dissenting.
I respectfully dissent. The author of the majority opinion correctly stated in Highlands Ins. Co. v. Youngblood, 820 S.W.2d 242, 246 (Tex.App.— Beaumont 1991, writ denied): “[W]e are obligated to uphold the jury’s verdict if there is any evidence of probative value to support the same,” yet overturns the unanimous verdict of this jury. I disagree with the majority on many issues and, of course, their ultimate disposition. I will, however, limit this dissent to the more salient poiiits.
The 220/240 Day Completion Clause
The 220 day substantial completion period or the 240 day final completion period was a contract provision designed to protect the City of Beaumont. It was the maximum time allowed Excavators before the imposition of liquidated damages. Yet the majority treats it as some type of insulation from being liable for damages caused by delay. Furthermore, the majority states nothing in *154the contract authorizes Excavators to accelerate the work on the project. This is viewing the clause from the wrong perspective. There is nothing in the contract to prevent Excavators from accelerating the work. The majority would penalize a company for efficiency and even taking advantage of favorable weather. The majority even notes “Excavators was assessed no penalty or other types of damages for untimely completion.” The “untimely completion” was early completion.
The No Damages for Delay Clause
In the absence of some clear and unambiguous contractual provision to the contrary, a contractor is entitled to recover damages from a contractee for losses due to delay and hindrance of work if it proves the work was delayed or hindered, it suffered damages because of the delay or hindrance and the contractee was responsible for the acts or omissions which caused the delay or hindrance. City of Houston v. R.F. Ball Const. Co., Inc., 570 S.W.2d 75, 77 (Tex.Civ.App.— Houston [14th Dist.] 1978, writ ref'd n.r.e.); Shintech, Inc. v. Group Constructors, Inc., 688 S.W.2d 144, 148 (Tex.App.— Houston [14th Dist.] 1985, no writ). The majority holds the “no damages for delay” clause in this contract applied to the entire contract and not just to the underground construction provisions. This clause, as noted by the majority, is item 600.07 of the contract. This is a subset of item 600 which begins the specifications for underground construction. Excavators did not claim any delay nor damages connected with the underground construction. Excavators’ claims involved the excavating and paving of the roadway. This clause is inapplicable to the controversy.
Southwestern Bell’s Duty
The majority holds Bell made no representations to Excavators and could not anticipate that Excavators would rely upon “the timing or sequencing utterances made by Bell at the preconstruction meeting,” in other words, Bell could not reasonably foresee any reliance or risk of harm. The evidence, in my judgment, does not support the majority’s position. The following portion of testimony from Bell’s representative, Scott Dillard, is illustrative:
Q. Did you also make some representations at the April 17 meeting concerning the phases of Southwestern’s work, how you had it sequenced?
A. I believe I did, yes, sir.
In a case where the facts are almost identical to this ease, Southwestern Bell Telephone Company v. Meader Construction Co., 574 S.W.2d 839, 842-843 (Tex.Civ.App.— El Paso 1978, writ ref'd n.r.e.), the legal duty was recognized. Here the jury answered all the fact requirements necessary to impose the duty upon Bell. Those answers are supported by the evidence.
Promissory Estoppel
Clearly promissory estoppel is available to Excavators. See Westech Engineering, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 204 (Tex.App.—Austin 1992, no writ). The majority acknowledges the Restatement (Second) of CONTRACTS § 90 (1981), deals directly with promissory estoppel. This section of the Restatement has been adopted by Texas courts. See First State Bank in Archer City v. Schwarz Co., 687 S.W.2d 453, 455 (Tex.App.—Dallas 1985, writ ref'd n.r.e.), and Traco, Inc. v. Arrow Glass Co., Inc., 814 S.W.2d 186, 190 (Tex.App.— San Antonio 1991, writ denied). The majority finds, as a matter of law, there were no promises or representations made by Southwestern Bell. This finding is in direct contradiction to the jury’s findings. Once again, there is evidence to support the jury’s findings and this court should not substitute its judgment for that of the jury.
Negligent Misrepresentation
Obviously this cause of action rises or falls upon the issue of misrepresentations by Southwestern Bell. The jury so found; the majority disregards.
The Damages
Excavators’ expert testified to the amount of damages. The jury was asked what amount of damage was caused by the City of Beaumont and Southwestern Bell and answered the question. Yet the majority disre*155gards this jury’s answer because the majority apparently believes a portion of Excavators’ damages were caused by other parties. That was for the jury to decide. Their decision is supported by the evidence and should stand. Assuming the jury’s answer is incorrect, this is factual insufficiency and would result only in a remand, not a rendition.
To repeat, I find both a legal basis for recovery and sufficient evidence in the record to support the jury’s findings and the trial court’s judgment. I would affirm in all respects.