University General Hospital LP and Ascension Physician Solutions, LLC v. Prexus Health Consultants, LLC and Prexus Health, LLC ( 2013 )


Menu:
  • Affirmed as Modified and Substitute Opinion filed June 20, 2013.
    In The
    Fourteenth Court of Appeals
    NO. 14-11-00988-CV
    UNIVERSITY GENERAL HOSPITAL, LP AND ASCENSION PHYSICIAN
    SOLUTIONS, LLC, Appellants
    V.
    PREXUS HEALTH CONSULTANTS, LLC AND PREXUS HEALTH, LLC,
    Appellees
    On Appeal from the 270th District Court
    Harris County, Texas
    Trial Court Cause No. 2009-77474
    SUBSTITUTE OPINION
    We issued an opinion in this case on April 2, 2013, modifying the trial
    court’s judgment to delete awards of lost profit damages and affirming the
    judgment as modified.    Appellees subsequently filed a motion for rehearing.
    Without changing the disposition of the case, we deny the motion for rehearing,
    withdraw our previous opinion, and issue this substitute opinion.
    Appellants University General Hospital, LP (“University General”) and
    Ascension Physician Solutions, LLC (“Ascension”) appeal from a judgment
    rendered against them following a jury trial. Concluding that there is legally
    insufficient evidence to support the jury’s awards of lost profit damages, we
    modify the trial court’s judgment to delete those awards and affirm the judgment as
    modified.
    BACKGROUND
    Appellees Prexus Health Consultants, LLC and Prexus Health, LLC
    (collectively “Prexus”) provide healthcare management, administrative support,
    and consulting services to hospitals such as University General. On March 2,
    2009, University General entered into a Professional Services Agreement (“PSA”)
    with Prexus. Pursuant to the PSA, Prexus would provide three distinct services to
    University General: medical transcription, medical coding, and billing. On that
    same day, Ascension, which was responsible for the day-to-day operation of
    University General, entered into a Consulting Services Agreement (“CSA”) with
    Prexus. Through the CSA, Prexus agreed to provide various consulting services
    related to the daily operation of University General. The term of both the PSA and
    the CSA was three years, with both expiring on March 2, 2012.1
    On September 8, 2009, University General and Ascension terminated both
    the PSA and the CSA. In December 2009, Prexus filed suit against University
    1
    Both the PSA and the CSA contain choice-of-law clauses providing that they are to be
    governed by Ohio law. Neither side has raised an issue on appeal addressing the choice-of-law
    clauses or arguing that Ohio law conflicts with Texas law. Thus, we need not address any
    choice-of-law issue, and we apply Texas law. See 1993 GF P’ship v. Simmons & Co. Int’l., No.
    14-09-00268-CV, 
    2010 WL 4514277
    , at *9 n.15 (Tex. App.—Houston [14th Dist.] November 9,
    2010, no pet.) (mem. op.).
    2
    General, Ascension, and numerous other defendants not parties to this appeal.
    Prexus alleged University General had breached the PSA and Ascension had
    breached the CSA. Prexus sought damages for unpaid invoices for work already
    performed as well as damages for lost profits Prexus allegedly would have earned
    during the two-and-a-half years remaining under both agreements. The lawsuit
    went to trial before a jury on April 11, 2011.
    The jury found that University General breached the PSA. The jury then
    determined that University General owed Prexus $146,000 for work already
    performed under the PSA and that Prexus suffered $900,000 in lost profits as a
    result of University General’s breach.        The jury also found that Ascension
    breached the CSA. The jury found that Ascension owed Prexus $608,005 for work
    already performed pursuant to the CSA and determined that Prexus experienced
    $1,200,000 in lost profits as a result of Ascension’s breach. Finally, the jury
    determined that Prexus’s reasonable and necessary attorneys’ fees through trial
    were $107,000.
    Contending the evidence was insufficient to support the award of lost profits
    under either contract, appellants moved for judgment notwithstanding the verdict.
    The trial court denied appellants’ motion and rendered judgment in accordance
    with the jury’s verdict. This appeal followed.
    ANALYSIS
    Appellants’ three issues on appeal challenge only the portion of the trial
    court’s final judgment awarding Prexus lost profits. Because it is dispositive of
    this appeal, we need only reach appellants’ second issue, in which appellants
    contend the evidence is legally insufficient to support the jury’s awards of lost
    profits under the PSA and the CSA.
    3
    I.    Standard of review
    If an appellant attacks the legal sufficiency of an adverse finding on an issue
    on which it did not have the burden of proof, the appellant must demonstrate on
    appeal that there is no evidence to support the adverse finding. Price Pfister, Inc.
    v. Moore & Kimmey, Inc., 
    48 S.W.3d 341
    , 347 (Tex. App.—Houston [14th Dist.]
    2001, pet. denied). In conducting a legal sufficiency review, we must consider the
    evidence in the light most favorable to the appealed finding and indulge every
    reasonable inference that supports it.        2900 Smith, Ltd. v. Constellation
    NewEnergy, Inc., 
    301 S.W.3d 741
    , 745 (Tex. App.—Houston [14th Dist.] 2009, no
    pet.) (citing City of Keller v. Wilson, 
    168 S.W.3d 802
    , 821–22 (Tex. 2005)). The
    evidence is legally sufficient if it would enable reasonable and fair-minded people
    to reach the decision under review. 
    Id. This court
    must credit favorable evidence
    if a reasonable trier of fact could, and disregard contrary evidence unless a
    reasonable trier of fact could not. 
    Id. The trier
    of fact is the sole judge of the
    witnesses’ credibility and the weight to be given their testimony. 
    Id. This court
    may sustain a legal sufficiency (or no evidence) issue only if the
    record reveals one of the following: (1) the complete absence of evidence of a vital
    fact; (2) the court is barred by rules of law or evidence from giving weight to the
    only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital
    fact is no more than a scintilla; or (4) the evidence established conclusively the
    opposite of the vital fact. 
    Id. at 745–46.
    Evidence that is so weak as to do no more
    than create a mere surmise or suspicion that the fact exists is less than a scintilla.
    Kellmann v. Workstation Integrations, Inc., 
    332 S.W.3d 679
    , 684 (Tex. App.—
    Houston [14th Dist.] 2010, no pet.).
    4
    II.   Prexus’s awards of lost profit damages are not supported by legally
    sufficient evidence.
    Lost profits are damages for the loss of net income to a business. Miga v.
    Jensen, 
    96 S.W.3d 207
    , 213 (Tex. 2002). Broadly speaking, they reflect income
    from lost business activity, less any expenses that would have been attributable to
    that activity. 
    Kellmann, 332 S.W.3d at 684
    . While the recovery of lost profits
    does not require that the loss be susceptible of exact calculation, the party seeking
    such damages must do more than show that it suffered some lost profits. ERI
    Consulting Eng’rs, Inc. v. Swinnea, 
    318 S.W.3d 867
    , 876 (Tex. 2010) (quoting
    Holt Atherton Indus., Inc. v. Heine, 
    835 S.W.2d 80
    , 84 (Tex. 1992)). The amount
    of the loss must be shown by competent evidence with reasonable certainty. 
    Id. A party
    seeking lost profit damages need not produce documentary evidence
    in court supporting an award, but any opinions or estimates of damages must be
    based on objective facts, figures, or data from which the amount of lost profits can
    be ascertained. 
    Id. Conclusory or
    speculative evidence of lost profits cannot
    support an award. See Szczepanik v. First S. Trust Co., 
    883 S.W.2d 648
    , 649–50
    (Tex. 1994). A party seeking lost profit damages must demonstrate one complete
    calculation of lost profits. 
    Kellmann, 332 S.W.3d at 684
    . That calculation must be
    based on net profits, not gross revenue or gross profits. 
    Id. A. The
    evidence regarding lost profits
    The judgment awards Prexus $900,000 in lost profits from the PSA and $1.2
    million in lost profits from the CSA. In their second issue, appellants contend that
    the evidence is legally insufficient to support either award under the legal
    standards discussed above. Considering the evidence in the light most favorable to
    the awards, there were at most two witnesses who testified on the issue of Prexus’s
    alleged lost profit damages: Dr. Ajay Mangal and Mike Griffin. Both testified as
    5
    fact witnesses, not experts.
    Mangal testified that, in addition to being an ear, nose, and throat doctor, he
    is a partial owner as well as the Chief Executive Officer (“CEO”) of Prexus.
    Mangal also testified that he was serving as the CEO of Prexus in 2009. Mangal
    informed the jury he had an MBA in general business. While he testified about
    numerous subjects during the trial, Mangal’s testimony eventually turned to the
    subject of Prexus’s lost profit damages. Mangal began his testimony on this
    subject by explaining that he was quite familiar with and worked closely with the
    company’s financials, reviewing them before presentations to the board and
    analyzing pro formas for any new projects.
    A bench conference then occurred during which the trial court, after
    ascertaining that Mangal had not been designated as an expert, ruled that Mangal
    would not be allowed “to offer any expert testimony about any damage model.”
    Mangal then continued with his testimony.
    Q.            Ajay, you have written some numbers on this chart, how
    has Prexus been damaged by [University General]
    terminating the PSA?
    [Mangal].     I can speak in basic terms that I looked at the numbers,
    the PSA and CSA. And over three years, . . .
    [Objection and ruling omitted]
    [Mangal].     It would have - - just the revenue number would have
    been about $8 million revenue. Okay. That is not profit,
    just revenue, what we would have billed [University
    General] for those contracts and for the services for the
    three years.
    And our profit margin or contribution margin being - -
    [Counsel]. Your honor, I also object that he is about to get into
    expert testimony.
    6
    The Court. Sustained.[2]
    Q.               Ajay, how much money have you lost as a result of
    defendant’s breach of the PSA and the CSA?
    [Objection and ruling omitted]
    [Mangal].        About $2.4 million over three years.
    [Objections and rulings omitted]
    Q.               So when you say three years, you mean the two and a
    half years remaining on the contract, correct?
    [Mangal].        Absolutely.
    Q.               How did you get that number?
    ...
    [Mangal].        We look at the revenue that is lost and so we know the
    income that is lost from new contracts. And that is what
    I have to, as the CEO, look at that data and see what, you
    know, each contracts [sic] means to us as a company.
    ...
    Q.               All right. So for the damages for the breach of contract
    by [University General] and Ascension, what would
    those damages include?
    [Mangal].        They would include loss of PSA and CSA for about two
    and a half years.
    Q.               Okay. And what are the numbers?
    [Objections and rulings omitted]
    [Mangal].        $2.4 million.
    Mangal’s testimony then turned to a potential agreement Prexus was
    negotiating with Humble Surgical Hospital (“Humble Hospital”), a planned new
    hospital in the northern part of Harris County. Prexus would later argue that the
    expected profit margin on this potential agreement could be used to calculate lost
    profits under the PSA and CSA. Mangal’s testimony focused on a pro forma
    2
    On appeal, Prexus does not challenge any of the trial court’s evidentiary rulings.
    7
    projecting the income Prexus expected to earn if the negotiations with Humble
    Hospital proved successful and Humble Hospital came into existence.
    Q.            When you need to make sure it is profitable, is one thing
    you do is look at a pro forma to determine what you
    would expect to make in future years once you perform
    the contract?
    [Mangal].     That’s correct.
    Q.            And from - - how do you look at a pro forma to
    determine that?
    [Mangal].     Look at the income and expenses and the bottom line.
    ...
    Q.            Sorry, Ajay. As Prexus’ CEO, did you do this in
    evaluating the Humble Hospital project?
    [Mangal].     Yes.
    Q.            And with whom did you participate in this effort with
    Prexus?
    [Mangal].     Initially, Mike Griffin and Jerry Fye.
    Q.            Exhibit 35, which is the pro forma, does it show the
    money that Prexus was to make over three years?
    [Mangal].     Yes.[3]
    Q.            And what does it say?
    [Mangal].     We were expecting to collect about $13 million.
    Mangal’s testimony later turned back to the Humble Hospital negotiations.
    Q.            Ajay, a while ago when you testified about the 13
    million, is the 13 million your profit from the project?
    [Mangal].     No, that is the revenue that we would have gotten from
    three years of the CSA and the PSA.
    Q.            What is your profit?
    3
    Plaintiff’s Exhibit 35 is a document entitled: “Humble Surgical Hospital-Business
    Model and Assumptions.”
    8
    [Counsel]: Objection, Your Honor. He is not qualified to give that
    testimony.
    The Court: Sustained.
    Q.           You have testified that in your role as CEO, you know
    what your revenues are, correct?
    [Mangal].    That’s correct.
    At that point, Prexus passed the witness.       Following appellants’ cross-
    examination, Prexus resumed questioning Mangal the next day. Once again, the
    questions were directed at the revenue and profit expected if the Humble Hospital
    negotiations proved successful.
    Q.           Yesterday, you told the jury through this Exhibit 35 that
    Prexus expected to make 13 million in revenue from
    [Humble Hospital]; do you remember that?
    [Mangal].    Yes.
    Q.           Ajay, what is your profit margin on that revenue?
    [Counsel]: Objection, Your Honor, foundation, and also object on
    the grounds that his testimony was not timely disclosed
    in discovery.
    The Court: Overruled.
    [Mangal].    32 percent based on our last year data.
    Q.           I’m sorry, based on what?
    [Mangal].    Last year financials.
    Mike Griffin was the second witness whose testimony touched on the issue
    of Prexus’s lost profits damages.     Griffin served as Prexus’s Chief Financial
    Officer and later left to help found another company that provides management
    services to University General.
    While Griffin testified on many subjects, he was also asked about Prexus’s
    alleged lost profit damages.
    9
    Q.           Won’t [sic] don’t you pull up, if you will - - if you’ll go
    to Plaintiff’s Exhibit No. 35. Exhibit No. 35, this is a
    proforma, I think you’ve heard about a little while ago
    that was prepared between Prexus and Humble Surgical
    Hospital; do you recall that?
    [Griffin].   Yes.
    Q.           Okay. And - - and I think Ajay’s testimony was that you
    didn’t ultimately prepare this exhibit 35, but you
    prepared the majority of the iteration that led to this, do
    you recall that?
    [Griffin].   Yeah, I helped, definitely.
    Q.           In fact, you prepared a lot of these numbers and
    projections; isn’t that correct?
    [Griffin].   I can’t answer that 100 percent. I did a proforma for the
    project.
    Q.           Right.
    [Griffin].   But I don’t know if this was the final and if the numbers
    were changed and whatnot, but I did definitely do a
    proforma.
    ...
    Q.           There are some numbers there on that page. And if you
    add up some of those numbers, you come up with a
    number around $13 million. You heard Ajay testify to
    that yesterday?
    [Griffin].   Yeah. I don’t know where he’s getting this number.
    Q.           Look, if you will, at . . . the first three columns in Lines 3
    through 5. Those would be part of the anticipated
    revenues. In other words, if you look at . . . transcription
    services, coding services and billing services for the three
    years, you would add those numbers together - -
    [Griffin].   Got it.
    Q.           - - to determine revenue for Prexus, correct?
    [Griffin].   Got it.
    Q.           Is that - - do you agree with that?
    10
    [Griffin].   Yes.
    ...
    Q.           Okay. And - - and in order to determine what profit
    Prexus would have made, you would have had to - - you
    have to apply a profit margin, right?
    [Griffin].   That’s correct.
    Q.           Okay. So whatever the profit margin is times the $13
    million, that equals the amount of revenue that Prexus
    would have - - was supposed to have received according
    to the proformas from the [Humble Hospital] contract.
    [Griffin].   Right.
    ...
    Q.           Now, with respect to the damages that Prexus has
    suffered, . . . you heard the testimony from Ajay that the
    calculation for the two and a half years remaining on the
    contract was $2.4 million. You heard that, correct?
    [Griffin].   For revenue.
    ...
    Q.           You heard Ajay’s testimony that the amount of money
    that Prexus lost on the remaining two and a half years on
    the PSA and the CSA with [University General] was $2.4
    million.
    [Griffin].   Yes, I did.
    Q.           Okay. That was profit, correct, it’s not revenue?
    [Griffin].   I did factor that.
    Q.           And do you disagree with that?
    [Griffin].   I don’t know the answer. I wouldn’t - - I wouldn’t be
    able to tell you that number.
    B.    This evidence is legally insufficient to support any lost profit
    damages.
    We conclude that this evidence is legally insufficient to support awards of
    lost profit damages to Prexus. As explained above, the plaintiff seeking lost profits
    11
    damages bears the burden of providing a single complete calculation of lost profits,
    which reflects revenue from lost business activity less expenses that would have
    been attributable to that activity. 
    Kellmann, 332 S.W.3d at 684
    . Prexus did not
    provide that calculation here. With respect to revenue, although documentary
    evidence is not required, Mangal’s testimony includes no objective facts, figures,
    or data explaining how he arrived at his $8 million anticipated revenue figure. See
    
    Szczepanik, 883 S.W.2d at 650
    (“There is nothing in the record to show how [the
    appellee] determined the amount of lost profits.”); Holt 
    Atherton, 835 S.W.2d at 84
    (“[T]his testimony is legally insufficient because it does not provide any indication
    of how the Heines determined what their lost profits were.”); see also Glattly v. Air
    Starter Components, Inc., 
    332 S.W.3d 620
    , 635 (Tex. App.—Houston [1st Dist.]
    2011, pet. denied) (holding evidence of lost profits was legally insufficient because
    it did not establish that calculation was based on objective facts, figures, or data).
    Mangal also did not discuss expenses, though he testified that Prexus “lost”
    $2.4 million as a result of appellants’ breach of both the PSA and the CSA. It is
    far from clear that this figure represents lost profits (revenue minus expenses), but
    even if we assume it does, Mangal once again did not provide any objective facts,
    figures, or data explaining how he arrived at that amount. When asked how, he
    said that “[w]e look at the revenue that is lost and so we know the income that is
    lost.” But lost revenue or lost income is not a proper basis for an award of lost
    profit damages.     
    Kellmann, 332 S.W.3d at 684
    .         We therefore hold that the
    testimony recited above does not provide a single complete calculation of Prexus’s
    alleged lost profits.
    The lack of a single complete calculation is further confirmed by the jury
    charge. The jury charge asked two lost profits questions. The first asked: “The
    amount [University General] agreed to pay Prexus for the [PSA] less the expenses
    12
    Prexus saved by not completing the [PSA].” The second lost profits question
    asked: “The amount Ascension agreed to pay Prexus for the [CSA] less the
    expenses Prexus saved by not completing the [CSA].” There were no objections
    lodged to either lost profits question.             In this circumstance, we measure the
    sufficiency of the evidence according to the charge submitted to the jury. Romero
    v. KPH Consol., Inc., 
    166 S.W.3d 212
    , 221 (Tex. 2005); Osterberg v. Peca, 
    12 S.W.3d 31
    , 55 (Tex. 2000).
    The appellate record is devoid of any evidence demonstrating the expenses
    Prexus saved by not completing the PSA or the CSA. Nor is there any evidence
    from which the jury could determine how to apportion Mangal’s figures, which
    addressed “the PSA and the CSA” together, in order to provide the separate
    damage answers for each agreement that the verdict form required. For these
    additional reasons, the evidence is insufficient to establish a single complete
    calculation of lost profits from either the PSA or the CSA. See 
    Kellmann, 332 S.W.3d at 686
    ; Wiese v. Pro Am Serv., Inc., 
    317 S.W.3d 857
    , 863–64 (Tex. App.—
    Houston [14th Dist.] 2010, no pet.).4
    We reject Prexus’s argument that Griffin’s testimony somehow confirmed
    the accuracy of Mangal’s $2.4 million figure as Prexus’s lost profits. Even if we
    accept Griffin’s nebulous comment that he “did factor that” as confirmation he
    4
    On rehearing, Prexus argues a remand is required because evidence of damages that are
    not segregated among claims is more than a scintilla of evidence of segregated damages. But the
    problem we have described above is a failure of proof, not a failure to segregate. In the case
    Prexus cites, the supreme court remanded because the jury had awarded lost profits to all four
    plaintiffs as a single lump sum, and two of the plaintiffs were not entitled to recover. See Minn.
    Mining & Mfg. Co. v. Nishika Ltd., 
    953 S.W.2d 733
    , 738–39 (Tex. 1997). In this case, however,
    the jury charge segregated Prexus’s damages, providing separate answer blanks for the PSA and
    CSA. The problem is that Prexus did not provide legally sufficient evidence of a complete lost
    profits calculation for either contract. Because Prexus’s awards are neither unsegregated nor
    supported by legally sufficient evidence, Nishika does not require a remand. Cf. 
    id. at 739
    (“When supported by legally sufficient evidence, an unsegregated damages award . . . ordinarily
    requires a remand.”).
    13
    believed the $2.4 million figure referred to profit rather than revenue, he went on
    to testify, when asked if he disagreed with that figure, that he did not know the
    answer and could not tell the jury that number. This testimony confirms nothing
    except Griffin’s lack of knowledge on this subject.
    During oral argument, Prexus suggested the $2.4 million number was based
    on the six months the PSA and the CSA were performed prior to appellants’
    breaches. While basing a lost profits calculation on historic performance may be
    acceptable in some circumstances, Mangal provided no testimony connecting his
    $8 million and $2.4 million numbers to Prexus’s actual past performance under the
    PSA and the CSA. See Spring Window Fashions Div., Inc. v. Blind Maker, Inc.,
    
    184 S.W.3d 840
    , 884 (Tex. App.—Austin 2006, pet. granted, judgm’t vacated
    w.r.m.) (stating that while there is no one correct method to calculate lost profits, it
    is not enough to supply pieces of several different methods).
    In an effort to establish a single complete calculation, and relying on the
    Texas Supreme Court’s ERI Consulting opinion, Prexus points to Mangal’s
    testimony that Prexus anticipated it would achieve a 32 percent profit margin if its
    negotiations with the nascent Humble Hospital ever came to fruition. See ERI
    
    Consulting, 318 S.W.3d at 876
    –77. Mangal testified the 32 percent figure was
    based on the prior year’s financials. Even if we assume the number is accurate, it
    was linked only to the profits Prexus estimated it would receive if and when its
    contract with Humble Hospital was performed. There is no evidence in the record,
    from Mangal or any other witness, providing a link between this expected 32
    percent profit margin figure and the profit margin Prexus was earning on its PSA
    with University General or its CSA with Ascension.           In other words, no one
    testified about the profit margin Prexus was earning on the two existing contracts
    at issue here, and there is no evidence that the potential contract with Humble
    14
    Hospital was sufficiently similar to each of those contracts that Prexus would earn
    the same profit margin on all three of them.5                 As a result, we conclude the
    anticipated Humble Hospital profit margin cannot serve as a basis for the required
    single complete calculation of lost profits from the PSA and CSA. See Exel
    Transp. Servs., Inc. v. Aim High Logistics Servs., LLC, 
    323 S.W.3d 224
    , 234 (Tex.
    App.—Dallas 2010, pet. denied) (holding that evidence of lost profits must be
    connected to the lost profits actually alleged to have been lost as a result of the
    defendant’s conduct).
    On rehearing, Prexus argues for the first time that there is sufficient evidence
    linking the contracts, and it cites evidence it did not address in its pre-submission
    brief. Appellate courts generally do not consider arguments raised for the first
    time on rehearing. AVCO Corp. v. Interstate Sw., Ltd., 
    251 S.W.3d 632
    , 676 (Tex.
    App.—Houston [14th Dist.] 2007, pet. denied) (supp. op. on reh’g).6 Nevertheless,
    even these new record citations do not alter our conclusion that Prexus offered no
    evidence linking the contracts.
    Specifically, Prexus now points to testimony that: (1) the Humble Hospital
    pro forma was indicative of the type of pro forma that Mangal reviewed in
    evaluating whether to enter into a project; (2) University General and Humble
    Hospital had some common shareholders; and (3) in creating a pro forma, Griffin
    5
    On rehearing, Prexus argues that its evidence of lost profits is nevertheless sufficient
    under ERI Consulting. But the failure of proof we have identified above concerns an issue that
    was not presented in ERI Consulting. The sole owner of ERI Consulting testified to its profit
    margin on an existing contract with Merico, and the supreme court held this testimony sufficient
    to support an award of lost profit damages on that same contract. ERI 
    Consulting, 318 S.W.3d at 876
    . In this case, however, Prexus is attempting to support its awards of lost profit damages by
    citing the profit margin it anticipated earning on a different potential contract without tying that
    margin to the contracts at issue.
    6
    Moreover, we are not required to make an independent search of a voluminous record
    for evidence supporting a party’s position. See Tex. R. App. P. 38.1(i), 38.2(a); Hakemy Bros.,
    Ltd. v. State Bank & Trust Co., 
    189 S.W.3d 920
    , 927–28 (Tex. App.—Dallas 2006, pet. denied).
    15
    would “find out the volume that [the different physician specialists] could
    potentially bring into a center like that,” would “use the net revenue data that we
    had on other centers,” and “had a whole mechanism to screen to determine the
    expense structures.” This testimony is no evidence that Prexus’s expected profit
    margin on the Humble Hospital contract was the same as its existing profit margin
    on either the University General or the Ascension contracts. Whether Prexus used
    a certain type of pro forma to evaluate a potential project says nothing about
    whether that project’s profitability will be the same as established projects, even if
    the projects have some common shareholders. In addition, Griffin helped create
    the Humble Hospital pro forma, but he did not prepare the final version and did not
    know if the numbers had changed. Nor did he say that the net revenue data he
    used in earlier versions came from the University General and Ascension contracts
    specifically. Yet even if it did, there is no evidence that the physician specialists
    included in the Humble Hospital pro forma had the same profitability as those
    practicing at University General, or that the expense screening mechanism used in
    the pro forma matched the expenses Prexus was incurring on the University
    General and Ascension contracts.       For these additional reasons, the Humble
    Hospital pro forma does not provide sufficient evidence to support the jury’s
    awards of lost profits on the University General and Ascension contracts.
    Finally, we reject Prexus’s argument that we must accept the $8 million and
    $2.4 million figures as conclusive evidence of Prexus’s lost profits because
    appellants had the burden to come forward with contradictory evidence and failed
    to meet that burden. In support of this contention, Prexus once again cites ERI
    
    Consulting. 318 S.W.3d at 877
    n.5. In ERI Consulting, the Supreme Court of
    Texas stated that “the defendant properly bears the burden of providing at least
    some evidence suggesting that an otherwise complete lost profits calculation is in
    16
    fact missing relevant credits.” 
    Id. at 878
    (emphasis added). That is not the
    situation here because we have already held that Prexus did not provide a complete
    lost profits calculation. Because Prexus never met its burden to introduce evidence
    of a single complete calculation of lost profits, the burden never passed to
    appellants to come forward with contradictory evidence.
    For these reasons, we conclude the evidence is legally insufficient to support
    the judgment’s awards of lost profit damages to Prexus. Therefore, we sustain
    appellants’ second issue on appeal.
    III.   The proper remedy is to modify the judgment to delete the lost profit
    damages, not to remand.
    Generally, the proper legal remedy for legal insufficiency of the evidence is
    rendition of judgment for the appellant. Vista Chevrolet, Inc. v. Lewis, 
    709 S.W.2d 176
    , 177 (Tex. 1986). Despite that general rule, Prexus asserts that, at most,
    appellants are entitled to a remand for a new trial. In support of this contention,
    Prexus cites numerous cases for the proposition that when there is legally sufficient
    evidence of some ascertainable amount of damages, but not the amount awarded
    by the jury, a take-nothing judgment is not proper. See, e.g., ERI 
    Consulting, 318 S.W.3d at 880
    . We disagree that we are presented with such a situation. Instead,
    as we have explained above, we have a situation where there is no competent
    evidence establishing any amount of lost profits with reasonable certainty. Cf. 
    id. at 877–78
    (holding remand required if plaintiff’s evidence is legally sufficient “to
    prove a lesser, ascertainable amount of lost profits with reasonable certainty”). In
    that situation, the general rule requires that we render judgment that Prexus take
    nothing on its lost profits claims against appellants. See 
    Kellmann, 332 S.W.3d at 686
    –87.
    17
    CONCLUSION
    Having sustained appellants’ second issue, we modify the final judgment to
    delete (1) the award of $900,000 in lost profits as a result of University General’s
    breach of the PSA, and (2) the award of $1,200,000 in lost profits as a result of
    Ascension’s breach of the CSA. We affirm the judgment as modified.
    /s/    J. Brett Busby
    Justice
    Panel consists of Justices Frost, Boyce, and Busby.
    18