CBS Outdoor, Inc. v. Larry E. Potter ( 2013 )

Opinion issued January 24, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00650-CV
———————————
CBS OUTDOOR, INC., Appellant
V.
LARRY E. POTTER, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2009-54488
MEMORANDUM OPINION
CBS Outdoor, Inc. appeals the trial court’s rendition of judgment after a jury
trial on Larry E. Potter’s claim of breach of contract against CBS Outdoor. In
eight issues, CBS Outdoor argues (1) the trial court erred in granting Potter’s
motion for summary judgment on liability and denying its cross-motion for
summary judgment claiming that Potter’s breach of contract claim was barred by
res judicata, (2) an intervening contract controlled the parties’ relationship as a
matter of law, (3) the evidence was legally and factually insufficient to support the
jury’s award of lost profits, (4) Potter failed to mitigate his damages, (5) Potter’s
expert witness’s testimony should have been excluded because the expert
improperly communicated with CBS Outdoor during the lawsuit, and (6) the trial
court improperly refused CBS Outdoor’s proposed jury questions and instructions.
We affirm.
Background
In August 1, 1995, CBS Outdoor and Potter executed three identical ground
leases.1 The leases were for a ten-year term. What happened with the billboards at
the end of the ten-year term was the subject of much dispute between the parties,
finally leading to litigation. Potter brought suit in 2005, ultimately seeking a
declaratory judgment of his and CBS Outdoor’s rights under the original leases.
The trial court declared that CBS Outdoor had exercised its right of first refusal to
1
The leases were, in fact, executed by Viacom Outdoor, Inc. Viacom subsequently
changed its name to National Advertising Company. More recently, the company
has changed its name to CBS Outdoor, Inc. The parties agreed in a Rule 11
agreement at trial that the company would be regarded as CBS Outdoor, Inc.
2
re-lease the land and that Potter had the right to purchase the billboards from CBS
Outdoor. CBS Outdoor appealed both determinations. We affirmed.2
In December 2006, while the first suit was pending, the parties agreed to
enter into three identical term leases for the billboards until final resolution of the
dispute. Under the term leases, the parties agreed that, until the final resolution of
the first suit, CBS Outdoor could use the billboards and pay rental income in
accordance with the original leases. The term leases also provided, however, that
adoption of the terms of the original leases “shall not be construed to revive [the
original leases] or waive any parties’ rights with respect to” the original leases.
Following the appeal of the first suit, the parties began to dispute how the
value of the billboards would be calculated for the sale to Potter. As a result,
Potter filed a motion to enforce the judgment in the first suit. The trial court again
found in favor of Potter, ordering the sale of the billboards in compliance with the
court’s construction of the contract. The sales were completed May 2009.
The next month, Potter presented a claim for lost profits to CBS Outdoor.
Potter brought the current suit in September 2009, claiming breach of contract and
seeking lost profits from the time that CBS Outdoor had become obligated to sell
the billboards to the time that it actually sold the billboards, a period of almost four
years. Potter subsequently filed a motion for partial summary judgment, claiming
2
See Nat’l Adver. Co. v. Potter, No. 01-06-01042-CV, 2008 WL 920338 (Tex.
App.—Houston [1st Dist.] 2008, pet. denied) (mem. op.).
3
that it was entitled to summary judgment on the matter of liability based on the
trial court’s declarations in the first suit. CBS Outdoor filed a cross-motion for
summary judgment, claiming that Potter’s breach of contract was barred by res
judicata. The trial court granted Potter’s motion for partial summary judgment and
denied CBS Outdoor’s motion for summary judgment.
The parties went to trial on damages on February 21, 2011. Potter testified
about his estimated business costs during the time CBS Outdoor retained control of
the billboards after the original leases terminated. Potter also presented Michael
Albrecht as his expert on the amount of Potter’s lost profits. Albrecht is the
president of Freed Advertising, a company that creates advertisements for clients
and works with media outlets, such as CBS Outdoor, to place the advertisements.
He has worked in the advertising business for 30 years.
Albrecht testified about the maximum amount Potter could have received in
revenue from the billboards during the time in question, from 2005 to 2009.
Albrecht used certain sales from CBS Outdoor’s records on actual advertising sold
for the periods available. To determine the value for 2010, he checked on prices
with a couple of billboard companies for similar billboards in the area. For time
periods in between without sales, Albrecht took averages from the available data.
Albrecht used those figures to determine the maximum ideal amount
someone could realize from the billboards. He then made adjustments to this
4
amount to determine a reasonable maximum amount that Potter could have earned.
His first adjustments were for the estimated percentage of days that the boards
would not generate revenue for various reasons, such as client delays,
cancellations, and printing. For the billboard faces that were visible from the other
side of the highway, Albrecht reduced the potential revenue another 10 percent.
Based on these deductions, Albrecht determined that the maximum reasonable
revenue for the billboards for the relevant period was $1,450,829.
During his testimony, Albrecht testified that he had obtained data from CBS
Outdoor on their rates in 2010 for billboards. This testimony arose when Potter’s
attorney was eliciting testimony in order to introduce the relevant document into
evidence. The substance of the document was never discussed. On voir dire,
Albrecht admitted that he had obtained the document from CBS Outdoor during
the course of litigation and that he obtained it for the purpose of litigation. CBS
Outdoor argued the Albrecht had committed discovery abuse and asked the trial
court to strike him as a witness and to instruct the jury to disregard all of his
previous testimony. The trial court denied the motion, but prohibited Albrecht
“from testifying directly or indirectly about any . . . direct contact that he had with
[CBS Outdoor] or anybody acting on [its] behalf or disclosing the source of any
information that he derived from” CBS Outdoor. The document was not admitted
into evidence.
5
CBS Outdoor presented the testimony of two employees and two experts to
counter Potter’s and Albrecht’s testimony. Their main expert on valuation was
Allen Brivic, an owner of a media buying service with almost 40 years of
experience in the advertising business. Brivic did not offer a competing
calculation of Potter’s lost profits. Instead, he testified to multiple ways that he
found Albrecht’s opinions to be unreasonable. Similarly, CBS Outdoor presented
another expert, James Mandel. Mandel is a professor at Rice University and a
consultant in financial strategy. Like Brivic, Mandel testified to what he believed
to be flaws in Albrecht’s testimony.
The jury determined that CBS Outdoor owed Potter $692,699 in lost profits.
CBS Outdoor subsequently filed a motion for judgment notwithstanding the
verdict, arguing that the term leases signed by the parties after the termination of
the first leases controlled the rights and obligations of the parties and, accordingly,
that Potter could not recover lost profits. The trial court denied the motion. CBS
Outdoor appealed.
Res Judicata
In its first issue, CBS Outdoor argues that the trial court erred in granting
Potter’s motion for summary judgment on liability and denying its cross-motion
for summary judgment claiming that Potter’s breach of contract claim was barred
by res judicata.
6
A. Standard of Review
The summary-judgment movant must conclusively establish its right to
judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.
1986). Because summary judgment is a question of law, we review a trial court’s
summary judgment decision de novo. Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
To prevail on a “traditional” summary-judgment motion asserted under Rule
166a(c), a movant must prove that there is no genuine issue regarding any material
fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P.
166a(c); Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex.
2004). A matter is conclusively established if reasonable people could not differ as
to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168
S.W.3d 802, 816 (Tex. 2005).
When a party moves for summary judgment on a claim for which it bears the
burden of proof, it must show that it is entitled to prevail on each element of its
cause of action. See Parker v. Dodge, 98 S.W.3d 297, 299 (Tex. App.—Houston
[1st Dist.] 2003, no pet.). The party meets this burden if it produces evidence that
would be sufficient to support an instructed verdict at trial. Id.
To determine if there is a fact issue, we review the evidence in the light most
favorable to the nonmovant, crediting favorable evidence if reasonable jurors could
7
do so, and disregarding contrary evidence unless reasonable jurors could not. See
Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827). We
indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
When, as here, the parties file cross-motions for summary judgment on
overlapping issues, and the trial court grants one motion and denies the other, we
review the summary judgment evidence supporting both motions and “render the
judgment that the trial court should have rendered.” FM Props. Operating Co. v.
City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
B. Analysis
CBS Outdoor’s argument for why the trial court should have granted its
motion for summary judgment and denied Potter’s motion for partial summary
judgment is the same: Potter’s breach of contract claim was barred by res judicata.
Res judicata is an affirmative defense. TEX. R. CIV. P. 94. Accordingly, CBS
Outdoor bore the burden of establishing as a matter of law that res judicata applied.
See Parker, 98 S.W.3d at 299. The elements for establishing res judicata, or claim
preclusion, are “(1) a prior final judgment on the merits by a court of competent
jurisdiction; (2) identity of parties or those in privity with them; and (3) a second
action based on the same claims as were raised or could have been raised in the
first action.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).
8
An exception to the application of res judicata is when the original suit
sought only a declaratory judgment. See Valley Oil Co. v. City of Garland, 499
S.W.2d 333, 335 (Tex. Civ. App.—Dallas 1973, writ ref’d n.r.e.). In this situation,
the first judgment provides only declaratory relief and does not bar a subsequent
proceeding for coercive relief stemming from the declaratory judgment. See id.;
TEX. CIV. PRAC. & REM. CODE ANN. § 37.011 (Vernon 2008) (providing “[f]urther
relief based on a declaratory judgment or decree may be granted whenever
necessary or proper”).
The rationale for this apparent departure from the usual rule of res
judicata is that the losing party in a declaratory judgment action can
normally be expected to recognize the rights declared by the judgment
and act accordingly, but that if he fails to do so, the court should have
ample power to enforce the judgment by subsequent coercive orders,
whether or not such relief was sought in the original action.
Valley Oil, 499 S.W.2d at 336.
Under this exception, the only matters excluded from subsequent litigation
are what was actually considered and ruled on in the original action. See Alsheikh
v. Arabian Nat’l Shipping Corp., 01-08-00007-CV, 2009 WL 884795, at *2 (Tex.
App.—Houston [1st Dist.] 2009, no pet.) (mem. op.). In other words, while issue
preclusion (collateral estoppel) applies to prior declaratory judgment actions, claim
preclusion (res judicata) does not. See id.; Barr v. Resolution Trust Corp. ex rel.
Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992) (distinguishing between issue
9
preclusion and claim preclusion and defining issue preclusion as preventing
relitigation of particular issues already resolved in prior suit).
CBS Outdoor argued in its motion for summary judgment that, although
Potter “nominally styled” his petition in the first lawsuit as a declaratory judgment
action, “it was merely a straightforward breach of contract suit.” We disagree.
“A person interested under a . . . written contract. . . may have determined
any question of construction or validity arising under the . . . contract . . . and
obtain a declaration of rights, status, or other legal relations thereunder.” TEX. CIV.
PRAC. & REM. CODE ANN. § 37.004(a) (Vernon 2008). “A contract may be
construed either before or after there has been a breach.” Id. § 37.004(b).
Accordingly, a person can bring a declaratory judgment action following a breach
of contract and have the rights under the contract declared. While such an action
has much in common with a breach of contract action, they are distinct from each
other. Specifically, a declaratory judgment action has the effect of determining
liability without awarding damages, while a breach of contract action seeks both a
determination of liability and an award of damages. See Intercontinental Group
P’ship v. K.B. Home Lone Star, L.P., 295 S.W.3d 650, 660–61 (Tex. 2009).
CBS Outdoor argued in its motion that Potter sought damages in the first
lawsuit. In his original petition, Potter’s prayer for relief included “[a]n order
awarding Larry E. Potter the fair market value for usage of the billboards beyond
10
the contractual period of the Lease Agreement.” Potter subsequently amended his
petition, however, and that request was not in his live pleading. While he did
assert in his live pleading that he was suffering damages in lost profits as a result
of CBS Outdoor’s refusal to sell the billboards to him, Potter never sought any
relief related to this assertion. Instead, he sought a “declaration that Mr. Potter is
entitled to purchase the entire sign structures and permits” from CBS Outdoor.
Moreover, Potter expressly stated in his petition that he was only seeking a
declaratory judgment on his rights under the contract.
The general rule is that an amended pleading supersedes an earlier pleading.
TEX. R. CIV. P. 65; Elliott v. Methodist Hosp., 54 S.W.3d 789, 793 (Tex. App.—
Houston [1st Dist.] 2001, pet. denied). In that case, any claims asserted in the
earlier petition are voluntarily dismissed. FKM P’ship, Ltd. v. Bd. of Regents of
Univ. of Hous. Sys., 255 S.W.3d 619, 634 (Tex. 2008). Such a dismissal of claims
or parties is without prejudice. Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972).
When a claim is dismissed without prejudice, res judicata does not apply. Sahagun
v. Ibarra, 90 S.W.3d 860, 863 (Tex. App.—San Antonio 2002, no pet.).
Accordingly, the request for relief in the form of damages in the original petition
has no res judicata effect since it was dismissed without prejudice. We hold that
Potter did not assert a breach of contract claim in his live petition in the first suit,
nor did he seek damages related to such a claim.
11
On appeal, CBS Outdoor argues that a party seeking supplemental relief
related to the declaratory judgment action must show that the relief “is necessary
and proper to enforce the declaratory judgment.” This is not quite an accurate
statement of the law. “Further relief based on a declaratory judgment or decree
may be granted whenever necessary or proper.” TEX. CIV. PRAC. & REM. CODE
ANN. § 37.011 (emphasis added). “Necessary or proper” is disjunctive, not
conjunctive. Additionally, the further relief available is not limited only to actions
necessary to enforce the judgment. Instead, further relief is available for anything
that “serve[s] to effectuate the underlying judgment.” State v. Anderson Courier
Service, 222 S.W.3d 62, 65 (Tex. App.—Austin 2005, pet. denied).
The trial court declared in the first suit that, under the terms of the contracts,
CBS Outdoor was required to transfer ownership of the billboards to Potter. Potter
alleged in the most recent suit that CBS Outdoor breached the contracts by not
transferring ownership to Potter at the time required by the contracts. He sought
damages for the lost revenue of the billboards from the point the billboards should
have been transferred to the point when the billboards were actually transferred.
This relief serves to effectuate the underlying judgment by providing Potter with
damages he suffered as a result of CBS Outdoor’s failure to carry out its
contractual obligation declared in the first suit. By the same token, it is proper
further relief based on the declaratory judgment.
12
CBS Outdoor argues that Anderson Courier establishes that Potter could not
recover under section 37.011. In Anderson Courier, the plaintiff challenged the
constitutionality of a statute under the Declaratory Judgment Act. Id. at 64. The
plaintiff sought attorneys’ fees in addition to its request for a declaratory judgment.
Id. The trial court upheld the constitutionality of the statute, and the plaintiff
appealed. Id. The court of appeals reversed and rendered. Id. The plaintiff did
not ask the appellate court to reverse for attorneys’ fees or render attorneys’ fees.
Id.
After the Texas Supreme Court denied the petition for discretionary review,
the plaintiff filed a motion for supplemental relief under 37.011, seeking the
attorneys’ fees allowed under the Declaratory Judgment Act. Id. The trial court
awarded the fees, and the matter was appealed. Id. The appellate court reversed
the award. Id. at 67–68. It noted that 37.011 allows “further relief” that is
“necessary or proper.” See id. at 66. As a result, any further “‘relief sought must
be “additional relief” arising out of the issues resolved by the prior declaratory
judgment.’” Id. (quoting Lakeside Realty, Inc. v. Life Scape Homeowners Ass’n,
202 S.W.3d 186, 190 (Tex. App.—Tyler 2005, no pet.)). The court then reasoned
that an award of attorneys’ fees allowed under the declaratory judgment act
“cannot be construed as ‘in addition’ to that judgment. Attorneys’ fees would have
13
been part and parcel of the initial declaratory judgment action, not supplemental
relief.” Id.
The distinction here is apparent. Potter’s subsequent suit did not involve a
request for attorney’s fees permissible under the Declaratory Judgment Act.
Instead, he sought breach of contract damages from CBS Outdoor’s failure to sell
the billboards when it was obligated to do so. As we have held above, this is
proper further relief based on the declaratory judgment. To construe Anderson
Courier as standing for the proposition that all claims for relief—as opposed to just
those claims for relief specifically provided for in the Declaratory Judgment Act—
must be brought at the same time the declaratory judgment action is brought would
eviscerate the exception that Anderson Courier recognizes exists. See id.
Finally, CBS Outdoor argues that section 37.011 only applies when a case is
remanded for further proceedings after an appeal. This is incorrect. When a case
is remanded for further proceedings, res judicata does not apply at all because there
is no second action. Jay Petroleum, L.L.C. v. EOG Resources, Inc., 332 S.W.3d
534, 540 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Further relief sought
under section 37.011 is not limited to claims brought in the same cause. Valley
Oil, 499 S.W.2d at 336. Instead, it “may be sought in the same proceeding or in a
later proceeding.” Lakeside Realty, 202 S.W.3d at 191.
14
We hold that Potter’s breach of contract claim is not barred by res judicata.
Accordingly, we hold the trial court did not err in denying CBS Outdoor’s motion
for summary judgment and granting Potter’s motion for partial summary judgment
on liability. We overrule CBS Outdoor’s first issue.
Effect of Term Leases
In its second issue, CBS Outdoor argues the trial court erred by denying
another motion for summary judgment and a motion for judgment notwithstanding
the verdict based on the same argument: the term leases signed by the parties after
the termination of the first leases controlled the rights and obligations of the
parties. “After a trial on the merits, . . . the denial of a motion for summary
judgment may not be reviewed on appeal.” Tricon Tool & Supply, Inc. v.
Thumann, 226 S.W.3d 494, 509 (Tex. App.—Houston [1st Dist.] 2006, pet.
denied). Accordingly, we only review the denial of the motion for judgment
notwithstanding the verdict.
A. Standard of Review
A trial court may disregard a jury’s findings and grant a motion for judgment
notwithstanding the verdict only when a directed verdict would have been proper.
See TEX. R. CIV. P. 301; Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d
392, 394 (Tex. 1991); B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 15 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). We review challenges to a trial
15
court’s ruling on a motion for JNOV under the same legal-sufficiency test applied
to appellate no-evidence challenges. See Tanner v. Nationwide Mut. Fire Ins. Co.,
289 S.W.3d 828, 830 (Tex. 2009); City of Keller, 168 S.W.3d at 822–23, 827.
Applying that standard, we consider the evidence in the light most favorable to the
verdict and indulge every reasonable inference that would support it. City of
Keller, 168 S.W.3d at 822. We credit favorable evidence if reasonable jurors
could, and disregard contrary evidence unless reasonable jurors could not. Tanner,
289 S.W.3d at 830. We also must be cognizant that, “[e]ven though the evidence
is viewed in the light most favorable to the verdict, it cannot be considered in
isolated bits and pieces divorced from its surroundings; it must be viewed in its
proper context with other evidence.” AutoZone, Inc. v. Reyes, 272 S.W.3d 588,
592 (Tex. 2008) (citing City of Keller, 168 S.W.3d at 827) .
If more than a scintilla of probative evidence supports the finding, the legal
sufficiency challenge fails. Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,
136 S.W.3d 227, 233 (Tex. 2004). More than a scintilla of evidence exists when
the evidence “rises to a level that would enable reasonable and fair-minded people
to differ in their conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.
1994). In contrast, evidence that creates no more than “a mere surmise or
suspicion of its existence” is only a scintilla and, thus, no evidence. Ford Motor
16
Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem,
Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
B. Analysis
In its motion for judgment notwithstanding the verdict, CBS Outdoor
argued, “Even if the original leases were breached . . . the alleged breach is
immaterial because the Term Leases controlled the rights between the parties from
the expiration of the [original leases] until the termination of the first lawsuit.”
CBS Outdoor raises the same argument on appeal. While we agree that the term
leases controlled the rights of the parties during the first lawsuit, we disagree that
they rendered any breach of the original leases immaterial.
During the course of the first suit, the parties entered into term leases for
each of the billboards. Under the term leases, the parties agreed that, until the final
resolution of the first suit, CBS Outdoor could use the billboards and pay rental
income in accordance with the original leases. The term leases also provided,
however, that adoption of the terms of the original leases “shall not be construed to
revive [the original leases] or waive any parties’ rights with respect to” the original
leases.
The trial court declared in the first suit that, under the terms of the contracts,
CBS Outdoor was required to transfer ownership of the billboards to Potter. The
transfer of ownership of the billboards was a right vested in Potter. The term
17
leases expressly stated that they did not waive any rights with respect to the
original lease. The trial court determined in the latest suit that CBS Outdoor’s
failure to transfer ownership of the billboards was a breach of the original leases,
and the jury determined the damages. The term leases expressly provide that the
adoption of the terms of the original leases would not waive any rights under the
original leases. CBS Outdoor does not cite to any other portion of the term leases
that did, in fact, waive those rights.
Instead, CBS Outdoor argues that this provision in the term leases could not
have preserved any right to profits for Potter because the original leases did not
“confer profits on Potter.” This argument fundamentally misconceives the breach
CBS Outdoor has been found to have committed. Under the terms of the original
leases, CBS Outdoor was required to transfer ownership of the billboards to Potter
after the original leases terminated. Accordingly, if CBS Outdoor had not
breached the leases, Potter would have owned the billboards, including the rights
to all profits. It is immaterial, then, who had the rights to the profits during the
term of the original leases. By failing to transfer ownership of the billboards to
Potter upon the termination of the original leases, CBS Outdoor breached the
original leases and prevented Potter from obtaining profits from use of the
billboards. These are the damages for which Potter sought recovery in the latest
suit.
18
We overrule CBS Outdoor’s second issue.
Expert Witness Sanctions
In its sixth issue, CBS Outdoor argues that the trial court should have
excluded Potter’s expert witness because the witness improperly communicated
with CBS Outdoor.
A. Standard of Review
We review a trial court’s decision to impose sanctions under an abuse of
discretion standard. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). A trial court
abuses its discretion when it acts in an arbitrary or unreasonable manner without
reference to guiding rules and principles. Garcia v. Martinez, 988 S.W.2d 219,
222 (Tex. 1999). When reviewing matters committed to the trial court’s discretion,
we may not substitute our own judgment for that of the trial court. Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its
discretion merely because it decides a discretionary matter differently than an
appellate court would in a similar circumstance. Gray v. CHCA Bayshore L.P.,
189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
B. Analysis
During trial, Potter’s expert witness on lost revenue, Albrecht, testified that
he had obtained data from CBS Outdoor on their rates in 2010 for billboards. This
testimony arose when Potter’s attorney was eliciting testimony in order to
19
introduce the relevant document into evidence. The substance of the document
was never discussed. On voir dire, Albrecht admitted that he had obtained the
document from CBS Outdoor during the course of litigation and that he obtained it
for the purpose of litigation. CBS Outdoor argued the Albrecht had committed
discovery abuse and asked the trial court to strike him as a witness and to instruct
the jury to disregard all of his previous testimony. The trial court denied the
motion, but prohibited Albrecht “from testifying directly or indirectly about any
. . . direct contact that he had with [CBS Outdoor] or anybody acting on [its] behalf
or disclosing the source of any information that he derived from” CBS Outdoor.
The document was not admitted into evidence.
CBS Outdoor relies on Rule 4.02(b) of the Texas Disciplinary Rules of
Professional Conduct and Aguilar to establish that Albrecht’s communication with
CBS Outdoor was a sanctionable discovery violation. See Tex. Disciplinary Rules
Prof’l Conduct R. 4.02(b), reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. G,
app. A (Vernon 2005) (Tex. State Bar R., art. X, § 9); Aguilar v. Trujillo, 162
S.W.3d 839, 848 (Tex. App.—El Paso 2005, pet. denied). Rule 4.02(b) prohibits
an attorney representing a client from communicating without consent about the
subject of the representation with someone retained by another lawyer involved in
the subject of the representation. Tex. Disciplinary Rules Prof’l Conduct R.
4.02(b).
20
CBS Outdoor recognizes that this rule applies to retained attorneys, but
argues the principle should be the same in prohibiting a retained expert from
contacting an opposing party who is represented by counsel. Assuming without
deciding that this is correct, we hold that CBS Outdoor has failed to establish that
this violation should have resulted in a complete exclusion of Potter’s sole witness
on lost revenue.
The authority for discovery sanctions derives from Rule 215.2 of the Texas
Rules of Civil Procedure. TEX. R. CIV. P. 215.2. Central to this rule is the
requirement that the sanction must be just. TEX. R. CIV. P. 215.2(b); see also
TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
“This means that a just sanction must be directed against the abuse and toward
remedying the prejudice caused the innocent party.” Id. Similarly, “[a] sanction
imposed for discovery abuse should be no more severe than necessary to satisfy its
legitimate purposes. It follows that courts must consider the availability of less
stringent sanctions and whether such lesser sanctions would fully promote
compliance.” Id.
What CBS Outdoor sought from the trial court and seeks again on appeal
amounts to a death penalty sanction. Striking Albrecht completely as a witness
would have prevented Potter from presenting any evidence on the very thing he
was seeking and that the trial court had already determined he was entitled to: lost
21
profits. “The imposition of very severe sanctions is limited, not only by these
standards, but by constitutional due process.” Id. “So, although punishment,
deterrence, and securing compliance with our discovery rules continue to be valid
reasons to impose sanctions, these considerations alone cannot justify a trial by
sanction.” Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992).
Instead, “[d]iscovery sanctions cannot be used to adjudicate the merits of a party’s
claims or defenses unless a party’s hindrance of the discovery process justifies a
presumption that its claims or defenses lack merit.” TransAmerican, 811 S.W.2d
at 918.
Albrecht contacted CBS Outdoor one time and, in doing so, obtained
information that CBS Outdoor was readily making available to anyone interested
in leasing a billboard. While the better decision would have been to obtain this
information through the formal discovery process, CBS Outdoor has failed to
present any evidence that this alleged discovery violation justified a presumption
that Potter’s claims lacked merit. Accordingly, we hold that the trial court did not
abuse its discretion by denying CBS Outdoor’s motion to completely exclude
Albrecht from testifying.
We overrule CBS Outdoor’s sixth issue.
22
Failure to Mitigate
In its fourth issue, CBS Outdoor argues that the evidence establishes as a
matter of law that Potter failed to mitigate his damages.
A. Standard of Review
Failure to mitigate is an affirmative defense. Austin Hill Country Realty,
Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 299 (Tex. 1997). When a party
attacks the legal sufficiency of an adverse finding on an issue on which he has the
burden of proof, he must demonstrate on appeal that the evidence establishes, as a
matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46
S.W.3d 237, 241 (Tex. 2001). In reviewing a “matter of law” challenge, the
reviewing court must first examine the record for evidence that supports the
finding, while ignoring all evidence to the contrary. Id. If there is no evidence to
support the finding, the reviewing court will then examine the entire record to
determine if the contrary proposition is established as a matter of law. Id. The
point of error should be sustained only if the contrary proposition is conclusively
established. Id.
B. Analysis
CBS Outdoor asserts without authority that Potter could have executed on a
judgment that only declared Potter’s rights under the original leases. Even
23
assuming without deciding that this is correct, we hold that CBS Outdoor failed to
carry its burden.
A defendant asserting failure to mitigate at trial must establish that the
plaintiff failed to mitigate and the amount by which the plaintiff could have
reduced its damages. See Landry’s Seafood House-Addison, Inc. v. Snadon, 233
S.W.3d 430, 436 (Tex. App.—Dallas 2007, pet. denied); Austin Hill Country
Realty, 948 S.W.2d at 299 (holding “landlord’s failure to use reasonable efforts to
mitigate damages bars the landlord’s recovery against the breaching tenant only to
the extent that damages reasonably could have been avoided” (emphasis added)).
“Thus, where a defendant proves failure to mitigate but not the amount of damages
that could have been avoided, it is not entitled to any reduction in damages.” Cole
Chem. & Distrib., Inc. v. Gowing, 228 S.W.3d 684, 688 (Tex. App.—Houston
[14th Dist.] 2005, no pet.).
While it did present some evidence that Potter did not attempt to execute on
the declaratory judgment while it was on appeal, CBS Outdoor presented no
evidence on the amount of damages that could have been avoided. Accordingly,
we hold that CBS Outdoor has failed to establish as a matter of law that is met its
burden on its affirmative defense of failure to mitigate. We overrule CBS
Outdoor’s fourth issue.
24
Legal and Factual Sufficiency
CBS Outdoor identifies its fifth issue as an argument that the trial court
should have excluded Potter’s expert witness because he was unqualified to testify
as an expert. Potter correctly argues that CBS Outdoor waived any challenge to
Albrecht qualifications because it failed to raise this issue at trial. See Nissan
Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 143–44 (Tex. 2004) (holding
complaint that expert was not qualified to testify was not preserved by failing to
raise it before the trial court); TEX. R. APP. P. 33.1(a)(1) (requiring complaint to be
made to trial court in order to present complaint on appeal). Nevertheless, the
body of CBS Outdoor’s fifth issue complains of the sufficiency of Albrecht’s
testimony, not his qualifications to testify. Accordingly, we review this issue as a
challenge to the legal and factual sufficiency of the evidence. See Sterner v.
Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989) (holding appellate courts
must construe issues on appeal liberally).
In its third issue, CBS Outdoor argues there was legally and factually
insufficient evidence to support the jury’s award of lost profits. In its seventh
issue, CBS Outdoor argues the jury’s damage award was unsupported by the
evidence.
25
A. Standard of Review
“The final test for legal sufficiency must always be whether the evidence at
trial would enable reasonable and fair-minded people to reach the verdict under
review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). “[L]egal-
sufficiency review in the proper light must credit favorable evidence if reasonable
[fact finders] could, and disregard contrary evidence unless reasonable [fact
finders] could not.” Id. “If the evidence . . . would enable reasonable and fair-
minded people to differ in their conclusions, then [fact finders] must be allowed to
do so.” Id. at 822. “A reviewing court cannot substitute its judgment for that of
the trier-of-fact, so long as the evidence falls within this zone of reasonable
disagreement.” Id. Although the reviewing court must consider evidence in the
light most favorable to the verdict, and indulge every reasonable inference that
would support it, if the evidence allows only one inference, neither fact finder nor
the reviewing court may disregard it. Id.
To determine whether the evidence is factually sufficient to support a
finding, an appellate court considers and weighs all evidence that was before the
trial court. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When an appellant
attacks the factual sufficiency of an adverse finding on an issue on which he did
not have the burden of proof, the appellant must demonstrate the finding is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
26
manifestly unjust. See id. As the reviewing court, we may not act as fact finder
and may not pass judgment on the credibility of witnesses or substitute our
judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 761 (Tex. 2003).
B. Analysis
Lost profits “must be shown by competent evidence with reasonable
certainty.” Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992).
“The requirement of ‘reasonable certainty’ in the proof of lost profits is intended to
be flexible enough to accommodate the myriad circumstances in which claims for
lost profits arise.” Texas Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877
S.W.2d 276, 279 (Tex. 1994). Competent evidence consists of “opinions or
estimates of lost profits . . . based on objective facts, figures, or data from which
the amount of lost profits can be ascertained. Although supporting documentation
may affect the weight of the evidence, it is not necessary to produce in court the
documents supporting the opinions or estimates.” Holt Atherton, 835 S.W.2d at 84
(citations omitted).
The bulk of Potter’s evidence of lost profits came from his expert, Albrecht.
Albrecht testified about the maximum amount Potter could have received in
revenue from the billboards during the time in question from 2005 to 2009. CBS
Outdoor had sold advertisements on Potter’s billboards in 2005, so Albrecht used
27
the records from CBS Outdoor on actual advertising sold to determine what sales
Potter could have made for that year. Similarly, Albrecht used the records from
CBS Outdoor on actual advertising sold during the period of the term lease to
determine what sales Potter could have made in 2007 and 2008. For 2006,
Albrecht took the average of 2005 and 2007. In order to come up with an amount
for 2009, Albrecht took the average of 2008 and 2010. To determine the value for
2010, he checked on prices with a couple of billboard companies for similar
billboards in the area. The values for each year were per-day values.
Albrecht then multiplied the per-day values by the number of days in each
year that CBS Outdoor maintained ownership of the billboards after the time that
the billboards should have been sold. This amount was $1,588,306. As Albrecht
explained, this value represented “[i]f all the stars are aligned . . . what someone
could realize off of these boards.” He then made adjustments to this amount to
determine a reasonable maximum amount that Potter could have earned. His first
adjustments were for the estimated percentage of days that the boards would not
generate revenue for various reasons, such as client delays, cancellations, and
printing. For the billboard faces that were visible from the other side of the
highway, Albrecht reduced the potential revenue another 10 percent. Based on
these deductions, Albrecht determined that the maximum revenue for the
billboards for the relevant period was $1,450,829.
28
Potter testified that his business costs for operating the billboards during the
relevant period would have totaled $75,888. He also testified that, during the
relevant period, he had received $151,413 from CBS Outdoor. Deducting these
amounts, the maximum that the jury could have awarded based on the record was
$1,223,528. The jury awarded $692,699.
In its seventh issue, CBS Outdoor argues that the jury’s damage award is
unsupportable because it is unrelated to the amounts presented at trial. For
support, CBS Outdoor relies on one case for authority: Malone v. E.I. du Pont de
Nemours & Co., 8 S.W.3d 710 (Tex. App.—Fort Worth 1999, pet. denied). The
facts of Malone, however, bear no relationship to CBS Outdoor’s complaint. In
Malone, the issue concerned whether the plaintiff had put on sufficient evidence of
lost profits, not whether the jury’s determination bore any resemblance to the
evidence. Id. at 716. Specifically, Malone admitted at trial that his determination
of damages was “purely a guess” and was “pulled out of the air.” Id. The court of
appeals held that “this speculative testimony was no evidence of damages.” Id.
CBS Outdoor’s complaint in this issue, in contrast, is that the jury’s damage
award is unsupportable because it “bears no resemblance to any of the damage
testimony adduced at trial.” Conflicting evidence about the value of property
generally falls into two categories: evidence of two distinct options or evidence of
a range for value based on certain factors. See, e.g., Waterways on the
29
Intercoastal, Ltd. v. State, 283 S.W.3d 36, 46 (Tex. App.—Houston [14th Dist.]
2009, no pet.); Pleasant v. Bradford, 260 S.W.3d 546, 559–60 (Tex. App.—Austin
2008, pet. denied). When the testimony supports a range for valuation rather than
two distinct options, determination of an award within that range is left to the
jury’s discretion. Waterways, 283 S.W.3d at 46. If the determination is within that
range, “a reviewing court is not permitted to speculate on how the jury actually
arrived at its award.” Drury Sw., Inc. v. Louie Ledeaux #1, Inc., 350 S.W.3d 287,
292 (Tex. App.—San Antonio 2011, pet. denied).
The testimony concerning the value of the lost profits was not based on a
precise and fixed formula. Instead, Albrecht testified about the maximum Potter
could have earned from the billboards. He also acknowledged other factors that
could have impacted Potter’s ability to reach that maximum, such as prolonged
vacancies and not being able to reach as many customers.
None of CBS Outdoor’s experts offered competing testimony about the lost
profits that Potter could have realized. Instead, CBS Outdoor’s experts’ testimony
consisted of critiques of the reliability of Potter’s estimation of costs and
Albrecht’s estimation of lost revenue. The testimony of all of the experts involved
established that the jury was presented with an inexact range for determining
Potter’s lost profits, not a precise set of competing fixed values. The jury’s
damage award does not exceed the range presented to the jury. Because the jury’s
30
damage award is within the permissible range, the amount awarded was within the
jury’s discretion, and we cannot speculate on how the jury reached its
determination. See id. “[U]ncertainty as to the fact of legal damages is fatal to
recovery, but uncertainty as to the amount will not defeat recovery.” Sw. Battery
Corp. v. Owen, 115 S.W.2d 1097, 1099 (Tex. 1938); see also ERI Consulting
Engineers, Inc. v. Swinnea, 318 S.W.3d 867, 877 (Tex. 2010) (citing Sw. Battery
and holding “discrepancy between two reasonably certain amounts will not defeat
recovery”). Accordingly, we overrule CBS Outdoor’s seventh issue.
CBS Outdoor argues in its fifth issue that the evidence is legally and
factually insufficient to support the jury’s award because Potter’s expert’s
testimony was too flawed and too conclusory to support the jury’s award, because
Albrecht used “deceptive calculations,” and because Albrecht made faulty
assumptions. CBS Outdoor’s argument for how Albrecht’s testimony was flawed
consists mostly of pointing to testimony from its own experts on how they
disagreed with Albrecht’s methodology. For example, CBS Outdoor cites to the
testimony of one of its experts testifying that “Albrecht’s testimony was based on
theoretical capacity, which is performance in a perfect world, as distinguished from
practical capacity, and the realistic normal capacity.” It also cites testimony of
another of its experts, who “confirmed it was not possible for Potter to perform as
well as CBS” as Albrecht had suggested.
31
Proof that one expert testified to the contrary of the opponent’s expert is not
proof that the opponent’s methodology is flawed. Instead, conflicts between the
experts’ testimony are left to the jury to resolve. See Hous. Lighting & Power Co.
v. Dickenson Indep. Sch. Dist., 641 S.W.2d 302, 310 (Tex. App.—Houston [14th
Dist.] 1982, writ ref’d n.r.e.) (holding “Texas courts have held that use of any one
particular approach as the sole standard from which to derive value is
fundamentally wrong” and that it is the jury’s duty to weigh conflicting expert
testimony on value).
CBS Outdoor’s remaining arguments in its fifth issue suffer from the same
problem. Its basis for arguing that Albrecht’s testimony should be excluded is that
its own experts strongly disagreed with Albrecht on a number of grounds. Pointing
out the conflict between the experts’ testimony does not establish, by itself, that
one expert’s opinion must be disregarded. See id.
Instead, an expert’s opinion must be disregarded when it is conclusory or
speculative. See Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136
S.W.3d 227, 232 (Tex. 2004) (holding conclusory or speculative expert testimony
cannot support a judgment). “An expert’s opinion might be unreliable, for
example, if it is based on assumed facts that vary from the actual facts . . . or it
might be conclusory because it is based on tests or data that do not support the
32
conclusions reached.” Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 (Tex.
2009).
CBS Outdoor argues that Albrecht’s assumed facts vary from the actual facts
because, while he used CBS Outdoor’s numbers of actual revenue for the times it
was available, Albrecht deviated from those numbers in making his projections of
Potter’s potential revenue. The propriety of Albrecht’s variation was the subject of
much dispute at trial. Albrecht testified that CBS Outdoor had not reached the full
potential for each of the signs for the relevant periods for a number of reasons. For
example, Albrecht testified that the billboards had been used as bonus billboards,
meaning a purchaser of multiple billboards was given an extra billboard or a
billboard was used for a public service announcement. The billboards had also
been used as part of a rotary program, meaning one advertisement would be moved
to various billboards over a set time period. All parties agreed that the rate for
rotary program advertising was lower than the rate for advertising on a single
billboard for the same period. Because of this and other considerations, Albrecht
excluded some lower-selling advertisements from his calculation and increased the
average of those remaining by a further 20 to 25 percent.
CBS Outdoor’s experts argued that Potter could not receive the same amount
of income, let alone more income, than CBS Outdoor. One reason for this, CBS
Outdoor argued, was that it had access to national advertisers—as opposed to local
33
advertisers—that Potter would not have access to. CBS Outdoor contended, and
its experts agreed, that CBS Outdoor routinely charged national advertisers above-
market rates.3 CBS Outdoor’s experts also argued that the rotary program was a
net financial benefit because it allowed billboards to be filled during times that
they did not otherwise have an advertiser.
Albrecht recognized that CBS Outdoor had more access to national
advertisers than Potter would. He also testified that he included that consideration
in forming his opinion. He explained that he disagreed that national advertisers
would routinely pay above-market rates. He also testified that CBS Outdoor had
made sales to 55 different advertisers for Potter’s billboards during the period in
dispute. Four of them were national advertisers. Accordingly, CBS Outdoor’s
greater ability to obtain national advertisers did not have a significant impact on his
calculations.
Albrecht also testified that Potter’s boards were all in a good location and
that, at least through 2009, the market for billboards was rather competitive.
Accordingly, the billboards would have had little down time, and inclusion of the
3
For example, John Clements, executive vice president for real estate and
acquisitions for CBS Outdoor, testified that “national companies look like they
pay more, and in many cases they do pay more. They pay more because they want
that board. They want a higher level of service. They want a specific way that
things are done. And as a result, they pay more.” One of CBS Outdoor’s experts,
Allen Brivic, agreed, testifying, “If you look at what advertisers pay for a
billboard, the national advertisers tend to overpay, and the local advertisers tend to
be smarter with the use of their dollars.”
34
boards in a rotary program would decrease the amount or revenue the billboards
could have obtained, not increased it.
All of this testimony, and other testimony like it, shows serious and
significant dispute between the parties on what factors would have affected
Potter’s lost profits during the relevant time period. None of the testimony,
however, establishes that Albrecht’s testimony was patently conclusory or too
speculative; nor did any of the evidence establish that Albrecht’s testimony should
have been categorically excluded for any other reason. Accordingly, the testimony
simply raised conflicts in the evidence, which was left to the jury to resolve. See
Hous. Lighting, 641 S.W.2d at 310. In fact, it appears that the jury resolved a
number of the conflicts in the testimony in favor of CBS Outdoor, reducing
Potter’s total damage award almost by half. Nothing in the record, however,
suggests that Albrecht’s testimony was factually or legally insufficient.
Accordingly, we overrule CBS Outdoor’s fifth issue.
The majority of CBS Outdoor’s third issue concerns how comparable CBS
Outdoor’s sales figures were to what Potter could have earned. As an initial
matter, CBS Outdoor argues that Potter could not rely on its sales figures at all,
relying on Texas Instruments. That case concerns what constitutes “reasonable
certainty” when determining lost profits. Tex. Instruments, 877 S.W.2d at 279.
CBS Outdoor contends that Texas Instruments prevented Potter from using its sales
35
figures as a basis for determining what his sales figures would have been. We
disagree.
The Supreme Court of Texas held in Texas Instruments, “The fact that a
business is new is but one consideration in applying the ‘reasonable certainty’
test.” Id. at 280. This does not mean that a new business cannot recover lost
profits. Id. Instead, profits are only denied when “profits which might have been
made from such businesses are not susceptible of being established by proof to that
degree of certainty which the law demands.” Id. The determination of lost profits
in such a situation focuses on the experience of the persons involved in the
enterprise, the nature of the business activity, and the relevant market. Id.
Nothing in Texas Instruments categorically denies using the revenue
obtained on CBS Outdoor’s billboards to determine the lost profits Potter would
have received on those exact same billboards. To the contrary, as Potter points out,
profits of one business can be used to estimate the lost profits of another similarly
situated business. See Bright v. Addison, 171 S.W.3d 588, 603 (Tex. App.—Dallas
2005, pet. denied) (upholding trial court’s consideration of “actual data from an
existing business” to determine the lost profits of a similar business).
CBS Outdoor further complains that Potter’s testimony of expenses he
would have incurred during the time in question was an estimate and not based on
actual numbers. CBS Outdoor fails to identify how Potter could be expected to
36
produce actual numbers or anything other than an estimate of expenses during the
time that he did not have control of the billboards. It also claims that one of its
experts, James Mandel, testified that Potter’s estimate of expenses was fabricated.
Mandel testified that he—that is, that Mandel—did not have any documentary
support for Potter’s estimate and so, “from an empiricist’s point of view[,] it’s
pulled out of thin air.” “Although supporting documentation may affect the weight
of the evidence, it is not necessary to produce in court the documents supporting
the opinions or estimates.” Holt Atherton, 835 S.W.2d at 84. At best, Mandel’s
claim created a fact issue for the jury to resolve. See Hous. Lighting, 641 S.W.2d
at 310.
CBS Outdoor also points to claimed irregularities in Potter’s business
records to try to undermine the value of his testimony on expenses. For support,
CBS Outdoor points to portions of the clerk’s record. None of this evidence of
claimed irregularity was presented to the jury at trial. Accordingly, it cannot be a
basis for establishing legal or factual insufficiency of the jury’s fact
determinations. See City of Keller, 168 S.W.3d at 827 (holding legal sufficiency is
established when “evidence at trial would enable reasonable and fair-minded
people to reach the verdict under review” (emphasis added)); Toles v. Toles, 45
S.W.3d 252, 259 (Tex. App.—Dallas 2001, pet. denied) (holding “[w]e review a
37
factual sufficiency challenge to the jury verdict by examining all of the evidence
presented at trial” (emphasis added)).
The remainder of CBS Outdoor’s third issue raises matters we have already
addressed in other issues, such as whether the evidence established that Potter
could have realized the same amount of revenue that CBS Outdoor realized and
whether lost profits was a remedy available to Potter as a result of the breach of the
original leases. Because we have addressed these issues above, we do not need to
re-address them here.
We overrule CBS Outdoor’s third issue.
Charge Error
In its eighth issue, CBS Outdoor argues that the trial court abused its
discretion by failing to include instructions in the jury charge on waiver and excuse
and a question on excuse. In order to obtain reversal on appeal, the appellant must
show that it suffered harm as a result of an alleged error. See TEX. R. APP. P. 44.1
(requiring determination of harm for reversal); In re Marriage of Scott, 117 S.W.3d
580, 584 (Tex. App.—Amarillo 2003, no pet.) (holding appellant bears burden of
establishing harm). CBS Outdoor’s argument for how it was harmed by the
alleged error consists of one sentence: “The failure to submit the instructions and
question amounted to such a denial of CBS’s rights as was reasonably calculated to
cause, and probably did cause, the rendition of an improper judgment.”
38
“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.” TEX. R. APP. P.
38.1(i). An appellate court has no duty to search through the record without
guidance from the appellant “to determine whether its assertion of reversible error
is valid.” G.R.A.V.I.T.Y. Enterprises, Inc. v. Reece Supply Co., 177 S.W.3d 537,
546 (Tex. App.—Dallas 2005, no pet.). Moreover, we are not responsible for
making the appellant’s arguments for it. Id.
We hold that this issue is waived for inadequate briefing. We overrule CBS
Outdoor’s eighth issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
39