Opinion
No. 05-04-00529-CV
Opinion issued August 18, 2005.
On Appeal from the 14th District Court, Dallas County, Texas, Trial Court Cause No. 02-07067-A.
Reversed and Remanded.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
MEMORANDUM OPINION
World Access Telecommunications Group, Inc. appeals the trial court's take-nothing judgment following a jury trial. The jury found that Telcom's failure to comply with the parties' agreement was excused but World Access' failure to comply was not excused. Nevertheless, the jury made no award of damages to either party, and the trial court entered a take-nothing judgment in accordance with the jury's verdict. In five issues, World Access argues the parties agreement expired before the services at issue were provided, and the agreement therefore cannot support a jury finding of prior breach, the trial court erred in rendering its take-nothing judgment and denying World Access' motion for new trial, and World Access is entitled to damages found by the jury. In a single cross-point, Telcom argues the trial court erred in overruling its motion for new trial. For the reasons that follow, we reverse the trial court's judgment and remand for further proceedings.
In September 1998, World Access' predecessor entered into a contract with Telcom for telecommunications services. Telcom had thirteen offices, and each office used approximately 70,000 phone minutes per month. Telcom was to pay four and a half cents per minute, billed in six-second increments. The agreement was for a term of one year, with an additional year extension that would commence unless either party terminated the agreement. Telcom continued buying services under the agreement for two years and, though there was no provision for additional extension of the agreement, Telcom did not change its service. Over the years, the rate Telcom paid for services went down several times, reaching a rate of three cents per minute in December 2000.
Prior to January 1, 2001, World Access' billing was handled by Teleplus. After that date, World Access moved its billing operations to a new company, WorldxChange. WorldxChange, in creating Telcom's new file, inserted a rate that varied depending on the time of day but which averaged eight cents a minute. Telcom received a bill in January 2001 for its December calls, but no bill came in February for its January calls. Bruce Yablonsky, Telcom's office manager, called World Access to find out why the bill had not come. James Quail, World Access' sales representative, told Yablonsky not to worry and that World Access was simply changing the billing location from Iowa to California. World Access did not bill Telcom in January, February, or March of 2001. Yablonsky made repeated phone calls in an effort to get a bill, but each time he was told "it's coming." World Access "printed" a bill on April 23, 2001, but Yablonsky did not receive any bills until the summer of 2001. On May 8, 2001, Telcom's phone service was cut off, though it sporadically returned . Yablonsky began calling various sales representatives at World Access and eventually spoke with Robert Anderson who told him that World Access was in bankruptcy and "the doors were locked." Yablonsky immediately began looking for another telecommunications provider and found that he could get Telcom back in business with a new provider at a rate of ten cents per minute. Telcom had to pay this higher rate for three to four months before they could bargain a lower rate with a new provider. As a result, Telcom paid $127,400 more than it would have under its prior rate of three cents per minute with World Access.
When the World Access bills came in the summer of 2001, they consisted of one-page summaries and therefore could not be audited. The bills reflected a billing rate of eight cents per minute. In June, World Access billed Telcom for services provided in April and May, also at the rate of eight cents per minute. Telcom refused to pay the invoices due to their inaccuracies and the damages caused by World Access' termination of their phone service. World Access sued Telcom for its failure to pay, asserting Telcom owed $243,549.43. A jury ultimately found that both World Access and Telcom failed to comply with the terms of the agreement. However, the jury found that Telcom's failure to comply was excused by World Access' breach of a material obligation of the agreement, and World Access' breach was not excused. Nevertheless, the jury awarded zero damages to Telcom resulting from World Access' breach. Both parties filed a notice of appeal.
We first address Telcom's cross-point of error in which it argues we should remand this case for a new trial because the jury's finding of zero damages to Telcom was against the great weight and preponderance of the evidence. Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). Here, the jury found that World Access' failure to comply with the agreement was not excused, but Telcom's failure to comply was excused. Telcom presented the testimony of Herb Morici, Telcom's president, that Telcom incurred $127,400 in damages due to World Access' termination of service. World Access did not controvert this evidence. Despite this evidence, the jury found zero damages would fairly and reasonably compensate Telcom. We conclude this finding was so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772. We sustain Telcom's cross-point. Because of our disposition of Telcom's cross-point, we need not address World Access' remaining issues.
We reverse the trial court's judgment and remand for further proceedings.