Court of Appeals of Texas, Seventh District, Amarillo
338 INDUSTRIES, LLC, A TEXAS LIMITED LIABILITY COMPANY D/B/A STRATIFIED DATA, APPELLANT
POINT COM, LLC D/B/A WHITE LION INTERNET AGENCY, APPELLEE
Appeal from the 200th District Court Travis County, Texas
Trial Court No. D-1-GN-11-002012, Honorable Scott H. Jenkins,
CAMPBELL and HANCOCK and PIRTLE, JJ. 
T. Campbell Justice
trial court signed a judgment in favor of 338 Industries, LLC
d/b/a Stratified Data in its suit against Point Com, LLC
d/b/a White Lion Internet Agency. The suit arose from a
contract under which White Lion undertook to create a website
and perform related services for Stratified Data. The jury
found White Lion breached the contract, breached express or
implied warranties and violated the Deceptive Trade Practices
parties filed notice of appeal. All their issues on appeal
address the amounts awarded Stratified Data in the
court's judgment. No challenge is raised to the
jury's findings related to liability. We will affirm.
Stratified Data's petition described it, White Lion
contracted to create a website that would allow political
campaigns, as paid subscribers, to access and use Stratified
Data's online database of information. The January 2010
contract's statement of work described
"deliverables" for several website capabilities,
including "core website design, " "user
profiles, " an "online data store, "
"campaign relationship management" and "Google
Maps Block Walk Integration." It estimated cost of the
work would be $79, 500, and contained an "estimated
timeline" of 16-18 weeks. The statement of work also
described services that could be on-going, including website
hosting services and maintenance. The contract stated a term
of three years, automatically renewing for additional
one-year terms unless terminated by either party. An addendum
to the contract included a limitation of liability clause and
an express warranty under which White Lion agreed to repair,
at its expense, any failure in the software that occurred
during the first ninety days after Stratified Data's
acceptance of the deliverables.
addendum also contained a payment schedule by which
three-fourths of White Lion's fee was to be paid during
the course of the work and the balance "immediately
following [Stratified Data's] final acceptance of all
contract does not say so expressly, but the parties
understood Stratified Data planned to have its website
operating in time for use before the November 2010 elections.
shows the parties worked in close communication on design,
development and testing of the website. Progress was slower
than anticipated. By July 2010, White Lion's president
apologized to Stratified Data's president for the slow
progress. Work continued through the summer and into the
fall, with increasing tension between the parties.
Disagreements arose over the agreed scope of the work.
September, White Lion was pushing for payment of the last fee
installment. In mid-October, Stratified Data asserted that
remaining issues with the website's performance were not
mere troubleshooting issues but defects that must be
corrected before final payment. Final payment was made in
November, bringing the total to $85, 069.89, including taxes.
After the payment, Stratified Data continued to identify
problems with the website's operation, and White Lion
continued efforts to remedy them. The website was not
available for commercial operation by the November elections.
Data terminated the contract in early December. It invoked
the contract's termination for cause provision, advising
White Lion its termination was due to its "willful
malfeasance" or "gross negligence."
Data filed suit, and the case was tried in February 2015.
Stratified Data produced evidence it had paid a total of
$178, 336 to three vendors to repair the website. It paid
Noctual LLC $21, 281, Trifecta Interactive Marketing, LLC
$75, 701 and Rackspace $81, 354. The jury found White Lion
(a) engaged in false, misleading, or deceptive acts or
practices, (b) failed to comply with a warranty, and (c)
failed to comply with its agreement with Stratified Data. The
jury also found Stratified Data gave adequate notice of a
breach and a reasonable opportunity to cure the defects, and
that White Lion's failure to comply with its agreement
was not excused. The jury further found that White Lion's
violation of the DTPA was not knowing or intentional.
to determine the reasonable and necessary cost of repair
damages paid to each of the three vendors resulting from
White Lion's false, misleading or deceptive act or
practice, the jury awarded $7, 218.50 for the work done by
Noctual, $5, 062.50 for Trifecta's services, and none for
the services performed by Rackspace. Asked to determine the
cost of repair damages resulting from White Lion's
failure to comply with its warranty, as to each of the three
vendors, the jury awarded $20, 812.50 for repairs performed
by Trifecta, and none for services of Noctual or Rackspace.
The jury was asked a similar question regarding damages
resulting from White Lion's breach of the contract, again
itemizing the award for repairs performed by each of the
three vendors. The jury awarded no damages for that claim.
parties agreed the issue of attorney's fees would be
tried to the bench. Before that hearing, held in July 2015,
the parties submitted briefs to the court on attorney's
fees and other issues. Stratified Data argued it was entitled
to an award under DTPA section 17.50(b)(3) restoring to it
money acquired by White Lion in violation of the
DTPA. It contended that unwinding its
transaction with White Lion and restoring the parties to
their status quo ante required that it be awarded the $85,
069.86 it paid White Lion, in addition to the repair damages
found by the jury.
court received evidence on Stratified Data's
attorney's fees and signed a final judgment the next day,
awarding it $20, 812.50 in damages for its DTPA breach of
warranty claim and $99, 000 for attorney's fees through
trial. White Lion subsequently filed a motion to
modify the judgment, asking the trial court to interpret and
enforce the contract's limitation of liability
clause. The trial court denied ...