OPINION ON RECORD
On June 27,1985, we delivered an unpublished opinion in this cause on the merits of an appeal brought by Southwest Mortgage Service Corporation and W.W. (Doc) Taylor, defendants/appellants (Taylor) from a judgment rendered in favor of Trans-Continental Properties, Ltd., Pine Hill Lake & Golf Course, Inc., Pine Hill Inn, Inc., and Pine Hill Lake and Golf Corporation, plaintiffs/appellees (Trans-Continental). We reversed the trial court’s judgment and remanded the cause for a new trial. The Supreme Court, by per curiam opinion delivered on March 26, 1986,
1
granted TransContinental’s application for writ of error, and reversed our judgment, but remanded the cause to us with instructions “to proceed according to [its] opinion.”
Transcontinental,
Taylor argues that we are not foreclosed from now addressing the second question posed above and calls to our attention the fact that there was a pleading filed in this case by Taylor on March 6, 1984, which was the equivalent of a motion for new trial. 7 Thus, Taylor contends that the initial 21c motion was timely filed on the eleventh day following the entry of the February 23, 1984, judgment. On the other hand, Trans-Continental claims that our decisional action on remand in this cause is limited to an affirmance of the trial court’s judgment, or dismissal of Taylor’s appeal.
The parties have furnished us with a copy of the withdrawn per curiam opinion by the Supreme Court in this cause issued on November 20,1985. That opinion closed with the following language:
Although properly raised by motion to dismiss the appeal and uphold the trial court’s judgment, the court of appeals did not address whether the Rule 21c motion was timely. Because the opinion of the court of appeals conflicts with Tex.R.Civ.P. 21c, 329b(h) and 386, we reverse the judgment of the court of appeals and dismiss the appeal.
(Emphasis ours.) The per curiam opinion of the Supreme Court of March 26, 1986,
Thus, the court of appeals had no authority to consider the late transcript and statement of facts not permitted under Rule 21c, B.D. Click, [v. Safari Drilling Corp.],638 S.W.2d at 862 , but could only dismiss the appeal or affirm the trial court’s judgment. Tex.R.Civ.P. 386. Tex.R.Civ.P. 387(b) provides that before dismissing an appeal, the court of appeals may give notice to the parties and ask them to submit reasons why the appeal should not be dismissed.
*876 Although properly raised by motion to dismiss the appeal and uphold the trial court’s judgment, the court of appeals’ opinion did not address whether the Rule 21c motion was timely. Because the opinion of the court of appeals conflicts with Tex.R.Civ.P. 21c, 329b(h) and 386, we reverse the judgment of the court of appeals and remand to that court to proceed according to this opinion.
(Emphasis ours.) If we accept Trans-Continental’s view of the “instruction” on remand, we would be required to read the Supreme Court’s mandate thus:
we reverse the judgment of the court of appeals and remand the cause to that court to affirm the trial court’s judgment or dismiss the appeal as it chooses pursuant to Rule 387(b).
8
Such a construction of the Supreme Court’s opinion renders its remand to this court senseless. We do not believe the Supreme Court intended that we elicit responses from the parties under Rule 387(b), if in fact we are only authorized as a matter of form
9
to dismiss the appeal or affirm the judgment. Rather, we are persuaded that the Supreme Court authorized this court to do something that it had not done on original submission, that is, to pass on the timeliness of Taylor’s initial 21c motion; and in so doing to apply Rules 21c, 386, and 329b(h) as they have been construed by the Supreme Court in this cause. Certainly the Supreme Court may properly do just that under Rule 483.
See Hotel Dieu Hospital v. Huerta,
Therefore, we address the question whether Taylor’s initial 21c motion was timely. We conclude that it was. The record reveals that on March 6, 1984, Taylor filed in the trial court a pleading designated “Demand for Removal” (see Appendix “A”). Admittedly, the pleading bears a bizarre caption or label, but it does call to the trial court’s attention that the contractual instrument upon which Trans-Continental’s cause of action was predicated provided for arbitration in the following language: “Any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be settled at the option of either party, by arbitration ... and judgment upon the award may be entered in any Court having jurisdiction thereof.” The pleading alleged that the February 23, 1984, judgment in the cause was not yet final, and concludes with a prayer for relief as follows, to wit:
WHEREFORE, defendants make demand upon this Honorable Court for removal of same, instanter, to the American Arbitration Association in Dallas, Texas, for cost and attorney’s fees, and for all other relief proper in the premises. (Emphasis ours.)
The pleading does not expressly request the trial court to set aside the February 23rd judgment or grant a new trial, but by the clear and necessary implication of the language employed in this pleading, the trial court is requested to do so. A motion for new trial, like any other pleading, is judged not by its form but by its substance.
Stevens v. Douglass,
Plaintiffs/appellees, Trans-Continental Properties, Ltd., Pine Hill Lake & Golf Course, Inc., Pine Hill Inn, Inc., and Pine Hill Lake and Golf Corporation (Trans-Continental), recovered judgment in a bench trial against Taylor, jointly and severally, for actual and exemplary damages and attorney’s fees in a suit for fraud and breach of a written contract. In addition, the judgment cancelled a deed of trust held by Taylor against certain lands owned by Trans-Continental. We reverse and remand the cause.
The record reflects that Trans-Continental was in the business of developing certain real properties owned by it, and known as Pine Hill Lake Resort. Trans-Continental built several ten-unit condominiums on a part of the property and sold “time share” rights to its clients for fifty weeks each year. Trans-Continental also marketed and sold lots in the resort to the public. Because of a “cash flow” problem, Trans-Continental sought and entered into a written agreement with Taylor on March 17, 1983. Under the terms of the contract, Taylor agreed to purchase, when presented to it by Trans-Continental, notes and other obligations given by purchasers of condominium units on a time share basis and lots from Trans-Continental for a twelve-month period in a total amount “not to exceed” $3,000,000. Taylor’s obligation to purchase such notes and time share contracts was subject to certain conditions precedent. Paragraph 9 of the contract reads:
9. To guarantee your performance under this commitment and to assure SMSC that all taxes, insurance and maintenance costs are timely paid you will grant unto SMSC a deed of trust on the subject property and execute a collateral note in the amount of Three Million Dollars ($3,000,000.00).
In compliance with such provision of the contract, Trans-Continental executed and delivered a $3,000,000 note payable to Taylor and a deed of trust covering Trans-Continental’s properties. The deed of trust recites that it is given for the purpose of insuring Trans-Continental’s performance of the contract (commitment) “and to further insure the endorsement of all notes sold by Grantors [Trans-Continental] to Beneficiary [Taylor].” Trans-Continental pleaded the contract and alleged that it “[had] performed all necessary acts upon [its] part as required under the terms of the commitment” and that Taylor had breached the contract by refusing to purchase notes in the following amounts on the following dates, to-wit:
June 14, 1983 — notes in the amount of $50,000;
June 21, 1983 — notes in the amount of $63,000; and
June 28, 1983 — notes in the amount of $49,600.
Trans-Continental also alleges that Taylor was guilty of fraud in the inducement of the contract, i.e., that Taylor represented to Trans-Continental that they “would commit for a period of one (1) year a total sum of $3,000,000.00 for the purchase of time-share unit contracts and lot sale mortgages.” That such representation was false, was known by Taylor to be false at the time it was made, and was made with intent that Trans-Continental should act on it, and that Trans-Continental relied on same to its damage. The trial court at Taylor’s request, made and filed findings of fact and conclusions of law. Among these findings are:
*878 (3) Defendants did refuse to purchase commercial paper from Plaintiffs on June 14,1983, June 21,1983 and June 28, 1983;
(4) When the $3,000,000 note and Deed of Trust were signed by Plaintiffs and given to Defendant Southwest Mortgage Service Corporation, no monies were received by Plaintiffs.
(5) Defendants made material, deceptive, false and malicious misrepresentations to Plaintiffs.
(6) Plaintiffs acted in reliance upon the representations made by Defendants and suffered injuries thereby.
(7) The representations made by Defendants to Plaintiffs were done with the intent that Plaintiffs would act upon such representations.
(8) Plaintiffs were damaged by Defendants in the amount of $367,000.00 plus punitive damage in the amount of $200,000.00.
[[Image here]]
(10) The $3,000,000 note and Deed of Trust signed by Plaintiffs and delivered to Defendant Southwest Mortgage Service Corporation were without consideration, and have no underlying debt.
Based on these findings, the trial court concluded that Taylor breached the contract, that such breach was accompanied by fraud; that the $3,000,000 note and deed of trust securing the payment of same are null and void, and constitute a cloud on Trans-Continental’s title to the subject property and were given without consideration, for all of which the trial court found that Trans-Continental should recover the damages and attorney’s fees set forth in the judgment.
A brief discussion of the posture of the case at the time it came to trial is appropriate.
The case first came to trial before the court on January 12, 1984. At that trial, neither Taylor nor its counsel was present. After hearing the evidence, the trial court signed a judgment on January 19, 1984, awarding Trans-Continental actual damages in the amount of $1,794,644.71, punitive damages in the sum of $200,000, and attorney’s fees in the amount of $176,000. Taylor filed a motion for new trial which was heard on January 26,1984, by the trial court who took the matter under advisement until January 81, 1984. The trial judge required the parties to appear at 9:00 a.m. on January 31, 1984, advising them that if he granted the motion for new trial, he would expect the parties to be ready to proceed to trial on January 31, 1984. Taylor and Trans-Continental agreed to be ready for trial. On January 31, 1984, Taylor filed a pleading denominated a counterclaim against Trans-Continental seeking to recover damages against Trans-Continental in the amount of $175,000 and attorney’s fees for breach of contract. Trans-Continental filed an objection to the counterclaim alleging that it was filed within seven days of the day of trial and operated as a surprise to Trans-Continental. After arguments before the court by the attorneys in the case respecting Taylor’s counterclaim, the trial judge disallowed the filing of such pleading. The record shows that counsel for Trans-Continental was delivered a copy of the counterclaim either on January 26 or January 27, 1984. The gist of Taylor’s allegation in its counterclaim was that plaintiff had refused to repurchase certain notes purchased by Taylor from Trans-Continental which were in default and which under the contract were required to be repurchased by Trans-Continental. The counterclaim also alleged a defensive matter, i.e., that Trans-Continental had failed to comply with some of the conditions precedent set forth in the contract.
The second trial of the case was commenced on January 31, 1984. The trial judge orally declared he was granting the motion for new trial to Taylor, but did not sign an order granting the new trial until February 1, 1984, the second day of the second trial.
Taylor urges eleven points of error. In its first point, Taylor contends that the trial court abused its discretion in denying *879 leave to file the amended answer and counterclaim on January 31, 1984. We agree. It is clear from the record that Taylor was constrained by the trial judge to go to trial within five days from the date the motion for new trial was heard on January 26, 1984. 10 The filing of amended pleadings within seven days of trial is governed by Rule 63. Such rule provides that leave shall be granted to file the same unless there is a showing that the amendment will operate as a surprise to the opposite party. The record demonstrates that a copy of the proposed pleading was delivered to counsel for Trans-Continental on Thursday, January 26, or on Friday, January 27, 1983, and that counsel for Trans-Continental was informed that Taylor was going to submit the amended pleadings alleging that Transcontinental had not complied with various conditions precedent as set forth in the contract. In addition, the counterclaim alleged that Trans-Continental failed to repurchase certain notes alleged to be in default by Taylor as required by the provisions of the contract. In view of the coercion exerted on Taylor to announce ready for trial on January 31, 1984, in order to obtain a favorable ruling on its motion for new trial, we conclude that the trial court abused its discretion in refusing to permit the amended pleadings to be filed, and postponing the trial, if requested, in order that Trans-Continental could prepare to meet the evidence that would be introduced under the counterclaim. Further, we note that Trans-Continental alleged that they had complied with each of the conditions precedent, and it is difficult to perceive why Trans-Continental was not ready to prove it had complied with such conditions precedent. 11 Point one is sustained.
Taylor contends under point six that the evidence is legally and factually insufficient to support the trial court’s finding that the deed of trust was not supported by consideration. We sustain the point. The record shows conclusively that the deed of trust and the accompanying note were given to secure the performance by Transcontinental of the obligations under the contract. Such is adequate consideration to support the same as a matter of law.
Williams v. Silliman,
Taylor under its 7th point of error contends that the evidence is legally and factually insufficient to support the trial court’s finding of actual damages in the amount of $367,000. Under this record, the court’s award of such damages must necessarily rest upon the refusal of Taylor to purchase certain notes delivered to it by Trans-Continental on June 14, 21st and 28th, 1983, in the aggregate amount of $162,600. Assuming, without deciding, that Taylor’s refusal to purchase such notes constituted a partial breach of its contract with Transcontinental, the questions before us are whether the evidence shows that Transcontinental sustained lost profits in the amount of $367,000 as the natural and probable consequences of Taylor’s breach of the contract,
Southwest Battery Corp. v. Owen,
The generally accepted rule is that, where it is shown that a loss of profits is the natural and probable consequences of the act or omission complained of, and their amount is shown with sufficient certainty, there may be a recovery therefor; but anticipated profits cannot be recovered where they are dependent upon uncertain and changing conditions, such as market fluctuations, or the chances of business, or where there is no evidence from which they may be intelligently estimated. So evidence to establish profits must not be uncertain or speculative. It is not necessary that profits should be susceptible of exact calculation, it is sufficient that there be data from which they may be ascertained with a reasonable degree of certainty and exactness.
The Supreme Court went on to state that the rule of decision in Texas is fairly well summarized by the language of 13 TexJur. § 144, p. 215, that is to say:
In order that a recovery may be had on account of loss of profits, the amount of the loss must be shown by competent evidence with reasonable certainty. Where the business is shown to have been already established and making a *881 profit at the time when the contract was breached ... such pre-existing profit, together with other facts and circumstances, may indicate with reasonable certainty the amount of profits lost. It is permissible to show the amount of business done by the plaintiff in a corresponding period of time not too remote, and the business during the time for which recovery is sought. Furthermore, in calculating the plaintiffs loss, it is proper to consider the normal increase in business which might have been expected in the light of past development and existing conditions.
Trans-Continental’s operations had not shown a profit at the time of Taylor’s breach in June 1983. Its business ventures, that is the development of “time share condominiums and sales of lots in its resort area,” was a highly speculative business, dependent on a fluctuating real estate market. Not only was Trans-Continental heavily in debt, but it was in actual default to some of its creditors. The evidence adduced by it wholly failed to provide a basis for any reasonably certain estimation of lost profits resulting from Taylor’s alleged breach of contract.
Atomic Fuel Extraction Corporation v. Slick's Estate,
Therefore, after a careful review of the record, viewing the evidence in the light most favorable to the trial court’s findings of actual damages, resulting from the refusal of Taylor to purchase the June 1983 contracts of Trans-Continental, that is, considering only the evidence and inferences tending to support the finding and disregarding all contrary evidence and inferences, we conclude that there is no evidence to support the damages (lost profits) found by the trial court. Additionally, after studying and weighing all the evidence, most of which has been fully discussed, 13 relating to damages allegedly suffered by Trans-Continental, we find the evidence is factually insufficient to support the trial court’s finding of actual damages, and that the finding of damages (lost profits) is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Point seven is sustained.
Our decisions on points one, six and seven are dispositive of the appeal, and we decline to address Taylor’s remaining points of error.
Ordinarily, when a “no evidence” point is sustained against a plaintiff, an appellate court should reverse and render judgment that the plaintiff take nothing; however, when it is apparent that the evidence was not fully developed at trial, justice requires a remand rather than a rendition. 14 In our opinion, justice requires a remand in this cause. The judgment is therefore reversed, and the case remanded for a new trial.
APPENDIX A
TRANS-CONTINENTAL PROPERTIES, LTD., PINE HILL LAKE & GOLF CLUB, INC., PINE HILL INN, INC., AND PINE HILL LAKE AND GOLF CORPORATION, PLAINTIFFS,
VS.
W.W. TAYLOR AND SOUTHWEST MORTGAGE SERVICE CORPORATION, DEFENDANTS
IN THE 87TH JUDICIAL DISTRICT COURT OF ANDERSON COUNTY, TEXAS DEMAND FOR REMOVAL
Come now the defendants in the above-entitled cause of action and hereby make demand upon this Honorable Court for removal of same, instanter, to the American Arbitration Association, in Dallas, Texas, for the following reasons:
*882 (1) That plaintiffs and defendants entered into a commitment agreement on or about March 17, 1983 (attached as Exhibit A to plaintiff’s original petition).
(2) Pursuant to said agreement, Paragraph 12B. (Exhibit A-4) reads as follows:
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled at the option of either party, by arbitration in accordance with the Rules of the American Arbitration Association in Dallas, Texas, and judgment upon the award may be entered in any Court having jurisdiction thereof.
(3) That this matter is still pending and that judgment herein is not final, in that the Court’s Corrected and Reformed Judgment was signed by the Court on February 23, 1984, and final judgment does not go into effect thereon until March 23, 1984.
WHEREFORE, defendants make demand upon this Honorable Court for removal of same, instanter, to the American Arbitration Association in Dallas, Texas, for costs and attorney fees, and for all other relief proper in the premises.
Respectfully submitted,
/s/William P. Headlee
William P. Headlee
Atty. for Defendants
Southwest Mortgage Service Corporation
3905 Turtle Creek Blvd.
Dallas, Texas 75219
(214) 522-7060
TX. Lie. #09325100
FILED: MARCH 6, 1984
Notes
. Trans-Continental Properties, Ltd., et al. v. W.W. (Doc) Taylor, et al., 717 S.W.2d 890 (Tex. 1986).
. Tex.R.Civ.P. now Tex.R.App.P. 54(a).
. The initial 21c motion was filed by Taylor on June 13, 1984.
. Former rules of Texas Rules of Civil Procedure, now Tex.R.App.P. 100(d), 131(e).
See Albright v. City of Houston,
. Now Tex.R.App.P. 60(a)(2). All reference to rules hereafter made are to the Texas Rules of Civil Procedure as they existed before April 1, 1984.
. Oral argument was heard on February 11, 1987.
. The pleading was entitled “Demand for Removal” and was filed in the trial court on March 6, 1984. That pleading is attached hereto as Appendix A.
. Now Tex.R.App.P. 60(a)(2) as pertinent here reads:
If it appears to the appellate court that an appeal ... is subject to dismissal ... for failure to comply with any requirements of these rules ... the court may, on its own motion, give notice to all parties that the case will be dismissed unless the appellant or any party desiring to continue the appeal ... files with the court within ten days a response showing grounds for continuing the appeal_ (Emphasis added.)
. A distinction without a difference.
. “The Court having heard the evidence in this motion for new trial is going to take the motion under advisement and I’m going to set it — set it for ruling — to rule on it on January the 31st at nine a.m. in this courtroom at which time the Court will also determine if the Movant can announce ready for trial on January the 31st, 1983 at nine a.m. Movant, as well as Plaintiffs in this case — what I’m saying, gentlemen, is I would expect you, if you anticipate a favorable ruling on your motion for new trial, for all parties to announce ready.” (Remarks made by trial court on January 26, 1984).
“Mr. Headlee, can you represent to me that without reservation you are ready to go forward in the trial of this case_ Mr. Headlee, that you are without reservation ready to proceed to trial in the matter, I am disposed to grant the motion for new trial." (Remarks of the trial judge on January 31, 1984).
. On the trial, Miller M. Dial, President of Trans-Continental, admitted that Trans-Continental in fact had not complied with at least two conditions precedent found in the contract.
. The total due on the notes as shown by the evidence.
. In accordance with the teachings of
Pool v. Ford Motor Co.,
.
Dahlberg v. Holden,