Southwestern Bell Telephone Co. v. Delanney

provisions hearing, for notice and or that

appellant prejudiced by provi- was those

sions. timely protested ap- Friedrich

praisal after it had received notice. 25.23(c), (d)

See TEX.TAX CODE ANN. §

(Vernon 1982). hearing A was held Appraisal Board,

Bexar Review which en- regarding

tered an appraisal. order argue

Friedrich does not that the Review hearing inadequate.

Board Friedrich entitled under Tax Code to further

appeal to the district court and to obtain regard-

there a trial de on novo the issues

ing appraisal. See TEX.TAX CODE (Vernon 1982).

ANN. 42.23 Friedrich

perfected appeal to the district court suit,

timely filing of notice and the

court entered an order in the from appeal

which this was taken. Friedrich

points nothing in procedures, these provided multiple opportunities heard, deprivation that constitutes a process.

due eight Points of error and nine

are overruled. judgment is affirmed. CHAPA, JJ.,

CANTU and concur opinion.

without

SOUTHWESTERN BELL TELEPHONE

COMPANY, Appellant, DELANNEY,

Eugene Appellee. C.

No. 9614. Texas, Appeals

Court

Texarkana.

Oct.

Rehearing Denied Nov.

BLEIL, Justice. Telephone Compa-

In Southwestern Bell ny’s appeal judgment from a on a verdict damaged finding negligently that it Eu- gene Delanney, Bell raises asked concerning questions issues for jury, the denial of its motions trial, the directed verdict and a new en- forceability of a contractual limitation and sufficiency find of the evidence. We judgment affecting error the trial court’s and affirm.

Delanney operated Delanney & Associ- ates, Galveston, a real firm in estate which successfully had advertised in Southwest- Pages. April ern Bell’s Yellow Delanney agreed and Pages listing Delanney’s a Yellow real estate in the 1980-81 business directory. 1980, Delanney Also decided rotary system to include a his third line on and to add another line to one of his two remaining required inactive lines. This cancellation of one line and the transfer of rotary system. this line to The can- celled line was the number to which the Pages listing Delanney Yellow was billed. change before Pages listings printer. to the were sent Bell’s Because internal billing procedure, Delanney’s request re- in the sulted deletion of his Yellow directory. advertisement from the 1980-81 Delanney sued Southwestern negligence. jury found that South- Delanney’s Bell’s western deletion of Yel- resulted from low negligent acts which $109,- profits suffer lost in the amount of during year 200.00 his firm was not $40,000.00 loss of listed future profits. The court remitted the trial future $11,840.00. damage award to Initially contends Southwestern Bell that submitting ques- the trial court erred in asking tion Southwestern Bell negligent, claiming reality Jr., Buckley, Greer, Foutch, John A. merely had breached a contract with Delan- Adams, Galveston, Herz for appellant. & ney underlying action sounded Griffin, Anthony Griffin, Anthony P. in contract P. alone. Southwestern cites Inc., Galveston, appellee. distinguish authorities actions con- tort,

tract from argues part actions on the of Southwestern solely is based con- Bell were: tract duty imposed because the on South- (1) failing to inform that the purely by western Bell arose virtue of the rotary system installation of a would cancel contract. Southwestern Bell claims that an Pages listing; action in duty contract for breach of a (2) failing adequately to train and inform arising out of a an while employees its order an to cancel one duty imposed by for tort is for a breach the would cancel the numbers law, relying Printing on International Pages advertisement; Pressmen and Assistants’ Union v. (3) failing recognize to that the automat- Smith, 145 Tex. 198 S.W.2d Pages ic cancellation of the Yellow adver- (1946). billing pro- tisement would occur when the A party to a contract owes a com changed. cedure was care, skill, mon law to Most of the cases relied on South- expedience reasonable and faithfulness the western Bell focus on the of exem- award done, thing negligent to be and a failure in plary damages. plaintiff in those performing any of these conditions can be required proven—in cases was to have ad- recovery the basis for as well as damages dition to a breach of contract and breach contract. Coulson v. Lake L.B. —a injury distinct tortious with actual dam- District, Municipal Utility J. ages support to an additional award of (Tex.1987); Montgomery Ward & Co. exemplary damages. Exemplary damages Scharrenbeck, 153, 204 146 Tex. only are involved this case. The (1947). Bell relies on Delanney awarded to were for Homes, Reed, Jim Walter Inc. v. 711 S.W. profits, damages. lost which are actual provides 2d 617 which some guidance as to an when action sounds issues, Turning to other Southwest tort and when an action sounds in contract. ern Bell claims that the trial court erred brought In that the Reeds an action overruling its motions for directed verdict against housing contractor who breach and for new trial because the evidence ad ed their by failing construction contract negli duced trial failed to establish a according the house speci build to contract gence Delanney’s negli cause of action. fications. In addition to breach of gence action is based on Southwestern negligent supervision Reeds claimed handling Delanney’s request Bell’s for construction the contractor. In deter rotary Delanney an additional line. mining whether an action is in tort based claimed that Southwestern failed to contract, the court noted that it is the sub inform him that the addition of an extra stance cause of action and not neces rotary Pages line would cancel his Yellow sarily pleading the manner of con listing, that negligently Southwestern Bell trols, and that injury nature recognize failed to that automatic cancella most often determines the duties that are place, tion would take and that Southwest Generally, injury breached. when the properly ern Bell failed to inform and train only subject the economic loss to the employees. itself, contract action sounds con Miller, Lorraine a Southwestern Bell em- Homes, tract alone. Jim Walter training ployee, testified that she received Reed, 711 S.W.2d at 618. representative. a service She become

Delanney did not receive the adver stated that wife called to re- paid quest Delanney listings tisement he for and as a suf one of the result damages. fered When Southwestern Bell cancelled and added as a third number line, listing rotary rotary pulled equip- cancelled a and added a third so Miller line, doing listing, got so and re ment the information and told sponsible damages proximately Delanney get for she would with her. back order, thereby. specific findings of Miller wrote the disconnected the oc omitted, errors advertising or which as a listing put number directory in cur, life of the the issue Delanney’s rota- for the end of third number at A similar limitation she did not testified that volved.” ry line. Miller upheld in a breach Delanney that clause was inform Bell Tele The line advertising cancelled. suit. v. Southwestern would be Wade (Tex.Civ. phone Company, to have cancelled was asked writ); Enterprises and see also D. and D. listing App. —Austin Miller listing Delanney. was not Helms v. Southwestern (5th Cir.1986); filled out the Co., at the time she Calarco testified that 794 F.2d 188 not know the Yellow order she did be can- would (Tex.App. Dist.] [1st —Houston she had n.r.e.). However, also testified that celled. Miller in Helms ref’d writ the report she had made that on a

indicated case of Reuben H. followed the. the court to Delanney’s listing due of McKinnon, omission 688 S.W.2d Donnelley Corp. v. jury could production. in an error (Tex.App. Corpus Christi — these facts that reasonably infer from n.r.e.), limitation held a similar ref’d its Bell did not Southwestern in a Yellow adver liability clause of thus, care; Delanney with agreement with because unenforceable tisement contract finding supports a of South- the evidence negli was based on plaintiff’s the negligent performance of a Bell’s western limit its defendant could not gence and the Delanney. Montgomery duty it owed at 616. negligence. 688 S.W.2d liability for Scharrenbeck, supra. & Co. v. Ward to en court’s refusal The trial complains additionally Southwestern liability clause was the limitation force erroneously the trial court submitted that or nonexistence and the existence proper, liability question to the the limitation of bargaining power was disparity in not public policy issues are jury because ac a this is irrelevant because limi- proper jury for consideration enforce may refuse to tion. courts While liability as á tation of clause is enforceable there is liability clauses where limitation of Also, of law. matter that bargaining power disparity such erroneously held that the trial court claims adhesion, Allright, is one of the contract liability is un- that the limitation of clause S.W.2d 266 Elledge, Inc. enforceable. not serve provision would this contractual question court The trial submitted Bell’s to limit Southwestern jury, the as follows: Helms v. South negligent conduct. its at 794 F.2d preponderance of western Bell you

Do find from a 192-94; Donnelley Corp. H. disparity Reuben the that there was evidence error, McKinnon, 616. The plaintiff bargaining power the between court’s submis concerning the trial negotiating any, the con- the defendant disparity of on the question Page advertising. sion of the tract for Yellow Although a power is harmless. bargaining disparity A of bar- INSTRUCTION: power bargaining would disparity party has gaining power exists when one the liability limit under necessarily itself accepting agreement an real choice harm resulted present, no circumstances party. limiting liability of the other question. asking jury that from this Apparently, the trial court submitted maintains Bell also Delanney claimed his question because asking question constitutes of this liability that the that the limitation petition weight comment on the impermissible limi- an is void and unenforceable. clause in accompanying the evidence that as follows: clause reads tation definition elements of the omitted agrees struction applicant that “The guidance any real give jury did not for errors Company shall not be liable has The trial court the issue. advertising to answer directory be- omissions submitting spe- directory considerable discretion paid yond the amount questions jury, cial deciding testimony to the and in proper was not a basis jury necessary what instructions are award. in submitting questions jury. to the Mobil Delanney’s Pelaez, expert, Rolando testi- Bell, Company Chemical during fied period that (Tex.1974). only We need decide listing Pages, was omitted from the Yellow

whether the trial court’s action was arbi Delanney’s closings decreased from 9.68 trary or unreasonable. Markantonis v. per per month to 7.92 month while Tropoli, 730 (Tex.App.— closings for all other realtors increased. n.r.e.). Houston that, writ ref 'd during Pelaez testified period, average would closed an have argues every five more homes month had the ratio jury issue allows the to consider the Delanney’s closings closings to other only and that equal. remained Based on an estimated instruction, which instructs sixty-five additional homes could parties’ to consider the relative closed, average $55,- have at an value of bargaining power, 000.00, $216,000.00 sources of alternative Pelaez calculated as the loss; advertisement and the reasonableness of amount of commission deducting the term, challenged paid agents should amount have been sub sales leaves a bro- $112,621.00. ker’s share of Although mitted. Southwestern instruction, have witness, expert Southwestern Bell’s F. one the proper. trial court submitted is also Sweeney, Delanney Gerome testified that enforceability Where the of a limitation of paid average forty-five percent out an of of issue, liability clause is the relative bar gross agents his commissions to his and gaining power of the is a relevant just part that such commissions are one of fact to Allright, be determined. selling Sweeney expenses. stated that fif- And, Elledge, 515 S.W.2d at ty-nine percent three-year average was a by instruction submitted the trial court is a expenses, forty-five percent total of which correct Clearly, statement of the law. Id. selling is commissions and rest is other the trial court’s instruction arbi testified, expenses. Sweeney also on based Moreover, trary or light unreasonable. Delanney’s administrative costs in the of our determination that years through Delanney the contractual claims, liability limitation of apply would not to had achieved the sales volume he he $10,- liability damages limit would have incurred an additional by tor- conduct, expenses. 000.00 administrative ques tious this issue and the issue tioning showing the exclusion of evidence profits, To recover for lost it is not necessity business for the limita necessary that the loss exact be shown tion become immaterial. It is calculation. sufficient by competent amount is shown evi loss asserts that there is certainty. dence with reasonable v.White support insufficient jury’s evidence to $109,200.00 award as for lost (Tex.1983). profits and that the award was so excessive toas shock one’s conscience and sense of parties presented competent Both justice. Southwestern Bell claims insuffi- Delanney evidence of the amount of loss Delanney’s expert cient because evidence suffered as a result of the omission of his witness, who testified that suf- Pages from the list $112,- damages in fered the amount ings. province It is within the 621.00, made a deduction for commissions accept. testimony to determine which to only expenses. and not for other variable Thus, give jury’s prerogative complains Southwestern Bell that Delan- testimony credit to the of Pelaez whatever ney’s expert selling did not take increased Sweeney appropriate. it deemed expenses calculating supports jury’s finding into account lost on evidence thus, and, profits damages. the amount stated in his (Emphasis may injure promisee.” affirm ance find no reversible error and We added.) Id., judgment. trial court’s only had a contract If CORNELIUS, Justice, Chief Pages ad- Bell for a Yellow concurring. damages in vertisement, recovery his majority opinion, I concur there would be unauthorized because tort separately emphasize what I be- write failure to complete awas tort and lieve to be the distinction between only damage was to the obligation, and the this, actions in cases such as itself. His matter of that contract subject peculiar circum- why the narrow and sustained, however, on the recovery can be case the action in tort is stances of this he either had two contracts theory that permissible. imposed two integrated one contract which nonfeasance The distinction between (1) Bell: obligations on Southwestern complete and misfeasance. The service, including furnishing failure only 'perform a contract a breach lines, (2) ad- rotary contract, unless the and is not vertisement. one is also imposed by the contract is Delan- Although the mere failure to list Printing imposed law. International be nonfea- ney in the Yellow would Pressmen and Assistants’ Union and therefore nonperformance, sance or 399, 198 Smith, 145 Tex. S.W.2d729 only a breach Keeton, Keeton on the W. Prosser and (fur- obligation of the first performance 1984). (5th Torts at 655-61 ed. Law lines) a tort as nishing telephone can be negligent performance contract. Since the well as a breach of however, can be a tort as well as a breach negligent performance of that contractual Accompanying every of contract. contract loss obligation proximately caused a other duty is a common law the act contract, Delan- subject that than the of care, agreed upon with skill and faithful resulting in tort for the ney can recover ness, any failure to observe Sales, damage. Edgar & J. Texas See J. of those conditions is a tort as well as a 1.03(4)(b)(1988). Torts & Remedies § breach of contract. Coulson v. Lake L.B. District, Municipal Utility J. (Tex.1987); Montgomery 649 & Co. Ward GRANT, Justice, dissenting. Scharrenbeck, 153, 146 Tex. 204 v. agree I I dissent. While v. Light Texas Power & Co. performance of a con- may occur in the Barnhill, (Tex.App.— 639 S.W.2d 331 Texa tract, present the case agree I do not 1982, n.r.e.); Compton rkana writ ref d v. presents a tortious action. Polonski, (Tex.Civ.App.— 567 S.W.2d 835 the contract The mere fact 1978, writ); Corpus Christi no Davis negli- through the defendant’s breached

Anderson, (Tex.Civ.App.— 501 S.W.2d 459 change itself the gence does not and of 1973, writ); Texarkana no H.M.R. Con Ac- one in tort. Am.Jur.2d action into Houston, Inc., struction Co. Wolco of (1962). pleading The form of tions 9§ (Tex.Civ.App. 422 S.W.2d 214 —Houston the action is does not determine whether 1967, n.r.e.); ref’d writ West contract, relationship rather the tort or (Tex.Civ. Watts, brook v. between 1954, n.r.e.); App. ref’d Pan writ —Waco to for this determi- sought must looked Wilson, 248 handle Gravel Co. v. important that we maintain nation. It is 1952, (Tex.Civ.App. —Amarillo con- between tort and distinction n.r.e.); Keeton, Kee ref’d W. Prosser and Texas, many substantive 92, tract because ton on the Law Torts at 655-61 § rights dependent upon this distinction. (5th 1984). Prosser, are by “the ed. As said looking by done various tort This can be American courts have extended the expressly separating these causes virtually every factors liability for misfeasance to perform of action: type of contract where defective (1) An Telephone Company purpose action in contract is the Bell duty breach arising out a con- getting people reading the business from tract, while an action in tort Thus, advertisement. the nature of duty imposed by breach law. Interna- i.e., injury, place the failure to the adver- tional Printing Pressmen and Assistants’ tisement, subject is the it- contract Smith, 399, Union v. 145 Tex. 198 S.W.2d self, and the action sounds contract (1946). case, In that the Texas Su- alone.1 preme Court stated: (3)The concurring opinion offers a third If an action is not maintainable without liability rule: There is for nonfea- pleading proving where requires distinguishing sance. This test gist of the action is the breach (or negligent misfeasance affirmative con- either malfeasance or non- duct) from nonfeasance. There is some feasance, is, substance, an “action question as to whether or not Texas courts contract,” on the may whatever be the recognize continue to this difficult distinc- pleading. form of the In Montgomery tion. the case of &Ward words, if the to take due Scharrenbeck, 146 Tex. Co. relationship care arises from a outside the (1947), Supreme S.W.2d 508 the Texas contract, then the action sounds in tort. Court said that “torts be based on Laird, Railway Atlantic & Co. v. Pacific nonfeasance or as omissions act well as 164 U.S. 17 S.Ct. 41 L.Ed. 485 Edgar on acts of commission.” J. & J. (1896). present In the it was the Sales, 1 Texas Torts and Remedies obligation place 103(4)(b)(1988). The results reached in § breached, that was and this applying the misfeasance-nonfeasance test duty could not have existed but for the upon may depend application the semantic Therefore,

intent set forth in the contract. test, i.e., wrong he of that Did do it or did only theory law should be the right? he fail to do it upon imposed. can be See Keeton, W. Prosser and Keeton on the difficulty applying this test (5th 1984). Law Torts at 656 ed. present illustrated case. Southwest- Telephone Company totally ern Bell omit- (2) The injury nature most often ted advertisement. This would determines which duty or duties are nonfeasance, clearly seem a case of to be Homes, breached. Jim Inc. Walter and therefore there would no tort liabili- be Reed, (Tex.1986). 711 S.W.2d 617 In the However, ty. concurring opinion does case, present the substance of the cause of not look to see whether there was actual recovery intangible action is the of an eco- performance, instead looks to the rea- but flowing directly nomic loss from the breach why obligation son of an under the contract. Delan- ney Company an omitted this advertisement. wanted advertisement for his floral shop misunderstanding in the Yellow fact that there a was 1. There are times when this test is not workable case be on the basis of the loss of the because there is both a breach of contract and a bargain out-of-pocket or the mea benefit of sure, damages. tort which results in the same example, For being appropriate both recoveries in a fiduciary duty may a breach of a Leyendecker breach of contract case. & Associ both a tort and a breach of contract. InterFirst ates, Wechter, (Tex.1984). 683 S.W.2d 369 Dallas, Risser, Bank N.A. v. 739 S.W.2d 882 1987, writ). (Tex.App.-Texarkana no In a tor- 2. Prosser demonstrates the confusion exam- tious interference the measure of actual ples in failure to blow a whistle or shut which damages is the same as for a breach of negligent opera- off steam was found to be the put plaintiff attempting the court in the train, gas repair tion of a the failure to a line position same economic he would have been in negligent was found to be the distribution of Capital had the contract not been breached. gas, discharging employee was the act of an Donaldson, (Tex. Title Co. v. 739 S.W.2d 384 employ- nonperformance found to be a of an 1987, writ); App.-Houston no Armen Dist.] [1st agreement ejection Mora, ment and the of a theater (Tex.Civ.App.-El 553 S.W.2d 400 dariz Paso patron nonperformance n.r.e.). a of an was found to be writ refd Also the agreement. misrepresentation in a awardable fraudulent (Tex.Civ.App.-Amarillo per- in by employees a lack of awareness n.r.e.), deal- in ref d the court was forming another contract which turn brought about ing personal injury a company caused the to omit the falling from the de- two-pound a rock advertisement does not alter the fact through gravel going Bell failed to do it had fendant’s truck what injured party’s ve- in rule eas- the windshield of the promised the contract. This personal injury did not involve a in there is hicle. The apply ier to to a situation which contract; however, in perform- tangible party to the physical person harm to a or a duty not to ing a a common law negligent thing performance because of the In the injure nonparties. also was owed In is a of a contract. that situation there Anderson, case of Davis v. 501 S.W.2d duty imposed by per- breach of a law 1973, writ), (Tex.Civ.App.-Texarkana no an care to form with reasonable skill and brought by a who was action was worker injury property. to others or their avoid injured when a ditch which he was work- Keeton, Prosser and Keeton on the W. ing Again, personal this a caved in. Ed.1984). (5th Law Torts 92§ injury person party to a not a to the con- Media, In Farina v. Southwestern Bell duty was tract but to whom a common law Inc., (S.D.Tex.1987), F.Supp. 826 a case owed. The case of H.M.R. Construction perform publisher which a failed to Houston, Inc., 422 Co. v. Wolco of place contract to an advertisement (Tex.Civ.App.-Houston Pages, the court said that: n.r.e.), a suit for con- writ ref’d performance Misfeasance tribution, underlying tort involved action, promise give will rise to a tort by the injury employee to an whereas nonfeasance will not unless building. Again, collapse of a the tort duty independent there is a of the con- duty not to erect arose from a common law thing promised.... tract to do the In building inherently dangerous. which was words, complete failure to public general. This is owed to the give a contract will not rise to a tort In the cases of Coulson v. Lake L.B.J. intentionally action unless there is tor- District, Municipal Utility 734 S.W.2d 649 conduct, fraud, tious such as or the non- Light Power Texas & Co. phys- feasance is and results Barnhill, (Tex.App.-Texar harm, person always ical has a n.r.e.), Compton v. kana writ ref’d duty to avoid. Polonski, (Tex.Civ.App.- present case, Delanney’s damages 1978, writ), respec Corpus Christi expected a loss of the were benefits contracts tive courts noted dicta that itself, application of all typically obligations contractual create three tests demonstrates that this is a duties, implied the breach of which upon cause of action based contract. in tort. All create in contract and liabilities concurring opinion Montgomery The cites numerous of these cases cite Ward & Scharrenbeck, supra, propo proposition cases for the blanket that ac- v. for this Co. case, the de companying every contract is a common sition. In the Scharrenbeck expert repair duty agreed upon law the act fendants sent an a heater care, skill, faithfulness, expert’s home. The and and a in the Scharrenbeck repairing any failure to observe of those heater destroyed by The conditions is a tort as well as a the home to be fire. breach duty to all agree contract. I that such a common law defendant had a common law damage prop them or their duty accompany every persons does but a not to Thus, negligently causing fire. study supports erty by careful of the cases cited a position duty damages a was in the case common law Scharrenbeck expected present in the case. In the were not the loss of an benefit violated (which Wilson, repair case of v. under the contract was “to Panhandle Gravel Co. 780 Co., heater”).3 Telephone adjust

and cases con Southwestern Bell 352 These type firm the need to look to the of dam 1961, (Tex.Civ.App.-Austin 460 no S.W.2d ages incurred and the which was vio writ). to determine lated order whether Poliquin The Court in Martin v. Lou in tort or contract. Inc., Enterprises, supra, held that when involving Litigation telephone errors in involved, DTPA limitation-of-liabili- directories are no means to our new ty clause used to avoid cannot be jurisprudence. twenty-two At least deceptive that Act for trade available under type of to in- litigation states found this practices. present case The was initiated contract volve a breach of action.4 allegations pleadings under included Corpus Appeals The Christi Court of violations; however, DTPA no issues McKinnon, Donnelley Corp. v. Reuben H. that basis and the trial were submitted on (Tex.App.-Corpus 688 612 Christi judgment specifically court excludes 1985, n.r.e.), writ ref’d treated the failure any DTPA violations.5 provide Pages advertising as a question validity The of a limita- negligence. following state and federal cases decided Texas also clause in the tion of this nature telephone from treated an omission raised v. Southwestern Bell White book as a contractual breach: Faber v. Co., 260 Telephone Telephone Company, Bell Southwestern telephone compa- a case which involved (S.D.Tex.1957); F.Supp. 155 162 Russell v. ny’s listing a florist’s incorrect Co., Telephone Bell 130 Pages. However, number (E.D.Tex.1955); F.Supp. 130 Calarco Supreme point that this Court found Co., Telephone 725 fully was not and that could be briefed (Tex.App.-Houston S.W.2d 304 [1st Dist.] being remanded. addressed after n.r.e.); 1986, ref’d Martin Poli writ v. Lou limitation pled that the clause Inc., quin 696 Enterprises, S.W.2d 180 against policy and unenforcea- public 1985, (Tex.App.-Houston that there was a dis- ble. found n.r.e.); ref’d Goldson Southwestern parity bargaining power between the Co., (Tex.App.- Telephone 659 S.W.2d 902 writ); 1983, Certainly, disparity to the suit.6 Corpus Christi and v.Wade Co., Telephone so Warner v. 428 If the facts had been altered that Schrarren- (Mo. 1968); danger- repair had hired the defendant to 596 Cunha v. Ohio Bell Tele beck 267, Co., through expert’s and phone ous defect in the heater negligent 271 N.E.2d 321 26 Ohio Misc. (1970); Telephone heater defective efforts the remained v. Southern Bell and Smith fire, Co., and started a then the action could be in Telegraph Tenn.App. 51 or contract. (1962); either tort Telephone Co. Allen v. General Northwest, Wash.App. 578 P.2d 1333 England McTighe Telephone v. New (1978). Co., (2d Cir.1954); Telegraph F.2d 26 Univ Beauty Academy ersity States Hills Mountain judgment following 5. The contained the lan- Co., Telegraph Colo.App. Telephone guage: Oldsmobile, P.2d 723 Ed Fine Jury plain- on No issues submitted to Co., were Diamond State 494 A.2d surrounding deceptive allegations tiffs trade (Del. 1985); Southern Bell defendant, practices by SOUTHWESTERN Realty Ga.App. Telegraph C & S Co. v. (1977), At the BELL TELEPHONE COMPANY. dost part S.E.2d 9 overruled in on (sic) plaintiffs Court was di- grounds, Georgia-Carolina this Brick & Tile Co. 747, Brown, proof concerning Ga.App. v. (1980); 266 S.E.2d 531 rect verdict for lack Associates, Engineering McClure same. Donnelley Corp., 95 Ill. Reuben H. Ill.2d Although (1983); 2.302 of the Uniform Com- Section Dec. 447 N.E.2d Woodburn v. applicable Co., mercial Code this Northwestern Bell 275 N.W.2d goods (Iowa 1979); transaction because the sale was not Safety Louisville Bear Service involved, guidance Co., to the determi- offers some Central Bell South provides clauses. It (Ky.1978); nation unconscionable Wilson v. Bell Tele Southern Co., unconscionability phone (La.App. is a Telegraph determination & 194 So.2d 739 1967); Chesapeake the court. Tex. Tele matter law to be made Baird v. Potomac (Vernon 1968). phone Bus. & Ann. 2.302 208 Md. 117 A.2d 873 Comm.Code remand justice, I would standing does In the interest bargaining power alone to be decided on to the trial court this case a clause in a con- not void a contract or action. of a contract the basis tract, determining if it is one element is unconscionable.7 the clause or op- public policy, determining and whether the contract a contract is uncon- whether scionable, Austin, pressive the court must look to the entire or unreasonable. Wade v. made, atmosphere agreement in which the (Tex.Civ.App.-Texarkana S.W.2d 79 writ). alternatives, any, which were available to making at the time of the ability par- non-bargaining of one illegal against ty, whether the contract

Case Details

Case Name: Southwestern Bell Telephone Co. v. Delanney

Court Name: Court of Appeals of Texas

Date Published: Oct 18, 1988

Citation: 762 S.W.2d 772

Docket Number: 9614

Court Abbreviation: Tex. App.