Barton v. Resort Development Latin America, Inc., 413 S.W.3d 232

Appellants timothy Barton and JMJ Hospitality, L.L.C., and JMJ Holdings, L.L.C. faced a verdict awarding lost profits to Resort Development Latin America, Inc. and individuals Aliber Garcia and Eliud Garcia.
The court on rehearing overruled the prior ruling, withdrew its August 21, 2013 opinion, and entered a new opinion granting judgment to appellees that they take nothing on lost-profits claims against appellants.
Damages were based on lost profits from two Mexico resort projects: a W Hotel on the Shabshab Property and a St. Regis Hotel on the Preciado Property.
Evidence included non-binding proposals/LOIs, title issues, and Starwood’s expressions of interest; no binding agreements or clear title were proven.
Experts’ projections were found to be speculative and not based on objective data sufficient to establish reasonably certain lost profits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Were the lost-profits damages proven with reasonable certainty?	JMJ Development Mexico/Garcias	Barton et al.	No; damages not proven with reasonable certainty.
Do the W Hotel and St. Regis projections support liability for lost profits?	Appellees	Appellants	No; projections based on speculative underlying transactions and changing market conditions.

Swinnea v. Examination Mgmt. Servs., Inc., 318 S.W.3d 867 (Tex. 2010) (reasonableness/certainty of lost-profits evidence required)
Exel Transp. Servs., Inc. v. Aim High Logistics Servs., LLC, 323 S.W.3d 224 (Tex. App.-Dallas 2010) (lost-profits must be based on objective facts/data; profits vs income distinction)
Holt Atherton Indus. v. Heine, 835 S.W.2d 80 (Tex.1992) (proper measure: net profits; speculative evidence insufficient)
Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276 (Tex.1994) (lost-profits require evidence of loss with reasonable certainty)
Szczepanik v. First S. Trust Co., 883 S.W.2d 649 (Tex.1994) (economic damages must be grounded in objective data; avoid speculative figures)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005) (reliability/weight of evidence standard for legal sufficiency)
Glattly v. Air Starter Components, Inc., 332 S.W.3d 620 (Tex.App.-Houston [1st Dist.] 2010) (avoidance of speculative, unfounded assumptions in damages)
Atlas Copco Tools, Inc. v. Air Power Tool & Hoist, Inc., 131 S.W.3d 203 (Tex. App.-Fort Worth 2004) (sufficiency of damages evidence requires fraud/assurance of underlying facts)
Capital Metro. Transp. Auth. v. Cent. of Tenn. Ry. & Navigation Co., Inc., 114 S.W.3d 573 (Tex. App.-Austin 2003) (economic damages evidence must reflect profits/net income after expenses)