Full opinion text
OPINION ANNE GARDNER, Justice. I. INTRODUCTION Following a bench trial in this breach of contract case, the trial court rendered judgment for damages against Appellant and Cross-Appellee DaimlerChrysler Motors Company, LLC (Chrysler) and in favor of Appellees and Cross-Appellants Tommy J. Manuel, Tommy Manuel Auto Leasing, Inc., and Manuel Auto Sales, Ltd. (collectively, Manuel) but denied recovery of Manuel’s attorney’s fees. In four issues, Chrysler contends (1) that the best efforts provision in its contract with Manuel is unenforceable or that Chrysler conclusively proved that it complied with the best efforts provision by ultimately settling a protest by a competing dealer of Manuel’s application for a new dealership, (2) that Manuel’s damages from delay in opening the new dealership are consequential damages barred by limitation-of-damages provisions in the parties’ contracts, (3) that the trial court abused its discretion by admitting unreliable expert testimony regarding damages for lost profits, and (4) that the trial court erred in calculating prejudgment interest. In his cross-appeal, Manuel contends that the trial court erred by failing to award him any trial and appellate attorney’s fees. We affirm in part and reverse and remand in part. II. BACKGROUND Chrysler manufactures Chrysler, Dodge, Dodge Truck, and Jeep motor vehicles. Tommy Manuel has been a franchised automobile dealer in the Dallas-Fort Worth area for forty-seven years, including twenty-five years as a franchised Chrysler and Dodge dealer in Fort Worth and Richardson. At the time of trial, Tommy Manuel owned or controlled at least nine motor vehicle dealerships in the Dallas-Fort Worth market. A. Historical Backdrop In the mid-1990s, as number three of the “Big Three” in that day, Chrysler developed a market realignment plan called “Project 2000” to reorganize, relocate, and establish more motor vehicle dealerships to improve sales in the Dallas-Fort Worth area and to better compete with its rivals, Ford and General Motors. As an essential part of Project 2000, Chrysler sought to have its various Dallas-Fort Worth franchised dealers agree to waive their rights to protest the establishment or relocation of other dealerships in the Dallas-Fort Worth area. Texas and other states closely regulate the distribution and sale of automobiles. In response to the superiority of economic power and bargaining strength of American automobile manufacturers in their relationships with dealers that had developed by the 1950s, with dealers completely dependent upon those manufacturers for their supply of automobiles, Congress and state legislatures enacted regulatory schemes to protect retail dealers from perceived abusive and oppressive acts by the manufacturers. In accord with the policy of protecting dealers and consumers, the United States Supreme Court upheld the constitutionality of a California statute that prohibited manufacturers from relocating or adding new dealerships to their market areas where the effect of such added competition would be injurious to existing franchisees and to the public interest. The Court held that a state may, consistent with due process, provide that the filing of a protest by an existing dealer can, without a prior hearing, prevent another dealer from relocating or establishing a new dealership in the existing dealer’s defined market area until after a hearing and resolution of the protest. The Texas Motor Vehicle Commission Code (TMVC), this State’s first regulation of the motor vehicle manufacturer-dealer relationship, was adopted in 1971. The policy of the TMVC, set forth in what is now section 2301.001 of the occupations code, is to ensure a sound system of distribution and sale of motor vehicles for the protection of the public interest and welfare of the citizens of Texas through exercise of this State’s police power. The TMVC, as do similar state statutory schemes like California’s, provides a procedure by which an existing dealer may protest the establishment or relocation of a dealership that will sell the same line or make of vehicles in the same county or within fifteen miles of the existing dealership. The filing of a notice of protest triggers an administrative proceeding requiring a hearing before the Commission, in which the applicant for the new dealership has the burden to establish “good cause” for establishing or relocating the dealership at the proposed location. In the meantime, filing of the notice effects an immediate statutory stay as to any action by the applicant to establish or relocate the proposed new dealership or relocation until the protest is resolved. Among its findings of fact, the trial court found that a hearing and final resolution of the protest could take years. Complicating matters in this case, the TMVC provides that any agreement waiving terms of the TMVC is void and unenforceable. B. Project 2000 By mid-July of 1999, after several years of efforts to obtain agreements for the realignment of the Dallas-Fort Worth market from its various dealers in the area, Chrysler had circulated and obtained settlement agreements, including waivers of the right to protest, from each of the Dallas-Fort Worth area dealers participating in Project 2000, with the exception of Manuel. Manuel was aware of Chrysler’s plan but was not originally a Project 2000 participant for several reasons. Chrysler had litigation pending against one of Manuel’s dealerships (and other dealerships in Texas and California) for allegedly seeking fraudulent warranty credits from Chrysler for engine cores (the Cores■ litigation), and Manuel had a protest against Chrysler pending before the Commission arising out of the Cores litigation. Additionally, Manuel had bought and operated for twenty-five years a successful dealership in Richardson with a “trip,” that is, three lines— Chrysler, Dodge car, and Dodge truck. Chrysler had been trying to buy the Chrysler line from Manuel for many years, and he had refused to sell it. Chrysler desired the Chrysler line to keep Manuel from protesting other dealers in that market area as well as to give that “point” to another dealer to complete the Project 2000 market realignment. Chrysler approached Manuel last regarding Project 2000 because it knew that Manuel would be the most expensive to deal with. Joe Park, Chrysler’s Dallas zone manager at the time, recalled at trial, “We had to get him out of the way.” In mid-August 1999, during a meeting of Dodge truck dealers in San Antonio, Chrysler representatives from Detroit and the Dallas zone office met with Manuel about joining Project 2000, and the parties proceeded to negotiate. Chrysler offered Manuel $5 million for his Chrysler line at the Richardson dealership, and Manuel bargained for $15 million and another dealership to replace it. The parties discussed possible locations for an additional dealership, and Park told Manuel that the other dealers had signed waivers of the right to protest relocations or additional dealerships in joining Project 2000. By the end of August 1999, the two parties had arrived at a comprehensive agreement. C. The Agreements Manuel signed two written agreements dated August 31, 1999, after reviewing them with his attorney (who had represented him in the Cores litigation). One was a settlement and release agreement (the Settlement Agreement) similar to those entered into with the other dealers participating in Project 2000. Pursuant to the Settlement Agreement, Chrysler paid Manuel $15.34 million to settle the Cores litigation, to relinquish the Chrysler line at his Richardson dealership, and to waive any right to protest the other dealers involved in Project 2000. The second agreement, attached to and referenced in the Settlement Agreement, was titled “Agreement to Enter into Sales and Service Agreement” (the AESSA). By the AES-SA, Chrysler agreed to enter into a franchise agreement with Manuel for a new Chrysler-Jeep dealership in South Arlington (the South Arlington dealership), conditioned upon Manuel providing the land, building the facility, and furnishing the capital investment for the new dealership by January 1, 2001. The Settlement Agreement stated that the South Arlington dealership was “subject to the possibility that it may be protested” by another dealer and that a protest “can significantly delay the establishment or relocation of the dealership subject to the protest.” The AESSA in turn provided that, in the event of a protest against the South Arlington dealership, Chrysler would “use its best efforts to litigate or settle the protest or lawsuit in order to allow the establishment of [the South Arlington] dealership.” Pursuant to the terms of the Settlement Agreement, Manuel ceased selling Chrysler vehicles at his Richardson dealership within thirty days after the agreements were signed in August 1999. As required by the AESSA, Manuel created a new corporation (Tommy Manuel Chrysler-Jeep, Inc.) and filed his application with the Commission for the new dealership in South Arlington in December, which was approved on January 14, 2000. Manuel purchased property for the South Arlington dealership in April 2000. D. Meador’s Protest On January 28, 2000, Meador Chrysler-Plymouth, Inc. (Meador), one of the other dealerships that was part of Project 2000 and whose dealer-principal had signed a protest waiver, filed a notice of protest against the creation of the South Arlington dealership, which would be located less than fifteen miles from Meador’s existing dealership. The filing of Meador’s protest was unexpected by both Manuel and Chrysler, and it triggered the statutory stay of Manuel’s attempts to open the South Arlington dealership. Chrysler’s zone manager and other representatives met with Mr. Meador and his business associate on a number of occasions, requesting that Meador withdraw its protest. Chrysler moved to have the protest dismissed by the Commission, acting as Meador’s attorney-in-fact as provided by Meador’s settlement agreement. Failing that effort, on March 31, 2000, Chrysler filed suit in federal district court in the Western District of Texas, obtained a stay of the administrative proceeding, and sought injunctive relief and to compel arbitration of the issues raised by Meador’s protest. The federal court initially stayed the state administrative proceeding but, after a hearing, denied all relief on June 7, 2000, abated the suit in its own court, and returned the protest to the Commission for resolution. Chrysler then sought and obtained permission to file an interlocutory appeal of the adverse ruling and intervened in the administrative proceeding before the Commission. In July 2000, Chrysler filed its appeal to the Fifth Circuit Court of Appeals from the federal district court’s adverse decision. Also in July of 2000, pursuant to a strategy agreed upon at a meeting between Manuel and Chrysler and their respective attorneys, Manuel filed a separate suit in state court against Meador for damages resulting from the delay of the establishment of his new dealership caused by Meador’s protest. In September 2000, some eight months after the protest had been filed, Chrysler had intensive settlement negotiations with Meador. Chrysler ultimately settled the Meador protest in October 2000 by giving Meador a letter of intent for an additional dealership and paying Meador $17,000 in attorney’s fees. In November 2000, Chrysler advised Manuel to proceed with building his facility for the new dealership in South Arlington, and the Meador protest was formally dismissed on December 21, 2000. E. This Suit It was undisputed that the years 2000 and 2001 were exceptionally good years for car sales in the Dallas-Fort Worth market, but Manuel was not able to complete and open the South Arlington dealership until February 2002. A significant downturn in sales and a steep decline of the American market share of automobiles began in 2002. They were continuing at the time of trial, and the new dealership sustained a loss for 2002 and subsequent years. In 2004, Manuel sued Chrysler for breach of contract and other causes of action, seeking damages caused by the delay in opening the South Arlington dealership as the result of Chrysler’s failure to resolve Meador’s protest, the costs Manuel incurred in litigating Meador’s protest before the state agency and in state court, and attorney’s fees. Manuel contended that Chrysler failed to use its best efforts as required by the AESSA to litigate or settle the Meador protest, thereby causing the delay in the opening of the South Arlington dealership. The trial court granted summary judgments to Chrysler on most of Manuel’s causes of action, including breach of contract, but on the morning of trial on damages, the trial judge announced during opening statements that he would hear evidence regarding breach of the best efforts clause by Chrysler. The parties tried the case to the bench over a sporadic period of about six weeks regarding that issue and damages. Among its findings of fact, the trial court found that Chrysler failed to use its best efforts to resolve the Meador protest and that Chrysler “breached the contract.” The trial court rendered a final judgment awarding Manuel $370,668.50 in damages plus prejudgment interest but denied Manuel recovery of attorney’s fees. Both parties appealed. Chrysler seeks reversal of the trial court’s judgment and rendition of a take-nothing judgment, and Manuel seeks remand for a new trial on the issue of attorney’s fees. III. BEST EFFORTS By its first issue, Chrysler argues that the AESSA’s best efforts clause is unenforceable because it lacks measurable goals and guidelines and that even if the best efforts clause is enforceable, the goal of the agreement was the opening of the South Arlington dealership, meaning best efforts are irrelevant because that goal was ultimately met. Chrysler alternatively contends that the evidence conclusively established that Chrysler used its best efforts to resolve the Meador protest. A. Enforceability of “Best Efforts” Clause 1. Standard of Review When a contract is unambiguous, interpretation of the written instrument is a question of law for the court. MCI Telecomm. Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 650-51 (Tex.1999) (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983)); see Heil Co. v. Polar Corp., 191 S.W.3d 805, 809-10 (Tex.App.-Fort Worth 2006, pet. denied) (“The interpretation of an unambiguous contract is a question of law, which we review de novo.”). More specifically, the enforceability of a contract is a legal issue that we review de novo. See Elijah Ragira/VIP Lodging Grp., Inc. v. VIP Lodging Grp., Inc., 301 S.W.3d 747, 754 (Tex.App.-El Paso 2009, pet. denied); Chavez v. McNeely, 287 S.W.3d 840, 843-44 (Tex.App.-Houston [1st Dist.] 2009, no pet.). 2. Goals and guidelines Chrysler first argues that “best efforts” is a vague standard that is rarely held enforceable. But Chrysler’s own general counsel and legal department drafted the settlement agreements and AESSAs used to implement Project 2000. Moreover, and to the contrary, courts enforce contractual best efforts clauses in a wide variety of circumstances. See E. Farns-worth, Farnsworth on Contracts § 7.17c (2d ed. 2001) (stating it is no longer the case that “a duty defined only in terms of best efforts” is too indefinite to be enforceable) (citations omitted); Kenneth A. Adams, Understanding “Best Efforts” and Its Variants (Including Drafting Recommendations), 50 No. 4 Practical Lawyer, Aug. 2004, at 17 (noting courts in most jurisdictions have held best efforts clauses enforceable). “Whatever the test of best efforts, there is no question but that courts today regard the standard of best efforts — like that of good faith — as a workable standard in a variety of circumstances.” E. Farnsworth, On Trying to Keep One’s Promises: The Duty of Best Efforts in Contract Law, 46 U. Pitt. L.Rev. 1, 12 (1984). Courts construing a best efforts provision that does not specify the performance to be required commonly hold the promi-sor to the standard of the diligence a reasonable person would use under the circumstances. See, e.g., CKB & Assocs., Inc. v. Moore McCormack Petroleum, Inc., 809 S.W.2d 577, 578 (Tex.App.-Dallas 1991, writ denied) (op. on reh’g) (comparing performance of best efforts with that of average prudent operator in light of circumstances of case); see also Bloor v. Falstaff Brewing Corp., 601 F.2d 609, 614-15 (2d Cir.1979) (holding licensor could not treat licensees brands less favorably than its own); Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publ’g Co., 30 N.Y.2d 34, 330 N.Y.S.2d 329, 281 N.E.2d 142, 144 (1972) (holding publisher who promised best efforts to promote author’s book not restricted from also promoting competing series); Farnsworth, 46 U. Pitt. L.Rev. at 7-8 (“Best efforts is a standard that has diligence as its essence .... ”). Chrysler, quoting from the Dallas court of appeals opinion in CKB, specifically complains that the best efforts clause in this case lacks measurable goals and guidelines. 809 S.W.2d at 580. In that case, CKB had agreed to use its best efforts to refíne crude oil into specific volumes of refined products, as set out in the agreement in a schedule specifying percentages of total refinery output for each product. Id. at 578. Instead of refining the crude oil to produce the quantities specified in the contract, CKB operated the refinery to produce the highest dollar yield on the crude. Id. at 579, 582. Moore McCormack sued CKB for breach of contract, and the trial court rendered summary judgment in Moore McCormacks favor. Id. at 580. CKB appealed. Id. As Chrysler points out, the CKB court described the provision for “best efforts” in a contract as a nebulous standard.... Under some circumstances, a party could use best efforts to achieve a contractual goal and fall well short. Under different circumstances, an effort well short of ones best may suffice to hit a target. See id. at 581. Thus, that court reasoned, “To be enforceable, a best efforts contract must set some kind of goal or guideline against which best efforts may be measured.” Id. at 581-82 (citing Pinnacle Books, Inc. v. Harlequin Enters., 519 F.Supp. 118, 121 (S.D.N.Y.1981)). The court concluded that when sufficient guidelines exist, a party that performs within the guidelines fulfills the contract regardless of the quality of its efforts. Id. at 582. Only when a party misses the guidelines would a court measure the quality of its efforts “by the circumstances of the case ... and by comparing the party’s performance with that of an average, prudent, comparable operator.” Id. (citing Bloor, 601 F.2d at 613-14; Pinnacle, 519 F.Supp. at 122; Arnold Prods., Inc. v. Favorite Films Corp., 176 F.Supp. 862, 866 (S.D.N.Y.1959)). Ultimately, the court affirmed the summary judgment against CKB because it concluded that CKB made no efforts to meet the production standards specified in the contract, stating: “As a matter of law, no efforts cannot be best efforts.” Id. (citing Bloor, 601 F.2d at 613-14). Thus, the CKB court did not further explore the “goal or guideline” standard. Chrysler argues that the best efforts clause in the AESSA is unenforceable because it fails to set forth a measurable goal or guideline in that no date was specified by which Chrysler was required to litigate or settle the Meador protest. Manuel responds that, reading the contract as a whole, the AESSA required Chrysler to settle or litigate the Meador protest in a manner that allowed Manuel to open the South Arlington dealership on or before January 1, 2001. Manuel references language in the AESSA stating that he was required to build and complete the facilities for the South Arlington dealership before January 1, 2001, that the establishment of the South Arlington dealership was of “major importance” to Chrysler, and that “time is of the essence.” In Herrmann Holdings, Ltd. v. Lucent Technologies, Inc., the contract required Lucent to use its “reasonable best efforts” to file registration paperwork with the Sé-curities and Exchange Commission (SEC) “as promptly as practicable” or “in the most expeditious manner practicable.” 302 F.3d 552, 556 (5th Cir.2002). Rejecting the very argument by Lucent that Chrysler makes here, the Fifth Circuit Court of Appeals held that Herrmann Holdings’s pleadings stated a claim for breach of contract, significantly stating that “[rjequiring contracting parties to fix a date certain in order to set a temporal guideline in which to complete a certain task demands more definiteness than Texas law requires.” Id. at 560 (emphasis added). Here, the best efforts provision states: “[Chrysler] will use its best efforts to litigate or settle the protest or lawsuit in order to allow the establishment of [the South Arlington] dealership.” The best efforts provision does not include language similar to the “as promptly as practicable” or “in the most expeditious manner practicable” language in Herrmann Holdings, but the AESSA does specifically and expressly contemplate establishing the South Arlington dealership by January 1, 2001. Even absent such language, we cannot interpret the best efforts provision as placing no deadline at all for Chrysler to litigate or settle the Meador protest because doing so reads the January 1, 2001 deadline out of the AESSA and renders the best efforts clause itself meaningless. See id. Rather, the goal or objective of the best efforts provision in the AESSA, in light of the agreement as a whole, was for Chrysler to use its best efforts to litigate or settle the Meador protest in such a period of time that Manuel could establish the South Arlington dealership by January 1, 2001. Moreover, other courts have held enforceable “best efforts” requirements in contracts that contained none of the defining language in Herrmann Holdings. See, e.g., First Union Nat’l Bank v. Steele Software Sys. Corp., 154 Md.App. 97, 838 A.2d 404, 428-29, 433, 448 (2003) (holding “best efforts” is a standard in and of itself and is therefore enforceable, noting that even where “best efforts” is not defined it is “a standard that has diligence as its essence” and a term that “takes its meaning from the circumstances”); see also Coady Corp. v. Toyota Motor Dist., Inc., 361 F.3d 50, 59 (1st Cir.2004) (“ ‘Best efforts’ is implicitly qualified by a reasonableness test — it cannot mean everything possible under the sun.”) (citing Macksey v. Egan, 36 Mass.App.Ct. 463, 633 N.E.2d 408, 413 & n. 16 (1994)); Baron Fin. Corp. v. Natanzon, 509 F.Supp.2d 501, 513-14 (D.Md.2007) (applying Maryland law and holding best efforts clause enforceable and defined in terms of reasonableness highly dependent upon surrounding circumstances); Mark P. Gergen, The Use of Open Terms in Contract, 92 Columbia L.Rev. 997, 1000 (1992) (“Best efforts clauses and other terms that require a party to use reasonable diligence in performance are obviously like a negligence rule.”). This is in accord with the well-established rule that, where a contract does not fix the time for performance (which is Chrysler’s specific complaint about the AESSA), it will be presumed that the agreement is to be performed within a reasonable time. Hewlett-Packard Co. v. Benchmark Elecs., Inc., 142 S.W.3d 554, 563 (TexApp.-Houston [14th Dist.] 2004, pet. denied); CherCo Props., Inc. v. Law, Snakard & Gambill, P.C., 985 S.W.2d 262, 266 (Tex.App.-Fort Worth 1999, no pet.). What is a reasonable time depends upon the facts and circumstances as they existed at the time the contract was formed. CherCo Props., Inc., 985 S.W.2d at 266. Therefore, even if the January 1, 2001 date specified in the AES-SA for opening the new dealership were not controlling (and it is undisputed that the protest was not resolved in time for Manuel to build his facility and open for more than a year after that date), we hold that the best efforts provision in the AES-SA had a measurable timeline or goal of resolving any protest by settlement or litigation within a reasonable time and was thus enforceable. We overrule the first part of Chrysler’s first issue. B. The Quality of Chrysler’s Efforts Chrysler next argues that, even if the best efforts clause is enforceable, the AESSA’s only goal was the opening of the South Arlington dealership and that because Chrysler’s efforts eventually settled the protest, it met the goal because the South Arlington dealership eventually opened. Thus, Chrysler, citing Herrmann Holdings, 302 F.3d at 559, argues that the “analysis ends” and that whether Chrysler used its best efforts is irrelevant. But the Fifth Circuit’s opinion in Herrmann Holdings is again instructive in rejecting this argument. In that case, Lucent eventually filed the registration paperwork with the SEC, and the SEC approved the transaction. Id. at 557. But by that time, the Herrmanns had been damaged by the decline in Lucent’s stock price. Id. The Fifth Circuit held that the Herrmanns had stated a plausible claim for breach of the best efforts clause; in other words, that Lucent eventually filed the paperwork and that the SEC eventually approved the transaction did not negate as a matter of law the allegations of a breach by Lucent of the best efforts clause. Id. at 561. The goal of the contract here — a goal Chrysler itself identified as having major importance — was not just opening the South Arlington dealership someday, but opening the dealership by January 1, 2001. Using the CEB analysis, we consider the “performance ... of an average, prudent, comparable operator” under the circumstances of the case to determine the quality of Chrysler’s performance. See 809 S.W.2d at 582. We conclude that, even absent a date certain by which Chrysler was obligated to litigate or settle the protest, the fact that Chrysler eventually set-tied the Meador protest so that the South Arlington dealership opened a year later than contemplated does not establish as a matter of law that Chrysler met the goal. We overrule this part of Chrysler’s first issue. C. Legally Sufficient Evidence of Breach of Best Efforts Clause In the final part of its first issue, Chrysler argues that, even if it missed the goal of timely resolving the protest, the evidence nevertheless conclusively establishes that it used its best efforts. Manuel responds that, under the evidence, that issue was one of fact that was properly resolved against Chrysler by the trial court as fact finder. 1. Standard of Review We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfin-der could and disregard evidence contrary to the finding unless a reasonable factfin-der could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex.2005). Findings of fact entered in a case tried to the court have the same force and dignity as a jury’s answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). The trial court’s findings of fact are reviewable for legal sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury’s answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). Whether a contractual best efforts obligation has been met or fulfilled is usually a question of fact because it is heavily dependent upon the particular circumstances of the case. See, e.g., Mor-Cor Packaging Prods., Inc. v. Innovative Packaging Corp., 328 F.3d 331, 334 (7th Cir.2003) (Posner, J.) (characterizing best efforts as a standard in and of itself and stating whether standard is met is question of fact involving “the application of a standard, ‘best efforts,’ to the particular facts of the case”); Informed Physician Servs., Inc. v. Blue Cross and Blue Shield of Md., Inc., 350 Md. 308, 711 A.2d 1330, 1342 (1998) (confirming that what constitutes reasonable efforts is largely a question of fact); Widewaters Prop. Dev. Co. v. Katz, 38 A.D.3d 1220, 836 N.Y.S.2d 746, 748 (N.Y.App.Div.2007) (noting that whether the obligation to use best efforts has been fulfilled will almost invariably involve an issue of fact); First Union Nat’l Bank, 838 A.2d at 428 (stating that factual determination may be required as to whether party used best efforts). 2. Analysis Chrysler argues that the AESSA did not obligate it to pay any money to Meador and urges that its other efforts to resolve Meador’s protest were reasonable and prudent in settling the protest within nine months. Chrysler points to evidence that its zone manager Joe Park (1) met with Meador’s co-owner and sales manager (because Mr. Meador was ill and unavailable) soon after Meador filed its protest and urged withdrawal of the protest; (2) remained in constant contact with them; (3) later talked to Mr. Meador, who would not overrule his co-owner’s answer of “no”; and (4) finally reminded. Meador’s representatives that Meador’s protest was a breach of Meador’s own contractual agreement not to protest other relocations or new dealerships in Project 2000. But Park never offered money to Meador to withdraw its protest because he did not think he needed to since Meador had signed a contract. Park also testified that he did not think Meador wanted money and instead wanted to delay Manuel’s dealership as long as possible. Chrysler thus continued on its litigation path, seeking to have the administrative protest dismissed, obtaining a stay of those proceedings, and filing suit in federal court against Meador for an injunction and to compel arbitration regarding the validity of the protest. In CEB, the Dallas court of appeals stated that “[wjhen a party misses the guidelines, courts measure the quality of its efforts by the circumstances of the case and by comparing the party’s performance with that of an average, prudent, comparable operator.” 809 S.W.2d at 582 (citations omitted). While there is evidence of the circumstances surrounding Meador’s protest, of Chrysler’s efforts to have Meador withdraw that protest (which Chrysler refers to as evidence of efforts to settle), and of Chrysler’s eventual settlement of the protest, the evidence is undisputed that Chrysler and Meador did not exchange settlement proposals until September 2000 and that they did not reach a settlement until October 4, 2000. The trial court could have reasonably inferred that Chrysler wanted to “clear the market” for all of the dealerships participating in Project 2000 and that Chrysler’s strategy was, in effect, to remove the protest waiver issue to federal court and seek arbitration to avoid a determination of that issue by the Commission under the Texas regulatory scheme (which is not to say that such a strategy was unreasonable per se). The federal district court denied injunctive relief and Chrysler’s motion to compel arbitration on June 7, 2000, and issued an eleven-page order explaining the reasons, including that the validity of the protest waiver under the terms of the TMVC was more appropriately for the agency to decide and that Manuel was not a party and would not be bound by an arbitration award or a decision from the federal court. See DaimlerChrysler Motors Corp. v. Meador Chrysler-Plymouth, Inc., No. A-00-CA-216-SS, at *10-11 (W. Dist. Tex. June 7, 2000). Hence the federal court abated the suit in its own court and returned the issue to the administrative agency for decision. Id. At least by that point, as the trial court in this case noted during closing arguments, Chrysler must have had “some understanding” of the unlikelihood of success with its litigation efforts. Yet Chrysler still did nothing to settle for several more months. During that time, Chrysler pursued its interlocutory appeal to the Fifth Circuit Court of Appeals and strategized with Manuel to coordinate his filing suit in state court against Meador, all of which only further delayed the resolution of the Meador protest. After settling with Meador in October 2000, Chrysler notified Manuel that he could proceed with building his facility in November 2000, and the protest was formally dismissed in December 2000. By that time, all of the other Project 2000 dealers in the area were selling cars. But Manuel was unable to begin building his new dealership facility by reason of the pending protest until after the settlement and, consequently, was not able to open for business until February 2002. What would a prudent, comparable automobile manufacturer have done? As was acknowledged by the parties in the Settlement Agreement, Chrysler . and Manuel both knew from the outset that a protest could entail significant delay, and Chrysler knew that a protest by any dealer participating in Project 2000 would present a significant obstacle to the accomplishment of its planned market realignment. The testimony was undisputed that Chrysler had planned all along to pay dealers for their agreement not to protest for that very reason and had budgeted $50 million toward preventing or resolving protests such as that filed by Meador in order to implement Project 2000 in the Dallas-Fort Worth area. Chrysler budgeted $11.2 million to pay another dealer for a protest waiver but ended up paying that dealer $1 million and giving him a new point (a new dealership), and Chrysler paid $1 million to another dealer who was not a Project 2000 participant in order to settle a threatened protest within a few days after that dealer approached Chrysler. Although Chrysler offered evidence that Meador only wanted to delay Manuel’s new dealership as long as possible, there was contradictory evidence that Meador might have been interested in a settlement and that it wanted a “point”. Chrysler had two open points and a substantial remaining budget of around $30 million after payments to Manuel and other dealers but did not offer either money or a point to Meador until late September 2000, so there is no way to know what Meador would have accepted at an earlier date. And Chrysler’s witnesses were unable to explain why Chrysler never offered any of its multi-million dollar budget to settle the Meador protest. Chrysler argues that the AESSA did not obligate it to pay any money to Meador, that it had no contractual obligation to use the $50 million it had allocated to its budget to settle protests by dealers, and that it could simply have “ignored” settling with Meador until it had fully litigated its pending federal court and administrative proceedings. Chrysler reasons that Manuel’s position (and the trial court’s finding of failure to use best efforts) imposed “an additional burden” on Chrysler of settlement. Chrysler argues that its choice to litigate rather than settle was solely within its discretion under the AESSA, that it was entitled to exercise its legal right to enforce Meador’s agreement to waive the statutory right to protest, and that there was no prohibition in either the AESSA or the Settlement Agreement against Chrysler trying to hold Meador to its agreement. According to Chrysler, punishing it for choosing to pursue litigation rather than to settle would strip Chrysler of its right to access to the courts to enforce its rights. By all of these arguments, Chrysler overlooks its agreement in the AESSA that contractually obligated it to use its best efforts not simply to litigate but “to litigate or settle the protest or lawsuit in order to allow the establishment of the South Arlington dealership.” [Emphasis added]. The question is not whether Chrysler should have litigated, as we agree that was its right. Rather, the question is when did Chrysler’s choice to litigate to the exclusion of making any efforts toward settlement become unreasonable. See CKB, 809 S.W.2d at 582 (stating that when a party fails to meet goal or guideline, court measures quality of its efforts by circumstances and comparison of performance of the prudent comparable operator); see also Herrmann Holdings, 302 F.3d at 559 (stating court may look to circumstances of case and compare party’s performance in similar cases in determining whether party failed to exercise best efforts). According to a letter from Manuel’s counsel, Chrysler assured Manuel in mid-June 2000 that it was going to dismiss the federal appeal and attempt to settle with Meador while Manuel filed suit and litigated against Meador in state court. Although Manuel did file and litigate that suit, Chrysler still made no effort to settle with Meador until late September. As held by the court in CKB, “[N]o efforts cannot be best efforts.” See 809 S.W.2d at 582. Applying the appropriate standard of review, we hold that there is legally sufficient evidence to support the trial courts finding that Chrysler breached the best efforts provision in the AESSA. See Cent. Ready Mix Concrete, 228 S.W.3d at 651; City of Keller, 168 S.W.3d at 807, 827; see also Martinez, 977 S.W.2d at 334. We overrule the remainder of Chrysler’s first issue. IV. LIMITATION OF DAMAGES By its second issue, Chrysler contends that the trial court erred by awarding Manual damages of $370,668.50 based upon Manuel’s claim for lost profits for the one-year period during which Manuel was not able to open the South Arlington dealership. Chrysler relies upon the AESSA’s limitation-of-damages provision, which limits recoverable damages solely to “out-of-pocket expenses that cannot be mitigated,” and argues that Manual is barred from recovering lost profits as damages by waiver of “incidental and consequential damages” in both the AESSA and the Settlement Agreement. Chrysler complains that the trial court erred as a matter of law in disregarding these contractual limitations of damages. Alternatively, Chrysler contends that, if the trial court concluded that the limitation of damages provisions were ambiguous, there is no evidence to support the trial court’s finding of fact that the parties’ intent was to allow recovery of “actual damages” under the Settlement Agreement. A. Preservation of Error Manuel first asks us to summarily overrule Chrysler’s second issue because Chrysler failed to negate every basis supporting the judgment. Specifically, Manuel argues that Chrysler only challenges “lost profits” but that the trial court could have rested its damage award on Manuel’s individual claims for lost salary and rental income for which there is evidence and which Manuel asserts are independent grounds not challenged on appeal. Rule of appellate procedure 38.1(f) provides that “[t]he statement of an issue or point will be treated as covering every subsidiary question that is fairly included.” Tex.R.App. P. 38.1(f). In this regard, the Supreme Court of Texas has stated that “disposing of appeals for harmless procedural defects is disfavored”; that appellate courts are to construe appellate briefs “reasonably, yet liberally, so that the right to appellate review is not lost by waiver”; and that “appellate courts should reach the merits of an appeal whenever reasonably possible.” Perry v. Cohen, 272 S.W.3d 585, 587 (Tex.2008). While Chrysler’s second issue discusses the damages awarded in short-hand form as “lost profits,” Chrysler’s overarching contention is that the limitation-of-damages clause of the AESSA limits Manuel’s damages to out-of-pocket expenses that cannot be mitigated. None of Manuel’s damage claims — whether for lost profits, lost owner’s salary, or lost rental income— are for out-of-pocket expenses; each claim seeks recovery of benefit-of-the-bargain damages as if the contract had been performed. See Bechtel Corp. v. CITGO Prods. Pipeline Co., 271 S.W.3d 898, 927 (Tex.App.-Austin 2008, no pet.) (stating that expectation damages are designed to award the claimant “the benefit of his bargain by being put in as good a position as he would have been had the contract or promise been performed”). Whether Manuel may recover any damages (which would include lost profits, lost salary, and lost rentals) other than out-of-pocket expenses is fairly included within Chrysler’s second issue; lost owner’s salary and rental income are not independent, unchallenged grounds supporting the trial court’s judgment. See Tex.R.App. P. 38.1(f); Perry, 272 S.W.3d at 586-87; cf. Reliford v. BNSF Ry. Co., No. 02-09-00322-CV, 2011 WL 255795, at *1 (Tex.App.-Fort Worth Jan. 27, 2011, no pet.) (mem. op.) (holding appellant failed to challenge each independent ground supporting judgment because jury found statute of limitations barred claim and appellant only complained of charge error on his affirmative cause of action). Thus, we will address the merits of Chrysler’s second issue. B. Applicable Law Included within the resolution of Chrysler’s second issue are legal determinations relating to the interpretation of contracts, the consideration of separate writings together, ambiguity, and the differences between direct and consequential damages for breach of contract. 1. Rules of Interpretation and Contract Construction Interpretation of an unambiguous contract is a question of law for the court to decide de novo. Coker, 650 S.W.2d at 393. Our primary concern in construing a written contract is to ascertain the objective intent of the parties as expressed in the contract. Id.; City of the Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 722 (Tex.App.-Fort Worth 2008, pet. dismissed). We examine and consider the entire document in an effort to harmonize and give effect to all provisions of the contract so that none will be rendered meaningless. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006); Coker, 650 S.W.2d at 393; City of the Colony, 272 S.W.3d at 722. We examine all parts of the agreement in light of the circumstances surrounding the formation of the contract. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 591 (Tex.1996). Instruments pertaining to the same subject matter must be considered together to ascertain the intent of the parties. In re Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex.2004) (orig. proceeding); see City of Keller, 168 S.W.3d at 811 (even writings executed at different times must be considered together if they pertain to the same transaction); DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex.1999). We view the contracts “from a utilitarian standpoint bearing in mind the particular business activity sought to be served.” Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex.2005) (quoting Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987)); Clark v. Cotten Schmidt, L.L.P., 327 S.W.3d 765, 772 (Tex.App.-Fort Worth 2010, no pet.). Whether a contract is ambiguous is a question of law for the court. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). Lack of clarity does not create an ambiguity, and a contract is not ambiguous merely because the parties advance conflicting interpretations. Id.; City of the Colony, 272 S.W.3d at 722. We determine whether a contract is ambiguous by considering the contract as a whole in light of the circumstances present when the parties entered into it. Universal Health Servs., Inc. v. Renaissance Women’s Grp., P.A., 121 S.W.3d 742, 746 (Tex.2003). The trial court should ascertain the objective intent of the parties as expressed in the writing itself. Sun Oil Co. v. Madeley, 626 S.W.2d 726, 731 (Tex.1981). A contract is ambiguous when its meaning remains uncertain or subject to more than one reasonable interpretation after it is subjected to applicable rules of interpretation. Frost Nat’l Bank, 165 S.W.3d at 312; Coker, 650 S.W.2d at 393-94. It is only after a determination by the trial court that the contract is in fact ambiguous that parol evidence becomes admissible, and then only to assist the fact finder in determining what the subjective intent of the parties was at the time they entered into the contract. See Sun Oil Co., 626 S.W.2d at 731; see also Coker, 650 S.W.2d at 395. 2. Law on Contract Damages Because the agreements do not define the terms “actual damages” or “consequential damages,” we presume that the parties intended their ordinary meanings. Cherokee Cnty. Cogeneration Partners, L.P. v. Dynegy Mktg. & Trade, 305 S.W.3d 309, 314 (Tex.App.-Houston [14th Dist.] 2009, no pet.). The trial court found, and neither party disagrees, that the AESSA did not involve the sale of goods or services. Therefore, we will apply common-law definitions rather than those set forth in Article 2 of the UCC. See id. (holding supply contract for purchase of natural gas to operate cogeneration facility not a contract for sale of goods and thus applying common law rather than UCC definition of consequential damages); Wade & Sons, Inc. v. Am. Standard, Inc., 127 S.W.3d 814, 823 (Tex.App.-San Antonio 2003, pet. denied) (noting different definitions used for direct and consequential damages under Texas common law and as Texas courts have interpreted the UCC). At common law, the term “actual damages” encompasses both “direct” and “consequential” damages. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex.1997); Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 163 (Tex.1992) (Phillips, C.J., concurring). “Direct damages,” also known as “general damages,” are those inherent in the nature of the breach of the obligation between the parties, and they compensate a plaintiff for a loss that is conclusively presumed to have been foreseen by the defendant as a usual and necessary consequence of the defendant’s act. Arthur Andersen & Co., 945 S.W.2d at 816; Cherokee Cnty., 305 S.W.3d at 314. One measure of direct damages is the “benefit of the bargain” measure, which utilizes an expectancy theory and evaluates the difference between the value as represented and the value received. See Mood v. Kronos Prods., Inc., 245 S.W.3d 8, 12 (Tex.App.-Dallas 2007, pet. denied) (generally, measure of damages for breach is that which restores injured party to position he would have had if contract had been performed); Frost Nat’l Bank v. Heafner, 12 S.W.3d 104, 111 n. 5 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (citing Henry S. Miller, 836 S.W.2d at 163). “Consequential damages,” also referred to as “special damages,” are those said to result naturally but not necessarily from the wrongful act because they require the existence of some other fact beyond the relationship of the parties. Arthur Andersen, 945 S.W.2d at 816 (consequential damages not necessarily referable to the breach, but the loss must still have been reasonably foreseeable or within the contemplation of the parties); Henry S. Miller, 836 S.W.2d at 163; Cherokee Cnty., 305 S.W.3d at 313-14; Tenn. Gas Pipeline Co. v. Technip USA Corp., No. 01-06-00535-CV, 2008 WL 3876141, at *8-9 (Tex.App.-Houston [1st Dist.] 2008, pet. denied) (mem. op.) (op. on reh’g). Damages that might be considered “consequential” in one contract may be direct damages in another. As Judge Cardozo wrote many years ago, the distinction between direct and consequential damages under the common law is not absolute: “There is need to keep in mind that the distinction is not absolute, but relative. To put it in other words, damage which is general in relation to a contract of one kind may be classified as special in relation to another.” Kerr S.S. Co. v. Radio Corp. of Am., 245 N.Y. 284, 157 N.E. 140, 141 (1927) (also noting that damages for delay may be direct in some instances and consequential in others); see Rexnord Corp. v. DeWolff Boberg & Assocs., Inc., 286 F.3d 1001, 1004 (7th Cir.2002) (Posner, J.) (stating that common law “distinguishes between direct and consequential damages, the difference lying in the degree to which the damages are a foreseeable (that is, a highly probable) consequence of a breach”); Computrol, Inc. v. Newtrend, L.P., 203 F.3d 1064, 1071 n. 5 (8th Cir.2000) (“We are not convinced that the [contract’s] restriction on ‘special, incidental, or consequential damages,’ standing alone, precludes the recovery of lost profits.... [I]t is incorrect to classify mechanically ... lost profits ... as consequential damages.”). If the language of the contract indicates that the parties contemplated lost profits as the probable result of the breach, then those lost profits are more properly seen as a part of the contract, itself, and thus a form of direct damages. ViaStar Energy, LLC v. Motorola, Inc., No. 1:05-CV-1095-DFH-WTL, 2006 WL 3075864, at *5-6 (S.D.Ind. Oct. 26, 2006); see also White & Summers, Uniform Commercial Code § 10-4 (Update 2011) (noting that it is a “fallacy” to assume that damages to a buyer, such as those resulting from delay, are inherently consequential, since damages that are consequential under one contract may be direct or ordinary under another); 11 Corbin on Contracts § 56.6 (2005) (noting courts’ difficulty in establishing a workable distinction between general and special damages, and observing that the appropriate distinction of claimed damages varies with the context). Even under the UCC, it has been noted that consequential damages under § 2.715(2) may overlap with difference in value damages recoverable under § 2.714(2). White & Summers, Uniform Commercial Code § 10A. Lost profits may be either “direct” or “consequential” damages, depending on their nature. Cherokee Cnty., 305 S.W.3d at 314; Mood, 245 S.W.3d at 12; Cont’l Holdings, Ltd. v. Leahy, 132 S.W.3d 471, 475 (Tex.App.-Eastland 2003, no pet.). As Chrysler argues, profits lost on other contracts or relationships resulting from the breach (such as resale of property to a third party) are generally classified as indirect or consequential damages. See Mood, 245 S.W.3d at 12; Leahy, 132 S.W.3d at 475. However, lost profits that represent the benefit-of-the-bargain measure of damages required to restore the plaintiff to the economic position he would have enjoyed if the contract had been performed are “direct” damages when shown to be “conclusively presumed” to have been foreseen by the parties as a usual and necessary consequence of a breach. See Cherokee Cnty., 305 S.W.3d at 314. C. Analysis 1. Relevant Contractual Language In relevant part, the limitation-of-damages provision in the AESSA states: In the event of default under this Agreement, the sole liability of the defaulting party is payment of the other party’s out-of-pocket expenses that cannot be mitigated. Both [Manuel] and [Chrysler] waive all rights to other compensatory damages or to consequential or punitive damages under any theory of law or cause of action. [Emphasis added.] The Settlement Agreement, to which the AESSA is attached as “Exhibit A,” also contains a limitation-of-damages provision, which states as follows: [Manuel] and [Chrysler] waive any claims they may have for incidental or consequential damages, for punitive or exemplary damages, and for jury trial, that may arise by virtue of any breach of this [Settlement] Agreement or the AESSA, or by virtue of any transaction based in whole or in part upon a provision of this [Settlement] Agreement or the AESSA The parties remain liable for any actual damages. [Emphasis added.] The Settlement Agreement also provides that [t]his [Settlement] Agreement is not part of the Sales and Service Agreement of any dealership. The terms of any Sales and Service Agreement prevail if there is any conflict. To the extent that there is any conflict between this [Settlement] Agreement and any other agreement or document other than a Sales and Service Agreement between [Chrys ler] and [Manuel], the terms of this [Settlement] Agreement prevail. [Emphasis added.] 2. Agreements Must Be Construed Together Chrysler first contends that only the limitation-of-damages provision in the AESSA (limiting Manuel’s recovery solely to “out of pocket expenses that cannot' be mitigated”) applies because the trial court found that Chrysler failed to use its best efforts and only the AESSA contains a “best efforts” clause. But Manuel replies that the Settlement Agreement must be considered together with and applies to any breach of the AESSA and further states that the Settlement Agreement prevails over the AESSA in the event of a conflict, meaning the trial court correctly awarded damages pursuant to the Settlement Agreement’s limitation-of-damages provision, which provides that “[t]he parties remain liable for any actual damages.” Chrysler does not challenge the trial court’s finding that the Settlement Agreement and the AESSA “comprise the entire agreement between the parties.” That finding mirrors ¶ 3(l) of the AESSA, which states that “[t]his Agreement, together with the [Settlement Agreement] executed contemporaneously with this agreement, is the entire Agreement between [Manuel] and [Chrysler].” The Settlement Agreement refers to and describes the purpose of the AESSA to “allow Manuel to apply to the State of Texas for permission to establish a Chrysler, Plymouth, and Jeep Dealership in Tarrant County, within the Dallas Market at the location set forth in Exhibit A [the AESSA].” The Settlement Agreement contains numerous other references to the AESSA. And significantly, the limitation-of-damages provision in the Settlement Agreement also states that it applies to “any claims for damages by virtue of any breach of this [Settlement] Agreement or the AESSA.” [Emphasis added]. Finally, the Settlement Agreement provides that, to the extent of any conflict with any other agreement (other than a Sales and Service Agreement, not at issue here), which would include the AESSA, “the terms of this [Settlement] Agreement prevail.” [Emphasis added.] We agree with Manuel that the two agreements must be construed as one instrument and interpreted together. Although the AESSA limits Chrysler’s liability for breach of that agreement to “out-of-pocket expenses that cannot be mitigated,” the Settlement Agreement states that it applies to any breach of that agreement or the AESSA, that it prevails to the extent of any conflict with the AESSA, and that “[t]he parties remain liable for any actual damages.” [Emphasis added.] 3. Lost Profits May Be Direct or Consequential Damages There is no bright-line rule that lost profits always constitute consequential damages under the common law (as Chrysler seems to contend), and Chrysler’s cases holding that lost profits are consequential damages are not persuasive. For example, Tooke v. City of Mexia, 197 S.W.3d 325, 329 (Tex.2006), did not involve common law consequential damages but instead interpreted section 271.153 of the Texas Local Government Code, which limits recovery to the “balance due and owing” under a contract with a city plus interest, thereby excluding recovery under that statute for all lost profits as consequential damages. In Leahy, 132 S.W.3d at 475, also relied upon by Chrysler, the limitation-of-damages provision expressly excluded recovery for “lost profits,” both direct or consequential. Neither the AESSA nor the Settlement Agreement in this case even mentions “lost profits,” nor do the limitation-of-damages provisions purport to allocate that risk to either party, even though the lost profits were the only type of damages that Manuel would likely suffer from a significant delay caused by a protest from another dealer and that very risk was expressly mentioned in the Settlement Agreement and addressed by both the Settlement Agreement and the AESSA Courts have construed limitation-of-damages clauses to preclude both direct and consequential lost profits where the clauses expressly waived damages for either lost profits or consequential damages, but have held that direct lost profits were not precluded where only “consequential” damages, either generally or “including” lost profits, were waived. Compare id. (limitation-of-liability clause precluded both direct and consequential lost profits where contract waived damages for “loss of profits, loss of business, or any other indirect or consequential damages” (emphasis added)), with Cherokee Cnty., 305 S.W.3d at 314 (holding direct lost profits recoverable although contract disallowed “consequential” damages), and Tenn. Gas, 2008 WL 3876141, at *6-8 (holding clause limiting recovery of consequential damages “including ... lost profits” barred only consequential lost profits). The recent Cherokee County case supports recovery of lost profits for resale to third parties as direct damages in the face of a limitation-of-damages clause, similar to the one in this case, which waived recovery of consequential damages without mentioning lost profits. See 305 S.W.3d at 315. In that case, a long-term contract for purchase of gas to operate a cogeneration facility contained a provision allowing the buyer to use the gas to operate the facility or to resell the gas to third parties. Id. at 311. When the seller failed to deliver the required volumes of gas as the claimed result of weather disruptions, the buyer sued for damages based on the difference between the amount it would have to pay under the contract and the much higher amount that it would have received by selling the gas to third parties during that period. Id. at 311-12. The seller contended that the damages amounted to lost profits waived by the clause prohibiting recovery of consequential damages, and the trial court granted summary judgment to the seller. Id. at 312. The Houston Fourteenth Court of Appeals reversed and remanded, holding that the lost profits from the buyer’s inability to resell gas not delivered to customers at the higher market value were “direct” damages not precluded by the waiver of “consequential” damages contained in the contract. Id. at 314-15. Holding that the contract was not a sale of goods controlled by the UCC, the court used the common law definition of “consequential damages” and held that, by the parties’ express agreement that the buyer could resell the gas to a third party, the contract thereby implicitly authorized the buyer to profit from increases in the market price of the gas; thus, any wrongful interference with that contract right “would naturally and necessarily cause [the buyer] to suffer direct damages in the form of profits on the [a]greement itself.” Id. at 315 & n. 11. Thus, depending on the unique circumstances of each case, including the specific language of the contract, lost profits may be direct or consequential damages. 4. Ambiguity Concerning Recoverable Damages a. Conflict Concerning Recoverable Damages Considering the contracts together, the AESSA limits Chrysler’s liability to out-of-pocket expenses, but the Settlement Agreement provides that it “prevails” to the extent of any conflict with the AESSA and states that the parties “remain liable for any actual damages.” The first and most obvious conflict is between the AES-SA, which limits recovery to out-of-pocket expenses and excludes consequential damages, and the Settlement Agreement, which allows recovery for actual damages. The second conflict is between the retention of liability for “any actual damages” and the waiver of consequential damages, both within the same par