Opinion
No. 05-04-01354-CV
Opinion Filed August 16, 2005.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 001-505-03.
Reverse and Render in part, Affirm in part.
Before Justices O'NEILL, RICHTER, and FRANCIS.
MEMORANDUM OPINION
In this wrongful foreclosure case, appellant Bankston Ford of Frisco, Ltd. Co. appeals a judgment granted in favor of appellees Frederick and Kelli Rouse. In two issues, Bankston contends the evidence is legally insufficient to support the jury's award of lost profits and mental anguish damages. For the following reasons, we reverse the award of lost profits and render judgment that the Rouses take nothing on that claim. We affirm the mental anguish damages.
In 2002, Frederick and Kelli Rouse started a small business transporting children to and from daycare. Initially, the Rouses used their own vehicles to transport the children, but soon determined they needed something larger and more reliable. In February 2003, the Rouses located a suitable van at Bankston. At the time the Rouses purchased the van, Bankston informed them they had been approved for a loan with a $500 down payment. The Rouses signed a sales contract to that effect. The Rouses took possession of the van and began using it in their business. They also began advertising their services. Interest in their business increased immediately.
About a month later, however, Bankston repossessed the van. Bankston repossessed the van because the $500 down payment the Rouses had paid was less than the down payment the lender had actually required. After Bankston took the van, the Rouses had to call their customers and tell them their van had been repossessed. The Rouses' business subsequently "tumbled" and their reputation was ruined. Marital problems soon followed due to the financial strain and arguments over the business. Ultimately, the Rouses separated and filed for divorce.
The Rouses sued Bankston under the deceptive trade practices act in connection with Bankston's sale and repossession of the van. The jury found that Bankston's acts violated the deceptive trade practices act and that Bankston had engaged in the offensive conduct knowingly and intentionally. The jury awarded the Rouses damages for the loss benefit of their bargain in purchasing the van as well as $5,555 in lost past profits and $44,400 in lost future profits. The jury also awarded each of the Rouses $20,000 for mental anguish. This appeal followed.
In its first issue, Bankston contends the evidence is legally insufficient to support the jury's award of lost profits. An appellant attacking the legal sufficiency of the evidence of an adverse finding on which it did not have the burden of proof must demonstrate that there is no evidence to support the adverse finding. Reagan v. Lyberger, 156 S.W.3d 925, 927 (Tex.App.-Dallas 2005, no pet.). We must view the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable minds could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 02-1012, slip op. at 17, 2005 WL 1366509 (Tex. Jun. 10, 2005). If there is more than a scintilla of evidence to support a finding, we will not reverse the trial court's judgment. Reagan, 156 S.W.3d at 927.
Recovery for lost profits does not require that the loss be susceptible to exact calculation. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992). However, the injured party must do more than show they suffered some loss. Id. The plaintiff must show by competent evidence the amount of the loss with reasonable certainty. Id. What constitutes reasonable certainty is a fact intensive determination. Id.
In this appeal, Bankston asserts the Rouses presented no evidence from which the jury could determine lost profits with any reasonable certainty. We agree. The Rouses did not present any opinion evidence, expert or otherwise, regarding any lost profits. Nor did the Rouses provide any damage model to the jury or otherwise inform the jury how it should determine lost profits. Nor has our review of the record revealed any raw data from which lost profits could be determined.
The Rouses did present evidence of gross receipts the Rouses earned for different months in the time period before and after they purchased the van. However, there is no evidence of the overall costs of running the business. For example, Frederick testified that the gross receipts in February 2003 were $1,007, but that he did not know what the expenses were. Frederick testified generally that the "weekly expenses" associated with running the van, like gas, cleaning and maintenance, were about $40 to $60. However, the Rouses presented no evidence of the cost of insurance or the cost of advertising despite evidence that these costs were expended for the business. Frederick did testify they had lost a contract to transport children for a day camp, but he made no attempt to establish the value of this contract. After reviewing the evidence in the light most favorable to the jury's verdict, we conclude the Rouses failed to provide any evidence from which lost profits could be ascertained with any degree of certainty. Under these circumstances, we conclude there is no competent evidence of lost past or future profits. We resolve Bankston's first issue in its favor.
In the second issue, Bankston contends the evidence is legally insufficient to support the jury's award of mental anguish damages. Mental anguish is defined as "intense pain of body or mind or a high degree of mental suffering." Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 394 (Tex.App.-Dallas 2000, pet. denied). It is more than mere worry, anxiety, vexation, anger, disappointment, resentment or embarrassment. Id. To recover for mental anguish, the plaintiff must prove such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation. Id.
Here, Frederick Rouse testified that just before Bankston repossessed the van, everything was "wonderful" and he and his wife were "overjoyed" about growing their business. When Bankston took the van, Frederick said he panicked because parents were depending upon them to pick up their children. They had to tell the parents about the van, which made them look bad to their "community, to the schools, to everybody." Frederick testified he lost many nights sleep over having to tell people about the van. The Rouses also began having marital problems because of their financial difficulties and fights over the business. They ultimately separated and filed for divorce. Frederick testified he and his wife would not have had their problems if it had not been for the repossession.
Kelli Rouse testified when Bankston took their van, it was very difficult to face their clients and to tell them what happened. Further, the problems caused by the repossession created marital problems. According to Kelli, they would not have had these problems if they still had the van. Reviewing the evidence in the light most favorable to the jury's findings, we conclude there is more than a scintilla of evidence for the jury to decide the Rouses suffered compensable mental anguish. See Valley Nissan Inc. v. Davilla, 133 S.W.3d 702, 716 (Tex.App.-Corpus Christi 2003, no pet.) (public humiliation of having truck repossessed sufficient to support award of mental anguish damages); Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 862 (Tex.App.-Corpus Christi 1999, pet. denied) (financial and marital strain sufficient to support award of mental anguish damages). To the extent Bankston complains of the legal sufficiency of the evidence to support the specific amount of mental anguish damages awarded, we conclude this issue was not preserved for review because it was never presented to the trial court. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992) (party must preserve legal sufficiency complaint). We resolve the second issue against appellant.
We reverse the trial court's judgment awarding the Rouses damages for lost past profits and lost future profits and render judgment the Rouses take nothing on that claim. We affirm trial court's judgment awarding the Rouses damages for mental anguish.