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Bergholtz v. Southwestern Bell Yellow Pages, Inc.

Appellant has failed to show that the advertising contract's limitation of liability clause was unenforceable. Because this clause was enforceable, it precluded any lost profits appellant claims the erroneous advertisement caused. Therefore, even if this court assumes the trial court erred in excluding the testimonies on lost profits, its error did not cause the rendition of an improper judgment, or prevent appellant from properly presenting the case. El Paso Court of Appeals, No. 08-08-00275-CV, 05-14-2010

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OPINION

Appellant, Dana Bergholtz, appeals the trial court’s judgment based on its exclusion of testimony by his expert witness and by Appellant himself with respect to lost profits. On appeal, Mr. Bergholtz argues the trial court erred in excluding both testimonies, and that these errors were not harmless. We will affirm.

Mr. Bergholtz owned and operated a business in El Paso that sold wireless service and accessories beginning in 1997. In 2001, he opened another location in El Paso, which was engaged in the same business. In February 2002, Mr. Bergholtz entered into a contract with Southwestern Bell to advertise in its 2002-2003 Yellow Pages directory. According to him, the advertisement in the 2002-2003 directory contained many mistakes regarding his business, including phone numbers, locations, and service providers. He refused to pay the fee for this particular advertisement. Mr. Bergholtz sold his business in late 2003.

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