORY T. PERKES

Justice

Delivered and filed the 

20th day of March, 2014.