Dissenting; and Opinion Filed August 18, 2016.




                                                   In The
                                   Court of Appeals
                            Fifth District of Texas at Dallas
                                           No. 05-08-01584-CV

                  TXU PORTFOLIO MANAGEMENT COMPANY, L.P.
               N/K/A LUMINANT ENERGY COMPANY, L.L.C., Appellant
                                        V.
                FPL ENERGY, LLC; FPL ENERGY PECOS WIND I, L.P.,
        FPL ENERGY PECOS WIND II, L. P., AND INDIAN MESA WIND FARM, L.P.,
                                    Appellees

                         On Appeal from the 116th Judicial District Court
                                      Dallas County, Texas
                                Trial Court Cause No. 04-10314

                       DISSENTING OPINION ON REMAND
                             Before Justices Francis, Evans1, and Whitehill2
                                 Dissenting Opinion by Justice Evans
         I regret that I must respectfully dissent. I disagree with the majority’s standard of

appellate review used to evaluate the fourth issue regarding cover raised by TXU Portfolio

Management Company, L.P. n/k/a Luminant Energy Company, L.L.C. (TXUPM), so I arrive at a

different result using what I understand is the correct standard. Using the charge as submitted to

measure whether there was any evidence to submit the question and support the jury’s answer to

it, I conclude the evidence was legally sufficient to support submission of the question and the

    1
      The Honorable David Evans succeeded the Honorable Joseph B. Morris, a member of the original panel and
author of the original opinion in this case, upon Justice Morris’s retirement.
    2
      The Honorable Justice Bill Whitehill succeeded the Honorable Kerry P. FitzGerald, a member of the original
panel, upon Justice FitzGerald’s retirement.
jury’s answer that TXUPM covered by “purchasing or producing electricity as a substitute for

the electricity promised but not delivered under the Agreements.” For the reasons stated below, I

would affirm the take-nothing judgment of the district court on TXUPM’s breach of contract

claims against FPL Energy, LLC, FPL Energy Pecos Wind I, L.P., FPL Energy Pecos Wind II,

L.P., and Indian Mesa Wind Farm, L.P. (Wind Farms). I then reach the subsequent issue

regarding TXUPM’s draw down of $3.075 million from the Wind Farms’ letters of credit and

conclude the trial court did not err in granting declaratory relief that TXUPM must return the

money.

                                                I.
                                     STANDARD OF REVIEW

         I “begin by determining the appropriate standard of review, then move in turn to each

challenge.” Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 584 (Tex. 2013).

         TXUPM stated its fourth issue as the following:

         ISSUE PRESENTED: Did the trial court err in: 1) submitting to the jury the
         question of whether TXUPM’s undisputed continuous “balancing” of energy
         supplies to energy demands constituted cover as a matter of law; 2) refusing to
         disregard the jury’s incorrect answer to that legal question; and 3) voiding the
         jury’s award of actual damages to TXUPM on the ground that TXUPM failed to
         submit evidence of “cover” damages when, in fact, TXUPM did not cover as a
         matter of law?

         The Wind Farms proposed, the trial court submitted, and the jury answered the following

cover question:

         QUESTION FIVE

         Did TXU “cover” for the electricity that the Wind Farms failed to provide under
         the Agreements?

         “Cover” means purchasing or producing electricity as a substitute for the
         electricity promised but not delivered under the Agreements.

         Answer Yes or No:

         Yes    X      No ______

                                               –2–
TXUPM objected that no evidence supported the submission of Question 5 or the definition and

objected that the question incorrectly separated electricity from the RECs and should have

referenced annual quantities of renewable energy promised but not delivered under the

agreements. But TXUPM did not bring forward any complaint in its initial brief on appeal to the

form of the question or instruction.

        A no-evidence or legal insufficiency issue is preserved in the trial court by any one of the

following methods: “(1) a motion for instructed verdict, (2) a motion for judgment

notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4) a

motion to disregard the jury’s answer to a vital fact issue or (5) a motion for new trial.” Cecil v.

Smith, 804 S.W.2d 509, 510–11 (Tex. 1991) (citing Aero Energy, Inc. v. Circle C Drilling Co.,

699 S.W.2d 821, 822 (Tex. 1985)); see First Nat‘l Collection Bureau, Inc. v. Walker, 348

S.W.3d 329, 338 (Tex. App.—Dallas 2011, pet. denied); accord TEX. R. CIV. P. 301. So when

TXUPM objected at the charge conference that no evidence supported the submission of

Question 5 regarding cover, it preserved its legal insufficiency issue to the submission of and the

jury’s answer to the cover question.3 See Cecil, 804 S.W.2d at 510–11.

        The starting point generally of a legal or factual sufficiency review is the charge and

instructions to the jury. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 762 (Tex.

2003). This is necessary in order to “first have a clear understanding of the evidence that is

pertinent to [the appellate court’s] inquiry.” Id. When there is no objection to the form of a

charge brought forward as an issue on appeal, we should assume the charge is correct without

deciding that issue and evaluate the sufficiency of the evidence against the charge. See Akin,

Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 112


    3
      TXUPM also preserved its legal insufficiency issue in its motion for judgment notwithstanding the jury’s
verdict to Question 5.


                                                    –3–
(Tex. 2009) (“Because there was no objection to the charge as submitted, we assume, without

deciding, that the instruction was correct and measure the evidence by the charge as given.”)

(citing Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000)); Boehringer v. Konkel, 404 S.W.3d 18,

27 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (where party made objections to question

during charge conference but did not bring those challenges forward in appeal yet complained on

appeal regarding factual and legal sufficiency of the jury’s answer to the question, court would

not imply a challenge to the wording of the question, so it measured the sufficiency of the

evidence by the question in the charge), disapproved on other grounds by Ritchie v. Rupe, 443

S.W.3d 856 (Tex. 2014). Even where a party argues the submission of a question is not

supported by evidence or is precluded as a matter of law by certain evidence but that party does

not object to the form of the question submitted, we measure the legal sufficiency of the

evidence by the form of the question asked. See Shows v. Man Engines & Components, Inc., 364

S.W.3d 348, 357 (Tex. App.—Houston [14th Dist.] 2012), aff’d, 434 S.W.3d 132 (Tex. 2014);

Houston Poly Bag I, Ltd. v. Kujanek, 370 S.W.3d 82, 88 (Tex. App.—Houston [14th Dist.] 2012,

no pet.) (applied Osterberg evaluating legal sufficiency of evidence against charge as given

because appellant had not objected to form of question while acknowledging appellant had

objected at charge conference it had no legal duty); Lone Starr Multi-Theatres, Ltd. v. Max

Interests, Ltd., 365 S.W.3d 688, 694–95 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(appellant objected to one question on sufficiency grounds but not to form of question so court

used charge to analyze sufficiency of evidence citing Osterberg). “Even if another legal theory

was argued to the jury and explained by the lawyers in argument, we are bound by the

instructions given to the jury and presume that the jury followed those instructions.” Seger v.

Yorkshire Ins. Co., Ltd., No. 13-0673, 2016 WL 3382223, at *12 (Tex. June 17, 2016) (no

objection to direct employee instruction; lawyers argued alter ego theory not in charge). We

                                              –4–
measure the legal sufficiency by the form of question and instructions submitted to the jury even

where an appellant objected that the question as a whole was not in broad form and was a

comment on the weight of the evidence and objection to a different instruction in the question,

but did not object to the instruction at issue in the appeal. See Eagle Oil & Gas Co. v. TRO-X,

L.P., 416 S.W.3d 137, 148–49 (Tex. App.—Eastland 2013, pet. denied).

       TXUPM does not present any argument why we should not use the charge and instead

use what it views as the correct law to evaluate the sufficiency of the evidence. In fact, TXUPM

does not argue for any standard for our review of its complaint that the trial court submitted the

cover question to the jury and the jury answered it “yes” thereby causing reversible error. It

appears from its briefing that TXUPM assumes a de novo standard of review. For that reason

alone, we should default to use the charge submitted to the jury for the legal standard until a

party adequately briefs with authorities why we should use a different standard. See EMC

Mortg. Corp. v. Jones, 252 S.W.3d 857, 869 (Tex. App.—Dallas 2008, no pet.) (evaluating

sufficiency of the evidence based on law stated in charge reasoning, “Although EMC’s

sufficiency argument is based on this [legally correct] standard, EMC offers no explanation as to

why we should measure sufficiency based upon the correct legal standard rather than by the

charge that the jury was actually given.”).

       In its original brief on appeal, TXUPM did not challenge the form of Question 5 or the

definition of cover, but argued its view of the correct law directly from sections 2.712 and 2.713

of the Uniform Commercial Code and opinions interpreting those provisions. In its brief on

remand TXUPM argued the definition of cover in the charge “failed to instruct the jury of the

crucial requirement that cover occur ‘after’ breach.” Generally, a new issue may not be raised

for the first time after the opening brief. See, e.g., TEX. R. APP. P. 33.1(i) (appellant’s brief must

include “a clear and concise argument for the contentions made, with appropriate citations to

                                                 –5–
authorities and to the record”); 38.3 (reply brief to address “any matter in the appellee’s brief”);

Stull v. LaPlant, 411 S.W.3d 129, 136 n.3 (Tex. App.—Dallas 2013, no pet.). For the reasons

stated above, the Wind Farms urged us not to consider TXUPM’s complaint about the definition

of cover being incorrect made for the first time in its brief on remand. I conclude the Wind

Farms are correct because TXUPM does not complain on appeal about error in the form of the

definition of “cover” in Question 5 or argue for a standard of review different from the charge as

submitted.4     See Boehringer, 404 S.W.3d at 27 (legal sufficiency evaluated by charge as

submitted where objection to form of question not brought forward on appeal); EMC Mortg.

Corp., 252 S.W.3d at 869 (where appellant did not argue for standard of review different than

charge as submitted, charge was standard for legal sufficiency review); see also Eagle Oil & Gas

Co., 416 S.W.3d at 148–49.

         I, therefore, would follow the supreme court’s and our precedent by beginning our

analysis of legal or factual sufficiency with the charge as submitted unless a party has presented

argument why we should use a different standard. See Golden Eagle Archery, 116 S.W.3d at

762; EMC Mortg., 252 S.W.3d at 869. For these reasons, I conclude the correct analysis in this

case is to evaluate the legal sufficiency of the evidence for the submission of, and to support the

jury’s answer to, Question 5 using the question and instruction that were submitted in the charge.

I begin my analysis there using the traditional standards for evaluating the legal sufficiency of

the evidence.5


    4
       As noted above, TXUPM objected at the charge conference that the form of Question 5 incorrectly separated
electricity from the RECs and should have referenced annual quantities of renewable energy promised but not
delivered under the Agreements. This does not comport with TXUPM’s legal insufficiency argument on appeal
which, as TXUPM noted in its brief on remand, relates to the definition of cover not including “after breach.” I do
not base my dissent on this incongruity. But see Eagle Oil & Gas, 416 S.W.3d at 148–49 (charge as submitted used
to evaluate legal insufficiency issue on appeal where objections to form of question in trial court were unrelated to
legal insufficiency argument on appeal).
    5
     We conduct a legal sufficiency review by considering all the evidence before the jury, crediting evidence in
support of the verdict if reasonable jurors could, and disregarding evidence contrary to the verdict unless reasonable

                                                        –6–
                                                         II.
                                             ANALYSIS OF COVER

                  “‘Cover’ means purchasing or producing electricity as a substitute
                 for the electricity promised but not delivered under the Agreements.”

         TXUPM first argues section 4.04 of each contract with the Wind Farms requires an

annual reconciliation of annual minimum quantities of electricity and RECs and, therefore, the

Wind Farms could not and did not breach the agreements until each annual reconciliation

occurred. The Wind Farms argue one of the problems with TXUPM’s argument is it assumes

the annual reconciliation included an annual minimum electricity requirement in conflict with the

supreme court’s opinion. The supreme court carefully analyzed TXUPM’s view that the annual

reconciliation involved both electricity and RECs and rejected that position. FPL Energy, LLC,

426 S.W.3d at 67–69. Section 4.04 refers only to RECs, does not include electricity, Net Energy

(a defined term including both electricity and RECs), or any other reference to electricity. For

example, section 4.04(a) announces, “At the end of each calendar year, . . . the amount of RECs

produced in that year is compared to the Annual Quantity.” Sections 4.04(b) and (c) deal with


jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005). We consider all the evidence
in the light most favorable to the judgment indulging every reasonable inference in favor of the judgment. See St.
Joseph Hosp. v. Wolff, 94 S.W.3d 513, 520 (Tex. 2003). “On an issue where the opposing party bears the burden of
proof, we sustain a legal-sufficiency challenge to an adverse finding if our review of the evidence demonstrates a
complete absence of a vital fact, or if the evidence offered is no more than a scintilla.” Burbage v. Burbage, 447
S.W.3d 249, 259 (Tex. 2014) (citing Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142,
156 (Tex. 2014)). Anything more than a scintilla of evidence is legally sufficient to support the jury’s finding. See
Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). When the
evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its
existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem., Inc.,
650 S.W.2d 61, 63 (Tex. 1983). When there is no objection to the form of a charge submission, we measure the
legal and factual sufficiency of the evidence against the jury charge as given. See Wolff, 94 S.W.3d at 530 (citing
Osterberg, 12 S.W.3d at 55 (“it is the court's charge, not some other unidentified law, that measures the sufficiency
of the evidence when the opposing party fails to object to the charge”)).
     In conducting our review of the legal sufficiency of the evidence, we are mindful that the jury, as fact finder,
was the sole judge of the credibility of the witnesses and the weight to be given their testimony. City of Keller, 168
S.W.3d at 819; Hinkle v. Hinkle, 223 S.W.3d 773, 782 (Tex. App.—Dallas 2007, no pet.). “[Jurors] may choose to
believe one witness and disbelieve another. Reviewing courts cannot impose their own opinions to the contrary.”
City of Keller, 168 S.W.3d at 819 (footnotes omitted).




                                                        –7–
the amount of RECs exceeding or being less than the Annual Quantity. Sections 4.04(d), (e), and

(f) make provision for how the parties would deal with the Wind Farms’ deficient delivery of

RECs. In making its determination, the supreme court rejected TXUPM’s position that in the

contracts “the parties simply use RECs as a counting mechanism for both” RECs and electricity.

Id. The supreme court determined that section 4.04 “deals only with RECs, and not electricity.”

Id. at 67. Because the annual reconciliation provisions of the contracts do not involve electricity

deficiencies, I agree with the Wind Farms that the annual reconciliation contractual provisions do

not provide support for TXUPM’s argument that there is legally insufficient evidence to support

the jury’s verdict that TXUPM covered the electricity deficiencies of the Wind Farms. This case

was tried and submitted to the jury by a charge that separated electricity from RECs and limited

the issue of cover to electricity deficiencies in the definition of cover: “‘Cover’ means

purchasing or producing electricity as a substitute for the electricity promised but not delivered

under the agreements.”     (Emphasis added).     The supreme court’s analysis of the contracts

indicates that the trial court was correct to approach electricity separately from RECs.

       TXUPM’s other argument is it could not cover the Wind Farms’ breach of annual

minimum electricity requirements in the contracts because it would have had to cover during

each year before breach of the Agreements occurred. In support, TXUPM argues the Wind

Farms could not breach during any given year an annual minimum electricity requirement until

the close of that year, so TXUPM’s real-time balancing of electricity could not occur after the

Wind Farms’ breach—as required by section 2.712(a)—and still occur within the year. First,

TXUPM does not cite any cases from any jurisdiction making this conclusion based on an annual

quantity requirement in a contract. Second, TXUPM did not bring forward on appeal any issue

that the trial court erred by omitting “after breach” or should have referenced annual quantities of

renewable energy promised but not delivered under the agreements in the definition of cover.

                                                –8–
Thus, we are bound by the definition of cover in the charge: “‘Cover’ means purchasing or

producing electricity as a substitute for the electricity promised but not delivered under the

Agreements.”6

          The Agreements to which the cover definition directed the jury were three contracts that

were the same in most respects relevant to the issues on appeal. They required in section 4.01,

each wind farm “shall sell and deliver, and [TXUPM] shall purchase and accept, all of the RECs

and Net Energy produced by” two of the wind farms and 38% of the RECs and Net Energy

produced by the third wind farm. (Net Energy was, essentially, the amount of electricity the

Wind Farms delivered to the electric grid). The contracts stated in section 2.01 the “anticipated

net average annual generation” was 250,000 megawatt-hours (“MWh”) for two of the Wind

Farms and 300,000 MWh for the third wind farm. TXUPM was not only obligated to accept

delivery of 100% or 38%, respectively, of the Net Energy, but according to section 4.02 of each

contract TXUPM was to pay the Full Price for the first 105% of the “Annual Quantity” and 50%

of the Full Price for amounts in excess of that. The “Annual Quantity” was defined as 250,000

MWh for two of the Wind Farms and 105,000 to 115,000 MWh for the third wind farm. There

was no dispute at trial that the Wind Farms never delivered the Annual Quantity to TXUPM, so

the price never dropped by 50%.

          Section 3.01(b) of the contracts required the Wind Farms to deliver a daily plan for the

next day by 9:00 a.m., including day ahead generation projections, and inform TXUPM of other

circumstances that might affect the Wind Farms’ ability to generate electricity, such as

notifications if five percent or more of the generating units were unavailable. Section 3.02 of the

contracts required the Wind Farms to attend quarterly meetings with TXUPM to discuss, among


   6
        For this reason, I do not decide this issue under sections 2.712(a) and 2.713(a) of the Uniform Commercial
Code.


                                                       –9–
other things, the production of the Wind Farms and “the outlook for the current compliance

period production of RECs.” Manu Asthana, TXUPM’s vice president, testified that when

TXUPM received the generation forecasts from the Wind Farms, it would put that into their day

ahead resource plan to ERCOT. Any deviation from the levels forecasted and amended down by

ERCOT, “which happens, you know, frequently, because the wind changes all the time, we will

actually spend money to have resources on line to absorb that instantaneous realtime variation.”

Asthana further stated, “as the wind fluctuated, we would actually step in with our own resources

sometimes to make up the slack, if you will, at no charge to FPL.”

       In addition, because electricity cannot be stored, any electricity delivered by the Wind

Farms had to be immediately transmitted to TXUPM’s ultimate destinations—its customers.

Likewise, any failure of the Wind Farms to deliver the electricity promised during the year

necessarily had to be replaced during that year so TXUPM could meet its own electricity

obligations.   When the atmospheric conditions or other circumstances, such as ERCOT

curtailments, prevented the Wind Farms from meeting their daily forecasts, TXUPM’s real-time

balancing resulted in TXUPM’s replacing the electricity that the Wind Farms failed to deliver.

When the Wind Farms were unable to deliver their projected generation, the evidence is

undisputed that TXUPM always generated or acquired sufficient electricity to meet its needs and

would make up for any shortfall by obtaining substitute power from its own sources. Based on

the evidence, I conclude there was legally sufficient evidence to support the submission of the

cover question and the jury’s answer effectively that TXUPM’s real-time balancing was

TXUPM’s way of “purchasing or producing electricity as a substitute for the electricity promised

but not delivered under the Agreements,” as cover was defined in the jury charge.




                                              –10–
        Cover is often a factual issue a jury must decide.7 Based on this record, there is legally

sufficient evidence to support the trial court’s submission of Question 5 regarding cover and the

jury’s finding that TXUPM covered by “purchasing or producing electricity as a substitute for

the electricity promised but not delivered under the Agreements.”

        The proper measure of damages with respect to the undelivered electricity was the

difference between TXUPM’s cost to generate or purchase the substitute electricity and the

contract price.     See TEX. BUS. & COM. CODE ANN. § 2.712(b).                      The only damage models

TXUPM offered at trial, however, were based on a market value of the combined undelivered

energy and RECs after it calculated the cost of the Wind Farms’ breach after the end of the

contract year. As to RECs, TXUPM did not put on any evidence that it had been penalized by

the PUC for the RECs the Wind Farms failed to deliver or the market price of the undelivered

RECs (TXUPM instead relied on the liquidated damages clause). Because TXUPM pleaded and

proved an incorrect measure of damages and submitted no evidence as to the proper measure of

damages for the undelivered RECs, the trial court was correct in rendering a take-nothing

judgment on TXUPM’s breach of contract claim.8 I, therefore, would resolve TXUPM’s fourth

issue against TXUPM. Resolution of the cover issue makes it unnecessary to address the issue

regarding the adequacy of TXUPM’s evidence of combined electricity and RECs market price

damages.9


    7
      See Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 748 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (cover
including good faith in purchasing substitute is a question of fact for the jury); Mueller v. McGill, 870 S.W.2d 673,
676 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (same); Kiser v. Lemco Indus., Inc., 536 S.W.2d 585, 590
(Tex. Civ. App.—Amarillo 1976, no writ) (cover is factual question for fact finder); see also Amer. Carpet Mills,
Etc. v. Gunny Corp., 649 F.2d 1056, 1060 (5th Cir. 1981) (same under Georgia law); Thorstenson v. Mobridge Iron
Works Co., 208 N.W.2d 715, 717 (S.D. 1973) (same under South Dakota law).
    8
     Notably, TXUPM does not argue that the trial court’s take-nothing judgment was improper if the cover issue
was properly submitted to the jury.
    9
       These arguments were in response to the third issue in the Wind Farms’ cross-appeal original briefing arguing
that the jury award was based on improper evidence of market-value damages.


                                                       –11–
                                                        III.
                                          DECLARATORY JUDGMENT

         TXUPM contends that the trial court erred in declaring TXUPM was required to return

the $3.075 million it had accessed from the letters of credit securing the Wind Farms’ contractual

obligations.10 TXUPM’s principal appellate argument to support this issue is derivative of

TXUPM’s argument for reversal of the take-nothing judgment based on market price versus cost

of cover. Because I resolved TXUPM’s damages argument against it, that no longer supports

reversal of the declaratory judgment. Although there are a few additional statements in its briefs,

TXUPM did not address why the trial court erred in ordering return of the $3.075 million if the

trial court’s judgment was affirmed regarding TXUPM’s fourth issue.11 See TEX. R. APP. P.

38.1(i). In my view, therefore, no further argument is presented to address on the merits

regarding the declaratory judgment. Accordingly, I would deny TXUPM’s declaratory judgment

argument.

                                                        IV.
                                                  CONCLUSION

         Based on what I view as the correct standard of review, I conclude the issue of whether

TXUPM covered by “purchasing or producing electricity as a substitute for the electricity

promised but not delivered under the Agreements” was properly submitted to the jury and the

jury’s affirmative answer was supported by legally sufficient evidence in light of the charge as

submitted. I further conclude that in light of the jury’s finding and in the absence of any

evidence as to TXUPM’s cost to cover the electricity deficiencies or evidence of cost to cover or

    10
       This is TXUPM’s third issue in its supplemental brief and its fifth issue in its original briefing. Under issue
three in its supplemental brief, TXUPM also argues its entitlement to attorney’s fees as the prevailing party pursuant
to section 38.001(8) of the civil practice and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8)
(West 2015). Because resolution of the cover issue results in the affirmance of the take-nothing judgment on
TXUPM’s breach of contract claims, in my opinion it is unnecessary to address attorney’s fees.
    11
        TXUPM argues the Wind Farms had no live cause of action to support such a declaration. In its one
paragraph argument in its original appellate brief on this issue and two paragraph supplemental briefing for this
issue, TXUPM did not cite the record or any legal authority.


                                                       –12–
market price of the RECs or penalty imposed by the PUC, the trial court did not err in rendering

judgment that TXUPM take nothing on its breach of contract claims against the Wind Farms.

       I would affirm that portion of the trial court’s judgment addressing TXUPM’s damages.

Specifically, I would affirm the judgment that TXUPM take nothing on its breach of contract

claims against the Winds Farms and the declaration in the judgment that TXUPM is obligated to

return the full amount of the security it accessed from the Wind Farms’ letters of credit. Because

the majority uses a different standard of review resulting in different conclusions, I dissent.




081584RD.P05                                         /David Evans/
                                                     DAVID EVANS
                                                     JUSTICE




                                                –13–
