*1 488 defendant,
adjudication
contradictory positions
in
that title rest
a
taken in the same
plaintiff
proceeding;
when the
fails to establish his own
play only
it is called into
in a
Franzetti,
Devitt,
Franzetti v.
title.
action. Estate
subsequent
S.W.2d
195,
1939,
(Tex.Civ.App.
198-99
601,
1988,
(Tex.App.
S.W.2d
— Austin
— Amarillo
ref’d).
writ
denied).
estoppel
writ
is
Judicial
not estab
any
lished
the absence
evidence that
The trial court held that
did
Wells
averment,
estoppel
on which a claim of
prove
the chain of title on which he
based,
is
was made
the course of other
relied.
In the
of a statement of
absence
judicial proceedings. Balaban, facts,
presume
we must
sufficient evidence
at 778.
was introduced to
the trial court’s
findings of fact and conclusions of law.
There is no indication
the record be-
Ward,
157;
111 S.W.2d at
Men’s Wear
statements,
fore us that
the sworn
house,
Thus,
In his third Wells Maxey
asserts that “swore himself out of argument
court.” The crux of his is that
Maxey estopped claiming is judicially from property in his name. Wells contends interroga
that an affidavit and answers to tories, special exceptions referred to in MEDIA, BELL SOUTHWESTERN summary judgment a motion filed INC., Appellant, Wells, judi constitute sufficient evidence of estoppel. Apparently, argues cial Wells v.
these sworn statements indicate that Max- LYLES, Appellee. Vernon P. ey “family that his is the asserted owner of No. 01-90-00848-CV. the Collins Tract Addition.” Because a trespass try brought title suit must be Texas, Appeals of Court of interest, party the real Wells con (1st Dist.). Houston Maxey, having tends that asserted that his family party is the real in interest with 1992. Feb. respect judicially to Block is now es- Rehearing Denied March
topped maintaining proper a claim in trespass try disagree. title. We judicial the doctrine of
Under
estoppel, party estopped merely by having alleged
fact or admitted in his prior proceeding in a under
pleadings,
oath, position contrary to the assertion Knox, Long v.
sought made. Bala (1956);
Tex. Balaban, (Tex.
ban v.
App. writ ref’d [1st Dist.] — Houston n.r.e.). estoppel apply Judicial does
disputed advertising, account for old mis- representing application money, its excluding his advertisements from the Pages. 1988 Yellow 25, 1990, trial, May after a bench On signed judgment, supported by court law, findings of fact and conclusions of granting parties. judge relief to both damages awarded to Southwestern Bell on that, its collection suit after a credit to contract, Lyles for amounted to breach of *4 $21,000. judgment The court also entered $100,000 in favor of for on his DTPA $20,000 judge counterclaim. awarded attorney’s in fees to and Southwestern Bell $25,000 attorney’s pro- in fees to and attorney’s vided for a scaled award of fees awards, appeal. offsetting After pay the court ordered Southwestern Bell to $78,395.91. We affirm. eight points Southwestern Bell raises points through In error. one four it con- in failing tends that the trial court erred Lyles’ hold that counterclaim was barred applicable statute In of limitations. five, point questions Bell Southwestern legal sufficiency both the and factual support finding the evidence to the court’s Associates, P.C., Wells, Wells & D. Brent alleged misrepre- that Southwestern Bell’s Houston, McElvaney, Deborah Heaton for producing sentation was cause of appellant. Lyles’ damages. chal- Points six and seven Kinser, Kovich, James G. Michael P. lenge the trial court’s of DTPA dam- award Dubose, Houston, Kevin appellee. for ages Lyles’ expert and the admission of testimony damage point on the In issue. TREVATHAN, C.J., Before and eight, Southwestern Bell in the claims error O’CONNOR, DUGGAN and JJ. attorney’s court’s award of fees. against Lyles, Bell’s suit Southwestern OPINION July grounded in filed its DUGGAN, agree- claim that Justice. breached two directory advertising ments for in the 1986 Media, Inc., Bell Southwestern sued Ver- Pages by failing pay and 1987 Yellow Lyles, non Bonding owner of Freedom Bail Alternatively, for the ads. Southwestern Company, seeking alleg- to collect balances $59,830.59 sought damages, includ- edly advertising purchased by Lyles due on ing accounts, interest, the balance on the Pages. Lyles the 1986 and 1987 Yellow costs, attorney’s fees on the basis of asserting counterclaimed that Southwest- quantum meruit. ern Bell had breached its contracts with him Deceptive April general and had violated the Trade In amended (DTPA)1 counterclaim, Practices-Consumer Act ac- denial to add a the basis for cepting money (1) contract, payment intended as for which was two-fold: breach of advertising, applying money negligence, arising new to a and/or fraud from (Ver- 1987). seq. 17.41 § et non 1. Tex.Bus. & Com.Code Ann. ceptive practices provide Bell’s failure to ad- trade actionable under
Southwestern DTPA; vertising agreed as in the 1986 and services Pages, (2) violations of the Yellow (3)Lyles reasonably could not have dis- arising DTPA Bell’s deceptive practices these trade covered alleged misrepresentations 8, 1988, which, therefore, several prior May Lyles, particularly misrepresentation began its was the date limitations to run on obtaining ostensibly deposit his counterclaim. directory advertising for the 1988 Yellow the counterclaim The court concluded that Pages, applying deposit to the balance timely filed. accounts, 1986 and 1987 and ex- Southwestern Bell contends the trial
cluding his from the 1988 advertisement court erred as a matter of law directory. sought Lyles also mental an- holding. Specifically, Southwestern Bell guish damages exemplary damages. claims there is no evidence to year Southwestern Bell asserted the two apply two-year court’s failure to trial the DTPA statute of limitations as a bar to limitations; statute of evidence provides act as counterclaim. The follows conclusively application established the part: in relevant limitations; legally and that the evidence *5 factually support
Section 17.565.
and
insufficient
the
application
discovery
of the
rule.
subchap-
brought
All actions
under this
years
ter must
commenced within two
plea in
discovery
The
rule is a
false,
after the date on which the
mis-
confession and avoidance.
v.
Woods Wil
leading,
deceptive
practice
Mercer, Inc.,
515,
or
act or
oc-
liam M.
769 S.W.2d
(Tex.1988).
words,
years
curred or within two
after the con-
In other
assertion of
sumer
or in the exercise of
discovered
the rule does not involve
claim that the
diligence
reasonable
should have discov-
the statute of limita
suit is not barred
false,
Instead,
plaintiff
pleads
mislead-
the
who
the
ered the occurrence of the
tions.
practice.
discovery
effectively admits that limi
ing,
deceptive
or
act or
rule
apply except for some cir
tations would
(Ver-
17.565
§
Ann.
Tex.Bus. & Com.Code
cumstance,
inability
to discover the mis
Supp.1991).
non
did,
representation sooner than he
which
parties agreed
alleged
All
the
mis-
tolling
of
justifies the court
the statute
representations,
any,
if
were made on De-
517;
Woods, 769 S.W.2d at
limitations.
9, 1987,
date
tendered
cember
the
642,
Maverick, 760 S.W.2d
644-45
Willis v.
accepted
and
the
Southwestern
(Tex.1988).
Lyles’ counterclaim
filed some
check.
provides discovery
rule
date,
16,
April
28 months after that
runs from the
the statute of limitations
However, applying
discovery
1990.
the
or,
plaintiff
in the exer
date the
discovered
rule, the trial court found that the counter-
diligence, should have
cise of reasonable
Spe-
limitations.
claim was not barred
injury
the
suf
the nature of
discovered
cifically,
following
the
the trial court found
Willis,
at 646. Under
fered.
760 S.W.2d
facts:
DTPA,
begins
of limitations
the
the statute
(1)
On December
deceptive
practice
act or
to run when the
misrepresentations
Bell made a series of
concealed,
or,
deception
if
occurs
the
concerning the
of
status
plaintiff, in the exercise of rea
when the
existing
ability
account and
obtain
diligence, should have discovered
sonable
advertising in the 1988 Yellow
future
misrepresentation
the occurrence of the
Pages;
Woods,
complaint.
made the basis of the
517;
Wills,
(2)
v.
misrepresen-
the nature of the
769 S.W.2d at
Black
Given
no
long-standing
(Tex.App.
the
commercial
tations and
S.W.2d
— Dallas
writ).
imposes
duty
on the
relationship
Southwestern Bell
The rule
between
diligence to
misrepresentations
plaintiff
reasonable
Lyles,
the
to exercise
negligence or
false, misleading,
the facts of the
and de- discover
amounted to
Willis,
1990, writ).
omission.
was be authority to meeting. who the address his com- The number one had the December expect- After Merrell plaints. meeting, meeting the Lyles’ reason for that was past Lyles’ complaints mis- ed that about Pages Yellow ad. The second reason copy takes in his and the credits he behind, ad falling Lyles’ that account sought charges for for those ads would be shape past serious on due amounts. Robin- expressly Merrell understood resolved. priorities order these son reversed the $5,000 deposit Lyles’ payment abe testimony. Robinson did not recall later he meeting, the Prior to 1988 book. presence meeting. at Merrell’s Lyles' hope discussed Lyles’ complaints responded to Robinson past his inten- resolving problems past by stating that about errors his ads $5,000 deposit for the 1988 tion to make adjustment in Lyles would entitled to an book. However, billing. negotiate he did not Bechner, representative for Eric sales Instead, adjustment at he that time. Pages, Yellow testified Southwestern Bell investigate agreed problem and con- that first contacted when he was he year. Rob- tact after first given his account to handle he inson testified that when told Pages. Lyles a ma- He considered Yellow possibly going account was be acceler- sign peo- jor job It was his advertiser. $5,000 ated, Lyles’ pay offered to ple advertising. took with up for Bechner Bechner, past due Like Robinson account. meeting indicating him to the contract incorrectly remembered the amount of de- Pages copy Lyles’ Yellow ads and a current $28,000.” When linquency to be “around Although ad. Bechner testified his 1987 day later or the next Robinson learned Lyles’ that he also went to see about collec- actually had been acceler- account tion, that, meeting, prior to the he stated ated, he he did not because contact billing he no information from obtained too concerned about it” at “wasn’t department regard delinquent Lyles’ time. Bechner account. While testified that, on contends Southwestern also $30,000,” or owed “around strength of its written communications Bell’s records indicated the he or have known Lyles, knew should $65,584.24. on the account to be balance 8,May *7 misrepresentations long before the also stated that he was unaware Bechner contention, In its South- 1988. Lyles’ previous his dissatisfaction with an dated points Bell invoice Lyles complaints at western expressed ads until his 4, Lyles’ pay- meeting, agreed January that indicated $5000 the but December 9 get applied past to his due them and touch investigate back ment been year. balance; indicating first of the How- the advertising with him after the an form ever, Lyles again. out;” Bechner contacted form never “zeroed and two ad had been letters, 43 and February dated collection Lyles also he told Bechner stated that 1, stating Lyles’ that account March Lyles’ keep was there to account he adver- seriously delinquent and his future being accelerated. He was unaware tising privileges had cancelled. been already accelerated account had been meeting. after until a week or so Robin- Lyles that Bechner and testified they would investi- him that son assured Robinson, manager for Joe sales South- issued gate complaints, he would be Bell, his he has crew western testified that outstanding on adjustments credits people who for representatives contact in- representatives Those same Page advertising. In balance. selling of Yellow worry disregard and him not 1987, Bechner was one of structed Eric December had, who, Lyles, according by representative hand onto the 3. address is written However, billing February disregard state- Lyles the form is person, 4 form letter. told entirely (See the salutation filled out omits ex- to receive. he continue ments would "Dear_” signed only It is so as to read hibits.) Bechner, by handwriting the same a different generated computer billing about the him Lyles called with this information that getting They he on his would be account. realized that his advertisement would be also assured him that excluded from the directory. he would have no problem getting his advertisement into the evidence, hearing After all the the trial Pages directory. receipt 1988 Yellow The court determined that could not rea- Southwestern Bell issued to sonably misrepresenta- have discovered by check was filled out hand to indi- $5000 8,May tions Southwestern Bell before payment cate that for the received “directory appearance” described as the findings A trial court’s of fact “Houston” directory “publication with a dignity jury have the same force and as a However, date” of receipt “9/88.” also and, supported verdict when some com contained a check mark in a box labelled petent evidence, will be disturbed on “past payment.” due Lyles argues appeal. Spiller Woodard, v. 809 S.W.2d ambiguity created a fact issue for the 624, (Tex.App. [1st Dist.] — Houston court, finder, as fact to resolve. 1991, writ); Johnson, no Paul v. 11, also testified on that December 338, (Tex.Civ.App. — Houston consultant, Combes, he hired a Paul dism’d). writ judge, The trial as to do the art work for his 1988 advertise- fact, trier of may draw reasonable inferenc ment and to negotiations conduct further evidence, es from the findings with Southwestern Bell on his behalf. fact, supported by when some evidence of Combes informed Southwestern Bell that value, probative may disregarded not be he handling would be the art work for the appeal they unless contrary are so to the 1988 book. Combes testified that South- overwhelming weight of the evidence as to representatives western Bell him assured manifestly wrong. Ray v. Farmers’ bring prior could account current Bank, (Tex. State 576 S.W.2d and that placed his ad would be in the 1988 1979); Pizzitola v. County Galveston Cen directory. Appraisal Dist., tral (Tex.App. 1991, no January [1st In Dist.] Southwestern Bell — Houston writ); Ellis, Leasing IFG v.Co. offered adjustment Combes a $2000 (Tex.App. 565-66 Lyles’ outstanding [14th account balance and — Houston 1988, writ). The trial court’s find again, Dist.] in February Southwestern Bell ing supported by sufficient evidence and percent offered a adjustment 7.5 will not appeal. be disturbed on through meeting, Combes. At that believ- ing they making were progress in the upon finding, Based its the trial court negotiations, gave Combes advertising properly applied discovery rule to toll copy for the 1988book to the Southwestern running of the statute of limitations on representative. representative The did Lyles’ 8,1988. May counterclaim until *8 copy. not refuse the counterclaim, April 6, 1990, was, filed therefore, timely. appellant’s We overrule 1988, April As late as Southwestern Bell points first four of error. percent offered a 20 adjustment Lyles’ past Lyles rejected due account. the offer fifth, sixth, In its and seventh April letter dated 20. Southwestern error, points of Southwestern Bell com Bell, by May 5, 1988, return letter dated plains of the trial court’s award of DTPA percent stated that the 20 adjustment was damages Lyles apiount $100,- in the its final offer and that continued 000. Southwestern Bell contends that the rejection would indicate impasse an in ne- legally factually evidence is and insuffi gotiations. Upon receipt letter, of that prove “producing cient a cause nexus” repre- Combes called Southwestern Bell’s alleged misrepresentations between its and sentative and was told for the five); first time Lyles’ damages (point that the court that the entries Pages for the 1988 admitting Lyles’ Yellow “expert” erred testimo had Lyles been sealed and had ny been locked damages (point on the amount his only six); out of the book. It was when Combes Lyles’ testimony and that when 496 excluded, expert
properly
opin-
furnishing
is no
tion that it was simultaneously
there
and, later,
prof-
Lyles
directly
through
ion to
the amount of
both
establish
future
seven).
above,
by Lyles (point
agent
its
his
claimed
Combes. As recounted
Lyles and Combes both testified that
damages
In order to
under
recover
continually
Bell
Southwestern
assured
A, Lyles
prove
the DTP
had the burden to
adjustments
that
would
them
be made and
false,
that Southwestern Bell committed
given
credits
on the account.
testi-
misleading,
deceptive
or
which
a
acts
were
Bell
fied that Southwestern
had acknowl-
damages
him.
producing cause
actual
edged
along
adjustment
some
all
that
Texaco, Inc.,
v.
713
MacDonald
S.W.2d
appropriate
balance
the er-
because of
203,
1986,
(Tex.App. Corpus
Christi
—
directory
rors in the 1986 and 1987
adver-
writ);
no
17.46
§
Tex.Bus. & Com.Code Ann.
9, 1987,
During the
tisements.
December
(Vernon 1987). Producing cause
ef
is “an
meeting
company’s representatives
told
ficient,
cause,
exciting,
contributing
or
they
keep
that
were there “to
[the
sequence, produces
which in a natural
being
in-
accelerated” and
account]
injuries
damages
complained
or
of.”
disregard
billing
him to
structed
notices
Garza,
Rourke v.
530 S.W.2d
that
continue to be
to him.
would
mailed
(Tex.1975).
Bell also con
Southwestern
challenge
Bell
its
Southwestern
bases
producing
there
no
cause
tends that
can be
posses-
that
had in
contention
Lyles’ testimony regarding
nexus because
sion,
misrepresentations
at the time the
profits resulting
lost
the amount
made, documentary proof
were
demonstrat-
from the exclusion of his
Yellow
ing
alleged representations by
Pages
merely “perfunc
advertisement was
representatives were
true.
company’s
not
In
tory, speculative,
conclusory.”
or
Specifically,
Bell
Southwestern
refers
profits,
party
recover
must
der to
lost
directory
computer-generated
two
advertis-
produce
sufficient evidence to enable
ing
by Lyles
invoices received
October
finder to
the net amount of
fact
determine
1987, stating
that his ac-
December
certainty.
with
Max
the loss
reasonable
count
had been accelerated
his credit
Co.,
Royal
Inc.
Drilling
v.
Oil
vill-Glasco
advertising privileges
re-
been
(Tex.
Corp.,
and Gas
800 S.W.2d
addition,
In
Bell
scinded.4
Southwestern
denied);
App. Corpus Christi
writ
Lyles’ $5,000
receipt
claims that
—
Inc.,
Beach,
v.
Frank B. Hall
Co.&
payment
money
him on
put
notice
(Tex.App. Corpus
Christi
account,
being applied
past
to his
due
—
n.r.e.); Popkowsi
ref’d
v. Grani
writ
not to
a reservation of
the 1988
space
za,
(Tex.App
book.
Bell reasons that
Southwestern
. —Hous
writ).
ton
It is
Dist.]
Lyles’ alleged
[1st
knowledge of these facts
necessary
profits
subject
lost
superseded any misrepre-
“intervened and
exact calculation.
v. Southwestern
White
sentation.”
(Tex.
Co.,
260, 262
Tel.
Bell
analysis
In
its
the information avail-
1983).
misrepre-
able
at
time
sentations, however,
profits,
In
recover
order to
lost
prof-
party
history
must
either a
acknowledge
does
the other informa-
show
Appellant
known
stated
should have
does not state the substance of the
ern Bell
*9
to,
$5,000
alleged
payment
possibly have
misrepresentations
could not
it refers
but we
the
representation
deposit
space in
book
presume
a
the 1988
them to include the
served as
already
invoices
payment
he had
received the
the
was collected from
because
directory.
stating
place
had been accelerated.
a
for his ad in the 1988
account
reserve
position
Appellant apparently
concludes that the invoices
It is Southwestern Bell’s
represent
put
knowledge
superior
to that of its own
were
on notice that
sufficient
meet
invoking
present
the
policy
its
were
at
December
atives who
assuring Lyles
require
payment
ing,
person,
that acceleration
for
ad-
full
in advance
future
in
According
vertising
past
paid.
are
to Southwestern
when
due balances
not
had not occurred.
Bell,
("Your
disregarded
assur
advertising
their
privileges
have
and
have
should
credit
rescinded.”)
argument,
In
ances.
been
oral
Southwest-
judge
trial
inad-
itability
summary
or the actual
of future
the
ruled to be
existence
missible_
profits
from
can be
contracts
which lost
O’Dell was
none-
able
certainty.
(1)
calculated with reasonable
Al
recollect approximately:
theless to
Assoc.,
&
Loop
lied Bank West
v. C.B.D.
participants
of
at 16
the number
dance
(Tex.App.
54-55
728 S.W.2d
he
use
while was without the
conventions
— Houston
n.r.e.);
writ ref 'd
South
Dist.]
(2)
[1st
typewriter,
engrav-
trophy
Owen,
Battery Corp. v.
131 Tex.
west
ing
actually
sales
made at these conven-
(1938). While
115 S.W.2d
1098-99
(3)
tions,
engraving
sim-
and
sales at
solely
may
rely
finder
not
on the
the fact
previous
ilar
conventions held the
opinion
party,
subjective
of an interested
year_
subjective
We find this
testi-
permit recovery
profits
Texas cases
for lost
O’Dell, standing alone, legally
mony of
upon
business
routinely kept
reliance
an
con-
insufficient
award of
is, upon
of a
records—that
an evaluation
sequential damages
profits.
for lost
profitability
business’s decreased
based
recoverable,
profits
To
lost
must be
be
facts,
upon objective
figures,
data. Al
certainty.”
proved
“reasonable
with
55;
Loop,
at
lied Bank West
Controlling
proper disposition
as to
Trophies,
Automark
Texas v. Discount
complete
is the
appeal
this
absence from
(Tex.App.
— Dallas
facts,
objective
figures,
record
1984, writ).
no
data without which ...
it cannot be
applica-
The Automark case illustrates
required degree
with the
ascertained
this
Trophies
tion of
rule. Discount
sued
trophy engraving
O’Dell’s
certainty that
profits
special
for lost
a
Automark
when
operation
would
...
have continued to be
typewriter
manufactured
Automark
profitable
trophy typewriter
had the
Trophies
personaliz-
used
Discount
failed to function. Two critical determi-
malfunctioned,
ing trophies
cost-
allegedly
missing:
(1)
in the
nants are
nowhere
ing
Trophies
significant
Discount
lose a
objective
record
documentation
is there
O’Dell,
of convention
amount
business.
typewriter’s
prior
malfunc-
of Discount Trophies,
owner
testified
tioning
had an established
business]
[the
both as
business owner and
a busi-
as
(2)
profitability
track
no-
record
expert.
ness
The Dallas
specifically
court
objective
record is there
where
pointed out
expert testimony
that O’Dell’s
profit
documentation that
...
a net
only
concerned
his loss of
income
sales
type-
been
would have
obtained had the
profits.
rather than
loss of net
There-
writer not malfunctioned.5 As a conse-
fore,
only testimony
profits
on lost
quence,
possible
it is
from the record
O’Dell,
non-expert
came from
business
meaningful
to make
correlation be-
owner.
profitability
tween the
loss of
business’s
The court
non-expert
reviewed the
testi-
type-
nonoperational
to the
attributable
mony concerning O’Dell’s
for lost
claim
writer.
profits
following:
and determined the
(citations omitted).
681 S.W.2d at
non-expert testimony
All O’Dell’s
con-
analysis
upon
Based
of the evidence
cerning damages
given
person-
it,
before
court
the record
the Dallas
Despite
unaided
al and
recollection.
judgment
trial court’s
de-
reformed the
request by
O’Dell’s
timely
Automark for
profits.
for lost
lete the award
pertinent
despite
business
an
records and
at 831.
by O’Dell
records
admission
that such
Automark,
available,
In
to the situation
contrast
appeared
O’Dell
at trial
were
objective
us
objective
the record
contains
other
before
with
business data
facts,
hand-prepared
itemizing
figures, and data from
summary
than a
which
losses,
engraving
profits
lost
can
ascer-
potential
sales
which amount of
court,
reversing,
point
testimony,
non-expert
In connection with Southwestern Bell’s
as
seven,
opinion,
"objective
of error
addressed later in our
absence of
documenta-
focuses on the
*10
opinion
here that
mentions
we note
while the
expert opinion.
the absence of
tion” not on
part
testimony
of
received
that this
O’Dell’s
was
daily by
nine-
Lyles piled
employees
his
over a
certainty.
tained with reasonable
keep daily
The data
employees
year period.
testified that his
established
records,
daily reports,
by
on the sources
generated
called
amount of revenue
South-
reports
been
of
These
have
gen-
their business.
Pages
Bell’s Yellow
and that
western
opened
in 1981
kept since he
his business
upon
by
sources.7 Based
erated
other
and 1990.
kept
and were
for
data,
Lyles’
possible
it
to calculate
was
computer
records of the
presented
certainty
profits
loss of
with reasonable
reports
daily
contained in the
information
exclusion from
attributable
his
profits
his
showing
percentage
of
that
point of error five.
directory. We overrule
by
Bell
generated
was
his Southwestern
Pages advertising
“issue
each
Yellow
complains
Bell next
Southwestern
years 1985-1989. These
year”6 for the
in
that the trial court abused its discretion
Lyles’
figures
supported by
were further
testimony
allowing Lyles
give expert
own
introduction of Southwestern Bell’s
timely designated
Lyles had
because
stating that seven
promotional information
expert
himself as an
answers to South
Page
generated
are
out of 10 Yellow
calls
interrogatories.
Bell’s
The record
western
ads,
by
type
of ad
was
display
that
the trial court sustained
indicates
presented
evi-
denied
1988.
also
objection
any expert
Bell’s
from
resulted
his
dence of
revenue that
testimony by Lyles, but Southwestern
Pages
down
Yellow
business broken
the testi
contends that the court allowed
is,
year,”
period of time that
“issue
that
mony anyway. Specifically, it characteriz
particular
corresponds to the life
$133,-
Lyles’
that
sustained
testimony
es
he
upon the de-
Pages issue. Based
Yellow
conclusory testimony
damages as
000 in
office,
routinely by his
kept
records
tailed
hypothetical scenario and con
based on a
he
Lyles testified that
suffered a total loss
Lyles could not offer
cludes that because
$133,000
from
of his exclusion
because
of his
opinion
as to the total amount
Pages.
the 1988 Yellow
support
loss,
is no evidence to
there
profits
must
Evidence
establish
$100,000
profits.
in lost
court’s award
speculative.
or
South
be uncertain
analysis
conjunction
upon our
Based
Battery Corp.,
499 896, (Tex.App. Corpus by expert making S.W.2d be referred to Christi — 1989, writ). presumption, opinion.” no That com Id. bined with the fact that the trial court agree highly While that such techni- we awarded a different amount from that projections cal as those involved in the by Lyles, claimed indicates that the court might case re- County Management well rely did not on the challenged testimony in quire expert testimony, dowe not consider awarding damages. We overrule Lyles’ profits nearly claim for lost so point Southwestern Bell’s sixth of error. speculative. Lyles technical or had rou- tinely maintained business records for nine error, In point its seventh years, fairly simple from it which was a Southwestern Bell claims there is no certainty task to calculate with reasonable or, alternatively, evidence insufficient evi requirement his lost revenue. The of an support dence to the trial court’s award expert under the facts of the County damages. DTPA The gist complaint of this case is not Management applicable to produce expert opin is that failed to Lyles’ situation. support ion to profits. his claim of lost Relying County Management, Inc. v. Furthermore, expert opinion while Butler, (Tex.App.— 650 S.W.2d may prove up evidence be offered to dism’d), Austin writ profits, amount of lost in the absence of expert testimony contends that is re issues, highly technical the cases do not quired to enterprise’s establish business require expert’s opinion an an profits. loss of revenues or profits. generally award of lost See Pace Jackson, Corp. v. 155 Tex. 284 S.W.2d The County Management case involved (1955); Loop, Allied Bank West profits an action for resulting lost 55; Harper Bldg. Sys. S.W.2d at v. gas breach of a contract to sell oil and Co., (Tex.Civ. Upjohn 564 S.W.2d plaintiffs leases. The maintained that the n.r.e.); App. writ ref’d defendant’s — Beaumont pre- breach of the sale contract Barry, Barbier v. timely vented their drilling of a well and 1961, writ). (Tex.Civ.App. As they ultimately — Dallas damages suffered noted, previously expert the absence of tes the form profits of lost from the sale of the issue, timony profits although on the lost gas oil and produc- which would have been court, by specifi mentioned the Automark by ed the lost well. The trial court award- cally was held the court not to be con ed profits. million in lost $6 The Austin trolling. Texas, Automark court held plaintiffs that the had failed to point at 829-30. We overrule of error sev establish with sufficient certainty en. damages amount of the claimed from the Acknowledging defendant’s breach. eighth point Southwestern Bell’s of er- “proof involving wells, of loss undrilled lost ror, awarding trial that the court erred leases, are, royalties very their na- fees, attorneys’ upon its based ture, show,” difficult to suggest- the court prove earlier claim that failed to ed a establishing method for such dam- DTPA counterclaim as a matter of law. ages. 650 at 889-90. To meet his claim, disposition Because of our of that we proof situation, burden of plain- eight. point need not address of error produce tiff qualified expert “should who judgment The trial court’s gives opinion probability ... an as to the his counterclaim is affirmed. obtaining production and the extent production question.” such on the land O’CONNOR, J., dissents. added). (emphasis S.W.2d at 89Ó continued, produc- court “Such matters as O’CONNOR, Justice, dissenting. costs, geological trends, proration, tion quality kind and of the oil and countless This the statute of limita- case involves items, applicable, discovery other where also the De- should tions and the rule under
500 in Act.1 he would not be the 1988 ceptive Trade Practices-Consumer discover book 1988, 8, party may ignore May merely a that The issue is whether a until but he did he in the that informs him that he has not understand would be written notice Yellow majority can; Pages he I that date. says The no contract.
say he cannot. authority Lyles party’s cites no a that rights against understanding of his is the Bell filed suit founda-
Southwestern discovery question rule. The is July agree- in of two tion Lyles for breach directory party’s understanding rights. the the advertising for in the 1986 not ments Lyles Pages. Initially, question Rather the is when did dis- Lyles and 1987 Yellow cover, denial, or he general April a 20 when should have discovered filed but (in the the had exercise reasonable care and dil- months after suit been filed and trial, igence), the facts that his Lyles month his established one before amended for, among DTPA cause of action? answer to add counterclaims for things, other a suit violations of the Lyles misrep- 1. When did discover theory of Lyle’s DTPA. his DTPA suit resentation? representa- Bell’s was that Southwestern part discovery The first of test tives, $5,000 obtaining deposit, a him told requires Lyles rule us to determine when deposit apply would toward 1988 his advertisement not in the discovered was applying advertisement. Instead of the de- Pages. majority The 1988 Yellow states posit advertisement, Southwest- Lyles he not that testified that did realize applied ern Bell it on balance being his advertisement was excluded from Lyles argued at 1986 and 1987 accounts. 8, 1988, directory May or the 1988 until the trial court here Southwestern Pages he told the Yellow when was gave it Bell him to understand that would his was not was closed and ad included.3 advertising apply reserve his Lyles not If did realize advertisement Thus, yellow pages. Lyles for the 1988 May until 7 or it not was excluded is contends, Bell applied when Southwestern Bell did not tell him because Southwestern deposit 1987 accounts of commu- much earlier. Here is a review get Lyles not into the 1988 was able to Lyles Bell nications from Southwestern book, Bell’s on De- Southwestern actions meet- after the critical December 9, 1987, deception amounted to a cember ing: he had a DTPA which cause action. Lyles 2-4-88 received contract challenge Lyles does not the date of the “zeroed- Southwestern Bell was brief, misrepresentation. In his initial out,” Lyles no and showed that states, however, that he did not un- advertising. 34. Exhibit misrepresentation it derstand that was a certified letter 2-4-88 received (that his not be in the advertisement would telling him from Southwestern 8, 1988, book) May until which advertising. Ex- he would have two-year within the statute of limitation. 35. hibit agreed trial with on the court notice from a final discovery and found that the coun- 3-1-88 received issue delinquent ac- Bell that terclaim not barred limitations.2 fully accelerated and that does he not count had not maintain that did been 17.565, finding following of fact made the 1.Tex.Bus. & Com.Code states: 2. The court § discovery: Lyles could not have on issue brought subchapter under All actions this deceptive reasonably these trade discovered years within must commenced two after represents May practices prior which false, misleading, or the date on which the began run the date that limitations practice deceptive act or occurred or within DTPA counterclaim. years tow after the consumer discovered or in pleadings, Lyles did contends that he In his diligence the exercise reasonable should discover that his advertisement false, have the occurrence of the discovered (Tr. published. it was until after the 1988 book misleading deceptive practice. or act or 542.) test, disqualified majority’s from future under the most would he was adver- Even Lyles, by testimony, admitted hold that tisement. Exhibit 36. advertising he had no in the 1988 he knew reproduced 35 and 36 are Exhibits 4, 1988, February and limitations book *13 appendix opinion. to this began to run on that date. majority dismisses all three notices sup- testamentary Other evidence that ground representatives on the that the Lyles Bell’s claim that ports Southwestern Lyles from Southwestern Bell told at the 7,May earlier than was had notice much meeting ignore any 1987 to December agent testimony Lyles the of and his generated billings.” if “computer Even Lyles Combes. Both testified hired Lyles’ testimony representative a of that to, among things, get Combes other him Bell made that statement is Lyles into the 1988 book. hired Combes (Southwestern disputes to be believed 9, 1987, meeting, the December after it), Lyles ignore any “computer could in thus both knew that he was not the 1988 generated billings,” give Lyles that did not meeting. book after that Combes also tes- permission ignore to the contract that payment tified that he knew the was applied delinquent he had no 1988 advertisement and showed to the 1986 and 1987 telling him accounts. two letters he had no 1988 advertisement. The contract and the two my opinion, Lyles put In on notice was “computer generated” neither
letters were February by the 1988 letter that he had “billings.” nor book, advertising in the the 1988 began statute of limitation to run on that To discount the effect February of the date, applied date. If we we would 1988, letter, majority relegates the it to a delayed long filing Lyles hold that too being footnote and criticizes it for a form his counterclaim. majority acknowledges letter. The that the should have discovered When Bechner, signed by letter was the same misrepresentation? the who, representative according Lyles, disregard told him any computer gener- February if 4 “zeroed out” Even the contract, letter, billing might February ated statements he 4 receive. the and the 1 notice to actually ignore If Bechner March letter were not sufficient told book, Lyles that he was not the 1988 we computer statements, generated billing a Lyles, in the exercise must then ask when telling letter from Bechner him he no diligence, of reasonable should have discov- longer any advertisement cer- would in the 1988 If ered that he was not book? tainly undo the effect of the earlier oral put Lyles those three documents did not statement. actual notice that he had no advertisement addition, Lyles In testified he “thor- was book, in the should he have 1988 when oughly 4, 1988, February shocked” the he had no advertisement discovered that letter. If thoroughly shocked 1988 book? letter, certainly the it in- was because it part discovery test in the The second longer him formed he no had an advertise- requires determine rule us to when ment in the 1988 book. elaborated he not in the should have discovered was interpretation on his in his letter Pages. M. 1988 Yellow v. William Woods testimony at trial: (Tex. Mercer, Inc., 769 S.W.2d says, your I took it to mean it what 1988). question, To we must answer paid advertising ’88 is taken out of the prudent person apply reasonably the stan book, you going and that are now to have person who seek the dard: When did your past pay due amounts that is not discovery enough benefit of the rule have reflected, that our amount books him, reasonably to lead as a information giving you any that we’re not credit or prudent person, inquiry to make an adjustments, and thanks for the five discovery wrong? would lead to the going in purposes, party’s thousand. You’re not the book Id. For limitations facts, conditions, knowledge or circum eight years. after or nine ably prudent person inquiry to make an cause a reasonable stances which would is, law, equiv status of person inquiry make about the the advertisement knowledge applying Instead of alent actual the cause book. test, Peek, person majori- reasonably prudent action. Borderlon v. See (Tex.1988)(limitations ty in medical takes at face value statement that case). malpractice he did not understand advertisement Pages May in the Yellow until contract, February If 4 “zeroed out” reasonably failing apply 1988. In letter, February and the March test, prudent person majority errs. (which I notice be- letter were actual were), part point, I sustain this and reverse they lieve the second would under *14 test, Bell. they a reason- and render favor of Southwestern would have caused