In The
Court of Appeals
For The
First District of Texas
NO. 01-00-00584-CV
FORMOSA PLASTICS CORPORATION, U.S.A., AND FORMOSA PLASTICS CORPORATION, TEXAS, Appellants & Cross-Appellees
V.
MATERIAL PARTNERSHIPS, INC., Appellee & Cross-Appellant
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 9736829
DISSENTING OPINION ON MOTION FOR REHEARING
I would grant the motion for rehearing, and reverse and render that MPI take nothing.
These parties made an oral agreement to essentially benefit one another in a marketplace in which they had common interests. Without labeling the relationship between the parties, Formosa was to sell its scrap product to MPI for "best prices" and MPI was to help Formosa in building its customer base by introducing Formosa to certain customers of MPI.
However the parties chose to characterize their relationship to third parties, the only benefit MPI chose to bargain for was a favorable discounted price regarding Formosa's scrap, which MPI planned to resell.
If MPI was damaged, it had the burden to prove its damages. The measure of damages could only have been receiving less than the "best prices" MPI bargained for. MPI failed to carry its burden on its only possible damages, and therefore should take nothing by its claim.
Because I believe the majority has misplaced the burden of proof and has applied a measure of damages, unjust enrichment, inappropriately, I respectfully dissent.
Davie L. Wilson
Justice
Do not publish. Tex. R. App. P. 47.