BAREFOOT SANDERS, Senior District Judge
Before the Court are Defendant's Motion in Limine, filed March 24, 2003, Plaintiff's Response to Defendant's Motion in Limine Regarding Lost Profits and DTPA, filed May 5, 2003 and Defendant's Reply filed May 12, 2003.
I. Background
On March 24, 2003, Defendant Weldon F. Stump and Company, Inc. ("Stump") filed its Motion in Limine. Among other matters, the Motion in Limine addresses the issues of lost profit damages and the applicability of the Texas Deceptive Trade Practices Act (the "DTPA") to the facts of this case. Stump argues that Plaintiff Space Maker Designs, Inc. ("Space Maker") cannot present evidence supporting lost profit damages because any such lost profits are too uncertain or speculative to be legally supportable. Stump also argues that Space Maker should be barred from presenting evidence related to any alleged violation of the DTPA because this case is covered by the exemption provided in § 17.49(g) of the DTPA. TEX. BUS. COM. CODE ANN. § 17.49(g) (2003). The Court will address these two issues separately.
II. Discussion
A. Lost Profits
Stump seeks to exclude testimony regarding any "lost profits" Space Maker may have suffered as a result of Stump's alleged supply of non-performing machinery. Under Texas law, lost profits are recoverable so long as the amount of the loss can be shown "by competent evidence with reasonable certainty." Southwest Battery Corp. v. Owen, 115 S.W.2d 10097, 1098-99 (Tex. 1938). What constitutes reasonably certain evidence of lost profits is a fact intensive determination. Texas Instruments Inc. v. Teletron Energy Mgt., Inc., 877 S.W.2d 276, 279 (Tes. 1994) quoting Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992). The fact that an enterprise (or business activity) is a new one for Space Maker does not prevent recovery of lost profits. Texas Instruments at 280. It is but one factor to consider in applying the "reasonable certainty" test. Id. In those cases in which the Texas Supreme Court has found lost profits proven to a sufficient degree of certainty, the products have been pre-existing products (as opposed to completely new product) and there have been some successful sales of the product from which to predict future sales. See, e.g., Texas Instruments at 280.
In this case, the product, industrial rack systems, are not newly-developed. Space Maker has been in the industrial rack retail business for years and Space Maker has manufactured some rack systems and sold them using the machinery provided by Stump. Space Maker is not alleging that it has not been able to produce any industrial rack systems using the machinery provided by Stump, but rather is alleging that defects in the machinery lower the production-levels it could have achieved with fully-conforming machinery.
Given the facts of this case, it may be possible for Space Maker to prove "by competent evidence with reasonable certainty" that it suffered lost profits. The Court will not bar admission of evidence on the issue of lost profits at this time. However, should the evidence at trial fail to reach the required degree of proof, the Court will reassess this decision.
B. DTPA
Stump also seeks to exclude any testimony related to Space Maker's DTPA claim. Stump relies upon an exclusion from coverage of the DTPA found in § 17.49(g), which provides:
"Nothing in this subchapter shall apply to a cause of action arising from a transaction, a project, or a set of transactions relating to the same project, involving total consideration to the consumer of more than $500,000, other than a cause of action involving a consumer's residence." TEX. BUS. COM. CODE ANN. § 17.49(g) (2003).
The parties have stipulated that they entered into three contracts, with a total price to be charged for three lines of equipment totaling $519,000. See Joint Pretrial Order. Space Maker argues that while the face value of the contracts that the parties agreed to exceeds the $500,000 threshold set out in the DTPA exclusion, their DTPA claim is not precluded because Space Maker is only actually required to pay Stump $472,500 due to various non-performances by Stump. All of the "reductions" made by Space Maker to reach the $472,500 value involve areas of factual dispute which will be determined at trial.
Space Maker argues that Stump failed to perform the portion of the contract that would require payment of the final 5% for each of the three lines of equipment, failed to provide ten days of installation and training and failed to provide exit conveyors.
The DTPA does not define the term "total consideration." Therefore, the Court must determine what the Legislature meant when it adopted this language. When the language of statute is unambiguous, the Court should apply the ordinary meaning of the words being construed. Page v. Structural Wood Components, Inc., 102 S.W.3d 720, 727 (Tex. 2003). Black's Law Dictionary defines consideration as "the inducement to a contract." BLACK'S LAW DICTIONARY 306 (6th ed. 1990). Stump was clearly "induced" to enter into the contract by the promise of $519,000 in payment for the manufacturing equipment it was to deliver and install. The fact that the actual value to be conveyed may have changed after the contract was entered into does not change the value of the consideration promised by the consumer at the time of contracting. Furthermore, applying an ex ante approach rather than an ex post one allows parties to a contract to know with certainty whether their contract will fit within the coverage of the DTPA.
Space Maker's DTPA claim is precluded by § 17.49(g). No testimony supporting the claim will be allowed at trial.
III. Conclusion
Stump's Motion in Limine is GRANTED with respect to Space Maker's DTPA claim. Space Maker may not present evidence at trial supporting the DTPA claim. Stump's Motion in Limine is DENIED with respect to Space Maker's claim for lost profit damages. The remainder of the parties' motion in limine requests will be addressed at a later date.
SO ORDERED.