Posey v. Southwestern Bell Yellow Pages, Inc.

• Decision Date: 26 May 1994
• Docket Number: No. 13-93-010-CV,13-93-010-CV
• Parties: Drs. James and Aktina POSEY, Individually and d/b/a Chiropractic Health Center of Corpus Christi, Appellants, v. SOUTHWESTERN BELL YELLOW PAGES, INC. and Southwestern Bell Media, Inc., Appellees.
• Court: Texas Court of Appeals

Page 275

878 S.W.2d 275

Drs. James and Aktina POSEY, Individually and d/b/a Chiropractic Health Center of Corpus Christi, Appellants, v. SOUTHWESTERN BELL YELLOW PAGES, INC. and Southwestern Bell Media, Inc., Appellees.

No. 13-93-010-CV.

Court of Appeals of Texas Corpus Christi.

May 26, 1994.

Craig S. Smith, Smith & Edwards, Max J. Luther, III, Corpus Christi, for appellants.

David W. Green, Hunt, Hermansen, McKibben & Barger, Corpus Christi, for appellees.

Before SEERDEN, C.J., and DORSEY and YANEZ, JJ.

OPINION

SEERDEN, Chief Justice.

This is an appeal from a summary judgment. Drs. James and Aktina Posey sued Appellees under multiple theories for alleged damages arising from an incorrectly published yellow page advertisement. The trial court ruled that the Poseys take nothing under any cause of action except breach of contract, that due to express liability limitations in the contract they recover from Appellees only the cost of the ad plus prejudgment interest and court costs, and that the Poseys could not recover attorney's fees. By eleven points, the Poseys assert that the summary judgment was erroneously granted. We affirm in part and reverse in part.

Factual Background

The Poseys purchased a yellow page advertisement for their chiropractic business in 1988 which listed their business name, "Chiropractic Health Center," their individual names, their office hours, address, and their telephone number. In late 1988, the Poseys contracted with Appellees to have essentially the same ad published in the 1989 yellow page directory. ¹ When the directory was published, the Poseys were listed in the yellow pages, however, their names were printed under the name "Chiropractic Health Services," the name of a competitor's clinic. The ad listed the competitor's address and phone number, not the address and phone number of the Poseys' clinic. ² When contacted about the error, Appellees relieved the Poseys of their responsibility to pay for the ad ($570.00) and offered a $570.00 credit towards advertising in the 1990 directory. Appellees contend that this offer represents the limit of their liability under the express terms of the contract. ³ The Poseys filed suit asserting theories of negligence, breach of the duty of good faith and fair dealing, and breach of contract. Additionally, the Poseys claimed that Appellees' actions violated provisions of the Texas Deceptive Trade Practices Act (DTPA). See TEX.BUS. & COM.CODE ANN. §§ 17.41-17.63 (Vernon 1987 & Supp.1994). The Poseys claimed that the error in advertising caused not only lost future profits, but also harm to their ongoing business due to the ad's alleged effect of directing patients (past and prospective) to a competitor.

Appellees moved for summary judgment arguing that the Poseys had but a single cause of action for breach of contract. Appellees admitted liability for breach of contract and asserted that the contractual waiver limited their liability to $570.00. The trial court agreed and on that basis granted summary judgment.

Standard of Review

To secure a summary judgment the movant has the burden to show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993) (citing City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 675-76 (Tex.1979)). See also Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant may accomplish this by uncontroverted, competent evidence that negates, as a matter of law, at least one element of the plaintiff's cause of action. Wornick, 856 S.W.2d at 733 (citing Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex.1989)). In reviewing a summary judgment, evidence favorable to the non-movant will be taken as true with all doubts resolved and every reasonable inference indulged in his favor. Id. (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex.1987)).

Negligence

By points one and four, the Poseys claim a viable action for negligence with damages recoverable from Appellees unfettered by the limitations clause in the contract. We construe point two as an assertion that Appellees have failed to negate even one essential element of the negligence claim.

Appellees cite Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493 (Tex.1991), for the proposition that the Poseys' claim for negligence is precluded as a matter of law. We disagree. In DeLanney, the plaintiff sued to recover lost profits due to the total failure of the telephone company to publish his yellow page advertisement. Id. at 493. The court concluded that because the duty to publish the ad arose solely from the contract between the parties, the failure to publish was not a tort. Id. at 495. See also Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 577 (Tex.1991) (claim of lost profits for failure to publish advertisement is cognizable in contract, but not in tort).

In the instant case, Appellees did not merely fail to publish the Poseys' advertisement. Appellees printed an ad listing the Poseys' names with the address and phone number of a competitor.

Here the Poseys are attempting to recover "loss of income" not just because Appellees breached the advertising contract but additionally because Appellees "directed business to a competing chiropractic clinic." ⁴

In determining whether the Poseys' are limited to an action on the contract or whether they may assert an action in tort we inquire 1) whether Appellees' conduct would give rise to liability independent of the fact that a contract exists between the parties and 2) whether the nature of the Poseys' injury is something more than the mere loss of the benefit of the bargain. See DeLanney, 809 S.W.2d at 494. We determine that the Poseys are not limited to a contract claim. Had there been no contract between the parties, we are unable to say, as a matter of law, that Appellees had no duty to refrain from publishing the Poseys' names in conjunction with the name, address, and telephone number of a competing chiropractic clinic. Additionally, the nature of the injury alleged by the Poseys is not confined to loss of referrals anticipated by a correct listing in the yellow pages, but also includes a claim of disruption to the Poseys' existing business and patient flow. Both parties relied on the deposition of Dr. James Posey as summary judgment proof. That deposition with its accompanying exhibits reveals that the Poseys' mail was missent or misdelivered to the competitor and that patients were confronted with obstacles in attempts to reach the Poseys for chiropractic services. We hold that the Poseys' negligence cause of action is not precluded as a matter of law. See Id.

Having relied solely on the theory that the Poseys' negligence claim was foreclosed as a matter of law, Appellees failed to negate any essential element of the negligence cause of action. See Wornick, 856 S.W.2d at 733. And while damages recoverable in an action based on contract might be confined to the limitation expressed in the contract, such a limitation of liability clause is unenforceable against a claim of negligence. Reuben H. Donnelley Corp. v. McKinnon, 688 S.W.2d 612, 616 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.). Therefore, it was error for the trial court to grant summary judgment for Appellees on the Poseys' negligence claim and error to limit recovery to the terms of the limitation of liability clause. We sustain Appellants' points one, two, and four.

Breach of Good Faith and Fair Dealing

By their third point of error, the Poseys complain that summary judgment was improper because Appellees breached the duty of good faith and fair dealing. The Poseys argue that Appellees did not specifically address this breach of duty in their motion for summary judgment. The trial court, however, ruled that the Poseys take nothing under any cause of action other than breach of contract. "Granting a motion for summary judgment on causes of action not addressed in the motion is reversible error." Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.1993) (citing Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983)). It was error to grant summary judgment on this cause of action when it was not addressed in Appellees' motion. See id. at 591.

Appellees argue on appeal that the Poseys' pleadings alleged that the "negligence" of Appellees constituted the breach of good faith and fair dealing. Appellees assert that this issue was subsumed by the negligence issue and therefore was properly addressed in their motion within the negligence ground. We have rejected Appellees' contention that a negligence claim is precluded on these facts. Appellees offered no independent ground in their motion for summary judgment which would entitle them to judgment as a matter of law on the good faith, fair dealing cause of action. Therefore, we sustain the Poseys' third point of error to the extent that it concerns the impropriety of granting summary judgment on a cause not addressed in the motion. See id. It is unnecessary to address the underlying merits of point three. TEX.R.APP.P. 90(a).

DTPA

The Poseys' points five through eight assail the trial court's foreclosure of their DTPA action.

By point seven, the Poseys assert that the limitation of liability clause is unenforceable as a matter of law in a DTPA cause of action. Appellees concede that the limitation clause is not effective to limit damages in a DTPA action except one brought under the breach of warranty provision. ⁵ See FDP Corp., 811 S.W.2d at 576-77. See also TEX.BUS. & COM.CODE ANN. § 17.42 (Vernon Supp.1994) (waiver of DTPA provisions by consumer is generally unenforceable and void). We sustain the Poseys' seventh point to the extent that it deals with DTPA causes other than for breach of warranty.

By point eight, the Poseys claim that the mere inclusion of the limitation of liability clause in the...