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Click here for the full text of this decision FACTS: Blue Star Operating Co. appeals a judgment entered in favor of Tetra Technologies Inc. and Tetra Applied Technologies Inc., after a jury trial. Blue Star is in the business of oil and gas exploration. Blue Star contracted with Tetra to provide “fluid engineering” and related services for the drilling of the Dauntless Well in Robertson County. Disputes arose between the parties regarding payment for fluid lost in the course of the drilling operations. Blue Star brought suit against Tetra, alleging breach of contract, fraud, negligence and violations of the Texas Deceptive Trade Practices Act. Tetra asserted a counterclaim for Blue Star’s failure to pay for all drilling fluids. At trial, the jury found 1. Tetra and Blue Star agreed Blue Star would be responsible for payment for all fluid lost at the Dauntless Well during the drilling operations; 2. Blue Star failed to comply with the agreement; 3. Blue Star’s lack of compliance was not excused; 4. Tetra did not engage in any deceptive act relied on by Blue Star that was a producing cause of damages; 5. Tetra did not commit an unconscionable act that was a producing cause of damages to Blue Star; 6. Tetra’s failure to perform services in a good and workmanlike manner was a producing cause of damages to Blue Star; 7. Tetra did not commit fraud proximately causing damages to Blue Star; 8. Blue Star’s damages were zero; 9. Tetra’s damages were $75,000; 10. Tetra engaged in knowing, but not intentional, conduct; and 11. Blue Star’s damages for Tetra’s knowing conduct were zero. The trial judge entered judgment for Tetra. HOLDING: Affirmed. Blue Star asserts the trial judge erred in denying Blue Star’s post-verdict request to amend its pleadings. An amendment “prejudicial on its face” has three defining characteristics. See Weynand v. Weynand, 990 S.W.2d 843 (Tex. App. � Dallas 1999, pet. denied). First, under Weynand, the amendment “must assert new substantive matter that reshapes the nature of the trial itself.” Second, the new matter asserted “must be such that it could not have been anticipated by the opposing party in light of the development of the case.” Third, allowance of the amendment “must not detrimentally affect the opposing party’s case.” The question whether a DTPA defendant’s conduct was “knowing” does not focus on whether the plaintiff’s injury might reasonably have been anticipated. Instead, “knowing” conduct requires actual awareness by the defendant that his conduct is unfair or deceptive. The jury found Tetra did not perform its services in a good and workmanlike manner, and Tetra’s conduct was knowing but not intentional. There was evidence supporting these findings. The court finds that the Weynand factors are met. Blue Star asserts it is entitled to recover its attorneys’ fees because it was the “prevailing party” on its DTPA claim. The court overrules this issue. Blue Star does not cite to evidence regarding any injury it suffered or damages it seeks as a result of Tetra’s alleged failure to disclose that is independent from its breach of contract claim. Blue Star sought to recover the amount it alleged it overpaid Tetra under the parties’ agreement. Unlike fraudulent inducement, the benefit of the bargain measure of damages is not available for a claim of negligent misrepresentation. The trial judge did not err in granting the motion for directed verdict on Blue Star’s negligent misrepresentation claim. OPINION: Whittington, J.

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