dissenting.
Because I would sustain NRC’s points of error three and four, I respectfully dissent. Point of error three complains the evidence is legally and factually insufficient to support the actual damages found by the jury; point of error four complains that without actual damages, the punitive damages fixed by the jury cannot stand. It is necessary to discuss only point of error three.
APPELLATE REVIEW OF JURY DAMAGE AWARDS
The basic legal precepts are familiar. We may sustain only those jury fact findings that are based on inferences fairly drawn from the evidence, which is to say those findings that are reasonable, that rest upon something more than speculation or surmise, and that do not require basing one inference upon another. Briones v. Levine’s Dep’t Store, Inc., 446 S.W.2d 7, 10 (Tex.1969). In the case of damage findings, we may sustain *534the jury’s findings only if the jury could have determined from the evidence, with reasonable certainty, the amount awarded. Greenstein, Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 187 (Tex.App.—Waco 1987, writ denied).
And most importantly, in our review of the sufficiency of the evidence to support any damages found by the jury, we must determine the issue under the theory submitted to the jury. We may not judge the sufficiency of the evidence under calculations different from those the jury were instructed to employ. Sage St. Assocs. v. Northdale Constr. Co., 868 S.W.2d 438, 447 (Tex.1993).
THE THEORY OP DAMAGES SUBMITTED TO THE JURY
Before reviewing the evidence, I should note that the formulation of the damage issues, in questions five and nine, is quite specific concerning the elements the jury might consider and how damages must be calculated. The questions are quoted in the majority opinion. I need only summarize them.
The charge authorized the jury to consider only two “elements of damages and no others.” The first element was Huddleston’s “lost profit on the Dallman sale,” calculated as “the difference between the amount [he] would have received under the Dallman contract and the cost of the property to Richard Huddleston.” The second element was Hud-dleston’s “out-of-pocket expenses” associated with the property “after the Dallman contract should have closed,” less any amounts Huddleston might have saved by exercising reasonable care. These instructions were identical for both questions five and nine.
Under the foregoing instructions and from the identical body of evidence, the jury calculated that Huddleston required $13,958 to compensate him for injuries inflicted by NRC’s deceptive trade practice (question five) and $23,042 to compensate him for injuries resulting from NRC’s breach of contract (question nine). The two sums total, perhaps coincidentally, $37,000, a sum Huddleston testified was his total damages, albeit calculated under a formula of his own rather than under the formula given in the jury instructions.
SUMMARY OP THE EVIDENCE
Huddleston purchased the unimproved lot for $23,042 on April 13,1984. On August 24, 1984, he and William E. Moore entered into a written agreement of joint venture to erect a house on the lot and to sell the improved property. They executed and evidently delivered to the Bank of the Hills their promissory note, dated June 18,1985, in the original principal sum of $106,000. Huddleston testified the debt was incurred to finance construction of the house on the lot.
By deed dated January 31, 1986, Moore and Huddleston joined in conveying the property to Huddleston alone. The deed recites that Huddleston paid the following consideration: a nominal consideration of $10.00, his assumption of the bank debt of $106,000 (for which Huddleston was already hable), and “other consideration.”
In a contract dated April 17,1986, Dallman agreed to purchase the improved property from Huddleston for $153,000. Dallman paid Huddleston $15,000 of the purchase price as a down payment. Huddleston applied the $15,000 to reduce by that amount his then-current debt to the bank. The amount of the bank debt at the time was $116,000 — an increase of $10,000 from the original debt of $106,000. Huddleston’s $15,000 payment to the bank left the balance of the debt at $101,000.
Moore and Huddleston made a few interest payments to the bank; Huddleston made most of them. The testimony is obscure and inconsistent about whether and in what amounts payment was made for taxes, utility service, and insurance premiums before and after May 30, 1986, the scheduled closing date of the Dallman sale. (These are the “out-of-pocket” expenses referred to in the jury instructions.)
The body of the evidence is silent regarding the following matters: (1) whether the original bank-loan proceeds of $106,000 were actually expended to pay any construction costs; (2) whether the additional loan proceeds of $10,000 were for the purpose of *535constructing the house and actually expended for that purpose; (3) whether the bank-loan proceeds were the total cost of constructing the house, with Moore, Huddleston, or anyone else paying nothing in that regard; (4) what was the actual consideration Huddle-ston and Moore paid for their conveyance of the property to Huddleston alone.
Huddleston testified his lost profit was $37,000, which he calculated in the following manner: anticipated proceeds of the Dailman contract ($153,000) less the balance of the bank loan on the date the Dailman contract should have closed ($116,000) equaling a lost profit of $37,000.
THE MAJORITY’S THEORIES
The majority hold the evidence sufficient, on either of two theories, to support the jury’s answers to questions five ($13,958), nine ($23,042), and both together ($37,000).
Under the majority’s first theory, they sustain the $23,042 found by the jury in answer to question nine. It is reasonable, to conclude, they say, that Huddleston’s original promissory note in the amount of $106,000 “constitutes the original [sic] construction cost” while the evidence shows that $23,042 was the cost of the lot to Huddleston. The majority then calculate as follows: $106,000 (construction cost) plus $23,042 (cost of the lot) equals $129,042; and $153,000 (Dailman contract amount) less $106,000 equals $23,-058. Evidently, the majority then determine that $23,058 is sufficiently near the $23,042 found by the jury to support their finding, under the maxim that the law does not take account of such small amounts.
In terms of the sufficiency of the evidence, the majority’s first theory is not supportable because it disregards certain transactions shown by the undisputed evidence, indeed by Huddleston’s own testimonial admissions. These pertain to the calculation of Huddle-ston’s “lost profit.” The majority’s theory assumes that Huddleston’s bank loan of $106,000 was the exclusive source and the limit of his construction cost. However, Huddleston admitted that he received a $15,-000 down payment under the Dailman contract. He testified that he applied this to his bank loan, reducing the balance of his debt to $101,000 from $116,000. This $10,000 increase in the principal of his debt to the bank is also shown by other undisputed evidence. It is the identical debt from which the majority infer that Huddleston’s construction costs were $106,000, but nothing in the evidence implies that the $10,000 was not also for construction costs. There is no reasonable basis, therefore, for the majority’s arbitrarily limiting Huddleston’s construction costs to $106,000. In addition, of course, the majority may not reasonably calculate Huddleston’s lost profit on the basis of the Dailman contract price of $153,000 because that amount must be reduced by the $15,000 down payment that Huddleston received from the Dallmans and applied to reduce his bank debt. Hence the majority’s calculations are not reasonable inferences from the evidence.
Under the majority’s second theory, they sustain the sufficiency of the evidence to support the jury’s answers to both question five ($13,958) and question nine ($23,042). This is their theory: The two sums found by the jury total $37,000. The evidence shows that Huddleston incurred $1,327 per month for “carrying costs” alone (referring to the $1,327 per month incurred for interim financing, ad valorem taxes, maintenance, insurance, and utilities). Six years elapsed between the date of the Dailman contract (April 17,1986) and the date of trial (June 1992). If one multiplies the $1,327 by only twenty-eight months of the elapsed time, the result is $37,156, a sum sufficiently near the total of $37,000 found by the jury in answer to the two special questions.
In terms of the sufficiency of the evidence, the majority’s theory is insupportable for a number of reasons. I shall mention only one. The evidence shows without dispute that the property was sold at a trustee’s sale “sometime in” 1987, following the trustee’s posting of notice on June 2,1987. At most then, only about fifteen of the majority’s assumed twenty-eight months passed while Huddleston owned the property; nothing in the evidence suggests that he continued to pay utilities, maintenance, insurance, and so forth even though he no longer owned the property after the trustee’s sale. I might also add that the jury instructions required the calcu*536lation of damages from the date the Dallman contract should have closed, not from the date of the contract itself (April 17, 1986).
THE MAJORITY’S THEORIES INCORPORATE AN IMPERMISSIBLE STANDARD OP REVIEW
In the foregoing paragraphs, I have assumed the validity of the theories the majority employ to sustain the jury’s findings of damages. And I have tried to show how the evidence is insufficient, even under those theories, to support the jury’s answers to questions five ($13,958) and nine ($23,042). Even under the majority’s theories and calculations, the body of evidence simply does not permit a reasonable inference as to any amount of damages, with reasonably certainty, because nothing in the evidence purports to show or imply that any sum was the total amount Huddleston spent for construction costs; consequently, it is impossible to calculate his “lost profit” or his “out-of-pocket” expenses under the trial-court instructions. But the majority’s use of their own theories and calculations constitutes a more serious error — an original error by this Court.
Under neither theory do the majority even purport to follow the theory and calculations the trial court instructed the jury to employ. Applying their first theory, for example, the majority omit to consider in their calculations the “out-of-pocket” expenses incurred by Huddleston after the date the Dallman contract should have closed, the second element of damages. Under their second theory, conversely, the majority omit to consider in their calculations the first element of damages— Huddleston’s “lost profit.” Instead, the majority calculate as they please and include or omit constitutive elements of the jury instructions as necessary to reach an artificial “construction cost,” “lost profit,” and “out-of-pocket” expenses approximating a sum found by the jury. If a construction cost — even an undisputed construction cost — is inconvenient because it will increase total construction costs, the majority have simply disregarded it in their calculations. Thus, they err “in failing to apply the appropriate review standard.” Sage St. Assocs., 863 S.W.2d at 447.
In Sage Street, for example, the jury were instructed to calculate damages based on the costs of the work performed plus overhead and profit. The court of appeals reviewed the sufficiency of the evidence under a theory that the plaintiffs damages equaled total contract price, less amounts already received, plus amounts spent on change orders and utilities, omitting from the computation expenses (costs) avoided by the contractor by not completing the job. In holding that the court of appeals erred in failing to apply the appropriate review standard, the supreme court explained:
Whether the evidence was sufficient under the court of appeals’ calculation does not establish whether the evidence was sufficient to support the damage award under the theory submitted to the jury.
Id. (emphasis added.)
Because the evidence does not permit the calculation of “lost profit” or the undefined “out-of-pocket expenses” incurred on the property, with reasonable certainty and without resort to speculation, and because these were vital elements of damages under the trial court’s instructions,-1 would reverse the trial-court judgment and render judgment that Huddleston take nothing.