Federated Dept. Stores, Inc. v. Houston Lighting & Power Co.

• Decision Date: 30 November 1982
• Docket Number: No. 01-82-0141-CV,01-82-0141-CV
• Citation: 646 S.W.2d 509
• Parties: FEDERATED DEPARTMENT STORES, INC., Appellant, v. HOUSTON LIGHTING & POWER CO., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 509

646 S.W.2d 509

FEDERATED DEPARTMENT STORES, INC., Appellant, v.HOUSTON LIGHTING & POWER CO., Appellee.

No. 01-82-0141-CV.

Court of Appeals of Texas Houston (1st Dist.).

Nov. 30, 1982.

Rehearing Denied Dec. 23, 1982.

James Arnold, Houston, for appellant.

David Lacey, Houston, for appellee.

Before EVANS, C.J., and DYESS and STILLEY, JJ.

OPINION

DYESS, Justice.

The appellant, Federated Department Stores, Inc.(Federated), brought this suit in the trial court seeking recovery of loss of profits caused by interruption of electrical service provided by appellee, Houston Lighting & Power Co.(H L & P), to one of its stores.The interruption lasted for several hours on two separate days.The suit was based on a written contract between the two parties whereby the appellee warranted that it would "make reasonable provisions to supply steady and continuous electric service" without guaranteeing "the electric service against fluctuations or interruptions."

The appellee moved for summary judgment, presenting with its motion a limitation clause in the contract in which the appellee limited its liability to "... the cost of necessary repairs of physical damage proximately caused by the service failure...."The appellant responded by claiming that the limitation clause is "unreasonable and void as a matter of public policy because of the inequality of bargaining power...." between the two parties.In support of its position, it cited two court decisions stating that the question of the reasonableness of a limitation clause is a question for the jury.

The trial judge granted the summary judgment motion and it is from this ruling that the appellant appeals.We affirm the judgment.

The two parties involved are Federated Department Stores, Inc., which owns the Foley Stores in Houston, and Houston Lighting & Power Co.On October 24, 1975 the two entered into a contract by which H L & P agreed to extend electrical service to Federated's Foley store in Memorial City Shopping Center.H L & P agreed, among other things, that it would "make reasonable provisions to supply steady and continuous electric."It did not guarantee, however, that the service would be without fluctuations or interruptions.It also disclaimed liability for any damages occasioned by fluctuations or interruptions unless it was shown that it had not made reasonable provisions to supply steady and continuous electric service.Even if it were shown not to have made reasonable provisions, it limited its liability to the cost of necessary repairs of physical damage proximately caused by the service failure.

On April 15 and April 17 of 1976, Federated's store in Memorial City Shopping Center experienced power failures lasting several hours.The appellant claims to have incurred $31,562.00 in lost profits because of the power failures.

The central question in this suit is the validity of the limitation clause in the H L & P contract.The appellee maintains that the appellant did not sufficiently raise the validity of the limitation clause because it presented no evidence indicating that this particular clause was void by virtue of any alleged unequal bargaining position between the two parties.According to the appellant, the claim of unequal bargaining position has been raised and proven.As noted earlier, we affirm the judgment because the appellant presented no evidence to raise a fact issue regarding unequal bargaining position.

A defending party is entitled to prevail on a motion for summary judgment if the party establishes, as a matter of law, that no genuine issue of material fact exists with respect to one or more essential elements of the plaintiff's cause of action.Cloys v. Turbin, 608 S.W.2d 697, 699(Tex.Civ.App.--Dallas 1980, no writ);Gibbs v. General Motors Corp., 450 S.W.2d 827, 828(Tex.1970).

The plaintiff's cause of action in this suit was based on a contract entered between the two parties in which H L & P promised to provide Federated with steady and continuous electric service without guaranteeing against fluctuation or interruptions.Damages were based on lost profits.In response to this claim, H L & P offered proof that it had limited its liability to "the cost of necessary repairs of physical damage proximately caused by the service failure to those electrical facilities of [Federated] which were then equipped with proper protective safeguards...."The liability arose if H L & P was found not to have made reasonable provisions to supply a steady stream of electricity.

Since Federated brought suit under the contract, the terms of the contract determine the relative positions of the parties and control the level of liability of either party.The contractual limitations of liability constitute a prima facie defense to Federated's claim.

Once a movant-defendant has negated, as a matter of law, an element of the plaintiff's cause of action, as has H L & P, the non-movant is presented with the burden of introducing evidence that raises an issue of fact with respect to the element negated by the movant's summary judgment evidence.608 S.W.2d at 700.The evidence presented by the non-movant must, of course, be of probative force.Woolhouse v. Tolchin Instruments, Inc., 601 S.W.2d 106(Tex.Civ.App.--Dallas 1980, no writ)....