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Click here for the full text of this decision FACTS:El Dorado Motors, Inc. appeals a final summary judgment that it take nothing from Graham R. E. Koch and the firm of Vial, Hamilton, Koch & Knox, L.L.P (collectively, “Koch”). In its suit against Koch, El Dorado asserted claims for alleged breach of fiduciary duty and alleged legal malpractice and, in the alternative, alleged negligent misrepresentation and alleged civil conspiracy. El Dorado alleged that Koch’s acts “were the proximate cause of substantial damages to El Dorado, including lost profits.” El Dorado also claimed exemplary damages. Koch sought summary judgment on traditional and no-evidence grounds on claims asserted by El Dorado. At the beginning of the hearing on Koch’s summary judgment motion, the trial court stated that the court had previously determined it would “freeze” the summary judgment record. El Dorado argued several previously filed motions to supplement the record and argued for a continuance to obtain additional summary judgment evidence. The trial court orally denied the motion to supplement at the conclusion of the hearing and subsequently signed the final summary judgment. The trial court heard El Dorado’s motion for new trial and denied it by a written order. This appeal timely followed. HOLDING:Affirmed. El Dorado’s main contention on appeal was that the trial court erred in granting summary judgment on its claim for “actual damages in the nature of lost profits” and then entering a take-nothing judgment against it. Koch’s motion for summary judgment asserted that “the essential elements of every claim asserted by El Dorado � causation and damages � are missing” and that there was no evidence of an essential element of El Dorado’s claims on which El Dorado would have the burden of proof at trial. The court examines the motion and concludes that the motion complies with Texas Rule of Civil Procedure 166a(i) by stating the element of the claims asserted damages on which there was no evidence. The court holds that the final summary judgment in this case clearly identifies each cause of action. Summary judgment was granted to some claims (negligent misrepresentation and exemplary damages), but not to others (breach of fiduciary duty, malpractice and conspiracy). Yet, since the motion asked for relief as to all damages, the “take-nothing” final summary judgment disposes of all damage claims. The court concludes that, regardless of whether the trial court misunderstood El Dorado’s claims, the language of the final summary judgment, while expressly granting summary judgment as to lost profits, also granted summary judgment as to all other claims addressed in the motion for summary judgment, but not specifically identified in the final summary judgment. The court next considers whether a spreadsheet on lost profits and actual out-of-pocket damages, including $350,000 in attorney’s fees, and the expert deposition testimony of Thomas Turner, the accountant who created the spreadsheet, “constitute evidence of probative force.” The court notes that “opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact”more probable or less probable.’ ” Such evidence is “ incompetent evidence” which will not support a judgment. Tuner’s deposition refers to “profitability” and “sales trends,” but fails to establish how any loss of profitability was calculated. The spreadsheet does not show that the business was established and making a profit at the time of the alleged acts of breach of fiduciary duty, legal malpractice, negligent misrepresentation or civil conspiracy. Thus, the court finds that neither the spreadsheet nor Turner’s deposition gives the basis for Turner’s opinions and conclusion as to lost profits damages, that is, “objective facts, figures, or data from which the amount of lost profits can be ascertained.” Moreover, Turner explained the dealership expenses in terms of “excessive” expenses. However, because Turner makes no comparison to any lower amount that should have been paid and the “minimum” and “maximum” amounts for these categories are the same, the bare amount of expenses is no evidence of out-of-pocket damages. The court concludes that the spreadsheet and the deposition testimony do not “amount to any evidence at all” as to “actual damages in the nature of lost profits” or “actual, out-of-pocket damages” because there is no evidence as to the basis of Turner’s opinions and conclusions. Accordingly, the court does not agree with El Dorado’s argument that there is summary judgment evidence raising a fact issue as to these damages. OPINION:Lang, J., Morris, Lang and Mazzant, JJ.

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