City Austin v. Houston Lighting & Power Company and Houston Industries

City of Austin (Austin) appeals a take-nothing judgment rendered in favor of Houston Lighting & Power Company and its parent company, Houston Industries, Inc. (collectively HL&P), in this action for breach of a contract to build a nuclear power plant, fraud, and violation of the Deceptive Trade Practices Act (DTPA). In six points of error, Austin argues that the trial court erred by (1) sustaining HL&Ps special exceptions to Austins cause of action for breach of the implied duty to perform the contract with skill and care, (2) overruling Austins hearsay objections to the admission of several newspaper articles, (3) refusing Austins requested jury questions and instructions, (4) overruling Austins objections to jury question two, and (5) overruling Austins motion for new trial. HL&P raises what it characterizes as two conditional cross-points, but what this Court would term counterpoints. See Jackson v. Ewton, 411 S.W.2d 715, 717 (Tex. 1967); Ragsdale v. Progressive Voters League, 743 S.W.2d 338, 342 (Tex. App.--Dallas 1987), revd on other grounds, 790 S.W.2d 77 (Tex. 1990). HL&P argues that we should affirm the trial courts judgment because there is no evidence that any failure by HL&P to provide information caused any cost increase and because Austin is not a "consumer" as to HL&P as defined by the DTPA. Because the trial court did not err by (1) granting HL&Ps special exceptions, (2) admitting the newspaper articles, (3) refusing to submit Austins requested jury questions and instructions, (4) overruling Austins objections to jury question two, and (5) denying Austins motion for new trial, we overrule all of Austins points of error and need not address HL&Ps cross-points in which HL&P asks only for affirmance. We affirm the trial courts judgment.