Affirmed and Memorandum Opinion filed September 3, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-00969-CV

NASSER CHEHAB, Appellant

V.

FIRST SERVICE CREDIT UNION, Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2017-80462

MEMORANDUM OPINION

Appellant Nasser Chehab challenges the summary judgment in favor of First 

Service Credit Union on Chehab’s breach of contract, breach of fiduciary duty, and 

Deceptive Trade Practices Act (DTPA) claims. Chehab asserts he raised genuine 

issues of material fact on his damages, which precludes summary judgment. Because 

we determine that Chehab failed to raise a genuine fact issue regarding damages, we 

affirm. 
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BACKGROUND

Chehab opened a checking account with First Service Credit Union (“First 

Service”), which was governed by a Deposit Account Contract. On September 28, 

2017, Chehab received a wire transfer into his account at First Service of 

$122,242.67. Before that transfer Chehab’s balance was $8.96. On Friday, 

September 29, 2017, Chehab visited the Northwest Branch of First Service and asked 

to withdraw almost all of his balance in cash. A teller informed Chehab that First 

Service could not process such a large cash transaction without advance notice. 

Chehab then requested $80,000 in cash in $100 bills. Again, Chehab was told that 

First Service could not process such a large cash request without prior notice. The 

branch manager explained that Chehab’s cash would be available the following 

Wednesday, October 4, 2017. The manager offered to fulfill Chehab’s withdrawal 

request by wire transfer or cashier’s check, but Chehab refused to accept anything 

but $100 bills. Chehab eventually agreed to accept $20,000 in cash, which he 

received in $100 bills. Before Chehab left, the branch manager explained that he 

could return on October 4, 2017, and pick up the remaining cash. 

The following Monday, October 2, 2017, Chehab visited the Downtown 

Branch of First Service and requested $60,000 in $100 bills. The branch manager of 

the Downtown Branch explained, just as the Northwest Branch manager had, that 

Chehab would have to place an order for such a large amount of cash and offered to 

provide a wire transfer or cashier’s check in the amount Chehab requested. Chehab 

refused the alternative methods and insisted on cash in $100 bills. The branch 

manager placed an order for $60,000 in $100 bills and informed Chehab that it would 

be available on Wednesday, October 4, 2017. Chehab became verbally abusive and 

was escorted from the branch by an off-duty police officer working for the branch. 

The next day, October 3, 2017, Chehab returned to the Downtown Branch and 
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demanded $50,000 or $60,000 in $100 bills. He was given $8,000 in cash and told, 

again, to return on October 4, 2017 for the remainder. On October 4, 2017, Chehab 

returned to the Downtown Branch where he withdrew $54,000 in $100 bills. The 

record does not reflect how Chehab used the funds he obtained from First Service.

Chehab filed suit alleging breach of contract because the deposit contract 

required First Service to make Chehab’s funds available immediately. First Service

answered and filed a motion for traditional summary judgment in which it alleged 

that Chehab’s allegations did not demonstrate that First Service breached a term of 

the contract and Chehab’s claims for lost profits damages were not recoverable as a 

matter of law. As to damages, First Service asserted that Chehab’s only damages 

related to a missed opportunity to establish a used car business. First Service’s

summary judgment was supported by affidavits from the branch managers at the 

Northwest Branch and the Downtown Branch. First Service also attached the 

Deposit Account Contract to its motion and Chehab’s responses to interrogatories 

and requests for production. In First Service’s interrogatories, it asked Chehab the 

amount and any method of calculating economic damages. Chehab responded:

Due to defendant’s breach of contract, Plaintiff missed an opportunity 

to establish a used car dealership business. It was projected to sell about 

100 cars per week with a profit of $3000.00 per car for the first two 

months and about 10 cars per week with a [profit] of $1500.00 per car 

for the rest of the first year. Estimated damages: $3,120,000,00.

First Service moved for summary judgment on the groundsthat Chehab’s allegations 

did not demonstrate that First Service breached the contract and Chehab presented 

no evidence of lost profits from the inability to establish the used car dealership 

business. 

After First Service filed its motion for summary judgment Chehab amended 

his petition to include claims for breach of fiduciary duty and violation of the DTPA. 
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Chehab also added claims for exemplary damages. On the same day Chehab 

responded to First Service’s motion for summary judgment asserting that he 

established lost profits with reasonable certainty by focusing on “the experience of 

the persons involved in the enterprise and the nature of the business activity, and 

relevant market.” Chehab attached no evidence to his response.

First Service replied to Chehab’s response noting that Chehab’s amended 

petition did not change the fact that Chehab failed to produce evidence of damages. 

Chehab amended his response to the motion for summary judgment attaching the 

affidavit of Toma Saman. Saman averred that he had been in the used car business 

for over 25 years. According to Saman’s affidavit, immediately following Hurricane 

Katrina in New Orleans, Saman’s used car business surged to approximately 100 

used car sales per week for several months following the disaster. Chehab hoped to 

profit in a similar manner in Houston following Hurricane Harvey. Saman was to 

supply 35 to 40 cars to Chehab in exchange for $100,000 cash. Saman averred that 

he was unable to provide the cars because “Chehab did not hold his end of the deal.” 

Saman’s affidavit did not explain why he could not have accepted a wire transfer or 

cashier’s check for the cars, or why he could not accept cash on October 4, three 

business days after Chehab initially demanded cash from First Service.

The trial court granted First Service’s summary judgment motion “with 

respect to plaintiff’s claims for lost profits” and denied the remainder of the motion. 

First Service subsequently amended its answer asserting a counterclaim for 

sanctions pursuant to chapter 10 of the Texas Civil Practice and Remedies Code and 

Texas Rule of Civil Procedure 13. First Service also filed traditional and no-evidence 

motions for summary judgment challenging Chehab’s third-amended petition in 

which he added breach of fiduciary duty and DTPA claims. In First Service’s

traditional motion, it asserted that Chehab (1) could not demonstrate recoverable 
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damages on his breach of contract claim; (2) could not establish that a fiduciary duty 

existed between him and First Service; (3) could not establish a violation of the

DTPA; and (4) could not establish recoverable damages under the DTPA. In First 

Service’s no-evidence motion it asserted:

• Plaintiff has no evidence that First Service knowingly or 

intentionally committed a violation of the DTPA by not 

immediately providing him cash on demand, precluding his 

claim for mental anguish under the DTPA.

• Plaintiff has no evidence that First Service misrepresented any 

fact to him that he relied upon in entering the Contract with First 

Service.

• Plaintiff has no evidence that First Service failed to disclose any

information that First Service believed would be material to his 

decision to enter the Contract.

• Plaintiff has no evidence of any economic damages other than 

his claims for lost profits for the alleged used car business.

• Plaintiff has no evidence of any special relationship of trust and

confidence necessary to create a fiduciary duty.

• Plaintiff has no evidence that First Service retained any 

economic benefits from the retention of his cash for three 

business days.

Chehab responded, asserting that all of his claims stemmed from “Defendant’s 

failure to provide Plaintiff with the amount of his withdrawal request of $80,000 on 

the date desired[.]” As damages Chehab asserted lost income and profits that would 

have been derived if he could have invested in a used car dealership. Chehab further

asserted that Texas recognizes nominal damages for breach of contract, and used car 

lots located in Houston are inherently profitable. Chehab attached to his response (1) 

two articles from Wired.com and The Detroit News about the number of cars lost 

during Hurricane Harvey and its after-effects; (2) Saman’s affidavit; and (3) the 

affidavit of Luis Esparza, another used car dealership owner, in which Esparza 
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averred that his dealerships did not flood after Hurricane Harvey and he was able to 

sustain substantial sales. 

On October 12, 2018, the trial court granted First Service’s motion for 

summary judgment and dismissed all of Chehab’s claims. First Service nonsuited all 

its claims under chapter 10 of the Texas Civil Practice and Remedies Code and Rule 

13 of the Rules of Civil Procedure, and the trial court signed a November 22, 2018 

order acknowledging the nonsuit, rendering a final judgment. See Park Place Hosp. 

v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995). Chehab timely appealed the trial 

court’s final summary judgment.

ANALYSIS

In two issues Chehab challenges the trial court’s ruling on First Service’s

motion for summary judgment.

I. Standard of review and applicable law

We review a no-evidence summary judgment under a legal sufficiency 

standard. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003) (“A 

no-evidence summary judgment is essentially a pretrial directed verdict, and we 

apply the same legal sufficiency standard in reviewing a no-evidence summary 

judgment as we apply in reviewing a directed verdict.”). A no-evidence summary 

judgment will be sustained when: “(a) there is a complete absence of evidence of a 

vital fact; (b) the court is barred by rules of law or of evidence from giving weight 

to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a 

vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively 

the opposite of a vital fact.” Id. at 751 (citing Merrell Dow Pharms. v. Havner, 953 

S.W.2d 706, 711 (Tex. 1997)).

We review a trial court’s order granting a motion for a traditional summary 
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judgment de novo. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 

2007). In reviewing a grant of a summary-judgment motion, we consider all of the 

evidence in the light most favorable to the nonmovant. Goodyear Tire & Rubber Co. 

v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007). To prevail on a traditional motion for 

summary judgment, a movant must prove entitlement to judgment as a matter of law 

on the issues pleaded and set out in the motion for summary judgment. Tex. R. Civ. 

P. 166a(c); Masterson v. Diocese of Nw. Texas, 422 S.W.3d 594, 607 (Tex. 2013).

If the trial court renders summary judgment without specifying the grounds, 

we affirm the judgment if any of the grounds presented are meritorious. Dow Chem. 

Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). We first review the 

trial court’s no-evidence summary judgment under the standards of Rule 166a(i). 

See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The nonmovant, 

here Chehab, must produce summary judgment evidence raising a genuine issue of 

material fact to defeat the summary judgment under that provision. Tex. R. Civ. P. 

166a(i). If Chehab failed to produce more than a scintilla of evidence under that 

burden, then there is no need to analyze whether the Bank’s proof satisfied the Rule 

166a(c) burden. See Ford Motor, 135 S.W.3d at 600; Walker v. Holmes, Diggs, 

Eames & Sadler, No. 14-19-00234-CV, 2020 WL 2120295, at *3 (Tex. App.—

Houston [14th Dist.] May 5, 2020, no pet.) (mem. op.).

II. The trial court’s orders on summary judgment merged into a final 

judgment for review by this court.

The trial court signed a partial summary judgment on August 14, 2018. 

Because Chehab amended his petition after First Service filed its first motion for 

summary judgment, the August 14 order was not a final order. See Espeche v. Ritzell, 

123 S.W.3d 657, 663 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (citing 

Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983)) (“A party may not 
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be granted judgment as a matter of law on a cause of action not addressed in a 

summary judgment proceeding.”). The October 12, 2018 order granting the motion 

for summary judgment was made final by the trial court’s order on First Service’s 

nonsuit of its claim for sanctions under Chapter 10 of the Texas Civil Practice and 

Remedies Code and Rule 13 of the Texas Rules of Civil Procedure. We therefore 

address Chehab’s challenge to the trial court’s August 14, 2018 and October 12, 

2018 summary judgment orders.

III. Chehab produced no evidence of damages in response to First Service’s

no-evidence motion for summary judgment.

Chehab asserted causes of action for breach of contract, breach of fiduciary 

duty, and violations of the DTPA. In the no-evidence portion of First Service’s

motion for summary judgment, it asserted, inter alia, that Chehab had produced no 

evidence that First Service’s action in not fulfilling Chehab’s withdrawal request 

immediately in $100 bills caused him damages. Damages is a required element of 

each of Chehab’s claims. See Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 

824 (Tex. 2012) (no claim under the DTPA can be maintained absent proof that 

defendant’s act was a producing cause of plaintiff’s damages); Tony Gullo Motors 

I, L.P. v. Chapa, 212 S.W.3d 299, 304 (Tex. 2006) (for breach of contract, a plaintiff 

may recover economic damages and attorney’s fees, but not mental anguish or 

exemplary damages); Tex. Instruments, Inc. v. Teletron Energy Management, Inc., 

877 S.W.2d 276, 279 (Tex. 1994) (lost profits are recoverable for a breach of 

fiduciary duty when it is shown that the loss is the natural and probable consequence 

of the complained of act).

Chehab responded to First Service’s motion by attaching two articles about 

the number of cars lost during Hurricane Harvey and its after-effects, and two 

affidavits of used car dealership owners in which they averred that used car 
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dealerships were likely to be profitable following a major hurricane. On appeal 

Chehab argues that nominal damages are recoverable in breach of contract claims, 

and that he raised a fact issue on lost profits.

A. Nominal Damages

Chehab first argues that Texas law recognizes nominal damages for breach of 

contract, presumably alleviating a requirement that Chehab produce evidence of 

damages. Chehab, however, did not plead for nominal damages. In Chehab’s live 

pleading, he alleged that First Service’s breach of contract caused him damages “in 

the form of lost opportunity, lost income and profits from a used car business 

startup[.]” By pleading for monetary damages, Chehab is not entitled to recover 

nominal damages. 

Nominal damages are available for breach of contract. MBM Fin. Corp. v. 

Woodlands Operating Co., L.P., 292 S.W.3d 660, 664 (Tex. 2009). However, 

nominal damages are not for compensation; they are for cases in which there are no 

damages, or none that could ever be proved. Id. The rule in Texas is that nominal 

damages are not available when the harm is entirely economic and subject to proof,

as opposed to non-economic harm to civil or property rights. Id. (citing Gulf Coast 

Inv. Corp. v. Rothman, 506 S.W.2d 856, 858 (Tex.1974) (rejecting claim for nominal 

damages when evidence showed plaintiff suffered no economic damage)). 

Here, Chehab has not pleaded for nominal damages for non-economic harm, 

such as harm to civil or property rights. Therefore, the fact that nominal damages 

can generally be recovered in a breach-of-contract action does not create a fact issue 

as to whether Chehab produced evidence of actual damages. See Tex. R. Civ. P. 

166a.
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B. Evidence of Lost Profits

Chehab next asserts that he produced enough evidence to create a fact issue 

on lost profits damages. “Lost profits are damages for the loss of net income to a 

business measured by reasonable certainty.” Miga v. Jensen, 96 S.W.3d 207, 213 

(Tex. 2002). Recovery of lost profits does not require that the loss be susceptible to 

exact calculation. Tex. Instruments, Inc., 877 S.W.2d at 279. The loss, however, must 

not be speculative. The general rule is that recovery of lost profits as damages is 

allowed “where it is shown that a loss of profits is the natural and probable 

consequence of the act or omission complained of, and their amount is shown with 

sufficient certainty.” Tex. Instruments, Inc., 877 S.W.2d at 279 (quoting Sw. Battery 

Corp. v. Owen, 115 S.W.2d 1097, 1098 (Tex. 1938)). “[A]nticipated profits cannot 

be recovered where they are dependent upon uncertain and changing conditions, 

such as market fluctuations, or the chances of business, or where there is no evidence 

from which they may be intelligently estimated.” Id. (quoting Owen, 115 S.W.2d at 

1098). Indeed, “[t]he law is wisely skeptical of claims of lost profits from untested 

ventures or in unpredictable circumstances, which in reality are little more than 

wishful thinking.” Phillips v. Carlton Energy Grp., LLC, 475 S.W.3d 265, 280 (Tex. 

2015). When the evidence supporting a claim for lost profits damages is largely 

speculative or a mere hope for success, lost profits have not been shown with 

reasonable certainty. Tex. Instruments, 877 S.W.2d at 279.

Whether a new business entity seeking entry into an existing market may 

recover lost profits depends on the experience of the persons involved in the 

enterprise, the nature of the business activity and the relevant market, and whether 

the profits the business might have made are “susceptible of being established by 

proof to that degree of certainty which the law demands.” Id. at 280 (quoting Owen, 

115 S.W.2d at 1099). To avoid summary judgment when presented with a no-
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evidence motion, an injured party “must do more than show that [he] suffered some 

lost profits.” Total Clean, LLC v. Cox Smith Matthews Inc., 330 S.W.3d 657, 663 

(Tex. App.—San Antonio 2010, pet. denied) (citing Szczepanik v. First S. Trust Co., 

883 S.W.2d 648, 649 (Tex. 1994)). He must show the amount of the loss by 

competent evidence with reasonable certainty. Id. “At a minimum, opinions or 

estimates of lost profits must be based on objective facts, figures, or data from which 

the amount of lost profits may be ascertained.” Szczepanik, 883 S.W.2d at 649; Holt 

Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992). Lost profits are 

damages for the loss of net income to a business and, broadly speaking, reflect 

income from lost-business activity, less expenses that would have been attributable 

to that activity. Miga, 96 S.W.3d at 213.

In response to First Service’s no-evidence motion for summary judgment the 

only evidence Chehab presented that was arguably related to lost profits were the 

affidavits of Saman and Esparza. Saman averred that his used car business in New 

Orleans surged following Hurricane Katrina. Saman averred that his business surged 

in volume from approximately 40 cars per month to 100 cars per month for several 

months following the disaster. Saman further averred that his retail profits surged 

from approximately $750 per car to $3,000 per car. Saman stated that he planned to 

supply 35 to 40 cars to Chehab but did not do so because Chehab did not “hold his 

end of the deal.” Chehab also attached the affidavit of Luis Esparza who averred that 

his two used car dealerships experienced a 28 to 30 percent increase in sales in a 

four-month period following Hurricane Harvey. 

Neither affidavit addressed an amount of profits that Chehab would have 

made if First Service had given Chehab cash on the day he requested it. Chehab did

not produce evidence of the loss of net income that was the “natural and probable 

consequence” of First Service’s failure to give Chehab cash on the day he made the 
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request. See Tex. Instruments, Inc., 877 S.W.2d at 279. Chehab did not provide an 

opinion or estimate of the amount of lost profits, if any, or any evidence as to why 

First Service’s offer of a wire transfer or cashier’s check caused him to fail to “hold 

his end of the deal.” Saman and Esparza’s affidavits recounted their experiences with 

selling used cars following a major hurricane. The affidavits were not evidence of

opinions or estimates based on objective facts, figures, or data from which the 

amount of lost profits may be ascertained. The distinguishing feature between Texas 

cases permitting and denying recovery for lost profits is reliance upon routinely kept 

business records produced in court to show an evaluation of the business’s decreased 

profitability based upon objective facts, figures, and data. Holland v. Hayden, 901 

S.W.2d 763, 766 (Tex. App.—Houston [14th Dist.] 1995, writ denied). Here, there 

is no summary-judgment evidence that Chehab suffered any reasonably certain 

business losses resulting from First Services three-day delay in honoring Chehab’s 

request for a large amount of cash. 

Under the applicable standard of review, the summary-judgment evidence 

filed by Chehab in response to First Service’s no-evidence motion regarding each of 

Chehab’s claims did not raise a genuine issue of fact as to whether Chehab suffered 

any lost profits damages resulting from First Service’s alleged breach of contract, 

breach of fiduciary duty, or violation of the DTPA. See Szczepanik, 883 S.W.2d at 

649–50; Holt Atherton Indus., Inc., 835 S.W.2d at 83–86.

IV. Chehab has not challenged any other grounds on which the motion for 

no-evidence summary judgment could have been granted.

In First Service’s motion for summary judgment, in addition to asserting that 

Chehab produced no evidence of damages, First Service asserted that Chehab 

produced no evidence (1) that First Service violated the DTPA by not immediately 

providing Chehab cash on demand; (2) that First Service made any 
13

misrepresentations; (3) that First Service failed to disclose any information material 

to Chehab’s decision to enter into the contract; (4) that there was a fiduciary 

relationship between Chehab and First Service; and (5) that First Service retained 

any economic benefits from the retention of the cash for three days. 

Chehab did not produce a scintilla of evidence of the above issues to the trial 

court, nor does he argue on appeal that he produced evidence of any 

misrepresentations by First Service or a fiduciary duty between him and First 

Service. Chehab has not challenged all independent bases or grounds that could, if 

meritorious, support the summary judgment dismissing his claims. We therefore 

must uphold the summary judgment on those issues. See Durham v. Accardi, 587 

S.W.3d 179, 183 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (if an appellant 

does not challenge every possible ground for summary judgment, we will uphold the 

summary judgment on any of the unchallenged grounds). 

Moreover, damages is a required element of each of Chehab’s claims. See 

Cruz, 364 S.W.3d at 824 (no claim under the DTPA can be maintained absent proof 

that defendant’s act was a producing cause of plaintiff’s damages); Tony Gullo 

Motors, 212 S.W.3d at 304 (for breach of contract, a plaintiff may recover economic 

damages and attorney’s fees, but not mental anguish or exemplary damages); Tex.

Instruments, 877 S.W.2d at 279 (lost profits are recoverable for a breach of fiduciary 

duty when it is shown that the loss is the natural and probable consequence of the 

complained of act); West v. Triple B. Servs., LLP, 264 S.W.3d 440, 446 (Tex. App.—

Houston [14th Dist.] 2008, no pet.) (to recover on a breach of contract cause of 

action, plaintiff must have sustained damages as a result of the defendant’s breach).

Because Chehab produced no evidence of damages and did not address the 

remaining grounds for summary judgment, we overrule Chehab’s issues on appeal. 

Having determined that Chehab produced no evidence in response to First Service’s 
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no-evidence motion for summary judgment we need not, and do not, address First 

Service’s motion for traditional summary judgment. See Ford Motor, 135 S.W.3d at 

600.

CONCLUSION

Having overruled appellant’s issues on appeal we affirm the trial court’s 

judgment.

/s/ Jerry Zimmerer

Justice

Panel consists of Justices Zimmerer, Spain, and Hassan.