Opinion issued April 7, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00326-CV ——————————— DON ABBOTT HOLMES AND GAYLE EISER HOLMES, Appellants V. JETALL COMPANIES, INC., Appellee
On Appeal from the 127th District Court Harris County, Texas Trial Court Case No. 2012-07148
MEMORANDUM OPINION
Jetall Companies, Inc. sued Don Holmes and Gayle Holmes for breach of a
contract to sell property. The jury found the Holmeses breached the contract and
awarded damages for lost property value, lost profits, and attorneys’ fees. In two
issues on appeal, the Holmeses argue (1) the evidence is legally insufficient to support the jury’s award of lost profits and (2) the trial court abused its discretion by
denying Gayle’s request for a jury question on anticipatory repudiation.
We reverse and render.
Background
The Holmeses own certain undeveloped property in Houston, Texas. Ali
Choudhri is the owner of Jetall Companies, Inc. On October 28, 2011, Choudhri
and Don Holmes entered into an agreement to sell the property to Jetall Companies.
The agreement required Don to perform certain tasks before the sale was closed.
Before closing, a dispute arose concerning whether Don had sufficiently
performed the tasks required for closing. The Holmeses did not appear on the
closing date to sell the property to Jetall. Jetall brought suit against the Holmeses,
alleging breach of contract and seeking lost profits.
The lot was platted for a single-residence home. Choudhri testified that he
had intended to split the property in two and build two townhomes. He testified
Jetall had “built successfully a number of homes inside the loop.” This included two
townhomes at some time in the past. Those townhomes had been very successful
with a number of offers on the homes before construction was complete. In fact, due
to the number of acceptable offers, Choudhri picked which offers to accept by
picking the offers out of a hat.
2 Choudhri testified that he had intended to use the designs for those two
townhomes for the Holmeses’ property with some modifications. For the cost of
construction, Choudhri testified that it would have cost at least $800,000 to build
each townhome. He asserted that he used “numbers and calculations based on what
the market price of materials, labor, everything else associated with construction.”
He explained that he had over 20 years’ experience in the property business, buying
his first property as a teenager. He testified that he expected to obtain $600,000
profit on each townhome.
Also during trial, Don testified that Choudhri was threatening to withhold up
to $15,000 of the agreed price for the sale of the property based on the ground that
the Holmeses had not satisfied certain pre-closing requirements. He testified that
the money would be “held until Mr. Choudhri decided how much it was going to
cost him” to complete what he alleged had not been completed. Don further testified
that Choudhri said that he would sue Don if he did not close immediately.
During the jury charge conference, Gayle asked for an instruction on
anticipatory repudiation based on Don’s testimony about Choudhri’s threats to
withhold a portion of the purchase money. The trial court denied the request.
Lost Profits
In their first issue, the Holmeses argue the evidence is legally insufficient to
support the jury’s award of lost profits.
3 A. Standard of Review
“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.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In performing
a legal-sufficiency review, we must credit favorable evidence if reasonable fact
finders could credit it and disregard contrary evidence unless reasonable fact finders
could not disregard it. Id. A “no evidence” point of error must be sustained when
(a) the record discloses 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 establishes conclusively the opposite of the vital
fact. Id. at 810–11.
A legal sufficiency challenge of a finding fails when more than a scintilla of
evidence supports the finding. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386,
388 (Tex. 2005). “‘More than a scintilla of evidence exists where the evidence
supporting the finding, as a whole, rises to a level that would enable reasonable and
fair minded people to differ in their conclusions.”’ Id. at 388 (quoting Burroughs
Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).
4 B. Analysis
“[L]ost profits can be recovered only when the amount is proved with
reasonable certainty.” Phillips v. Carlton Energy Group, LLC, 475 S.W.3d 265, 278
(Tex. 2015). “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.” Tex. Instruments, Inc. v.
Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex. 1994) (internal quotations
omitted). “What constitutes reasonably certain evidence of lost profits is a fact
intensive determination.” Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84
(Tex. 1992).
For expert testimony and other evidence estimating lost profits, the evidence
“must be based on objective facts, figures, or data from which the amount of lost
profits can be ascertained.” Id. While admission of the supporting documentation
can affect the weight of the evidence, “it is not necessary to produce in court the
documents supporting the opinions or estimates.” Id.
Many cases demonstrate what constitutes sufficient evidence of lost profits.
In White, a florist sought lost profits for the incorrect listing of his phone number in
an advertisement in the yellow pages—the business section—of the phone book.
White v. Sw. Bell Tel. Co., Inc., 651 S.W.2d 260, 261–262 (Tex. 1983). To prove
lost profits, the florist introduced evidence of gross sales for a seven-year period,
5 including the year of the incorrect listing. Id. at 262. An accountant provided a
linear regression showing what sales would have been. Id. Other evidence was
presented showing wire service sales—untouched by the error—increased in the
relevant time period. Id. The florist testified about what percentage of his sales were
profit and about his expenses on sales. Id. at 262–63. The court held this was
sufficient evidence of lost profits. Id. at 263.
In B & W Supply, homeowners sued the company they hired to remodel their
home, and the company countersued for lost profits. B & W Supply, Inc. v. Beckman,
305 S.W.3d 10, 14 (Tex. App.—Houston [1st Dist.] 2009, pet denied). The jury
found for the remodeling company. Id. at 14–15. The owner of the company
testified about the process of setting a bid price, including how he anticipates profit
in the bid. Id. at 18. The evidence showed the amount spent on the project before
the breach and how much the homeowners had paid in that time. Id. An exhibit
detailed the cost of labor and materials that would have been incurred without the
breach. Id. The owner of the company explained what work remained and how
much would have been spent in that process. Id. We held this was sufficient
evidence of lost profits. Id.
In Barnett—a case relied upon by Jetall in its brief—the owners of a
gymnastics business contracted with a builder to build a new gymnastics facility.
Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 813 (Tex. App.—Dallas
6 2003, pet. denied). After the bank foreclosed on the property, the parties sued each
other, and the jury found in favor of the gymnastics business. Id. Lewis, one of the
owners of the gymnastics business and one of the instructors, testified about the
business expanding over three years from 24 students to 1,400 students. Id. at 827.
The business had been profitable each year, and the jury had evidence of the previous
year’s profit. Id. Lewis testified about how the business expected increased profits
during the year in question based on the business’s previous growth and based on
the growth of the city in which the business was located. Id. at 827–28. The court
determined that Lewis demonstrated his familiarity “with the business and that he
based his estimate on the trend in the industry and the specific area where the
business was located.” Id. at 828. The court held this was sufficient evidence of lost
profits. Id.
Other cases illustrate when evidence is insufficient to prove lost profits. In
Phillips, a jury found that the defendant had tortiously interfered “with the owner’s
contract to convey an interest [in a coalbed methane prospect in Bulgaria] to the
plaintiff.” 475 S.W.3d at 269. A report was introduced at trial projecting the profits
that could have been received from the prospect during the time in question. Id. at
280–81. The report estimated the volume of methane in the ground, the amount
recoverable, and the wellhead price. Id. It subtracted the cost of drilling, production,
7 operation, and royalty payments to determine profit. Id. An expert estimated a lower
amount that could be recovered, lowering the lost profit calculation. Id. at 281.
The court held that this was insufficient evidence of lost profits. Id. The court
criticized the assumptions forming the basis for the calculation and found the lack
of support for these assumptions rendered the calculations insufficient. Id. “Merely
laying out the calculation, with its sweeping assumptions, demonstrates how
completely conjectural it is.” Id. The court criticized the lack of support for
predicting the volume of methane gas, assessing risks of production, and assessing
risks for sale. Id. For example, the plaintiff’s “experts projected that the costs of
bringing the gas to market would be four times the value of the gas in the ground,
but the evidence does not explain why that projection was reasonable.”1 Id.
In Glattly, a company in the after-market air starter business sued one of its
manufacturers that became a competitor. Glattly v. Air Starter Components, Inc.,
332 S.W.3d 620, 626–27 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). To
prove lost profits, Air Starter presented the testimony of a certified public
accountant, who testified about the lost profits for two specific clients. Id. at 631.
The accountant assumed that all of the sales made by the competitor to these clients
1 The court found there was sufficient evidence of lost profits based on an existing agreement for the sale of the interest. Phillips v. Carlton Energy Group, LLC, 475 S.W.3d 265, 281–82 (Tex. 2015). There is no corollary agreement in this case. Thus, this portion of the opinion is not relevant to our analysis in this case.
8 would have been made by Air Starter instead and assumed that Air Starter’s general
profit margin would have applied to these two specific clients. Id. at 632. No
evidence was introduced to support either assumption. Id. We held this evidence
was insufficient. Id. at 635. We reasoned that the evidence was insufficient, in part,
due to the acountant’s failure to do “independent work to verify the reasonableness
or reliability of the assumptions provided by [Air Starter’s president], and no other
evidence was offered in support of those assumptions.” Id.
Finally, in Examination Management, Kersh Risk Management had a number
of contracts to provide wellness programs and subcontracted with Examination
Management to “perform biometric testing services.” Examination Mgmt. Servs.,
Inc. v. Kersh Risk Mgmt., Inc., 367 S.W.3d 835, 838 (Tex. App.—Dallas 2012, no
pet.). Allegations of mishandling scheduled tests arose, leading to litigation. Id. at
838–39. Kersh alleged that it lost business from Examination Management’s
mishandling of testing. Id. at 839. To prove lost profits, Kersh offered the original
contract with one of the clients and then the contract with that same client after the
claimed problems with Examination Management. Id. at 841. Two Kersh
employees testified that the services in the two contracts were “comparable” and that
the performance costs were “very similar.” Id. at 841–42. The court held this was
insufficient. Id. at 842–43. The court distinguished the facts of the case from cases
that “involve[d] calculations of damages based on specific facts, figures, or data
9 regarding lost profits, often supported by expert testimony or the testimony of the
owner of the business.” Id. at 843 (citing, among others, Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 505–06 (Tex. 2001); D/FW Commercial Roofing Co. v.
Mehra, 854 S.W.2d 182, 188 (Tex. App.—Dallas 1993, no writ); Allied Bank West
Loop, N.A. v. C.B.D. & Assocs., Inc., 728 S.W.2d 49, 54–55 (Tex. App.—Houston
[1st Dist.] 1987, writ ref’d n.r.e.)). Kersh, in contrast, “did not enumerate costs or
overhead in the two agreements or provide objective facts, figures, or data from
which those costs or overhead could be determined with reasonable certainty.” Id.
The court was dismissive of the sufficiency “of lost profits damages based on a
witness’s contention that expenses between two contracts were ‘similar.’” Id.
Jetall argues that it presented sufficient proof of lost profits and likens the
facts of this case to those of Barnett. We disagree that it presented sufficient proof.
It is commonly necessary in presenting proof of lost profits to make some
assumptions because determining lost profits usually entails estimating a
counterfactual scenario of what would have had happened but for the improper
actions of the defending party and comparing that to what actually did happen. See
Tex. Instruments, 877 S.W.2d at 279 (holding lost profits do not need to be proven
with exact calculation but with reasonable degree of certainty). But that does not
relieve the party with the burden of proof of identifying those assumptions and
presenting the jury with some proof of why those assumptions are reasonable. See
10 Phillips, 475 S.W.3d at 278 (“[L]ost profits can be recovered only when the amount
is proved with reasonable certainty.”).
The common thread running through each of the cases we have summarized
is that a party seeking to prove lost profits must provide a model showing how the
amount of lost profits can be determined, support that model with facts and
assumptions, and demonstrate how the assumptions in the model are reasonable.
Compare White, 651 S.W.2d at 262–63 (holding accountant’s linear regression
analysis along with proof of sales unaffected by error during same time period was
sufficient to establish lost profits), B & W Supply, 305 S.W.3d at 18 (holding detailed
evidence of costs and profits incurred before breach along with review of work
remaining and projections of costs and payments remaining was sufficient), and
Barnett, 123 S.W.3d at 827–28 (holding testimony of previous profit growth, along
with demonstrated familiarity with industry and growth of local area, was sufficient)
with Phillips, 475 S.W.3d at 281 (holding merely laying out formula without
supporting assumptions is insufficient), Glattly, 332 S.W.3d at 635 (holding
unsupported assumptions of amount of sales and profit margin was insufficient) and
Examination Mgmt., 367 S.W.3d at 841–43 (holding testimony that two contracts
were comparable and performance costs were very similar was insufficient without
enumerating costs). Jetall’s evidence does not satisfy these requirements.
11 Choudhri testified that he expected to obtain $600,000 profit on each
townhome. Choudhri testified that he used “numbers and calculations based on what
the market price of materials, labor, everything else associated with construction.”
For the cost of construction, Choudhri testified that it would have cost at least
$800,000 to build each townhome. Even if we accept these general statements as
his damage model, the statements are unsupported by any substantive facts, do not
identify what assumptions were made in deriving the numbers provided, and do not
explain how any assumptions are reasonable.
Jetall contends Choudhri did provide such detail, relying on his testimony that
he testified that his estimate of profits was based on his experience selling other
townhomes, that Jetall had “built successfully a number of homes inside the loop,”
that his design for the townhomes on the Holmeses’ property was based on a design
for two townhomes he had previously built, and that Jetall had so many bids on those
townhomes, he had to pick the purchaser out of a hat. Missing from this testimony
is any details to show that the two sales should be considered comparable.
We do not know when the construction and sales on the other residences took
place. Choudhri testified he had worked in the real estate business for over 20 years,
starting as a teenager. He also testified that he began looking at properties in
Houston in the late 1990s. The record does not pinpoint where, in this at least 15-
year period of sales, that the alleged comparable sales took place.
12 Likewise, we do not know what market conditions would have been at the
projected time of sale. This is in part because the jury was never told what the
projected time of sale could have been. The jury had no basis, then, to determine
that, for whichever sales were actually used, the market conditions for those sales
accurately reflected the market conditions whenever the hypothetical townhomes in
question would have been sold.
We do not know the actual costs incurred or even the actual profit obtained in
Choudhri’s comparable sales. Without any knowledge of what the costs and profits
in those sales actually were, there was no basis for the jury to determine that the sales
were, in fact, comparable to what Jetall could have sold on the Holmeses’ property.
We also know very little about the difference between the property for the
previous townhomes that Choudhri used the design for the current townhomes and
the Holmeses’ property. We know that both properties were “inside the loop,” that
the earlier property was near Memorial Park, and that the Holmeses’ property was
about seven blocks from the Contemporary Arts Museum. Little else was provided,
however. “It is well established law that each and every piece of real estate is
unique.” Greater Hous. Bank v. Conte, 641 S.W.2d 407, 410 (Tex. App.—Houston
[14th Dist.] 1982, no writ). The information provided by Choudhri was insufficient
to show why these unique properties should be considered comparable.
13 Jetall also argues in its brief that, in order to prove lost profits, “a plaintiff’s
lost profits estimate merely must be based on ‘objective facts, figures, or data from
which the amount of lost profits can be ascertained.’” Jetall reasons that, because
Choudhri stated in his testimony that he took such considerations into account in
forming his opinion on lost profits, this simple assurance is enough to withstand a
legal sufficiency challenge to his lost profits award. This is unsupported by the law.
Jetall correctly states that the Supreme Court of Texas has held, “As a
minimum, opinions or estimates of lost profits must be based on objective facts,
figures, or data from which the amount of lost profits can be ascertained.” Holt
Atherton, 835 S.W.2d at 84 (emphasis added). It is also correct that the court has
held, “Although supporting documentation may affect the weight of the evidence, it
is not necessary to produce in court the documents supporting the opinions or
estimates.” Id. But these holdings do not cancel out the further holding that “[t]he
amount of [lost profits] must be shown by competent evidence with reasonable
certainty.” Id.
Jetall was not excused from supporting with evidence, in some form, the
assertions that Choudhri made concerning lost profits. “[T]he evidentiary value of
expert testimony is derived from its basis, not from the mere fact that the expert has
said it.” Hous. Unlimited, Inc. v. Mel Acres Ranch, 443 S.W.3d 820, 829 (Tex.
14 2014). Bare assertions by an expert that he took the necessary considerations into
account are not sufficient to carry the burden of proof. See id.
We hold the evidence is legally insufficient to support the jury’s award of lost
profits. We sustain the Holmeses’ first issue.
Anticipatory Repudiation
In their second issue, the Holmeses argue the trial court abused its discretion
by denying Gayle’s request for a jury question on anticipatory repudiation.
A. Standard of Review
We review claims of charge error for abuse of discretion. Tex. Dep’t of
Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); Levine v. Steve Scharn
Custom Homes, Inc., 448 S.W.3d 637, 648 (Tex. App.—Houston [1st Dist.] 2014,
pet. denied). A trial court abuses its discretion when it acts in an arbitrary or
unreasonable manner, or if it acts without reference to any guiding rules or
principles. Tex. Dep’t of Human Servs., 802 S.W.2d at 649; Levine, 488 S.W.3d at
648. A trial court has wide discretion in submitting instructions and jury questions.
Levine, 488 S.W.3d at 648.
B. Analysis
During the charge conference, Gayle requested a question about whether Jetall
had repudiated the contract. The trial court refused to include the question in the
15 charge. On appeal, the Holmeses argue the trial court abused its discretion by not
including the question.
A trial court must submit to the jury all questions, instructions, and definitions
raised by the pleadings and evidence. TEX. R. CIV. P. 278 (“The court shall submit
the questions, instructions and definitions in the form provided by Rule 277, which
are raised by the written pleadings and the evidence.”); Hyundai Motor Co. v.
Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999). If there is some evidence to support
submission of the question, the trial court commits reversible error if it fails to submit
the question. See Hiles v. Arnie & Co., P.C., 402 S.W.3d 820, 830 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied).
Gayle requested a question about whether Jetall had repudiated the contract
based on Don’s testimony that Choudhri was threatening to withhold up to $15,000
of the agreed price for the sale of the property based on his belief that the Holmeses
had not satisfied certain pre-closing requirements. Don testified that the money
would be “held until Mr. Choudhri decided how much it was going to cost him” to
complete what he alleged had not been completed. Don further testified that
Choudhri said that he would sue Don if he did not close immediately.
To establish a claim or defense of anticipatory repudiation, the asserting party
must show that the other party to the contract “expressed in unequivocal and
unconditional terms, and without just excuse, its intent not to perform [the contract]
16 in the future.” Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P., 391
S.W.3d 596, 606 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Don’s description
of Jetall’s actions does not establish an unequivocal and unconditional expression of
an intent not to perform the contract in the future. To the contrary, Choudhri was
insisting on continued performance.
While Choudhri was threatening to withhold a little more than three percent
of the purchase price at the time of closing, this is not tantamount to a refusal to
perform the contract. Even if Choudhri had carried through with his threat and the
withholding would have been wrongful, at best this would have been a failure to
satisfy the entirety of the contract, not a complete repudiation of the contract.
Moreover, Don acknowledged in his testimony that Choudhri was not threatening to
keep the entire $15,000. Instead, Choudhri only asserted he would keep this fraction
of the contract price until he could determine how much it would cost to complete
what he alleged Don had failed to do. Again, even if Choudhri’s position was wrong,
it could not constitute a repudiation of the contract. See id.
The cases upon which the Holmeses rely are not comparable to this case.
Those cases are instances where a party refused to perform a contract at all unless
the other party agreed to changes in the contract. See Dror v. Mushin, No. 14-12-
00322-CV, 2013 WL 5643407, at *5 (Tex. App.—Houston [14th Dist.] Sept. 26,
2013, pet. denied) (mem. op.) (holding threatening not to fund previously agreed
17 settlement agreement unless other party acquiesced to additional terms was
anticipatory repudiation); First Fed. Sav. & Loan Ass’n of Wilmette, Ill. v. Pardue,
545 F. Supp. 433, 436–37 (N.D. Tex. 1982), aff’d sub nom. 1st Fed Sav/Loan-
Wilmette v. Pardue, 703 F.2d 555 (5th Cir. 1983) (holding refusing to close real
estate deal without changes to agreement was anticipatory repudiation); Crown Life
Ins. Co. v. Reliable Mach. & Supply Co., 427 S.W.2d 145, 150 (Tex. Civ. App.—
Austin 1968, writ ref’d n.r.e.) (holding refusing to reinstate policy without payment
of additional premiums and other requirements was anticipatory repudiation);
Humphrey v. Placid Oil Co., 142 F. Supp. 246, 254 (E.D. Tex. 1956), aff’d, 244 F.2d
184 (5th Cir. 1957) (holding refusing to perform contract unless party agreed to
additional requirements not part of contract was anticipatory repudiation).2 As
opposed to those cases, Jetall did not refuse to comply with the contract without
compliance with additional terms. Instead, Jetall insisted that both parties continue
to perform, albeit with a threat to withhold a small fraction of the money owed until
the disputes that had arisen could be resolved. Regardless of whether Jetall’s actions
were wrongful, they did not constitute a repudiation of the contract.
We overrule the Holmeses’ second issue.
2 The Holmeses also rely on Lytle Lake Water Control & Improvement Dist. v. Shaw Envtl., Inc., No. 1:05-CV-112-C, 2006 WL 6863698, at *8 (N.D. Tex. July 25, 2006). This case has no application because the court found that the party had failed to establish in its summary judgment evidence that anticipatory repudiation applied. Id.
18 Conclusion
We reverse the portion of the judgment awarding lost profits in the judgment
and render a judgment without the lost-profits award. We affirm the remainder of
the judgment.
Laura Carter Higley Justice
Panel consists of Chief Justice Radack and Justices Keyes and Higley.