EXEL TRANSP. SERV. v. AIM HIGH LOG

The record contains no allegation or evidence of wrongful conduct of appellants involving any account other than the four identified in Aim High's petition. However, Janik testified that his three damage models involved calculation of only "company-wide" lost profits. Additionally, Janik testified he did not "price tag" damage "done by the loss of the four accounts at issue, individually. Aim High does not dispute that accounts lost by it during 2006 included the Big Lots account, which provided approximately 66% of Aim High's 2006 revenue and was Aim High's only account for which total annual sales exceeded one million dollars. Accordingly, on this record, we conclude that because the "company-wide" lost profits Janik calculated did not "relate" to the profits Aim High lost as a result of the acts alleged, Janik's testimony, alone, did not constitute reasonably certain evidence of Aim High's lost profits in this case. See Szczepanik, 883 S.W.2d at 650; see also Atlas Copco Tools, Inc., 131 S.W.3d at 208-09 (failure of appellee's expert to establish lost profits with reasonable certainty was based in part on expert's improper inclusion of lost profits from customers appellee chose to relinquish and customers who refused to purchase products due to dissatisfaction with appellee's service).

Further, we cannot agree with Aim High that other evidence supports the damages in this case. Aim High asserts in its brief on appeal that Sipkoi earned approximately $145,000 in "net profit sales commissions" generated on the Yamaha account in 2007 and 2008. However, although the record contains one of Exel's documents identified as "Yamaha Spread-sheet" that lists a total of approximately $145,000 in payments by Exel to Sipkoi, there is no indication in the record that those payments, which Sipkoi referred to at trial as "commissions," constituted Sipkoi's "net profit." See Turner, 765 S.W.2d at 456 (net profits are "what remains in the conduct of business after deducting from its total receipts all of the expenses incurred in carrying on the business"). Additionally, Aim High asserts Muoio testified (1) he had expected to handle 524 loads per month for Del Monte, 138,000 loads per year for Electrolux, and 70 to 80 loads per month for Funai; and (2) loss of the four accounts at issue was "disrupting" to Aim High's carrier network. However, Muoio's testimony did not address Aim High's net profits. See id. A review of the record shows no evidence of net profits made by any independent contractor with respect to any of the four accounts at issue, nor is there any evidence in the record from which such profits could be calculated. See id; see also Mood, 245 S.W.3d at 11-12 (trial court did not err by disregarding jury's award of lost profits where there was no evidence from which jury could calculate lost profits as a result of actions alleged).

Finally, Aim High argues "the jury's exercise of discretion in weighing the evidence to arrive at a damage amount that was within or below the available range is appropriate under Texas law." According to Aim High, a jury has the discretion to award damages within or below "the range of evidence presented at trial." However, the rule more specifically stated by this Court is that "when the evidence supports a range of awards, an award of damages within that range may be an appropriate exercise of the jury's discretion." Hani 264 S.W.3d at 888; see also Howell Crude Oil Co. v. Donna Refinery Partners, Ltd., 928 S.W.2d 100, 108 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (amount of damages below amount supported by evidence was appropriate where jury could have made reductions based on evidence). We concluded above that Janik's testimony did not constitute reasonably certain evidence of Aim High's lost profits in this case, and no other evidence in the record supported the lost profit damages at issue. Thus, because the evidence of the acts alleged as to the four specific accounts at issue did not "relate" to the company-wide lost profits calculations, an award of damages within the range of awards described by Janik was not "an appropriate exercise of the jury's discretion." See Szczepanik, 883 S.W.2d at 650; Hani 264 S.W.3d at 888.

Based on foregoing analysis, we conclude the evidence of lost profit damages in this case is legally insufficient to support the jury's damage award. See Szczepanik, 883 S.W.2d at 650. We decide in favor of Exel on the portion of its second issue challenging the sufficiency of the evidence as to damages and in favor of Sipkoi and Sip-Code on their third issue. Further, because this is a situation "where no evidence establishes any amount of lost profit damages with reasonable certainty," a take-nothing judgment against Aim High is appropriate with respect to lost profit damages. ERI Consulting Eng'rs, Inc. v. Smnnea, 318 S.W.3d 867, 880 (Tex. 2010) (contrasting situation in which rendering of judgment is appropriate with situation in which "competent evidence exists to establish some reasonably certain amount of lost profits — just not the particular amount awarded by the trial court," which requires remittitur or remand); see also MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.Sd 660, 666 (Tex. 2009) (while remand for new trial is appropriate when there is "some evidence to support an amount of actual damages," rendering of judgment was proper when there was "no evidence about the amount of damages at all").

In the remaining portion of its second issue, Exel contends that "if there is no evidence of a breach of contract or proper damages, or if the case is reversed and remanded, then Aim High is no longer-entitled to recover attorney's fees." Section 38.001(8) of the Texas Civil Practice and Remedies Code provides that a party "may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for . . . an oral or written contract." TEX. CIV. PRAC. REM. CODE § 38.001(8) (Vernon 2008); see also MBM Fin. Corp., 292 S.W.3d at 666. To recover attorney's fees under section 38.001(8), a party must (1) prevail on the cause of action for which attorney's fees are recoverable and (2) recover damages. MBM Fin. Corp., 292 S.W.3d at 666; see also Intercontinental Group P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 651 (Tex. 2009); Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Because we have concluded that Aim High is not entitled to lost profits, it has recovered no damages, precluding any award of attorney's fees. See MBM Fin. Corp., 292 S.W.3d at 666; Intercontinental Group P'ship, 295 S.W.3d at 651; Solis, 951 S.W.2d at 390. Accordingly, we decide in favor of Exel on the portion of its second issue respecting attorney's fees.

Based on the record and the appropriate standard of review, we conclude the evidence in this case is legally insufficient to support the jury's damage award. Additionally, we conclude Aim High is not entitled to recovery of attorney's fees. We decide in favor of Exel on its second issue and in favor of Sipkoi and Sip-Code on their third issue. In light of the resolution of those issues, we need not address appellants' remaining issues.

We reverse the judgment of the trial court and render judgment that Aim High take nothing on its claims.