                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 DANA BERGHOLTZ, Individually and                §
 d/b/a ONESTOP WIRELESS,                                        No. 08-08-00275-CV
                                                 §
                   Appellant,                                      Appeal from the
                                                 §
 v.                                                         210th Judicial District Court
                                                 §
                                                              of El Paso County, Texas
 SOUTHWESTERN BELL YELLOW                        §
 PAGES, INC.,                                                     (TC# 2003-1079)
                                                 §
                   Appellee.



                                          OPINION

       Appellant, Dana Bergholtz, appeals the trial court’s judgment based on its exclusion of

testimony by his expert witness and by Appellant himself with respect to lost profits. On appeal,

Mr. Bergholtz argues the trial court erred in excluding both testimonies, and that these errors

were not harmless. We will affirm.

       Mr. Bergholtz owned and operated a business in El Paso that sold wireless service and

accessories beginning in 1997. In 2001, he opened another location in El Paso, which was

engaged in the same business. In February 2002, Mr. Bergholtz entered into a contract with

Southwestern Bell to advertise in its 2002-2003 Yellow Pages directory. According to him, the

advertisement in the 2002-2003 directory contained many mistakes regarding his business,

including phone numbers, locations, and service providers. He refused to pay the fee for this

particular advertisement. Mr. Bergholtz sold his business in late 2003.

       In early 2003, Southwestern Bell brought suit against Mr. Bergholtz based on sworn
account, breach of contract, and quantum meruit to collect an unpaid debt related to his

advertisement in its 2002-2003 Yellow Pages directory. Mr. Bergholtz first filed counterclaims

against Southwestern Bell based on breach of contract and negligence. He then filed an amended

counterclaim citing claims under the Texas Deceptive Trade Practices Act (“DTPA”). He sought

reasonable attorney’s fees, as well as lost profits, which he claimed resulted from the erroneous

information in the advertisement.

       In February 2008, Southwestern Bell filed a motion for summary judgment arguing: (1)

Mr. Bergholtz had no cause of action for breach of contract because the parties’ agreement

contemplated the alleged errors in the advertisement, and the limitation of liability clause in the

contract limited his damages to the amount paid; (2) Mr. Bergholtz had no cause of action for

negligence or for a violation of the DTPA because of the economic loss rule; and (3) the statutes

of limitation governing Mr. Bergholtz’s negligence and DTPA claims barred those claims. In his

response, Mr. Bergholtz agreed with the company’s motion for partial summary judgment as to

the negligence cause of action, but argued the DTPA claim was still viable. He further argued

that the limitation of liability clause in the contract for the 2002-2003 Yellow Pages

advertisement was unenforceable due to a lack of agreement between the parties and

inconspicuous nature of the clause’s terms.

       In March 2008, the trial court granted partial summary judgment in favor of Southwestern

Bell. The court ordered Mr. Bergholtz to take nothing on his counterclaims of negligence and

DTPA violations.

       Prior to trial, Southwestern Bell filed a motion to exclude Mr. Dunbar’s expert testimony

on the amount of lost profits Mr. Bergholtz suffered as a result of the alleged errors in the 2002-


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2003 Yellow Pages advertisement. At the conclusion of the hearing on this motion, the court did

exclude Mr. Dunbar’s testimony on lost profits because, he found that the testimony had an

excessive analytical gap, and both the underlying method and data used were flawed.

       At trial, Mr. Bergholtz presented evidence in the form of an offer of proof with respect to

his business’s lost profits, which he claimed resulted from the erroneous information in the

Yellow Pages advertisement. At the conclusion of this hearing, the court held Mr. Bergholtz

lacked competency to testify on lost profits, and it excluded his testimony on that issue.

       The court subsequently directed a verdict in favor of Southwestern Bell in connection

with Mr. Bergholtz’s breach of contract counterclaim. When the case was submitted to the jury

on Southwestern Bell’s breach of contract claim and Mr. Bergholtz’s material breach of contract

affirmative defense, the jury returned a verdict and found the company’s material breach of

contract excused Mr. Bergholtz’s failure to pay for advertising. As a result, the trial court

rendered a take nothing judgment.

       In his two issues, Mr. Bergholtz contends the trial court erred in sustaining Southwestern

Bell’s motion to exclude the testimony of witnesses, both expert and non-expert.

       We review a trial court’s ruling on the admissibility of evidence for an abuse of

discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). The test

for abuse of discretion is whether the trial court acted without reference to any guiding rules or

principles, or whether the act was arbitrary and unreasonable. E.I. du Pont de Nemours & Co.,

Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985). We will uphold the court’s ruling if there is any legitimate

basis for the ruling. Malone, 972 S.W.2d at 43.


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        We review a trial court’s exclusion of expert testimony for an abuse of discretion. See

Kelly v. State, 824 S.W.2d 568, 574 (Tex.Crim.App. 1992). We cannot conclude that a court

abused its discretion if, in the same circumstances, it would have ruled differently, or if the court

committed a mere error in judgment. See Robinson, 923 S.W.2d at 558.

        However, pursuant to Texas Rule of Appellate Procedure 44.1, a trial court’s error of law

is reversible only if it caused harm. See TEX .R.APP .P. 44.1. We cannot reverse a judgment

unless the error probably caused the rendition of an improper judgment or probably prevented the

appellant from properly presenting the case on appeal. See TEX .R.APP .P. 44.1.

        In Issue One, Mr. Bergholtz contends the trial court abused its discretion by excluding the

testimony of his expert witness, Mr. John Dunbar, on lost profits. Mr. Bergholtz argues that

Mr. Dunbar’s testimony met all the qualifications to constitute reliable testimony. He contends

Mr. Dunbar “proved to be reliable because he was reasonably certain regarding his calculation of

lost profits and his opinion was predicated upon factual data derived from the previous operation

of the business.” Mr. Bergholtz further claims that Mr. Dunbar used net income in his

calculation of lost profits, explained his calculation in arriving at a forecast for lost profits, and

that Southwestern Bell was unable to establish the unreliability of Mr. Dunbar’s testimony.

        In Issue Two, Mr. Bergholtz argues the trial court abused its discretion by excluding his

own testimony on lost profits because it determined he was not competent to testify on the issue.

He claims the court erred because as the business owner, he was competent to testify on lost

profits based on his personal knowledge. He also claims that at trial, he showed his calculations

regarding lost profits, established his tracking of business customers, and testified about his

business’s ultimate sales price, as well as its value prior to publication of the 2002-2003 Yellow


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Pages advertisement.

       Under Texas Rule of Appellate Procedure 44.1, we cannot reverse the trial court’s

judgment even if it made an error of law, unless we determine Mr. Bergholtz suffered harm as a

result of the exclusions of Mr. Dunbar’s and Mr. Bergholtz’s testimonies on lost profits. See

TEX .R.APP .P. 44.1. As such, we will first address whether the court’s decisions to exclude these

testimonies caused Mr. Bergholtz harm.

       In the “Acknowledgment of Application” for advertising in the 2002-2003 Yellow Pages

directory, Mr. Bergholtz signed his name below the statement: “I verify that I have reviewed the

Terms and Conditions on the reverse side of this Acknowledgment of Application.” The reverse

side of the Acknowledgment of Application is titled “Terms and Conditions,” and contains a

clause titled “Limitation of Publisher’s Liability.” This clause states in part: “THE LIABILITY

OF THE PUBLISHER IS LIMITED TO AN AMOUNT EQUAL TO THAT ACTUALLY PAID

FOR THE ITEMS OF ADVERTISING, OMITTED, OR IN WHICH THE ERROR OCCURS,

FOR THE ISSUE LIFE OF THE DIRECTORY.” At his oral deposition, Mr. Bergholtz testified

he understood he was entering into a contract with Southwestern Bell when he signed this

document, that he voluntarily signed this contract with Southwestern Bell, and that he voluntarily

accepted the terms and conditions of the contract.

       Mr. Bergholtz testified at trial that he did not pay Southwestern Bell any fees relating to

the parties’ contract for the 2002-2003 Yellow Pages advertisement. Thus, if we conclude the

contract was enforceable, then Mr. Bergholtz would not be entitled to any lost profits because his

recovery under the contract is limited to the amount he actually paid, in accordance with the

limitation of liability clause. If we reach such a conclusion, then Mr. Dunbar’s and


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Mr. Bergholtz’s testimonies on lost profits would be irrelevant, and the trial court’s exclusions of

these testimonies would be harmless. See TEX .R.APP .P. 44.1.

       With respect to the enforceability of the advertising contract, Mr. Bergholtz contends the

contract’s limitation of liability clause was unenforceable because he did not agree to it, and the

clause was not conspicuous. Mr. Bergholtz cites Dresser Industries v. Page Petroleum in

arguing the clause in the instant contract was unenforceable because it was not conspicuous. See

Dresser Industries, Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993).

       In Dresser, the Texas Supreme Court held a contract provision releasing a party from all

liability claims caused by its own future negligence must be conspicuous, as defined under the

Uniform Commercial Code, to be enforceable. Id. at 508-11. However, in Green Intern., Inc. v.

Solis, the Texas Supreme Court clarified that the holding in Dresser was “explicitly limited to

releases and indemnity clauses in which one party exculpates itself from its own future

negligence.” Green Intern., Inc. v. Solis, 951 S.W.2d 384, 387 (Tex. 1997). The Court

explained that Dresser’s holding did not apply in Green, where the disputed contract provision

was a no-damages-for-delay clause that shifted economic damages resulting from a breach of

contract. Green Intern., Inc., 951 S.W.2d at 387.

       Similar to Green, the limitation of liability clause in this case protects Southwestern Bell

from liability if the advertiser fails to pay, and so it merely shifts damages resulting from a breach

of contract. See Green Intern., Inc., 951 S.W.2d at 387. This contrasts with the clause in

Dresser, which operated to shift risk in an extraordinary way such that it exculpated a party from

the consequences of its own future negligence. See Dresser, 853 S.W.2d at 508. The clause in

the instant case does not constitute the type of extraordinary risk-shifting found in Dresser. See


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id. As such, the clause in this case need not meet Dresser’s conspicuous requirement.

       Based on our review, Mr. Bergholtz signed and agreed that Southwestern Bell’s liability

was limited to the amount he actually paid for the advertising in the Yellow Pages directory, and

the terms of the limitation of liability clause need not be conspicuous in this instance. See Green

Intern. Inc., 951 S.W.2d at 387. As such, Mr. Bergholtz has failed to show that the advertising

contract’s limitation of liability clause was unenforceable. Because this clause was enforceable,

it precluded any lost profits Mr. Bergholtz claims the erroneous advertisement caused.

Therefore, even if we assume the trial court erred in excluding the testimonies on lost profits, its

error did not cause the rendition of an improper judgment, or prevent Mr. Bergholtz from

properly presenting the case. See TEX .R.APP .P. 44.1. In other words, no harm resulted from the

court’s exclusions of Mr. Dunbar’s and Mr. Bergholtz’s testimonies on lost profits. See

TEX .R.APP .P. 44.1. Accordingly, Issues One and Two are overruled.

       Having overruled Mr. Bergholtz’s issues presented for review, we affirm the trial court’s

judgment.


May 12, 2010
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., Rivera, J., and Gomez, Judge
Gomez, Judge (Sitting by Assignment)




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