RICHARD TERENCE WRIGHT, Appellant v. CAE SIMUFLITE, INC., Appellee

AFFIRMED; Opinion Filed July 24, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00759-CV
............................
RICHARD TERENCE WRIGHT, Appellant
V.
CAE SIMUFLITE, INC., Appellee
.............................................................
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-06626-I
.............................................................
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion By Justice Lang-Miers
        In this case, Richard Terence Wright sued CAE SimuFlite, Inc. for breach of contract, negligence, negligent misrepresentation, fraud, and violations of the Texas Deceptive Trade Practices Act (DTPA). The trial court granted SimuFlite's no-evidence and traditional motions for summary judgment, and Wright appeals. We affirm.
 
Factual Background
 
        In May 2004, Wright became a pilot for Jet Fleet International. Jet Fleet operated an air ambulance service under the certificate of American Air Network. Wright, through American Air, contracted with SimuFlite to train and certify him for Lear jet rating, the type of airplanes that Jet Fleet operated. At the end of the training, SimuFlite assigned an instructor to conduct Wright's final check ride who was not FAA qualified to conduct final check rides on Lear jets. When SimuFlite realized its error in August 2004, it notified Wright and his employer and offered to retrain and certify Wright four days later at no charge. In the meantime, Wright could not fly Lear jets. Wright successfully completed the retraining and was certified on September 10, 2004.
        Wright sued SimuFlite for breach of contract and various torts, alleging that he lost wages   See Footnote 1  during the time he could not fly Lear jets and also lost the pilot-in-command hours he logged between the initial and final certifications. SimuFlite moved for traditional and no-evidence summary judgment, arguing that Wright alleged only a breach of contract claim and not independent tort claims, and Wright had no evidence of damages. In response, Wright offered his deposition testimony as evidence of damages. SimuFlite objected to this evidence on the ground that it contained inadmissible hearsay, and the trial court sustained the objections. The trial court granted SimuFlite's traditional and no-evidence motions for summary judgment without stating its basis. Wright raises eight issues on appeal, essentially complaining that the trial court erred by sustaining the objections to his evidence of damages and by granting SimuFlite's motions for summary judgment.
 
Standard of Review
 
        When a motion for summary judgment presents both no-evidence and traditional grounds, we first review the propriety of the summary judgment under the rule 166a(i) no-evidence standards. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). When a party files a no-evidence summary judgment, the burden shifts to the nonmovant to present enough evidence that raises a genuine fact issue on the challenged elements. Tex. R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We review a no-evidence motion for summary judgment under the same legal sufficiency standard used to review a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Our inquiry focuses on whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the challenged elements. See id. at 751. Evidence is no more than a scintilla if it is “so weak as to do no more than create a mere surmise or suspicion” of a fact. Id. We examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the movant. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)). We cannot affirm a summary judgment on grounds other than those specified in the motion. Tex. R. Civ. P. 166a(c), 166a(i). However, if the trial court's order does not specify the grounds on which it granted summary judgment, we affirm if any of the grounds specified in the motion are meritorious. See Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
 
Discussion
 
        Wright's original petition described his lawsuit as arising “out of [SimuFlite's] failure to provide a properly certified instructor for a flight training class that [Wright] took from [SimuFlite] in 2004.” He alleged that this failure to provide a properly-certified instructor injured him because he lost hours as pilot in command during the period between the initial and final certifications and profits during the time he could not fly Lear jets. He asserted claims for breach of contract, negligence, negligent misrepresentation, fraud, and DTPA violations. SimuFlite contends that Wright's allegations are all really a breach of contract claim.
A.
 
Nature of Allegations
 
        In determining whether an allegation is really only a contract claim or also a tort claim, we analyze both the source of the duty and the nature of the loss. Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494-95 (Tex. 1991). If a defendant's conduct would give rise to liability independent of the fact that a contract exists between the parties, the plaintiff's claim may be a contract claim as well as a tort claim. Id. at 494. But if the defendant's conduct would give rise to liability only because it breaches the contract, the plaintiff's claim generally is only a contract claim. Id. Additionally, when the damages alleged are for economic loss caused by the failure to perform under the contract, such as lost profits, then the plaintiff's action is ordinarily on the contract. Id. at 494-95 (citing Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986)); Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636-37 (Tex. 2007).
        Wright contracted with SimuFlite to train and certify him to fly Lear jets. Wright alleged that SimuFlite provided an instructor who was not qualified to certify him for the Lear jet rating for which he contracted. Wright did not allege that SimuFlite misrepresented that it had qualified instructors when it did not. In fact, Wright conceded that SimuFlite had qualified instructors on its staff, but unintentionally assigned the wrong instructor to conduct his final check ride. He sought damages for lost profits for the days he could not fly Lear jets and pilot-in-command hours that he contends he can no longer claim because he was not properly certified at the time he logged those hours.
        We conclude that Wright's claim is really that the service he was promised and paid for was not the service he received-specifically, he contracted for a Lear jet rating certificate, but SimuFlite did not provide an instructor qualified to certify him for that type rating. This can only be characterized as a breach of contract claim. See DeLanney, 809 S.W.2d at 495 (distinguishing between allegations of breach of contract and negligence); Sonnichsen, 221 S.W.3d at 636-37 (distinguishing between allegations of breach of contract and fraud); Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14 (Tex. 1996) (distinguishing between allegations of breach of contract and violation of DTPA). As a result, the trial court did not err by granting summary judgment in favor of SimuFlite on Wright's negligence, negligent misrepresentation, fraud, and DTPA claims. See Sonnichsen, 221 S.W.3d at 637. We now turn to Wright's breach of contract claim.
B.
 
Hearsay Objections
 
        SimuFlite objected to Wright's deposition testimony concerning lost profits and pilot-in- command hours on the ground that it contained inadmissible hearsay. The trial court sustained the objections. Wright complains that the trial court erred by sustaining those objections. He contends that SimuFlite waived its objections to his deposition testimony by attaching the entire deposition to its motion for summary judgment. We do not need to decide whether the objections were properly sustained, because even with this evidence, we nevertheless conclude that Wright produced no more than a scintilla of evidence of damages and did not raise a fact issue.
C.
 
Measure of Damages
 
        Generally, the measure of damages for breach of contract is that which restores the injured party to the economic position he would have enjoyed if the contract had been performed. Mood v. Kronos Prods., Inc., 245 S.W.3d 8, 12 (Tex. App.-Dallas 2007, pet. denied). This measure may include reasonably certain lost profits. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992); Mood, 245 S.W.3d at 12. The correct measure of damages for lost profits is lost net profit, not lost gross profit. Heine, 835 S.W.2d at 83 n.1. Lost profits may be in the form of direct damages, that is, profits lost on the contract itself, or in the form of consequential damages, such as profits lost on other contracts resulting from the breach. Mood, 245 S.W.3d at 12. But whether the lost profits are characterized as direct or consequential damages, the amount of the loss must be shown by competent evidence with reasonable certainty; based on objective facts, figures, or data; and predicated on one complete calculation. Heine, 835 S.W.2d at 84; Mood, 245 S.W.3d at 12. The injured party must do more than show that he suffered some lost profits. See Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994).
D.
 
Evidence of Lost Profits
 
        Wright testified that the air ambulance business is unpredictable and not subject to a regular schedule. For example, he testified that he flew ten days in August and twelve days in September, after September 10. He estimated his lost wages for the period August 28 to September 10 at $5000 to $6000, based on an average of approximately $500 to $600 per day. He testified that he was generally paid $75 per hour, or $380 per day, whichever was more. He testified that he “missed out on a lot of work” during that time period and that his employer had to turn away business. But he did not offer evidence of any actual flights that he missed, the number of hours those flights would have involved, or how much profit he would have made from each flight. See Heine, 835 S.W.2d at 85. Although he said he was sure his employer documented the trip requests that came in during that period, he did not ask his employer about them and did not have any documentation identifying the actual flight hours he was claiming were lost to any certainty. He also testified that he was responsible for expenses incurred during the trips, such as hotels, rental cars, and meals, as well as the cost of any training or seminars he attended throughout the year, but he did not offer any evidence concerning what those expenses would have been for the flights he claimed he missed.
        Opinions or estimates of lost profits may be competent evidence if that opinion or estimate is based on objective facts, figures, or data from which the amount of lost profits may be ascertained. KMG Kanal-Muller-Gruppe Deutschland GmbH & Co. KG v. Davis, 175 S.W.3d 379, 391 (Tex. App.-Houston [1st Dist.] 2005, no pet.). But Wright did not base his opinion of his lost profit on any objective facts, figures, or data, and he did not offer any evidence of his actual lost net profits. See Heine, 835 S.W.2d at 84 (proper measure of damages is lost net profits not lost income). As a result, the trial court did not have a basis for determining whether the damages were established with reasonable certainty or were based on pure speculation. See id.
        We conclude that Wright did not offer more than a scintilla of evidence of lost profits and the trial court did not err by granting summary judgment in favor of SimuFlite on this ground.
E.
 
Evidence of Lost Pilot-in-Command Hours
 
        Wright further contends that he lost the 114 pilot-in-command hours he logged between his initial certification in May 2004 and his final certification in September 2004, and an additional estimated 31 pilot-in-command hours which he contends he could have logged during the period in which he could not fly Lear jets. He bases this contention on a telephone conversation he had with an FAA representative who told him that he could not claim the hours he logged while his certificate was invalid. But Wright also testified that he had not sought a formal opinion from the FAA regarding whether he could count the hours he logged.
        Wright valued the damages for the lost pilot-in-command hours at the amount it would cost him to rent a Lear jet for 145 hours (the 114 hours he logged during the time he was not properly certified, and an additional 31 hours he claims he lost because he could not fly Lear jets) at a rate of $1700 to $1800 per hour. But he also testified that the loss of the pilot-in-command hours did not affect his employment or compensation, and whether it would affect his future employment was strictly “guesswork.” Additionally, as we noted, he cannot identify actual flight hours he lost with any certainty. And Wright testified that he still claims the 114 pilot-in-command hours he logged before learning he was not properly certified.
        In summary, Wright did not show with reasonable certainty by objective facts, figures, or data, the damages he suffered as a result of losing the pilot-in-command hours. See Heine, 835 S.W.2d at 84. Indeed, the evidence shows that Wright did not suffer any damages from the loss of those hours, and any future loss is, in Wright's words, “guesswork.” We conclude that Wright did not produce more than a scintilla of evidence of damages related to the loss of the pilot-in-command hours. We further conclude that the trial court did not err by granting summary judgment in favor of SimuFlite on this ground.         We resolve Wright's first, second, third, fourth, fifth, and sixth issues against him. Based on our disposition of these issues, we do not reach Wright's seventh and eighth issues.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
070759F.P05
 
Footnote 1 Wright alleged that he lost “wages” between the period of August 28, 2004 and September 10, 2004 because he was not able to fly the company's Lear jet. SimuFlite refers to this alleged element of damages as “lost profits.” The undisputed summary judgment evidence shows that Wright reported his income from this job on an IRS form entitled, “Profit & Loss from a Business,” and that he subtracted all expenses associated with the flights. Consequently, we also refer to this element of damages as “lost profits.”