COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00507-CV 

COLUMBIA MEDICAL CENTER OF 

DENTON SUBSIDIARY, L.P. D/B/A 

DENTON REGIONAL MEDICAL 

CENTER

APPELLANT

V.

DFW SUPER GROUP II, L.L.C. APPELLEE 

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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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Following a lease dispute, Appellee DFW Super Group II, L.L.C. as lessee 

filed suit against Appellant Columbia Medical Center of Denton Subsidiary, L.P. 

d/b/a Denton Regional Medical Center as lessor, asserting claims for breach of 

lease, indemnification, conversion, and fraud. The trial court granted a partial 

 

1See Tex. R. App. P. 47.4.
2

summary judgment for the Medical Center, and DFW II’s remaining claims for 

indemnification and breach of quiet enjoyment for damages proceeded to trial. 

The trial court granted a directed verdict on DFW II’s indemnification claim. A 

jury found for DFW II on the quiet enjoyment claim, rejected the Medical Center’s 

justification defense, and found damages in the amount of $100,000. The trial 

court entered judgment on the jury’s verdict and awarded $110,000 in attorney’s 

fees to DFW II. The Medical Center perfected this appeal, raising five issues.

The Medical Center’s fourth issue complains that the evidence is legally 

insufficient to support the jury’s damage award of $100,000. The Texas 

Supreme Court has explained the evidence necessary to support lost-profits 

damages:

Recovery for lost profits does not require that the loss be 

susceptible of exact calculation. White v. Southwestern Bell Tel. 

Co., 651 S.W.2d 260, 262 (Tex. 1983); Southwest Battery Corp. v. 

Owen, 131 Tex. 423, 115 S.W.2d 1097, 1098 (1938). However, the 

injured party must do more than show that they suffered some lost 

profits. The amount of the loss must be shown by competent 

evidence with reasonable certainty. White, 651 S.W.2d at 262; 

Southwest Battery, 115 S.W.2d at 1098. What constitutes 

reasonably certain evidence of lost profits is a fact intensive 

determination. As a minimum, opinions or estimates of lost profits 

must be based on objective facts, figures, or data from which the 

amount of lost profits can be ascertained. See, e.g., Pena v. 

Ludwig, 766 S.W.2d 298, 304 (Tex. App.—Waco 1989, no writ); 

Frank B. Hall & Co. v. Beach, Inc., 733 S.W.2d 251, 258 (Tex.

App.—Corpus Christi 1987, writ ref’d n.r.e.); Keller v. Davis, 694 

S.W.2d 355, 357 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d 

n.r.e.); Automark of Texas v. Discount Trophies, 681 S.W.2d 828, 

830 (Tex. App.—Dallas 1984, no writ). Although supporting 

documentation may affect the weight of the evidence, it is not 

necessary to produce in court the documents supporting the 
3

opinions or estimates. See, e.g., Pena, 766 S.W.2d at 304; Keller,

694 S.W.2d at 357.

The Heines’ testimony was the only evidence presented 

concerning their lost profits and can be divided into two segments. 

First, Mr. Heine was examined by his counsel. Then, the trial judge 

questioned both Heines.

When Mr. Heine was examined by his counsel, only one 

question was asked which touched on lost profits. The relevant 

question and answer are:

Q. Now as a result of the defendant keeping the dozer for 

eight months, did you lose out on $200,200 in lost income during 

that time period?

A. Yes, sir, I did.

Even if this testimony were otherwise sufficient, lost income is not 

the correct measure of damages. See supra note 1. Further, this 

testimony is legally insufficient because it does not provide any 

indication of how the Heines determined what their lost profits were. 

See, e.g., Village Square, Ltd. v. Barton, 660 S.W.2d 556, 559–60 

(Tex. App.—San Antonio 1983, writ ref’d n.r.e.) (testimony stating 

only total amount of lost profits held legally insufficient); Frank B. 

Hall & Co.,733 S.W.2d at 259 (same). The court does not have any 

basis for determining whether the damages were established with 

reasonable certainty or were based on pure speculation. This 

question and answer are legally insufficient to prove lost profits.

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992); see also ERI 

Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 878 (Tex. 2010) (explaining 

that plaintiff bears burden of providing evidence supporting a single complete 

calculation of lost profits); Glattly v. Air Starter Components, Inc., 332 S.W.3d 

620, 635 (Tex. App.––Houston [1st Dist.] 2010, pet. denied) (holding evidence of

lost profits damages legally insufficient to show ―any amount of reasonably 

certain lost profits, based on objective facts, figures, or data‖); Texaco Inc. v. 
4

Phan, 137 S.W.3d 763, 773 (Tex. App.––Houston [1st Dist.] 2004, no pet.) 

(holding evidence of lost profits damages legally insufficient because ―the 

Owners failed to meet their burden of proving net profits, from which expenses 

had been subtracted‖ to arrive at lost profits).

Here, the only evidence in the record concerning lost profits consists of 

Lana Ralston’s testimony and Plaintiff’s exhibit number 20. Ralston testified as 

follows:

Q. I’m going to show you what’s been marked as Plaintiff’s 

Exhibit 20. Just a minute while I zoom out here. Do you recognize 

Exhibit 20?

A. Yes.

Q. It’s the Quickbooks printout, and it’s a – it’s a lot of 

documents. It talks about the profits and losses of the Savannah 

Clinic, which is also – which is DFW Group’s clinic. Right?

A. Yes, sir.

. . . .

Q. Before I conclude, Ms. Ralston, based on the totality of the 

circumstances starting at about February 15th or 16th of 2008, can 

you tell the jury what your lost profits would have been on a monthly 

basis[?]

. . . .

Q. Just the number.

A. Probably $50,000 a month in expenses - - or gross.

Q. So $50,000 a month in lost profits?

A. Yes.
5

Q. Okay. And if we start in February 2008, we’re February 

2012, that’s four years, so on a yearly basis $50,000 a month would 

be $600,000 a year. Right?

A. Yes.

Q. Times four years would be $2.4 million. Right?

A. Yes.

Plaintiff’s Exhibit 20 consists of forty-two pages of documents. The 

documents include multiple ―custom summary reports‖ showing a month-bymonth breakdown of income and expenses and net income for a six-month 

period. They include multiple ―summary balance sheets‖ showing assets and 

liabilities for a particular month. There are pages of ―transactions by account‖ for 

several months. A document labeled ―Profit and Loss,‖ dated March 1, 2008 

through May 19, 2009, shows a month-by-month breakdown, but none of the 

months show a $50,000 loss.

In determining whether there is legally sufficient evidence to support the 

jury’s finding of $100,000 in lost profits, we must consider evidence favorable to 

the finding if a reasonable factfinder could and disregard evidence contrary to the 

finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. 

v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 

802, 807, 827 (Tex. 2005). The evidence does not support a single complete 

calculation of lost profits. See ERI Consulting Eng’rs, Inc., 318 S.W.3d at 878.

Considering the evidence favorable to the finding––Lana Ralston’s testimony and 

Plaintiff’s Exhibit 20––this evidence provides no indication of how DFW II 
6

determined what its lost profits were.2 See, e.g., Heine, 835 S.W.2d at 84; 

Glattly, 332 S.W.3d at 635; Texaco Inc., 137 S.W.3d at 773. Consequently, the 

evidence is legally insufficient to support the jury’s finding of $100,000 in lost 

profits damages. See, e.g., Heine, 835 S.W.2d at 84; Glattly, 332 S.W.3d at 634; 

Texaco Inc., 137 S.W.3d at 773. We sustain the Medical Center’s fourth issue. 

Having sustained the Medical Center’s fourth issue, we need not address 

any of the Medical Center’s other issues.3 See Tex. R. App. P. 47.1 (requiring 

 

2

The Medical Center complains in its third issue that the trial court erred by 

failing to exclude all of DFW II’s evidence of damages because DFW II failed to 

timely disclose the ―method of calculating economic damages‖ as required by 

rule 194.2(d) of the rules of civil procedure. See Tex. R. Civ. P. 194.2(d). The 

Medical Center objected at trial, arguing that although DFW II disclosed the 

amount of its claimed damages—$50,000 per month—because it did not disclose 

the method of calculating such lost profits nor timely supplement its disclosures, 

all evidence of damages was automatically excluded. See Tex. R. Civ. P. 

193.6(a) (prohibiting introduction of evidence not timely disclosed in discovery

unless trial court finds good cause or lack of unfair surprise). The trial court ruled 

that DFW II could introduce what it had disclosed—$50,000 per month in lost 

profits—but could not introduce evidence on how that amount was calculated 

because it did not timely disclose its method of calculation. DFW II did not 

attempt to show good cause or lack of unfair surprise for not timely providing 

information on its method of calculating lost profits, and it has not raised an issue 

on appeal challenging the trial court’s failure to permit it to elicit testimony from 

Ralston concerning how the $50,000-per-month-lost-profits figure was calculated. 

See Tex. R. Civ. P. 193.6(b) (providing that burden of establishing good cause or 

lack of unfair surprise or prejudice is on party seeking to introduce evidence).

3

The trial court awarded DFW II attorney’s fees pursuant to the lease 

between the parties based on the jury’s finding that the Medical Center as lessor 

had breached the covenant of quiet enjoyment it owed to DFW II as lessee. 

Because no evidence exists supporting the jury’s damage award, DFW II is not 

entitled to attorney’s fees. See Intercont’l Grp. P’ship v. KB Home Lone Star 

L.P., 295 S.W.3d 650, 652 (Tex. 2009) (holding plaintiff who obtained favorable 

jury findings but no damages was not entitled to attorney’s fees under contractual 
7

appellate court to address only issues necessary to disposition of appeal). 

Because legally insufficient evidence exists concerning the only element of 

damages submitted to the jury, we reverse the trial court’s judgment and render a 

judgment that DFW II take nothing.

SUE WALKER

JUSTICE 

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: October 17, 2013

 

language––like that contained in paragraph 21.1 of the lease here––entitling a 

prevailing party to such fees).