ZENO DIGITAL SOLUTIONS, L.L.C. v. K GRIFF INVESTIGATIONS, INC.
ZENO DIGITAL SOLUTIONS, L.L.C., Appellant,
v.
K GRIFF INVESTIGATIONS, INC., Appellee.
No. 14-09-00473-CV.
Court of Appeals of Texas, Fourteenth District, Houston.
Memorandum Opinion filed September 14, 2010.
Panel consists of Justices YATES, SEYMORE, and BROWN.
MEMORANDUM OPINION
LESLIE B. YATES, Justice.
Appellant Zeno Digital Solutions, L.L.C. appeals from the trial court's judgment awarding lost profit damages to appellee K Griff Investigations, Inc. In its first issue, Zeno contends that the trial court erred in awarding $64,069.50 in lost profits to K Griff because there is no evidence to support the award. In its second issue, Zeno argues that if this court does not render judgment that K Griff take nothing on its lost profits claim, then it should remand the entire case for a new trial. We affirm in part and reverse and render in part.
FACTUAL AND PROCEDURAL BACKGROUND
K Griff is an investigation firm that provides various services, including background checks for employers, surveillance in workers' compensation and domestic cases, and civil process service for attorneys. Zeno sells document management solutions as well as hardware, scanners, printers, and facsimile machines.
Zeno sold K Griff several copiers and facsimile machines. On August 31, 2005, Zeno sold two Ricoh digital copiers to K Griff. The 1035 copier, which Zeno represented as refurbished, had two fax lines and was to be used by K Griff's civil process department; the 3025 copier, which Zeno represented as new, had three fax lines and was to be used by the firm's background checks department.[ 1 ]
In May 2006, the Ricoh copiers began exhibiting mechanical problems. Between May 2006 and December 2007, the 3025 copier was non-operational for a total of twenty days and the 1035 copier was non-operational for a total of nine days. K Griff hired outside vendors to repair the machines.[ 2 ]
On August 31, 2007, K Griff filed suit against Zeno alleging violations of the Deceptive Trade Practices Act ("DTPA"), fraud, negligent misrepresentation, and breach of contract. Following a bench trial, the trial court rendered judgment in favor of K Griff and awarded K Griff $64,069.50 for loss of use and profits, $9,800 for cost of repairs, and $8,900 in attorney's fees. Zeno requested, and the trial court subsequently filed, findings of fact and conclusions of law. This appeal followed.
I. STANDARD OF REVIEW
Findings of fact in a bench trial have the same force and dignity as a jury verdict. Haas v. Ashford Hollow Cmty. Improvement Ass'n, 209 S.W.3d 875, 887 (Tex. App.-Houston [14th Dist.] 2006, no pet.). If an appellant is attacking 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. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).
In a legal sufficiency review, we determine whether the evidence at trial would enable a reasonable and fair-minded person to reach the finding under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In conducting this review, we credit favorable evidence if reasonable factfinders could and disregard contrary evidence unless reasonable factfinders could not. Id. We must consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. Id. at 822. If there is no evidence to support the finding, we must then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. We must, and may only, sustain a legal sufficiency challenge when 1) the record discloses a complete absence of evidence of a vital fact, 2) the court is barred by rules of law or of 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 mere scintilla, or 4) the evidence establishes conclusively the opposite of a vital fact. See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998).
II. ANALYSIS
In its first issue, Zeno contends that the trial court erred by awarding $64,069.50 to K Griff for lost profits because there is no evidence to support the award.[ 3 ] Specifically, Zeno complains that K Griff improperly based its lost profits claim on lost revenue and failed to account for expenses in its calculations. Further, Zeno argues that even if K Griff's lost revenue was, in fact, lost profit, K Griff did not prove its loss by competent evidence with reasonable certainty.
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