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Click here for the full text of this decision FACTS:The appellant, Hewlett-Packard Co., appeals from a final judgment based on two summary judgments granted in favor of appellee Benchmark Electronics Inc. HOLDING:The court affirms the trial court’s judgment dismissing with prejudice Hewlett-Packard’s claim for money had and received. The court reverses the trial court’s judgment dismissing with prejudice Hewlett-Packard’s breach of contract claim for non-payment and remands. Benchmark argues the following “admission” in a May 3, 2002, e-mail establishes its limitations defense: “Compaq Computer Corp. has an open claim for $12.1M due from Benchmark dating back to the acquisition of Avex.” Because it is undisputed Benchmark acquired Avex in 1999, Benchmark concludes Hewlett-Packard’s suit, filed in August 2002, is barred by the two-year contractual limitations period. An e-mail, although it may constitute summary judgment proof, does not rise to the level of a judicial admission, such as would conclusively establish Benchmark’s limitations defense. See Seminole Pipeline Co. v. Broad Leaf Partners Inc., 979 S.W.2d 730, 740 (Tex. App. Houston [14th Dist.] 1998, no pet.) (judicial admission must be 1. made in course of judicial proceeding; 2. contrary to an essential fact for party’s recovery or defense; 3. deliberate, clear and unequivocal; 4. related to fact on which judgment for opposing party could be based; and 5. enforcing admission would be consistent with public policy; also holding statements by counsel about represented companies’ responsibility for overfilling of reservoir did not rise to the level of judicial admissions). Moreover, that a claim may “date back to” 1999 does not conclusively establish when payment was due on the debit memos giving rise to the claim and thus does not establish when the limitations period commenced. The e-mail does not conclusively establish Benchmark’s limitations defense. In its summary judgment motion, Benchmark also argued Hewlett-Packard could not “push the accrual of its claim past January of 2000, because that is when the parties ceased doing business.” The termination of business, however, does not conclusively establish when payment was due on a debit memo under the agreement. In fact, at least one debit memo was issued on Aug. 10, 2000, well after the alleged business termination date. Benchmark conceded Hewlett-Packard’s claim for the amount due on this memo might not be barred by limitations, thereby undercutting its argument Hewlett-Packard’s claim accrued by January 2000. The last shipment in January 2000 does not conclusively establish Benchmark’s limitations defense. OPINION:Anderson, J.; Yates, Anderson and Hudson, JJ.

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