Walter Davidson and William Murry, Individually and D/B/A All All Worxs and Amtel Communications v. Tel West Network Services Corporation ( 2014 )

Affirmed and Memorandum Opinion filed April 29, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00089-CV
WALTER DAVIDSON AND WILLIAM MURRY, INDIVIDUALLY AND D/B/A
ALL ALL WORXS AND AMTEL COMMUNICATIONS, Appellants
V.
TEL WEST NETWORK SERVICES CORPORATION, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2011-61790
MEMORANDUM OPINION
Walter Davidson and William Murry, individually and d/b/a All All Worxs and
Amtel Communications (collectively, “Amtel”), appeal from the trial court’s final
judgment in favor of Tel West Network Services Corporation (“Tel West”). In two
issues, Amtel argues that the trial court erred by granting Tel West’s motion for
summary judgment. We affirm.
BACKGROUND
Amtel sells, installs, and services commercial telephone systems. Amtel operated
under the name Amtel Communications from 1986 through 2006. Amtel merged with
Digital Phone Works in 2006. At that time, Amtel’s carrier “ported”1 Amtel’s telephone
number (713) 977-1000 to Tel West’s predecessor in interest, TelePacific
Communications Co.
Amtel separated from Digital Phone Works in the summer of 2011 and began
operating under the name All All Worx. After the separation, Amtel changed its
telephone carrier to VoiPVoiP. Tel West ported the telephone number to Amtel’s
carrier on July 26, 2011. On August 15, 2011, Tel West ported the telephone number
back because its records did not reflect that Amtel was the owner of the telephone
number. Amtel subsequently sent change of services requests to Tel West for the
telephone number. Tel West ported the telephone number to Amtel’s chosen carrier
again on October 5, 2011. During this nearly two-month period, Amtel was unable to
use its telephone number.
Amtel sued Tel West for breach of contract and negligence on October 30, 2011.
On September 5, 2012, Tel West filed a no-evidence motion for summary judgment.
The trial court granted the motion, and signed a final judgment in favor of Tel West on
October 29, 2012. Amtel filed a motion for reconsideration, which was denied. This
appeal followed.
ANALYSIS
In two issues on appeal, Amtel asserts that the trial court erred in granting Tel
West’s no-evidence summary judgment motion as to Amtel’s breach of contract and
negligence claims.
1
Porting occurs when a user of a telecommunication service retains an existing telephone
number when transferring from one telecommunications carrier to another. See ASAP Paging Inc. v.
Pub. Util. Comm’n of Tex., 213 S.W.3d 380, 403 (Tex. App.—Austin 2006, pet. denied).
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I. Standard of Review
We review a summary judgment de novo. Duerr v. Brown, 262 S.W.3d 63, 68
(Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). When the trial court grants the judgment
without specifying the grounds, we will affirm if any of the grounds presented have
merit. Raynor v. Moores Mach. Shop, LLC, 359 S.W.3d 905, 907 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d
868, 872 (Tex. 2000)).
In a no-evidence summary judgment, the movant represents that there is no
evidence of one or more essential elements of the claims for which the non-movant
bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). We sustain a no-evidence
summary judgment 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 conclusively establishes the opposite of
the vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “Less
than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than
create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc.,
650 S.W.2d 61, 63 (Tex. 1983)). On the other hand, more than a scintilla of evidence
exists when reasonable and fair-minded people could differ in their conclusions based
on the evidence. Id.
To raise a genuine issue of material fact, the evidence must exceed mere
suspicion. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). “Evidence
that is so slight as to make any inference a guess is in legal effect no evidence.” Id. A
party may move for a no-evidence summary judgment after an adequate time for
discovery has passed. Id. (citing Tex. R. Civ. P. 166a(i), and McMahan v. Greenwood,
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108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)).
II. Breach of Contract
In its first issue, Amtel asserts that the trial court erred in granting Tel West’s no-
evidence motion for summary judgment in regards to the issue of breach of contract
because there is evidence of the existence of a contract between the parties.
The essential elements of breach of contract are (1) the existence of a valid
contract; (2) performance or tendered performance by the plaintiff; (3) breach by the
defendant; and (4) damages as a result of the defendant’s breach. West v. Triple B
Servs., LLP, 264 S.W.3d 440, 446 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
The elements of a valid contract are (1) an offer; (2) acceptance in strict compliance
with the terms of an offer; (3) meeting of the minds; (4) a communication that each
party consented to the terms of the contract; (5) execution and delivery of the contract
with intent it become mutual and binding on both parties; and (6) consideration. Expro
Americas, LLC v. Sanguine Gas Exploration, LLC, 351 S.W.3d 915, 920 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied).
As evidence of the existence of a valid contract, Amtel cites to an affidavit signed
by Amtel owner Walter Davidson and an email from Tel West to Davidson. The
relevant portion of the affidavit states:
When we merged with Digital Phone Works, Digital ported our telephone
number over to the predecessor in interest to [Tel West]. However, at all
times the telephone number was owned and held under the name “Amtel
Communications.”
When we separated from Digital Phone Works, all parties involved agreed
that we would own all rights to our well-established telephone number of
713-977-1000. We decided to change our telephone service provider to a
company named VoiPVoiP. Defendant was informed of this fact through a
Letter of Authorization (“LOA”) which we provided to VoiPVoiP[,] and
[Tel West] ported this number back to us on July 27, 2011. Attached as
Exhibit “8” is a series of communications between myself and VoiPVoiP
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which proves that this number was ported to us via VoiPVoiP on July 27,
2011. However, Defendant again ported this number back to Digital Phone
Works on August 15, 2011 and refused to return the telephone number to
us, despite numerous requests on our behalf. Defendant returned this
telephone number to us on October 5, 2011; after demand was made by our
attorney.
The email from Tel West to Davidson states:
Thank you for being patient with me on the phone while we worked with
Level 3 to activate the port of this line. I have confirmed that Level 3 has
ownership of the line as of 5:20 p.m. tonight. At this time my test calls to
713-977-1000 are not completing. My assumption is that your new carrier
needs to complete translations to their equipment so that calls can complete
to you correctly. I will continue to place test calls until this is restored with
your carrier.
I appreciate you giving us the opportunity to resolve this issue and I
apologize for the innconvenience it caused. Please let me know if there is
anything else we can do to make this transition smooth. I do hope that you
consider Tel West in the future. I would be happy to work with you on a
direct Tel West account.
Amtel argues that the affidavit and email are explicit evidence that Tel West was
providing services to it, and therefore, a contract existed between the parties.
We conclude that Amtel did not produce evidence that a written or oral contract
existed between the parties. The affidavit establishes that Tel West ported the telephone
number back from Amtel’s carrier on August 15, 2011, and again to Amtel’s carrier on
October 5, 2011. The affidavit does not discuss an offer, the terms of an offer, an
acceptance of an offer, or whether valid consideration was provided. Similarly, the
email establishes that Tel West ported the telephone number to Amtel’s carrier on
October 5, 2011. The email does not establish that Tel West assisted Amtel because a
contract existed between the parties. Further, Amtel did not produce an agreement or
any other evidence that established agreed terms between the parties. To conclude that
a contract existed based on the fact that Tel West ported the telephone number to
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Amtel’s carrier on October 5, 2011, would be an impermissible guess. See Ford Motor
Co., 135 S.W.3d at 601 (“Evidence that is so slight as to make any inference a guess is
in legal effect no evidence.”).
Because Amtel failed to establish the existence of an offer, the terms of an offer,
an acceptance of an offer, or whether valid consideration was provided, we conclude
that Amtel failed to establish the existence of a written or oral contract between the
parties. See Expro Americas LLC, 351 S.W.3d at 920; see also Williams v. Unifund
CCR Partners Assignee of Citibank, 264 S.W.3d 231, 235 (Tex. App.—Houston [1st
Dist.] 2008, no pet.) (creditor failed to establish existence of a contract when it failed to
produce “the actual agreement or any other document that established the agreed
terms”). Thus, Tel West is entitled to summary judgment on Amtel’s breach of contract
claim. See Triple B Servs., LLP, 264 S.W.3d at 446. Accordingly, we overrule Amtel’s
first issue.
III. Negligence
In its second issue, Amtel asserts that the trial court erred in granting Tel West’s
no-evidence motion for summary judgment in regards to negligence because Tel West
breached a duty of reasonable care owed to Amtel.
The elements of a negligence action are (1) a legal duty owed to the plaintiff; (2)
a breach of that duty by the defendant; and (3) damages proximately caused by the
breach. Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013). Proximate
cause has two elements: cause in fact and foreseeability. Id. “These elements cannot be
satisfied by mere conjecture, guess, or speculation.” IHS Cedars Treatment Ctr. of
DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004).
Amtel argues that it suffered lost profits as a result of Tel West’s negligence.
“Lost profits are damages for the loss of net income to a business measured by
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reasonable certainty.” Miga v. Jensen, 96 S.W.3d 207, 213 (Tex. 2002); Kellmann v.
Workstation Integrations, Inc., 332 S.W.3d 679, 684 (Tex. App.—Houston [14th Dist.]
2010, no pet.). The loss need not be susceptible to exact calculation in order for a
plaintiff to recover lost profits. ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d
867, 876 (Tex. 2010). Nevertheless, an injured party “must do more than show that it
suffered some lost profits.” Id. “The amount of loss must be shown by competent
evidence with reasonable certainty.” Id. Determining what constitutes reasonably
certain evidence is fact intensive. 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.” Id.
As evidence of lost profits, Amtel cites to the following portion of Davidson’s
affidavit:
However, [Tel West] again ported this number back to Digital Phone
Works on August 15, 2011 and refused to return the telephone number to
us, despite numerous requests on our behalf. [Tel West] returned this
telephone number to us on October 5, 2011, after demand was made by our
attorney. During this nearly two-month period of time, we were not able to
receive calls for equipment, installation and service on our well-established
telephone number, and Digital Phone Works either handled the call
themselves or let the customers find other avenues to find equipment and
services. We lost a substantial amount of business and profits during this
time.
Amtel fails to provide any facts, figures, or data to support its assertion that it suffered
lost business and resulting lost profits as a result of Tel West’s asserted negligence. In
the absence of facts, figures, or data, the conclusory statement that Amtel “lost a
substantial amount of business and profits” does not constitute summary judgment
evidence of lost profits. See CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied) (“A conclusory statement in an affidavit
unsupported by facts is insufficient to defeat summary judgment.”); cf. James L. Gang
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& Assocs., Inc. v. Abbott Labs., Inc., 198 S.W.3d 434, 443 (Tex. App.—Dallas 2006, no
pet.) (“[M]ere allegations of expenses without objective facts, figures, or data does not
amount to any evidence of out-of-pocket damages.”). Accordingly, we overrule
Amtel’s second issue.
CONCLUSION
Having overruled Amtel’s first and second issues, we affirm the trial court’s
judgment.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Christopher, and Brown.
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