Southwestern Bell Telephone Company v. Delanney

809 S.W. 2d 493 (1991)

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Nature of the Case

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Facts

P advertised his real estate business in the Yellow Pages for several years. For the 1980-1981 directory, he again contracted with D for a Yellow Pages advertisement. P had two business phones, a rotary line, and a single line. Prior to publication of the 1980-1981 directory, P's wife asked D to cancel the single line and add a third number to their existing rotary line. The Yellow Pages advertisement was billed to P's single line. When that line was canceled, P's Yellow Pages advertisement was automatically deleted from the directory due to D's internal procedures. The advertisement was not published, and P sued D, alleging negligence and violation of the Texas Deceptive Practices. D moved for a directed verdict on both theories of liability. The trial court granted D's motion as to the DTPA claim but denied it as to negligence. The remaining issues were submitted to a jury. The jury found for P and assessed damages at $109,000 for lost profits in the past and $40,000 for lost profits in the future. After ordering a partial remittitur which reduced future lost profits to $21,480, the trial court rendered judgment for P. D appealed. The court of appeals affirmed. A majority of the court held that D's cancellation was correctly submitted as a negligence claim. The dissenting justice argued that because P sought damages for breach of a duty created under the contract, rather than a duty imposed by law, the claim sounded only in contract. D appealed.