JMB INCOME PROPERTIES LTD.-X, d/b/a COLLIN CREEK MALL, Appellant v. BIG AL'S, INC. and RICHARD BIEDERMAN, Appellees

Reversed and Remanded and Opinion filed March 16, 1992
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-91-00063-CV
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JMB INCOME PROPERTIES LTD.-X, d/b/a COLLIN CREEK MALL, Appellant
V.
BIG AL'S, INC. and RICHARD BIEDERMAN, Appellees
..............................................................
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-71-90
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O P I N I O N
Before Justices Stewart, Chapman, and Kaplan
Opinion By Justice Kaplan
        This case involves a landlord-tenant dispute. JMB Income Properties Ltd.-X sued Big Al's and Richard Biederman to collect unpaid rents and other charges on lease space in the food court at Collin Creek Mall. Big Al's counterclaimed against JMB, alleging violations of the Deceptive Trade Practices Act. A jury found in favor of JMB on its claim for breach of contract and awarded damages for unpaid rent and attorney fees. The jury also found in favor of Big Al's on its DTPA counterclaim and awarded damages, additional damages, and attorney fees. The trial court entered a judgment on the verdict. The monetary awards were offset, leaving Big Al's with a net judgment against JMB in the amount of $182,602. JMB appeals, asserting eight points of error. Big Al's cross-appeals, asserting three cross-points of error. We sustain JMB's point seven. We do not reach JMB's point eight in view of our disposition of the damage issue. The remaining points of error and cross-points are overruled. We remand this cause for further proceedings consistent with this opinion.
FACTUAL SUMMARY
        In September 1986, Big Al's leased space in the food court at Collin Creek Mall for the purpose of operating a fast-food hamburger restaurant. The lease space was initially occupied by TGI Friday's, Inc. FN:1 Big Al's assumed all rights and obligations under the TGI Friday's lease. The assumption agreement was guaranteed by Richard Biederman, president of Big Al's. Biederman testified that during negotiations prior to the assumption of the lease, he sought and received assurances from a JMB representative that there would be no other hamburger operators in the food court at Collin Creek Mall.
        An addendum to the original lease between TGI Friday's and the former landlord provided, in relevant part, as follows:
PTA SECTION 2.01- USE
 
Tenant has entered into this Lease and has agreed to pay the Minimum Rent set forth herein with the anticipation that Tenant shall be the only patio tenant selling hamburgers and/or potato skins. While Landlord is not precluded from leasing space in the Patio Area to another operation selling hamburgers or potato skins, it is hereby agreed that in the event Landlord does so, that Tenant's obligation to pay Minimum Rent shall abate . . . and Tenant shall pay Percentage Rent in lieu of Minimum Rent for such period as another patio tenant is permitted to sell hamburgers or potato skins.
 
The assumption agreement between Big Al's, TGI Friday's, and JMB amended the use provision of the original lease and addendum as follows:
. . . for the preparation and fast-food retail sale of hamburgers, and all other items listed on the attached menu as Exhibit G. Any additions to such menu are subject to Landlord's approval.
A menu listing several items sold by Big Al's was attached to the assumption agreement. The menu included hamburgers, but not potato skins.
        Big Al's did well in 1987, its first full calendar year of operation at the mall. Sales declined in subsequent years with more tenants in the food court. In May and July of 1988, Big Al's notified JMB that it was losing money. Big Al's sought a reduction in rent and occupancy charges. JMB began looking for another hamburger vendor and eventually leased space to McDonald's. In August 1989, after learning that McDonald's would become a tenant in the food court, Big Al's wrote to JMB stating that it had overpaid rent in excess of $65,000. Big Al's based this contention on the fact another restaurant in the food court had been selling potato skins since January 1987. Big Al's asserted that it should have been charged only percentage rent instead of minimum rent pursuant to PTA Section 2.01 of the lease addendum. The letter also stated that the overcharges would be used to offset future rents and charges.
        In January 1990, JMB sued Big Al's and Biederman seeking unpaid rent from September 1989 forward. Big Al's counterclaimed alleging violations of the Deceptive Trade Practices Act. The counterclaim was based on oral assurances made to Biederman by a JMB representative that no other hamburger operator would be allowed in the food court. A jury found in favor of both JMB and Big Al's on their respective claims. The trial court entered a judgment offsetting the damage awards. This appeal follows.
DTPA CLAIM
        In its first four points of error, JMB contends that the evidence is legally and factually insufficient to support a recovery under the Deceptive Trade Practices Act. Specifically, JMB argues that: (1) there is no evidence that it violated the DTPA; (2) there is insufficient evidence that it misrepresented characteristics or benefits of the leased premises; (3) there is insufficient evidence that any misrepresentations were the producing cause of damages; and (4) there is no evidence, or alternatively insufficient evidence, that any misrepresentations were made knowingly.
A. Validity of DTPA Claim
        JMB first maintains that there is no evidence that it violated the Deceptive Trade Practices Act. This DTPA claim is based on representations made by a JMB leasing agent to Biederman that Big Al's would be the only hamburger restaurant in the food court at Collin Creek Mall. JMB subsequently leased space to McDonald's. Big Al's alleged that JMB misrepresented the characteristics and benefits of the leased premises in violation of section 17.46(b)(5) of the Deceptive Trade Practices Act. Tex. Bus. & Com. Code Ann. §17.46(b)(5) (Vernon 1987). JMB contends that this claim amounts to nothing more than a mere breach of contract because JMB never intended to put another hamburger vendor in the mall. We disagree.
        Intent is not an element under the Deceptive Trade Practices Act unless specifically imposed by statute. Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 724 (Tex. 1990); Smith v. Baldwin, 611 S.W.2d 611, 616-17 (Tex. 1980). Section 17.46(b)(5) prohibits misrepresentations about the characteristics, uses, or benefits of goods or services without regard to knowledge or intent. Eagle Properties, 807 S.W.2d at 724; RRTM Restaurant Corp. v. Keeping, 766 S.W.2d 804, 807 (Tex. App.--Dallas 1988, writ denied); Parks v. U.S. Home Corp., 652 S.W. 479, 484 (Tex. App.--Houston [1st Dist.] 1983, writ dism'd). Proof of a misrepresentation, without more, is sufficient to establish a violation of the DTPA. RRTM Restaurant, 766 S.W.2d at 807; Parks, 652 S.W.2d at 484. Furthermore, the fact that the alleged misrepresentation concerns future goods or services does not alter the clear statutory indication that no knowledge or intent need be shown. See Jim Walter Homes, Inc. v. Valencia, 690 S.W.2d 239, 242 (Tex. 1985); Smith, 611 S.W.2d at 616-17.
        JMB relies on Atrium Boutique v. Dallas Market Center Co., 696 S.W.2d 197 (Tex. App.--Dallas 1985, writ ref'd n.r.e.), to support its argument that knowledge or intent are necessary to establish a violation of the DTPA. JMB contends that the facts in that case were "virtually identical" to the facts of this case and that our prior holding controls the disposition of this appeal.
        Atrium Boutique also involved a landlord-tenant dispute. The tenant alleged that the landlord orally represented that she could indefinitely renew her lease for successive three year periods. The written lease contained no such provision. The tenant later located a buyer for her business and entered into a contract of sale, subject to the landlord's approval of the purchaser and renewal of the lease. The landlord declined to approve the purchaser and renew the lease. The tenant sued the landlord and the trial court denied recovery under the DTPA. Id. at 198.
        On appeal, this Court held that the record contained no evidence that the landlord's representative "knowingly engaged in some false, misleading, or deceptive conduct as defined in the court's charge, or that he knowingly engaged in any unconscionable conduct." Id. at 200 (emphasis added). This Court went on to say:
Assuming an oral contract did in fact exist, the record only reflects a breach of contract. The mere breach of an oral contract is not fraud and the subsequent breach is not evidence that may be considered in determining whether or not there was fraud in the original transaction. . . . There is no evidence that, at the time the "oral contract" was entered into, [the landlord's representative] did not intend to perform his obligation under that "contract."
Id. (emphasis added) (citations omitted).
        At first glance, this Court's use of the word "knowingly" and reference to the lack of intent appear to indicate that intent and knowledge are necessary to establish a DTPA violation. Such would be contrary to the plain language of the statute and well-established case law. See Eagle Properties, 807 S.W.2d at 724; Smith, 611 S.W.2d at 616-17; RRTM Restaurant, 766 S.W.2d at 807. A careful reading of the opinion, however, indicates that this Court's holding was based on the charge submitted to the jury. Although the opinion does not reveal the exact wording of the charge, it clearly required a finding of knowing conduct. Atrium Boutique, 696 S.W.2d at 200. Thus, this Court's references to fraud and lack of intent not to perform are understandable in view of the apparent manner in which the alleged DTPA violation was submitted to the jury. Accordingly, we determine that Atrium Boutique is distinguishable and inapplicable to the present case.
        JMB also relies on Quitta v. Fossati, 808 S.W.2d 636 (Tex. App.--Corpus Christi 1991, writ denied), for the proposition that its reliance on a written lease is not actionable under the DTPA. In Quitta, the Fossatis rented a house owned by Quitta and two other persons. The lease agreement provided for monthly rent in the amount of $600, and contained a handwritten provision allowing the tenants to make $300 worth of improvements to the property in lieu of a security deposit. The Fossatis contended that one of the property owners later orally modified the written lease by allowing them to make improvements in lieu of rent. The Fossatis made improvements in lieu of rent for several months. Thereafter, Quitta refused to accept the improvements and demanded rent payments in cash. Quitta ultimately sued for unpaid rent. The Fossatis counterclaimed under the DTPA, relying on the alleged oral modification of the lease. The trial court granted judgment in favor of the Fossatis. Id. at 639-40.
        On appeal, the Corpus Christi court of appeals held that judgment was improperly rendered on the DTPA counterclaim. Recognizing that a mere breach of contract is not actionable under the DTPA, the court stated that it was important to distinguish between a contract claim and misrepresentations under the DTPA. Id. at 644. The court noted that the DTPA claim was based on the existence of an oral modification of a lease and involved alternative interpretations of the lease agreement. Id. at 640. The court held that, under those circumstances, the dispute arises out of the performance of the contract and the rights of the parties are governed by traditional contract principles. Id. at 644.
        The present dispute does not involve the subsequent modification of a lease or competing interpretations of a contractual agreement. Indeed, it is undisputed that the lease allows JMB to rent space in the food court to another hamburger vendor. Big Al's complains that despite what the lease says, a JMB representative assured Biederman before he signed the lease that his restaurant would be the only hamburger vendor in the mall. Contrary to this representation, JMB later rented food court space to McDonald's.
        JMB did not breach the lease agreement. In fact, its conduct was in accordance with the written lease. JMB did, however, act contrary to its oral representation. The failure to deliver goods or services in accordance with an earlier representation is prohibited by, and actionable under, the DTPA. See Jim Walter Homes, Inc. v. Valencia, 690 S.W.2d at 242; see also Hurst v. Sears, Roebuck & Co., 647 S.W.2d 249, 252 (Tex. 1983); Smith v. Baldwin, 611 S.W.2d at 616-17; Honeywell, Inc. v. Imperial Condominium Ass'n, Inc., 716 S.W.2d 75, 79 (Tex. App.--Dallas 1986, no writ). A party cannot avoid liability under the DTPA by entering into a contract concerning the same subject matter which contains provisions inconsistent with a prior representation. See Weitzel v. Barnes, 691 S.W.2d 598, 600-01 (Tex. 1985); Honeywell, 716 S.W.2d. at 78. It is the oral representation that forms the basis of the DTPA action. Weitzel, 691 S.W.2d at 600.
        We hold that Big Al's has a valid claim under the DTPA. The conduct of JMB amounts to more than a mere breach of contract. Our holding does not constitute unwarranted interference with the right to freely enter into contracts. Parties remain free to do so, subject to the requirement imposed by the legislature that rights and duties under the DTPA cannot be waived or altered by agreement. Tex. Bus. & Com. Code Ann. §17.42 (Vernon Supp. 1992); Honeywell, 716 S.W.2d at 78.
        JMB also asserts that Big Al's DTPA claim should have been brought under section 17.46(b)(12), which forbids misrepresentations about an agreement, rather than under section 17.46(b)(5), which prohibits misrepresentations about the characteristics and benefits of goods or services.
        The DTPA defines "goods" as "tangible chattels or real property purchased or leased for use." Tex. Bus. & Com. Code Ann. § 17.45(1) (Vernon 1987) (emphasis added). "Services" includes "work, labor, or service purchased or leased for use." Id. § 17.45(2) (Vernon 1987) (emphasis added). Those definitions are broad enough to include the leased premises made the basis of this suit. This conclusion is amply reinforced by the statutory mandate that we construe and apply the DTPA liberally in order to promote its purposes of protecting consumers against false, misleading, and deceptive business practices. Id. § 17.44 (Vernon 1987); see Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 541 (Tex. 1981). We therefore determine that section 17.46(b)(5) encompasses misrepresentations about the characteristics or benefits of leased premises.
B. Parol Evidence Rule and Statute of Frauds
        JMB next argues that evidence of oral representations contrary to the terms of the lease should have been excluded under the parol evidence rule and statute of frauds. Tex. Bus. & Com. Code Ann. § 26.01 (Vernon 1987). We previously held that these oral representations form the basis of Big Al's DTPA claim. The parol evidence rule and statute of frauds are inapplicable when a consumer seeks recovery under the DTPA. See Weitzel, 691 S.W.2d at 600; Honeywell, 716 S.W.2d at 78; United Postage Corp. v. Kammeyer, 581 S.W.2d 716, 720-21 (Tex. Civ. App.--Dallas 1979, no writ). The statements made by JMB's leasing agent are therefore admissible to establish a violation of the Act. Weitzel, 691 S.W.2d at 600.
        In summary, we hold that Big Al's has a valid claim under the DTPA. Further, neither the parol evidence rule nor statute of frauds is applicable to exclude evidence of the oral representations made by JMB. We overrule the first point of error.
EVIDENCE OF DTPA VIOLATIONS
        In points of error two through four, JMB contends that the evidence was insufficient to support certain jury findings concerning the DTPA claim.
A. Standard of Review
        In reviewing a no evidence point, we consider only the evidence and inferences which tend to support the jury finding. Jacobs v. Danny Darby Real Estate, Inc., 750 S.W.2d 174, 175 (Tex. 1988). All evidence and inferences to the contrary are disregarded. Id. We can sustain a legal sufficiency challenge only if: (1) there is a complete absence of evidence of the fact found; (2) the rules of law or evidence prohibit giving weight to the only evidence offered to prove the fact; (3) the evidence in support of the fact amounts to no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of the fact. Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n.2 (Tex. 1991).
        In reviewing a factual insufficiency point, we consider and weigh all of the evidence. The jury findings must be upheld unless the evidence is so weak or the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Levinge Corp. v. Ledezman, 752 S.W.2d 641, 643 (Tex. App.--Houston [1st Dist.] 1988, no writ).
B. Oral Representation
        In its second point of error, JMB contends that there is factually insufficient evidence to support the jury's finding that it represented that the leased premises had characteristics or benefits that it did not have.
        Richard Biederman testified that one of his concerns about the proposed lease was the fact that another hamburger vendor could be allowed in the mall if Big Al's received a rent reduction. Biederman said that this was unacceptable. He wanted assurances from JMB's leasing agent, Sandra Hamilton, that another hamburger restaurant would not be brought into the mall. Biederman said that this was a critical issue in negotiating the lease. When asked whether he received assurances that Big Al's would be the only hamburger operator in the food court, Biederman replied:
Absolutely. Sandy said to us as all major mall operators leasing agents say, is that that is the concept of a food court. You are going to be the hamburger operator. You don't have to worry about it. We are not going to put any other hamburger operator in the food court, and more than that, we are not going to let anyone in the food court sell hamburgers so that was an assurance that we absolutely got before we would sign the lease.
        Ronald Wheeler, a previous general manager of the mall under Federated Stores Realty and JMB, testified that he would generally represent to tenants that their main menu items would be protected. Wheeler testified on cross-examination that no lease gave a tenant the exclusive right to sell something. On re-direct, Wheeler reaffirmed that he told tenants that their main menu items would be protected "[a]s long as they were there and . . . their menu was attached to the lease."
        Sandra Hamilton, the JMB leasing agent who dealt with Biederman, testified by deposition. She denied talking with Biederman during negotiations about the lease. Hamilton specifically denied discussions about competing food vendors.
        There is conflicting evidence regarding assurances that Big Al's would be the only hamburger vendor in the food court. However, there is considerable evidence to support the jury's finding that JMB represented that the leased premises would have characteristics or benefits that it did not have. The jury had the opportunity to observe the demeanor of the witnesses and judge their credibility. We cannot say that the jury's finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. We overrule the second point of error.
C. Producing Cause
        In its third point of error, JMB contends that the evidence is factually insufficient to support the jury's finding that misrepresentations about the leased premises were the producing cause of damages. "Producing cause" is defined as an efficient, exciting or contributing cause which, in a natural sequence, produced the injuries or damages for which the claimant seeks recovery. Milam Dev. Corp. v. 7*7*0*1 Wurzbach Tower Council, 789 S.W.2d 942, 946 (Tex. App.--San Antonio 1990, writ denied); see also Dubow v. Dragon, 746 S.W.2d 857, 860 (Tex. App.--Dallas 1988, no writ). A causal connection between the defendant's conduct and the injury incurred is required. See Milam Dev., 789 S.W.2d at 946.
        JMB contends that there is no causal connection between its oral representations and lost profits sustained by Big Al's. JMB notes that Big Al's actually lost less money after McDonald's entered the mall. Since Big Al's was not injured by the entry of McDonald's, JMB reasons that its conduct was not the producing cause of any damages.
        Once again, there is conflicting evidence on this issue. Operating statements for 1989 and 1990 show that Big Al's was losing money before the advent of McDonald's. However, sales charts for the same period show a substantial decline in sales after McDonald's entered the mall. Phillip McConnell, the general manager at Collin Creek Mall, testified that the presence of McDonald's had an adverse effect on Big Al's business and had something to do with the decline in sales. Sandra Hamilton testified that Big Al's would not have wanted another hamburger vendor to move into the mall. She said that when two vendors sell the same primary item, one usually outperforms the other and the situation ultimately works to the detriment of everybody.
        The record contains ample evidence to support the jury's finding on causation. There is sufficient evidence that the representation of exclusivity made by JMB and the entry of McDonald's into the mall were causally related to the harm suffered by Big Al's. We overrule the third point of error.
 
D. Knowing Conduct
        In its fourth point of error, JMB contends that the evidence was either legally or factually insufficient to support the jury's finding that it knowingly misrepresented characteristics or benefits of the leased premises.
        "Knowing conduct" is defined under the DTPA as actual awareness of the falsity, deception, or unfairness of the act or practice giving rise to the consumer's claim. Tex. Bus. & Com. Code Ann. §17.45(9) (Vernon 1987). A knowing misrepresentation is one made with actual awareness of the falsity. Jim Walter Homes, Inc. v. Gonzalez, 686 S.W.2d 715 (Tex. App.--San Antonio 1985, writ dism'd). Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness. Tex. Bus. & Com. Code Ann. §17.45(9).
        JMB first argues that there is insufficient evidence that it knew the oral representations about the leased premises were false at the time they were made. JMB contends that this evidence is necessary to establish actual awareness. JMB misinterprets the elements of knowing conduct under the DTPA. There is no requirement that the defendant have actual knowledge of the false, misleading, or deceptive representation at the time it was made. In cases involving future goods or services, a representation does not become actionable under the DTPA until the defendant later acts in a manner inconsistent with that representation. The act or practice giving rise to Big Al's cause of action was not the representation made at the time it entered into the lease. Rather, it was the act of leasing space to McDonald's after JMB represented that there would be no other hamburger vendors in the mall. See Jim Walter Homes, Inc. v. Valencia, 690 S.W.2d at 242.
        Alternatively, JMB contends that its action in renting space to McDonald's was not knowing conduct because it relied in good faith on the provisions of a written lease agreement. JMB also notes that its leasing agent, Sandra Hamilton, denied making any assurances about the exclusivity of the food court area. JMB therefore argues that its failure to believe Biederman's uncorroborated claim that oral representations were made does not constitute knowing misconduct.
        We previously upheld the jury's finding that JMB misrepresented the characteristics or benefits of the leased premises. The jury implicitly adopted Biederman's testimony and rejected the explanation offered by Hamilton. They also could have inferred that JMB was aware of the assurances made by its leasing agent. Based on the record before us, we cannot say that such an inference was unreasonable or unwarranted.
        We hold that there is some evidence that JMB knowingly acted contrary to its earlier
representations about the leased premises. We further determine that the jury's finding of knowing conduct is not so against the great weight and preponderance of the evidence as to manifestly unjust or erroneous. We therefore overrule the fourth point of error.
DAMAGES
        JMB presents four points of error pertaining to damages. JMB contends that (1) the proof of damages was too speculative and insufficient to meet the legal standard of reasonable certainty as a matter of law; (2) there was no evidence to support the award of actual damages under any recognized legal theory; (3) the evidence was either legally or factually insufficient to support the award of actual damages; and (4) the actual and additional damages awards were excessive.
A. Applicable Law
        Monetary damages are generally awarded as compensation, recompense or satisfaction for injuries sustained as a result of the breach of a contractual obligation or other legal duty. McRae v. Lindale Indep. School Dist., 450 S.W.2d 118, 124 (Tex. Civ. App.--Tyler 1970, writ ref'd n.r.e.). The DTPA allows prevailing consumers to recover the greatest amount of actual damages alleged and factually established to have been caused by the deceptive act or practice. Tex. Bus. & Com. Code Ann. § 15.70(b)(1) (Vernon Supp. 1992); Kish v. Van Note, 692 S.W.2d 463, 466 (Tex. 1985). The fundamental purpose of actual damages is to indemnify an injured party for pecuniary loss suffered. Waldon v. Williams, 760 S.W.2d 833, 834 (Tex. App.--Austin 1988, no writ).
        The amount of damages must be established with reasonable certainty. Absolute certainty is not required, particularly when dealing with future damages. See Hughes v. Houston N.W. Medical Center, Inc., 680 S.W.2d 838, 842 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.), cert. denied, 474 U.S. 1020 (1985). The damages must be ascertainable in some manner other than by mere speculation or conjecture, and by reference to some fairly definite standard, established practice, or direct inference from known facts. A.B.F. Freight Sys., Inc. v. Austrian Import Serv., Inc., 798 S.W.2d 606, 615 (Tex. App.--Dallas 1990, writ denied). When there is proof within a permissible range of certainty, a plaintiff should not be denied recovery because of difficulty in accurately measuring his damages. Thus, a plaintiff will be entitled to recovery if he produces the best evidence available, and if the evidence is sufficient to afford a reasonable basis for estimating his loss. Hindman v. Texas Lime Co., 152 Tex. 592, 305 S.W.2d 947, 953 (1957).
B. Profits or Cash Flow
        JMB's arguments under points five and six are premised on the assertion that Big Al's sought recovery for lost profits which were too speculative to meet the legal standard of reasonable certainty. JMB argues that any award of damages based on lost profits should have been denied as a matter of law because Big Al's had net losses in 1988 and 1989 before McDonald's moved into the mall. See Turner v. PV Int'l Corp., 765 S.W.2d 455, 466 (Tex. App.--Dallas 1988), writ denied per curiam, 778 S.W.2d 865 (Tex. 1989); Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 458 (5th Cir. 1979).
        The record shows that Big Al's sought damages based on lost cash flow, not lost profits. Biederman gave testimony, based on a number of documents and charts, indicating that Big Al's suffered lost cash flow because of the entry of McDonald's. Although he sometimes referred to positive cash flow as operating profit, the evidence indicated that Big Al's was not seeking lost profits as traditionally defined. See Turner, 765 S.W.2d at 465 (net profits equals total receipts less expenses). Biederman's definition of cash flow did not include bank debt and depreciation. He explained that debt and depreciation were not considered as operating expenses because they were not considered in determining whether a particular restaurant was worth operating. Biederman indicated that a positive cash flow meant that the Big Al's at Collin Creek Mall was sending money to the corporate headquarters. A negative cash flow meant that the corporation had to put money into the restaurant in order to keep it operating.
        As long as the same definition was used to determine positive or negative cash flow both before and after the advent of McDonald's, there is no reason why Big Al's could not pursue recovery of this item of damage. The measure of damages used by Big Al's is consistent both before and after McDonald's entered the mall. Big Al's is entitled to recover for pecuniary loss caused by the presence of McDonald's. We hold that the evidence of lost cash flow, as defined by Biederman, was not too speculative or insufficient to meet the standard of reasonable certainty as a matter of law. We overrule points of error five and six.
C. Legal Sufficiency of the Evidence
        We previously set forth the standard of review used in measuring the legal sufficiency of the evidence. As already noted, there is evidence that Big Al's suffered lost cash flow because of the presence of McDonald's. Biederman testified that the Big Al's at Collin Creek Mall had a positive cash flow in 1988, and that both sales and cash flow were increasing in 1989 before McDonald's entered the mall. He further stated that this positive cash flow became a negative cash flow after McDonald's opened. We hold that there is more than a scintilla of evidence of lost cash flow to support the award of actual damages. We overrule the seventh point of error insofar as it claims that the evidence was legally insufficient.
D. Factual Sufficiency of the Evidence
        We now apply the standard of review to determine the factual sufficiency of the damage award. As previously noted, damages must be established with reasonable certainty using the best evidence available. Hindman, 305 S.W.2d at 953; A.F.B. Freight Sys. Inc., 798 S.W.2d at 615.
        JMB contends that there were objectively demonstrable errors in the damage evidence presented to the jury. Biederman stated that the charts and testimony about lost cash flow were based on the underlying calculations contained in Defendant's Exhibits 15, 16 and 17. Exhibits 15 and 16 purport to contain actual data for the 1987, 1988, and 1989 calendar years, as well as projections for 1990. Exhibit 15 contained projections based on the presence of McDonald's. Exhibit 16 contained projections based on the absence of McDonald's. Exhibit 17 contained further projections assuming a renewal of the lease and the absence of McDonald's. These exhibits showed a bottom line net cash flow which excluded the expenses of bank debt and depreciation.
        JMB complains that Big Al's significantly understated projected rent payments in Exhibit 16. FN:2 We agree. The projected rent in Exhibit 16 for 1990 is $16,058.88, exactly 6% of the projected sales of $267,648.00 for the same period. The projected rent for the first seven months of 1991 is $9,648.71, again exactly 6% of the projected sales of $160,811.84. These projected rents are based on the percentage rate that Big Al's would pay under the lease if another hamburger vendor was present in the food court. However, Exhibit 16 purported to show the cash flow that Big Al's could have generated in the absence of McDonald's. Consequently, projected rental payments should have been based on contractual minimum rent rather than alternative percentage rent. Using the contractual minimum rent of $42,000 per year or $3,500 per month, 1990 rent was understated by almost $26,000. Rent for the first seven months of 1991 was understated by almost $15,000. Net cash flow projections for those same periods were therefore overstated by the same amounts.
        JMB also complains about the sales projections used by Big Al's. Defendant's Exhibit 9 showed projected sales from 1989 through 1997 assuming the absence of McDonald's. Exhibit 9 is based on extrapolations from 1988 sales figures. JMB argues that this extrapolated data was flawed because it ignored actual sales figures for the first ten months of 1989 before McDonald's entered the mall. JMB therefore maintains that the sales projections contained in Exhibit 9 should have been based on actual data in 1989, rather than extrapolations from previous years. JMB argues that used of projected sales for all months of 1989 resulted in inflated sales projections for that year. We agree. Big Al's should have projected an increase in sales for only the last two months of 1989. This error was compounded because the projected sales for all subsequent years were based on inflated sales figures for 1989.
        Big Al's and Biederman were the only parties who introduced evidence attempting to show damages stemming from lost cash flow. The underlying data upon which that evidence was based was objectively erroneous and misleading. These objectively demonstrable errors overstated the projected cash flow that Big Al's would have generated in the absence of McDonald's, which in turn overstated the cash flow lost because of the presence of McDonald's. Because of this objectively erroneous and misleading data, Big Al's has failed to produce the best evidence available. We cannot say that the evidence presented was sufficient to establish a reasonable basis for estimating lost cash flow. See Hindman, 305 S.W.2d at 953; A.B.F. Freight Sys., Inc., 798 S.W.2d at 615.
        We hold that the evidence presented by Big Al's is factually insufficient to support the jury's award of actual damages. We further determine that the use of objectively erroneous and misleading evidence amounted to such a denial of JMB's rights as was calculated to cause, and probably did cause, rendition of an improper judgment. Tex. R. App. P. 81(b)(1); Hindman, 305 S.W.2d at 953. We sustain the seventh point of error insofar as it contends that the evidence was factually insufficient.
        
CROSS POINTS
        Big Al's and Biederman assert three points of error all relating to the jury findings in favor of JMB on its claim for unpaid rent. Big Al's and Biederman contend that they were required to pay percentage rent at a lower rate, rather than minimum rent at a higher rate, from the time when a vendor moved into the mall and began selling potato skins. We determine as a matter of law that the lease agreement and subsequent amendments do not support this argument.
        The original lease between TGI Friday's and Federated Stores Realty had an addendum providing that "tenant . . . has agreed to pay minimum rent . . . with the anticipation that tenant shall be the only patio tenant selling hamburgers and/or potato skins." The addendum also stated that the tenant would pay a percentage rent in lieu of the minimum rent if the landlord rented food court space to another operation selling hamburgers or potato skins. This lease provision was later amended to allow the landlord to rent space to a vendor selling baked potatoes without forfeiting the right to minimum rent. In exchange, TGI Friday's received a substantial reduction in minimum rent. This rent reduction was passed on to Big Al's when it assumed the lease.
        In awarding damages to JMB for unpaid rent at the minimum rate, the jury implicitly found that the sale of baked potatoes included potato skins. Indeed, this is the only reasonable interpretation of the amendment to the lease. The amendment would be wholly unnecessary and superfluous if the sale of baked potatoes did not also include the sale of potato skins. This interpretation is reinforced by another amendment contained in the assumption agreement between Big Al's, TGI Friday's, and JMB. This amendment revised the use provision of the original lease to provide "for the preparation and fast-food retail sale of hamburgers, and all other items listed on the attached menu." A menu listing several items sold by Big Al's was attached to the assumption agreement. The menu included hamburgers, but not potato skins.
        The obvious purpose of the provision allowing for payment of rent at a lower percentage rate is to protect tenants from vendors who sell competing main menu items. Big Al's menu did not include potato skins. It is therefore reasonable to conclude that Big Al's did not need protection in the form of reduced rent from a vendor who sold that non-competing food item.
        The interpretation of an unambiguous written contract is a question of law for the court. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968). We hold as a matter of law that the lease agreement and amendments entitle Big Al's to protection from competing hamburger vendors only. Big Al's argument that it is entitled to reduced rent if another food court vendor sells potato skins is not supported by the plain language of the lease. We overrule Big Al's cross-points of error.
DISPOSITION
        Because we have sustained JMB's point of error seven regarding the factual sufficiency of the evidence on damages, we reverse the trial court's judgment and remand the entire case for a new trial. See A.B.F. Freight Sys., Inc., 798 S.W.2d at 617; Tex. R. App. P. 81(b)(1).
 
 
                                                          
                                                          JEFF KAPLAN
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
910063F.U05
 
FN:1 The original lease was between TGI Friday's, Inc., as tenant, and Federated Stores Realty, Inc., as landlord. JMB Income Properties Ltd.-X subsequently assumed ownership and operation of the Collin Creek Mall and was the landlord at all times relevant to this suit.
FN:2 Big Al's used Defendant Exhibit 15 to show projected cash flow based on the presence of McDonald's. Exhibit 16 showed projected cash flowed based on the absence of McDonald's. By comparing the two exhibits, the jury would theoretically be able to determine the total amount of cash flow lost because of the presence of McDonald's at the mall.
File Date[03-16-92]
File Name[910063F]