Counting the Money

AMPM Enterprises v. Borders, a dispute about alleged failures to pay for gasoline deliveries to service stations, presented a good example of a basic issue, and an interesting example of a less common one.

• Proveup. “Here, Borders’ December 23, 2020 affidavit established that he was the vice president of Borders and was responsible for overseeing the maintenance of Borders’ books and records of sales and accounts and was the custodian of such records. The affidavit stated that the table showing a balance of $42,151.82 owed by AMPM and PTE was ‘a true and correct copy of Borders’ records reflecting charges incurred by AMPM and PTE for gasoline delivered to AMPM and PTE’s stores or related fees or services incurred pursuant to the agreement of the parties,’ and the table was ‘created in the ordinary course of business and reflects a systematic record of the amounts owed by AMPM and PTE to Borders.’”
• Performance. “It is not disputed that AMPM and Asghar entered into contracts with Borders in October 2010 to provide fuel at four locations, and Borders continued to provide fuel, and AMPM continued to pay for it, until some time in 2017. Borders and PTE commenced an oral relationship involving requests and delivery of fuel in 2017. During that transactional history, AMPM, Asghar, and PTE did not complain about fees included in the price of fuel or challenge the validity of their contracts with Borders. Under the facts and circumstances of this case, we conclude neither the absence of a price specified in the underlying contracts nor the absence of provisions for the payment of “monthly fees, network fees, and mystery shoppers fees” raised a fact issue as to the amounts owed to Borders under the contracts.”