Barton v. Resort Development Latin America, Inc.

413 S.W.3d 232, 2013 WL 5634321, 2013 Tex. App. LEXIS 13063
CourtCourt of Appeals of Texas
DecidedOctober 16, 2013
DocketNo. 05-11-00769-CV
StatusPublished
Cited by6 cases

This text of 413 S.W.3d 232 (Barton v. Resort Development Latin America, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barton v. Resort Development Latin America, Inc., 413 S.W.3d 232, 2013 WL 5634321, 2013 Tex. App. LEXIS 13063 (Tex. Ct. App. 2013).

Opinion

OPINION ON REHEARING

Opinion by

Justice MOSELEY.

We overrule ■ appellees’ motion for rehearing. On our own motion, we withdraw our opinion of August 21, 2013, and vacate the judgment of August 21, 2013. The following is now the opinion of the Court.

Appellants Timothy Barton, JMJ Hospitality, L.L.C, and JMJ Holdings, L.L.C. appeal an adverse judgment in favor of appellees Resort Development Latin America, Inc. (f/k/a JMJ Development [234]*234Mexico, Inc.),1 Aliber Garcia, and Eliud Garcia, which was entered following a jury-verdict. Appellees’ damages are based on lost profits. In their issues on appeal, appellants argue, among other things, that there is no evidence of causation to support the jury’s damage awards and no evidence showing the existence and amounts of lost profits with reasonable certainty. We agree. Therefore, we reverse the trial court’s judgment against Barton, JMJ Hospitality, L.L.C., and JMJ Holdings, L.L.C, and render judgment that appellees take nothing on their claims against appellants. In all other respects, we affirm the trial court’s judgment. .

I. Background

Barton, Aliber, and Eliud formed JMJ Development Mexico to develop real estate projects in Mexico. The parties’ focus was on developing high-end resorts. In April 2006, Aliber and Eliud identified two properties on the Riviera Maya for possible ■ development: the “Shabshab Property” where they sought to develop a resort under the W Hotel brand, and the “Precia-do Property” where they sought to develop a resort under the St. Regis Hotel brand. It was intended that each resort development would include a hotel as well as villas and apartments.

As discussed in more detail below, over the next several months the Garcias entered into a non-binding proposal with an entity concerning the possible purchase of the Shabshab Property and a non-binding letter of intent (LOI) with an investor who was interested in investing part of the equity needed to develop the W Hotel project.. They also received non-binding letters of interest from the entity that owned both the W Hotel and the St. Regis Hotel brands, Starwood Hotels & Resorts Worldwide, Inc. (Starwood).

In the spring of 2006, several months after Aliber and Eliud began working to pursue opportunities for JMJ Development Mexico, Barton formed a new company, appellee JMJ Hospitality. There is some evidénce that on or about July 15, 2006, Barton and JMJ Hospitality contacted Mexican landowners and instructed them not to deal with Aliber and Eliud anymore; instead, the landowners should deal with Barton and JMJ Hospitality. Aliber and Eliud presented evidence that two Mexican landowners then suspended negotiations with JMJ Development Mexico and a third ceased negotiations. Neither the Garcias nor JMJ Development Mexico ever acquired the properties they had considered developing as resorts.

Appellees sued appellants for breach of fiduciary duty, breach of contract, tortious interference with existing and prospective contracts, and conspiracy. They alleged that appellants’ actions caused them to lose the opportunities to develop the Shab-shab and Preciado Properties. Appellees presented expert testimony from Bruce Goodwin to support their request for damages.

The jury found that Barton breached his fiduciary duty to JMJ Development Mexico; that at least one appellant interfered with JMJ Development Mexico’s contract to buy real estate in Mexico; and that at least one appellant intentionally interfered with a prospective contractual or business relationship of JMJ Development Mexico. The jury awarded JMJ Development Mexico $7 million for lost profits sustained in the past and $0 for lost profits it would sustain in the future.

[235]*235The jury also found that Barton failed to comply with the shareholder agreement with the Garcias; on that basis, the jury awarded the Garcias $0 for lost profits sustained in the past and $8 million for lost profits that, in all reasonable probability, they would sustain in the future. The trial court rendered a final judgment based on the jury’s verdict.

II. Issues on Appeal

In their ninth issue, appellants assert that appellees failed to present legally sufficient evidence related to the issue of causation and the trial court erred by submitting damages questions to the jury. In their tenth issue, appellants assert the evidence is legally and factually insufficient to support the jury’s damages awards. They argue the only testimony and evidence offered by appellees regarding damages was based on and the result of pure speculation and conjecture. Because these two issues are closely related, we discuss them together. In doing so, we reject appellees’ argument that appellants failed to preserve their ninth issue for appeal.2

III. Standard of review AND APPLICABLE LAW

When, as here, appellants attack the legal sufficiency of an adverse finding on an issue on which they did not have the burden of proof, they must demonstrate that no evidence supports the finding. Doyle v. Kontemporary Builders, Inc., 370 S.W.3d 448, 453 (Tex.App.-Dallas 2012, pet. denied) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983)). There is “no evidence” when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. ■ See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). “The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” Id. at 827. We review the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. See id. at 820-21.

Lost profits are damages for the loss of net income to a business, reflecting [236]*236income from the lost business activity, less expenses that would have been attributable to that activity. Examination Mgmt Servs., Inc. v. Kersh Risk Mgmt., Inc., 367 S.W.3d 835, 840 (Tex.App.Dallas 2012, no pet.). The calculation of lost-profit damages must be based on net profits, not on gross revenue or gross profits. Id. (citing Holt Atherton Indus. v. Heine, 835 S.W.2d 80, 83 n. 1 (Tex.1992)). Although recovery for lost profits does not require that the loss be susceptible to an exact calculation, a party seeking to recover lost profits must prove the loss through competent evidence with reasonable certainty. ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 876 (Tex.2010) (quoting Holt Atherton Indus.,

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413 S.W.3d 232, 2013 WL 5634321, 2013 Tex. App. LEXIS 13063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barton-v-resort-development-latin-america-inc-texapp-2013.