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Click here for the full text of this decision FACTS:Dan Roberts created a business in Cleburne in the summer of 1997 to provide telecommunications services, including a telecommunications software called “Superphone” that his friend John Hayward had developed, and other services. Superphone enabled customers to save on long distance charges by calling a local number and entering some codes and the long distance number and paying a flat rate fee per month instead of long distance charges for each call. Roberts called his business ExpresTel. Roberts and Hayward orally agreed that Hayward would receive fifty percent of ExpresTel’s profits in exchange for allowing Roberts to use the Superphone software exclusively for forty years in the North Texas area. Hayward later moved to California and his share of the profits was renegotiated to one-third. Roberts hired Debra Whitfill to market ExpresTel and to provide customer service, paying her for each new account she opened. Whitfill became dissatisfied with her ExpresTel income and began exploring options with Hayward for a separate system of her own. In March 2000, she asserted that she was Roberts’s partner instead of an ExpresTel employee, and demanded a partnership agreement. Roberts and Whitfill signed an agreement on March 10, 2000, after which Whitfill had no involvement with ExpresTel’s operations. Later in 2000, Whitfill sued Roberts, alleging that they were equal partners in ExpresTel and asserting breach of the partnership agreement, breach of fiduciary duty, conversion, and fraud. Hayward got involved in the settlement negotiations. In November 2000, Roberts, Hayward, and Whitfill reached a complex settlement agreement based on Hayward’s proposals. Rather than pay Hayward $7,500 to set up her own Superphone business on her own computer and phone lines and pay him $4.50 per customer, Whitfell chose to pay Hayward $7 per customer, and have her business “hosted” through ExpresTel’s computer and phone lines. This arrangement relieved Whitfill of equipment repairs and system failures and the need to obtain and negotiate phone line prices. Whitfill began doing business as Total Access Communication in December 2000, and Roberts continued doing business as ExpresTel. Except for ExpresTel’s hosting of Total Access, they were separate businesses. Hayward’s business, HCS Telecom, leased Superphone software to ExpresTel and Total Access and separately billed them each month. Whitfill paid HCS $7.00 per customer, and Roberts ultimately paid HCS $2 per customer. The $5.00 difference came from a $2.50 “hosting” fee collected from Whitfill as part of her $7.00 charge and credited by Hayward to Roberts off of Roberts’s $4.50 charge because Whitfill was using Robert’s system and phone lines. Essentially, Hayward paid Roberts a $2.50 hosting fee that Hayward was recouping from Whitfill. Without the $2.50 hosting fee, Roberts and Whitfill both would have been paying Hayward $4.50 per customer. Whitfill later testified that she believed she and Roberts were paying Hayward the same charge per customer. In June 2001, Whitfell severed her relationship with Roberts and ExpresTel, and set up Total Access on the computer and phone lines at another company, Digitex. Hayward began billing Total Access $4.50 per customer, instead of $7.00, because ExpresTel was no longer hosting Total Access. Whitfill became suspicious that she was being charged more per customer than ExpresTel was. She was unable to open the QuickBooks (ExpresTel’s customer billing software program) data disks that she had gotten from Roberts as part of their settlement to review the income and expense information between ExpresTel and Hayward. Whitfill filed a second lawsuit in August 2001, suing Roberts and Hayward and alleging antitrust violations under the Texas Free Enterprise and Antitrust Act, breach of the settlement agreement and fraud, and breach of fiduciary duty in negotiating the settlement. The trial court gave the jury a spoliation instruction, over Roberts’s objection, that Roberts intentionally destroyed data in the QuickBooks program and the jury should presume the data was unfavorable to Roberts concerning the damages suffered by Whitfill. The jury found for Whitfell on all claims, and the trial court entered a judgment awarding Whitfill $758,264.19 in damages against Roberts and Hayward, jointly and severally. That amount was calculated by adding $170,000 in actual damages, $79,000 in attorney’s fees, and $3,754.73 in court costs, and then trebling the sum. The judgment also awarded Whitfill $50,000 in exemplary damages against Roberts. Roberts appealed on several issues. HOLDING:Reversed and rendered judgment that Whitfill take nothing on her antitrust claim, and reversed and remanded the other claims to the trial court. The court considers whether Whitfill had standing to bring an antitrust claim – an issue that Roberts had raised for the first time on appeal. The court sees no reason to differentiate antitrust standing from standing in general, which may be raised for the first time on appeal. In analyzing antitrust standing, the court first “should determine whether the plaintiff suffered an antitrust injury, and second, the court should determine whether the plaintiff is an efficient enforcer of the antitrust laws, which requires analysis of the directness or remoteness of the plaintiff’s injury.” An injury is only considered an antitrust injury if it is attributable to an anticompetitive aspect of the practice under scrutiny. Citing the U.S. Supreme Court case Atlantic Richfield Co. v. USA Petroleum Co., the court notes that the antitrust injury requirement ensures that a plaintiff can recover only if the loss stems from a competition-reducing aspect or effect of the defendant’s behavior. Whitfill argued that Roberts and Hayward had secretly agreed that she would be charged more per customer than Roberts, which significantly restrained trade by providing preferential pricing to Roberts and deprived customers of competition in the long distance market. The court concludes that Whitfill had suffered no antitrust injury. She had simply made less than she expected when she and Roberts divided their business because she paid the $2.50 hosting fee that was credited to Roberts for providing the hosting. As Whitfill did not suffer any antitrust injury, she lacked antitrust standing, so that the trial court lacked subject matter jurisdiction over her antitrust claim. The court reverses the compensatory damages in the judgment (which included treble damages) and renders judgment that Whitfill take nothing on her antitrust claim. Roberts also challenged the submission of the jury question on compensatory damages. Although the trial court instructed the jury not to consider lost profits as a damages element for fraud and breach of fiduciary duty, but only for the antitrust claim, there was only one damages question, and the court of appeals could not determine whether the jury improperly awarded lost profits damages on the fraud and breach of fiduciary duty claims. The court reversesthe jury’s award of compensatory damages and remands for a new trial on the fraud and breach of fiduciary duty claims. The court also reverses the award of punitive damages. The court considers two issues likely to arise in the retrial. The first was the trial court’s refusal to submit a question on Roberts’s affirmative defenses of release and waiver. The court notes that the disputed evidence not only raised the defenses of release and waiver, but demonstrated a fact issue existed that a jury should determine. The trial court’s refusal to submit these questions to the jury was error. The court reviews the Texas Supreme Court’s most recent discussion of spoliation, and notes that in this case, the comprehensive severity of the spoliation instruction given appeared excessive. The court notes that, although there had been a hearing on Whitfell’s motion for sanctions for Roberts’s failure to produce the QuickBooks data, the trial court had never ordered Roberts to produce the data. OPINION:Bill Vance, J., Gray, C.J., and Vance and Reyna, JJ.

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