* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

No. 95-10738 

Summary Calendar

______________

DECKS APPEAL, Plaintiff-Appellant,

versus

GTE DIRECTORIES SALES CORPORATION,

 Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:94-CV-426-H)

_________________________________________________________________

February 22, 1996

Before KING, SMITH, and BENAVIDES, Circuit Judges.

FORTUNATO P. BENAVIDES*:

Plaintiff-Appellant Decks Appeal appeals the district court's

final judgment dismissing its suit against Defendant-Appellee GTE

Directories Sales Corporation ("GTE") for violations of Section

43(a) of the Lanham Act, 15 U.S.C. § 1051, et. seq., negligence,

tortious interference with business relations, unfair competition

and claims under the Texas Deceptive Trade Practices Act ("DTPA").

The district court granted GTE's motion for judgment, pursuant to

FED. R. CIV. P. 50(a), on the ground that Decks Appeal had not

proven causation as a matter of law. We affirm.
2

I.

Decks Appeal, a builder of redwood decks and gazebos, was

formed as a partnership by Richard and David Parish in 1988. In

1992 the partnership was dissolved, at which time Richard Parish

continued to operate the business as a sole proprietorship and

David Parish became an employee. 

Since 1989, Decks Appeal has advertised in several Texas

cities in GTE's directory titled the "Everything Pages." The

"Everything Pages" contains a variety of information, including

white pages, yellow pages, coupons, and community information.

Decks Appeal signed a contract for advertising with GTE for each

advertisement that was placed in GTE's directory. The ads with GTE

contained a distinctive logo, which Decks Appeal also used in some

of its other advertising. However, Decks Appeal did not register

the logo with the United States Patent and Trademark Office, nor

did it use any designation with the logo to indicate that it

claimed any protected interest.

In 1992, GTE attempted to sell Decks Appeal a larger ad for

placement in its Plano and Carrollton, Texas directories. Decks

Appeal rejected the larger ad due to its higher cost. Decks

Appeal's usual logo ended up in a larger advertisement for one of

its competitors, General Fencing and Construction Company ("General

Fencing"). When Decks Appeal discovered that its logo was used in

General Fencing's ad, Decks Appeal contacted GTE.

Pursuant to the written contracts between them, GTE provided

Decks Appeal with a year of free advertising for the error. When
3

Decks Appeal continued to complain, GTE gave Decks Appeal a second

free year of advertising. Then in July 1993, Decks Appeal

complained again, claiming that it had suffered lost profits during

the period that Decks Appeal's logo was being used by General

Fencing. GTE's in-house counsel, Dana Brooks Bourland

("Bourland"), responded by letter, stating that she would

investigate Decks Appeal's complaint. Bourland offered additional

free advertising, which was declined.

GTE then hired outside counsel to continue the settlement

negotiations. After receiving a letter on March 2, 1994 from Decks

Appeal's counsel containing a copy of a proposed complaint for

thirty million dollars, GTE filed a declaratory judgment action in

the district court. Decks Appeal counterclaimed asserting

trademark infringement, unfair competition, negligence,

interference with prospective business advantage, and violations of

the DTPA. Bourland was added as a counterclaim defendant.

GTE and Bourland filed motions to dismiss on March 29, 1994

and May 26, 1994 respectively. After the joint pretrial order was

filed on June 26, 1995, the district court granted Bourland's

motion to dismiss on the ground that Decks Appeal had abandoned its

claims against Bourland by not including them in the joint pretrial

order. On July 11, 1995, the court granted GTE's motion to dismiss

with regard to Decks Appeal's negligence and tortious interference

claims, leaving outstanding for trial only Decks Appeal's claims

under the DTPA, under the Lanham Act, and for unfair competition.

The parties were realigned for trial with Decks Appeal
4

becoming the plaintiff and GTE becoming the defendant. At the

close of Decks Appeal's evidence, GTE moved for judgment pursuant

to Rule 50(a) on the ground that Decks Appeal failed to present

evidence on the issues of damages and causation. The district

court denied the motion at that time. After presenting its

evidence, GTE renewed its Rule 50(a) motion. After hearing

argument, the court issued a memorandum opinion and order

dismissing Decks Appeal's remaining claims on the ground that Decks

Appeal had not proven causation as a matter of law. Final judgment

was entered against Decks Appeal on July 27, 1995.

II.

Decks Appeal challenges the district court's grant of GTE's

Rule 50(a) motion on the issue of causation, dismissal of Decks

Appeal's negligence and tortious interference claims, and dismissal

of Bourland. After reviewing the record on appeal, we find no

reversible error. 

Decks Appeal claims that it sufficiently demonstrated that its

sales in 1992 fell dramatically as a result of GTE's misuse of

Decks Appeal's logo in GTE's directories, based solely on its

allegation against GTE and its total decrease in profits during

1992. However, GTE presented evidence at trial of several

additional factors that could of contributed to Decks Appeal's

asserted lost profits in 1992, including the fact that Decks Appeal

lost several sales representatives in the months immediately prior

to the publication of the GTE directories at issue, that Decks

Appeal reduced its advertising in the Dallas Morning News during
5

the same period at issue, and that Decks Appeal's showroom was

undergoing remodeling and relocation during three months of the

year in which the erroneous ads were published. We find Decks

Appeal's speculative evidence based only on its declaration of

fault against GTE and decline in sales fails to rebut GTE's

evidence regarding the other possible factors for Decks Appeal's

lost profits in 1992 and fails to present a basis for determining

how much of its damages resulted from GTE's wrongful acts. See

University Computing Co. v. Management Science America, Inc., 810

F.2d 1395, 1398 (5th Cir. 1987). In this case, we find that Decks

Appeal's speculative inference is not sufficient to prove that

GTE's actions were a proximate cause of Decks Appeal's lost

profits. 

We next address the district court's dismissal of Decks

Appeal's negligence claim based on Decks Appeal's failure to allege

any cognizable duty that could support a negligence claim and of

Decks Appeal's tortious interference claim for failure to allege

the existence or the reasonable probability of future business

relationships or contracts. We agree with the court that Decks

Appeal's complaint alleges no facts that could form a viable cause

of action for negligence or tortious interference. In addition,

because no set of facts could be raised to properly allege either

cause of action, we find the court was correct in denying Decks

Appeal's request for leave to amend its complaint. See Addington

v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 667-68 (5th

Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 672, 70 L.Ed.2d 640
6

(1981).

As for Decks Appeal's challenge to the district court's

dismissal of Bourland, we find that Decks Appeal waived any claim

or issue against Bourland. Decks Appeal asserts that its

allegation of damages caused by the manner in which GTE supervised

its sales and staff and managed the intellectual property entrusted

to it by its advertising customers clearly references Bourland.

However, the allegation merely alleges a claim against GTE, not

Bourland individually. Because we find that the joint pretrial

order fails to state a claim or issue against Bourland

individually, the court's dismissal was proper. See Valley Ranch

Development Co., Ltd. v. F.D.I.C., 960 F.2d 550, 554 (5th Cir.

1992). 

III.

For the reasons articulated above, the judgment of the

district court is AFFIRMED.