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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-40693
_______________
JAMES MATHIS,
Plaintiffs,
JAMES MATHIS, MOHAMMED ABOU-HARB, GEORGE ACOSTA,
MUSA ADI, MAZEN ALLAHAM, ET AL.,
Plaintiffs-Appellees,
VERSUS
EXXON CORPORATION,
Defendant-Appellant.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
August 15, 2002
Before REAVLEY, SMITH, and DENNIS,
I.
Circuit Judges,
Exxon markets its commercial gas bound
for retailers primarily through three arrange-
JERRY E. SMITH, Circuit Judge:
ments: franchisee contracts, jobber contracts,
and company operated retail stores ("CORS").
This is a breach of contract suit brought by
A franchisee rents Exxon-branded gas stations
fifty-four gasoline station franchisees against
and enters into a sales contract for the pur-
Exxon Corporation ("Exxon") for violating the
chase of Exxon-brand gas. The contract sets
Texas analogue of the Uniform Commercial
the monthly quantity of gas the franchisee
Code's open price provision. We affirm.
must purchase and allows Exxon to set the
price he must pay. The franchisee pays the

dealer tank wagon price ("DTW") and takes
under this clause is "consistently higher" than
delivery of the gas at his station.
the rack price paid by jobbers plus transporta-
tion costs.1
A jobber contract requires the purchaser to
pay the "rack price," which usually is lower
than the price charged to franchisees. There is
1 Neither side disputes that the price term in
no sale of gas to CORS by Exxon, because the
the sales agreement is an "open price term"
stores are owned by Exxon and staffed by its
under Texas law, because it is a "price to be
employees. Instead, an intra-company ac-
fixed by the seller." TEX. BUS. & COM. CODE
counting is recorded that is equivalent to the
ANN. § 2.305 (Vernon 2002). In full, this pro-
price charged franchisees in the same price
vision reads:
zone.
(a) The parties if they so intend can con-
All the plaintiff franchisees operate stations
clude a contract for sale even though the
in the greater Houston, Texas, and Corpus
price is not settled. In such a case the price
Christi, Texas, areas. The genesis of the dis-
is a reasonable price at the time for delivery
pute is the allegation that Exxon has violated
if
the law and its contracts with these franchisees
for the purpose of converting their stores to
(1) nothing is said as to price; or
CORS by driving the franchisees out of busi-
ness.
(2) the price is left to be agreed by
the parties and they fail to agree;
Since 1994, franchisees have been barred
or
from purchasing their gas from jobbers, so all
(3) the price is to be fixed in
their purchases have been governed by the
terms of some agreed market or
terms of the Retail Motor Fuel Store Sales
other standard as set or recorded
Agreement, under which the "DEALER agrees
by a third person or agency and it
to buy and receive directly from EXXON all of
is not so set or recorded.
the EXXON-branded gasoline bought by
DEALER, and at least seventy-five percent
(b) A price to be fixed by the seller or by the
(75%) of the volume shown in [a specified
buyer means a price for him to fix in good
schedule]. . . . DEALER will pay EXXON for
faith.
delivered products at EXXON's price in effect
at the time of the loading of the delivery vehi-
(c) When a price left to be fixed otherwise
cle."
than by agreement of the parties fails to be
fixed through fault of one party the other
This "price in effect," also know as the
may at his option treat the contract as can-
celled or himself fix a reasonable price.
dealer tank wagon price ("DTW"), forms the
heart of the present dispute. Exxon claims this
(d) Where, however, the parties intend not to
arrangement is the industry standard and that
be bound unless the price be fixed or agreed
almost all franchisor-franchisee sales of gaso-
and it is not fixed or agreed there is no
line are governed by a similar price term.
contract. In such a case the buyer must
Plaintiffs respond that the DTW price charged
return any goods already received or if un-
(continued...)
2

The franchisees originally filed Sherman
nomic perspective because it was a price that,
Act, Clayton, Act, and Petroleum Marketing
over time, put the purchaser at a competitive
Practices Act ("PMPA") claims against Exxon
disadvantage. Pulliam noted that "commercial
in addition to the breach of contract claim.
reasonableness" is a legal term, and he was not
The antitrust claims were abandoned, and the
there to define it for the jury.
district court granted Exxon a judgment as a
matter of law ("j.m.l.") on the PMPA claims.
Pulliam's conclusion rested on two main
The court retained jurisdiction over the purely
facts. First, he showed that 75% of the franchi-
state law causes of action that had been sup-
see's competitors were able to purchase gaso-
plemental to the federal claims.2
line at a lower price. Second, he calculated a
commercially reasonable DTW price by adding
Trial proceeded solely on the Texas breach
normal distribution charges to the average rack
of contract action, with only six plaintiffs tes-
price of gasoline charged by Exxon and its
tifying. The thrust of their testimony was that
competitors. He concluded that Exxon's
Exxon had set the DTW price at an uncompet-
DTW price exceeded the sum of these other
itive level to drive them out of business (so as
prices by four or more cents per gallon.
to replace their stores with CORS). Some of
the plaintiffs testified that their franchises were
Exxon countered with Michael Keeley, who
unprofitable; they presented documents and
testified that Exxon's DTW price was com-
witnesses to show that Exxon intended that
mercially reasonable because it reflected the
result to drive them out of business.
company's investment in land, the store, trans-
portation, and managers. Keeley explained
The franchisees also submitted a market
that Exxon recovers these costs through rent
study showing that 62% of the franchisees in
and the sale of gas.
Corpus Christi were selling gas below the
DTW price. The franchisees supported their
The jury awarded $5,723,657SSexactly
theory of the case by calling Barry Pulliam as
60% of the overcharge calculated by Pulliam.
an expert witness on the economics of the gas-
Plaintiffs moved for attorney's fees, as autho-
oline market in Houston and Corpus Christi.
rized by TEX. CIV. PRAC. & REM. CODE ANN.
Pulliam concluded that Exxon's DTW price
§ 38.001 (Vernon 2002), supported by a five-
was not commercially reasonable from an eco-
paragraph affidavit of lead counsel and an ex-
pert's affidavit opining that the fees were rea-
sonable. The court granted fees of $2,289,462
1(...continued)
SS40% of the damages. Exxon raises three
able so to do must pay their reasonable val-
issues on appeal: (1) The court should have
ue at the time of delivery and the seller must
granted Exxon's motion for j.m.l. on the con-
return any portion of the price paid on ac-
tract claim; (2) the court erred in permitting
count.
Pulliam to testify; and (3) the fee award was
erroneous.
TEX. BUS. & COM. CODE ANN. § 2.305 (Vernon
2002).
II.
2 This is proper under 28 U.S.C. § 1367(c)(3).
Exxon contends that because it charged its
See also Bass v. Parkwood Hosp., 180 F.3d 234,
franchisees a DTW price comparable to that
246 (5th Cir. 1999).
3

charged by its competitors, the breach of con-
him to fix in good faith.
tract claim is precluded as a matter of law. We
review the denial of j.m.l. using the same
TEX. COM. & BUS. CODE ANN. § 2.305 (Ver-
standards employed by the district court.
non 2002). The parties agree that the fran-
Coffel v. Stryker Corp, 284 F.3d 625, 630 (5th
chise agreement term governing the purchase
Cir. 2002). Although this is a state-law issue,
of gasoline is an open price term.
the standard for granting j.m.l. is a question of
federal law. Ellis v. Weasler Eng'g Inc., 258
The meaning of "good faith" is further de-
F.3d 326, 336 (5th Cir. 2001).
fined in several other sections of the code.
The definitions section explains good faith as
A j.m.l. is appropriate where "a party has
"honesty in fact in the conduct or transaction
been fully heard on an issue and there is no le-
concerned." TEX. COM. & BUS. CODE ANN.
gally sufficient evidentiary basis for a reason-
§ 1.201(19) (Vernon 2002). Wherever the
able jury to find for that party on that issue."
term "good faith" is used throughout the code,
FED. R. CIV. P. 50(a). We review the denial of
it means "as least what is here stated." TEX.
j.m.l. de novo. Green v. Adm'rs of the Tulane
COM. & BUS. CODE ANN. § 1.201(19) cmt. 19
Educ. Fund, 284 F.3d 642, 653 (5th Cir.
(Vernon 2002).
2002). We also review de novo a district
court's application of state law. Salve Regina
Additional meaning to the term may be add-
College v. Russell, 499 U.S. 225, 231 (1991).
ed within a given article. Id. Section 2.103,
regarding merchants, further explains the term:
Finally, we uphold a jury verdict if it is sup-
"Good faith" in the case of a merchant means
ported by evidence of the type and quality that
honesty in fact and the observance of reason-
fairly supports the verdict, even if the evidence
able commercial standards of fair dealing in the
would support other outcomes. Gann v.
trade." TEX. COM. & BUS. CODE ANN. §
Fruehauf Corp, 52 F.3d 1320, 1326 (5th Cir.
2.103 (Vernon 2002).3 Finally, "[g]ood faith
1995). The question is whether there was evi-
includes the observance of reasonable
dence permitting the jury to conclude that
commercial standards of fair dealing in the
Exxon breached a term of the franchise agree-
ment.
3 Exxon meets the definition of a merchant.
III.
Texas law, which tracks the Uniform Com-
"Merchant" means a person who deals in
mercial Code, implies a good faith component
goods of the kind or otherwise by his occu-
in any contract with an open price term. Spe-
pation holds himself out as having knowl-
cifically,
edge or skill peculiar to the practices or
goods involved in the transaction or to
whom such knowledge or skill may be at-
[t]he parties if they so intend can con-
tributed by his employment of an agent or
clude a contract for sale even though the
broker or other intermediary who by his oc-
price is not settled. In such a case the
cupation holds himself out as having such
price is a reasonable price at the time of
knowledge or skill.
delivery . . . A price to be fixed by the
seller or by the buyer means a price for
TEX. COM. & BUS. CODE ANN. § 2.104(a) (Vernon
2002).
4

trade if the party is a merchant. (Section
reasonableness" good faith of § 2.103.4 The
2.103). But, in the normal case a `posted
difficult question is whether comment 3 cre-
price,' `price in effect,' `market price,' or the
ates an exception to the normal principles of
like satisfies the good faith requirement."
good faith governing the sale of goods.
TEX. COM. & BUS. CODE ANN. § 2.305 cmt. 3
(Vernon 2002).
No court in this circuit, and no Texas state
court, has squarely addressed this question.5
The key disagreement is over what consti-
tutes a breach of the duty of good faith.
Exxon contends it has satisfied that duty
4 See T
because it has charged the plaintiffs a DTW
EX. COM. & BUS. CODE ANN.
§ 1.201(19) cmt. 19 (Vernon 2002) ("Good faith",
price within the range of its competitors' DTW
whenever it is used in the Code, means at least
prices, thereby satisfying the "commercial
what is here stated. In certain Articles . . . addi-
reasonableness" meaning of good faith. Plain-
tional requirements are made applicable.); Lenape
tiffs respond that good faith encompasses both
Resources Corp. v. Tenn. Gas Pipeline Co., 925
objective and subjective duties. Even if Exxon
S.W.2d 565, 571 (Tex. 1996) (recognizing that du-
is right, and its prices are within the range of
ty of good faith is a background principle); see
its competitors', the argument runs, a subjec-
also 2 RONALD A. ANDERSON, UNIFORM COM-
tive intent to drive the franchisees out of busi-
MERCIAL CODE § 1-203:1 (1996):
ness would abridge the good faith duty of the
open price term.
The Code employs two standards of good
faith. Section 1-201(19) states the generally
The pivotal provision is comment 3 to
applicable "subjective" ("white heart and
§ 2.305. Some of the language of comment 3
empty head") standard which concentrates
on the actual state of mind of the party rath-
and § 2.103 leaves the meaning of good faith
er than on the state of mind a reasonable
for open price terms in doubt. Comment 3
man would have had under the same circum-
mentions that good faith "includes" commer-
stances. Thus, the section defines good faith
cial reasonableness, but notes that certain es-
as "honest in fact in the conduct or transac-
tablished prices satisfy the good faith require-
tion concerned." In the case of merchants,
ment. Section 2.103 defines good faith with
however, or at least those merchants gov-
the subjective "honesty in fact" test. Thus,
erned by Article 2 on Sales, an objective
plaintiffs argue that an open price set accord-
element is added to their good faith duties.
ing to a fixed schedule is set in good faith only
Section 2-103(1)(b) provides that "`[g]ood
if there is no improper motive animating the
faith' in the case of a merchant means hon-
price-setter. Exxon replies that comment 3
est in fact and the observance of reasonable
speaks directly to prices set by a fixed sched-
commercial standards of fair dealing in the
ule and consecrates them as in good faith
trade." This definition imposes a duty on
per se.
merchants to meet good faith requirements
that are measured both subjectively and
objectively.
In the absence of comment 3, there is no
doubt Exxon would be subject to both the sub-
5 In ISP Mineral Prods., Inc. v. GS Roofing
jective "honesty in fact" good faith of
Prods. Co., 1999 WL 102818 (N.D. Tex. Feb. 22,
§ 1.201(19) and the objective "commercial
1999), the court denied a motion to dismiss be-
(continued...)
5

Fortunately, because the Texas open price pro-
quirement.
vision replicates that of the UCC, we can seek
guidance from other courts.6
TEX. COM. & BUS. CODE ANN. § 2.305 cmt. 3
(Vernon 2002).
To decide whether comment 3 creates an
exception, we turn first to the text of the com-
The bare text offers little to resolve the
ment and the related sections of the Texas ver-
question. First, the comment notes that good
sion of the UCC.7 In full, comment 3 reads,
faith "includes" reasonable commercial stan-
dards. This implies that the good faith re-
Subsection (2), dealing with the situa-
quired of a merchant setting an open price
tion where the price is to be fixed by one
term encompasses both objective and subjec-
party rejects the uncommercial idea that
tive elements. The comment also creates a
an agreement that the seller may fix the
good faith safe harbor for such merchants
price means that he may fix any price he
when they use various sorts of fixed prices.
may wish by the express qualification
But this safe harbor is applicable only in the
that the price so fixed must be fixed in
"normal case." This suggests the safe harbor
good faith. Good faith includes obser-
is not absolute, but it does nothing to define
vance of reasonable commercial stan-
what takes a case out of the safe harbor.
dards of fair dealing in the trade if the
party is a merchant. (Section 2-103).
As we will explain, we conclude that the
But in the normal case a "posted price"
"normal case" of comment 3 is coextensive
or a future seller's or buyer's "given
with a merchant's residual "honesty in fact"
price," "price in effect," "market price,"
duty embodied in §§ 1.201(19) and 2.103.
or the like satisfies the good faith re-
Thus, the comment embraces both the objec-
tive (commercial reasonableness) and subjec-
tive (honesty in fact) senses of good faith; ob-
5
jective good faith is satisfied by a "price in
(...continued)
effect" as long as there is honesty in fact (a
cause the intent of the parties regarding the price to
"normal case"). This conclusion finds support
be set in good faith, in accordance with industry
in three sources: the structure of the UCC, its
practice, may have been breached. This analysis
does not aid us in resolving the central question this
legislative history, and the caselaw.
caseSSwhether the good faith clause of § 2.305
includes a duty to act without an improper motive
Reading comment 3 to embody two differ-
in setting the price.
ent meanings of "good faith" tracks the gen-
eral structure of the UCC. Courts and com-
6 See Pennzoil Co. v. FERC, 789 F.2d 1128,
mentators have recognized that the meaning of
1142 (5th Cir. 1986) (recognizing that because all
"good faith" is not uniform throughout the
states except Louisiana have adopted the UCC,
code.8 The cases and commentary treat the
"variations between state law and general princi-
ples are likely to be few").
7 Comm'rs of Court Titus County v. Agan, 940
8 See Watseka First Nat'l Bank v. Ruda, 552
S.W.2d 77, 80 (Tex. 1997) (holding that Texas fol-
N.E.2d 775, 778 (Ill. 1990) (explaining that mean-
lows plain meaning rule where text is unambigu-
ing of "good faith" varies by article); Dennis M.
ous).
(continued...)
6

"good faith" found in article 1 as subjective
explained that the steel industry wanted to
and the good faith found only in article 2 as
make "clear that we do not have to establish
objective.9 Thus, there is nothing inconsistent
that we are fixing reasonable prices, because
in comment 3's using "good faith" in both the
that gets you into the rate of return of profit,
objective and the subjective senses.
whether you are using borrowed money, and
all those questions." Id.
The history of comment 3 bolsters this
conclusion.10 Some drafters of the UCC wor-
The committee responded to these worries
ried that for the "great many industries where
with the current comment 3: "[I]n the normal
sales are not made at fixed prices," such as the
case a `posted price' or a future seller's or
steel industry, where "practically every con-
buyer's `given price,' `price in effect,' `market
tract" is made at "the seller's price in effect,"
price,' or the like satisfies the good faith re-
if § 2-305 "is to apply . . . it means that in
quirement." The drafter's solution was to
every case the seller is going to be in a lawsuit
avoid objective good faith challenges to prices
. . . or he could be, because there isn't any
set by reference to some "price in effect,"
outside standard at all." PROCEEDINGS OF
while preserving challenges to discriminatory
ENLARGED EDITORIAL BD. OF AM. LAW INST.
pricing. See Hearing Before the Enlarged
(Sunday Morning Session, Jan. 28, 1951)
Editorial Board January 27-29, 1951,
(statement of Bernard Broeker). The drafters
VI BUSINESS LAWYER 164, 186 (1951) (ex-
considered wholly exempting such contracts
plaining this intent). Nothing in the proceed-
from § 2-305, or stating that for a price in
ings leading to the addition of comment 3 sug-
effect, the only test is whether the merchant
gests that the overall subjective good faith du-
engaged in price discrimination. One drafter
ty of §§ 1-201 and 2-103 was to be supplant-
ed; the evidence is quite to the contrary.
8
The drafters ultimately rejected two sug-
(...continued)
gested addendums to § 2-305:
Patterson, Wittgenstein and the Code: A Theory of
Good Faith Performance and Enforcement Under
An agreement to the effect that the price
Article Nine, 137 U. PA. L. REV. 335, 380-87
shall be or be adjusted to, or be based
(1988) (tracing history of meaning of "good faith"
and noting differences in meaning between articles
upon, or determined by reference to the
1 and 2).
seller's going price, price in effect, reg-
ular price, market price, established
9 First Nat'l Bank v. Lewco Sec. Co., 860 F.2d
price, or the like, at the time of the
1407 (7th Cir. 1988) (stating that good faith as
agreement or at any earlier or later time,
used in article 1 is a subjective standard); Martin
is not an agreement to which this sub-
Marietta Corp v. N.J. Nat'l Bank, 612 F.2d 745,
section is applicable.
751 (3d Cir. 1979) (noting that definition in article
1 is subjective, but that in article 2 is objective);
. . .
Patterson, supra, at 381 (same).
10
An agreement such as this is an agree-
See Bridgestone/Firestone, Inc. v. Glyn-
Jones, 878 S.W.2d 132, 133-34 (Tex. 1994) (au-
ment under which the seller or the buyer
thorizing use of legislative history where text is
does not have any burden of showing
ambiguous).
7

anything other than that he has not sin-
Like the plaintiffs in Nanakuli, Allapattah,
gled out the particular other party for
and Wayman, the franchisees here are alleging
discrimination.
a breach of good faith grounded not in Ex-
xon's failure to price in accord with an estab-
PROCEEDINGS OF ENLARGED EDITORIAL BD.
lished schedule, but in its failure to set the
(statement of Bernard Broeker). Both of these
price in good faith. Suits recognizing such a
recommendations are more sweeping than is
cause of action are rare, and with good reason:
the language ultimately adopted. The first
We would be ill-advised to consider a case to
would have omitted any mention of the good
be outside the norm based only on an allega-
faith duty for open price provisions; the sec-
tion of improper motive by the party setting
ond would have limited the duty of the price-
the price.12
setter to that of avoiding discrimination.
Plaintiffs produced enough evidence to es-
The existing comment, however, avoids
cape comment 3's "normal case" limitation.
challenges to prices set according to an open
They showed, for example, that Exxon
price term unless that challenge is outside the
planned to replace a number of its franchises
normal type of case. Although price discrimi-
with CORS, that the DTW price was higher
nation was the type of aberrant case on the
than the sum of the rack price and transporta-
minds of the drafters, price discrimination is
tion, that Exxon prevented the franchisees
merely a subset of what constitutes such an
from purchasing gas from jobbers after 1994,
aberrant case. Any lack of subjective, hon-
and that a number of franchisees were unprof-
esty-in-fact good faith is abnormal; price dis-
crimination is only the most obvious way a
price-setter acts in bad faithSSby treating
similarly-situated buyers differently.
The caselaw supports this interpretation of
11(...continued)
comment 3. Courts that have addressed the
was calculated without considering the double
normalcy question have consistently held that
charge for credit card processing, the instant action
a lack of subjective good faith takes a chal-
is not the `normal' case."); cf. Wayman v. Amoco
lenge outside the bounds of what is normal.11
Oil Co., 923 F. Supp 1322, 1349 (D. Kan. 1996),
aff'd, 145 F.3d 1347 (10th Cir. 1998) ("[T]his
court believes the present case is a normal case. If
11 See, e.g., Nanakuli Paving & Rock Co. v.
there was evidence that Amoco had, for example,
Shell Oil Co., 664 F.2d 772, 806 (9th Cir. 1981)
engaged in discriminatory pricing or tried to run
(stating that "the dispute here was not over the
plaintiffs out of business, then the court's decision
amount of the increaseSSthat is, the price that the
might be different.").
seller fixedSSbut over the manner in which that
increase was put into effect"); Allapattah v. Exxon
12 See Richard Short Oil Co. v. Texaco, Inc.,
Corp., 61 F. Supp. 2d 1308, 1322 (S.D. Fla.
799 F.2d 415, 422 (8th Cir. 1986) (recognizing
1999); ("Because the parties' dispute is not over
that "mere conclusory allegation of bad faith would
the actual amount of the purchase price Exxon
be insufficient to defeat a directed verdict."); cf.
charged for its wholesale gasoline to its dealers, but
Wayman, 923 F. Supp. at 1349 (acknowledging
rather over the manner in which the wholesale price
that result "may have been different" if there were
(continued...)
evidence of an improper motive).
8

itable or non-competitive.13
Store Chain Outlook" revealed Exxon's plan
to reduce stations with service bays from
For example, one Exxon document stated
2,506 to 190 from 1991 to 2005. That docu-
that the company's "Marketing Strategy for
ment included a plan to "[e]xpand CORS to
1992-1997 is to reduce Dealer stores (est.
improve profitability and to compete efficiently
30%)." Another document set forth Exxon's
with private brands/distributors" and
plans to reduce dealer stations in Houston
"[e]mphasize CORS operations in markets
from 95 to 45, and to increase CORS from 83
with high level of rack to retail competition.
to 150, between 1997 and 2003. James Car-
ter, the Regional Director of the Exxon/Mobil
Exxon's answer on appeal is that these doc-
Fuels Marketing Company, testified that Ex-
uments "say nothing about using pricing to
xon made more of a profit from a CORS than
accomplish a `plan' to eliminate dealers." Al-
from an independent lessee store. These plans
though that is so, there was sufficient evidence
and observations were validated by the fact
on this issue to go to the jury, which was free
that the number of dealer stations steadily
to, and apparently did, draw the inference con-
declined.
necting pricing to the elimination of dealer-
lessees. The consequence of the jury's
An exhibit called the "Houston Screening
decision is that this case exceeds the "normal
Study" evaluated the strategy of "surplusing"
case" limit of § 2.305 comment 3.
(i.e., eliminating) 21 of 37 locations inside the
Highway 610 loop. Of the 93 lessee-dealer
We still, however, must examine the
stations, 69 would be done away with, but 73
content of the duty of subjective good faith.
of the 91 CORS would be kept.
Although no Texas or Fifth Circuit case has
squarely addressed the meaning of the good
Further indication of plans to shift from
faith clause of § 2.305, Texas courts
dealer-lessees to CORS is shown by Exxon's
repeatedly have held that the "honesty in fact"
dissatisfaction with outlets featuring service
definition of good faith found in § 1.201(19) is
bays. Exxon documents showed that service
tied to the actual belief of the participant in the
baysSSgenerally associated with lessee-dealer
transaction.14 Thus, the same version of the
locationsSSwere becoming less profitable,
facts accepted by the jurySSthat Exxon
while stations with convenience storesSSgen-
intended to drive the franchisees out of
erally associated with CORSSSwere the wave
of the future. A document entitled "Retail
14 La Sara Grain Co. v. First Nat'l Bank, 673
S.W.2d 558, 563 (Tex. 1984); Holeman v.
Landmark Chevrolet Corp., 989 S.W.2d 395, 399
13 This case is distinguishable from Meyer v.
(Tex. App.SSHouston [14th Dist.] 1999, review
Amerada Hess, 541 F. Supp. 321 (D.N.J. 1982),
denied); British Caledonian Airways Ltd. v. First
in which the court found "no evidence" of dishon-
State Bank, 819 F.2d 593, 596 (5th Cir. 1987); see
esty in the setting of a DTW price. In Meyer,
also Lenape Resources Corp. v. Tenn. Gas
though, the only evidence tending to show bad faith
Pipeline Co., 925 S.W.2d 565, 571 (Tex. 1996)
was the retailer's unprofitability. Id. at 331.
(noting in dictum that duty of good faith includes
Significantly, other retailers were profiting, and the
duty to avoid making decisions that, while
plaintiff retailer was being charged rent below the
legitimate under the terms of the contract, have
economic value of the property. Id. at 332.
improper motive).
9

businessSSthat takes this case out of the
breached its duty of good faith in setting the
"normal" set of cases for purposes of comment
DTW price it charged the plaintiffs is not with-
3 also satisfies the criteria for bad faith.15
out foundation in the law or the evidence. As
Exxon's bad faith, in this regard, is shown
we have recounted, plaintiffs offered ample
by the record. Facing the competition of self-
evidence tending to prove their version of
service stations that were either selling food
price-setting. Accordingly, there is no error in
and other goods or had bare pumps with no
the refusal to grant Exxon j.m.l. on the breach
overhead costs incurred in servicing vehicles,
of contract claim.
Exxon decided years ago that retail marketing
through franchise dealers was becoming eco-
IV.
nomically unsound. Although Exxon decided
Exxon challenges the admission of the tes-
to move to CORS in Houston and jobbers in
timony of plaintiffs' expert, Barry Pulliam. Al-
Corpus Christi, this decision was not com-
though Exxon filed a motion in limine op-
municated to its franchisees. Because of profit
posing Pulliam's testimony, it did not object at
from their other sales, CORS could, and did,
trial. The pre-trial objection is sufficient to
sell gas for less than the franchise dealers paid
preserve the error for appellate review. FED.
to Exxon for their gas. And the jobbers
R. EVID. 103(a). Our review is thus for abuse
delivered Exxon gas to their dealers for less
of discretion. Gen. Elec. Co. v. Joiner, 522
than Exxon franchisees were required to pay
U.S. 136, 141 (1997); Moore v. Ashland
for their delivered gas, but Exxon prohibited
Chem. Inc., 151 F.3d 269, 274 (5th Cir. 1998)
its franchisees from buying at this lower price
(en banc).16
from the jobbers.
Although the substantive aspects of this
The loss of competitive position and profit
case are governed by Texas law, the Federal
to plaintiff franchisees was inevitable and fore-
Rules of Evidence control the admission of ex-
seeable to Exxon. Although Exxon witnesses
pert testimony. Doddy v. Oxy USA, Inc., 101
denied receiving complaints, its dealers
F.3d 448, 459 (5th Cir. 1996). All expert
testified that they had complained often and
testimony is filtered through FED. R. EVID. 702
for years, without success, until the very eve
and 104(a). FED. R. EVID. 702 advisory
of trial.
committee's note (2000 amendments); Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 147
Accordingly, the jury's finding that Exxon
16 The 2000 amendment to rule 103(a) changed
the law that had prevailed in this circuit. FED. R.
15 See also Allapattah, 61 F. Supp. 2d at 1322
EVID. 103(a); See also United States v. McGauley,
(explaining that "a merchant [who] acts in a man-
279 F.3d 62, 72 n.7 (1st Cir. 2002) (noting the
ner intended to drive a franchisee out of business"
change effected by the 2000 amendments). Before
violates the duty of good faith found in the UCC).
the amendment, we required an objection at trial to
Similarly, one court has recognized that a
preserve the error. See Rushing v. Kan. City S.
"predatory intent" to "set the prices with the intent
Ry., 185 F.3d 496, 506 (5th Cir. 1999); Tanner v.
to drive [franchisees] out of business and take over
Westbrook, 174 F.3d 542, 545 (5th Cir. 1999);
the stations" is a claim cognizable under the good
Marceaux v. Conoco, Inc., 124 F.3d 730, 734 (5th
faith provisions of the UCC. E.S. Bills, Inc. v.
Cir. 1997); Collins v. Wayne Corp., 621 F.2d 777,
Tzucanow, 700 P.2d 1280, 1283-84 (Cal. 1985).
784 (5th Cir. 1980).
10

(1999).
FED. R. EVID. 702. The requirement that the
testimony "assist the trier of fact" means the
Pulliam's testimony, as an economist, satis-
evidence must be relevant. Daubert v. Merrell
fies the definition of expert testimony. Marcel
Dow Pharms., Inc., 509 U.S. 579, 591 (1993).
v. Placid Oil Co., 11 F.3d 563, 567 (5th Cir.
Rule 401 defines relevant evidence as that
1994). Whether he is qualified to testify as an
which has "any tendency to make any fact that
expert is a question of law. FED. R. EVID.
is of consequence to the determination of the
104(a). The party offering the expert must
action more probable or less probable than it
prove by a preponderance of the evidence that
would be without the evidence." FED. R.
the proffered testimony satisfies the rule 702
EVID. 401.
test. Bourjaily v. United States, 483 U.S. 171,
175 (1987).
Pulliam's testimony centered on his
calculation that Exxon's DTW price was at
The district court did not offer any reasons
least four cents higher per gallon than what
in support of admitting Pulliam's testimony.
could be considered "commercially
Although a court "must articulate its basis for
reasonable" by adding the rack price to
admitting expert testimony," Rodriguez v. Rid-
transportation costs. This fact obviously
dell Sports, Inc., 242 F.3d 567, 581 (5th Cir.
makes more plausible plaintiffs' theory that
2001), we will not invariably require remand
Exxon set the DTW price with an intent to
for this reason alone. Because admissibility is
drive them out of business. There is no real
a legal questionSSone ill-suited to remand and
contention regarding Pulliam's qualifications,
further explication by the district courtSSwe
as he has a master's degree in economics.
will decide the question in this case without
remanding.
The final rule 702 hurdle is reliability, which
is not a question that can be answered by
Rule 702 lays out the test for admissibility
some generic test. The variability of type and
of expert testimony:
purpose of the particular testimony at issue re-
quires flexibility in answering the reliability
If scientific, technical, or other spe-
inquiry.17 Daubert, of course, provides an il-
cialized knowledge will assist the trier of
lustrative list of factors that may aid a court in
fact to understand the evidence or to de-
evaluating reliability: "(1) whether the expert's
termine a fact in issue, a witness qual-
theory can be or has been tested; (2) whether
ified as an expert by knowledge, skill,
the theory has been subject to peer review and
experience, training, or education, may
publication; (3) the known or potential rate of
testify thereto in the form of an opinion
error of a technique or theory when applied;
or otherwise, if (1) the testimony is
(4) the existence and maintenance of standards
based upon sufficient facts or data,
and controls; and (5) the degree to which the
(2) the testimony is the product of
reliable principles and methods, and (3)
the witness has applied the principles
17 Kumho Tire, 526 U.S. at 150 (emphasizing
and methods reliably to the facts of the
that Daubert analysis is "flexible" and must take
case.
account of "the nature of the issue, the expert's
particular expertise, and the subject of his testi-
mony").
11

technique or theory has been generally
Pulliam's method may be rough-and-ready, it
accepted in the scientific community." Moore
no doubt captures many of a station's
v. Ashland Chem. Inc., 151 F.3d 269, 275 (5th
competitors. At worst, it is marginally under-
Cir. 1998) (en banc).
or over-inclusive.
Pulliam's testimony primarily drew on gen-
Again, we must bear in mind the purpose of
eral business and economic principles that sat-
Pulliam's testimony when addressing its re-
isfy the Daubert factors. Exxon argues,
liability. Pulliam main pointSSthat the price
however, that Pulliam should have conducted
Exxon charged its franchisees exceeded the
a "competitive impact analysis" for each
rack price plus transportationSSis unaffected
station to show that Exxon's price caused it to
by any error in defining the competitive market
lose business. This, Exxon argues, would
for each station. Also, the part of Pulliam's
separate other factors from Exxon's pricing
testimony as to which this objection may carry
decision that may have depressed plaintiffs'
some weightSSthat seventy-five percent of
business.
plaintiff's competitors enjoyed a lower pur-
chase price for gasolineSSis not completely un-
Although Pulliam may not have isolated the
dercut by an under- or over-inclusive definition
precise effect Exxon's pricing had on each
of the relevant competitive market. Finally,
station, that was not the purpose of his
this objectionSSthat certain proximate stations
testimony. The "subject of his testimony," as
do not really compete with each otherSSis
listed by plaintiffs, was whether Exxon had set
precisely the type of objection a juror can
a commercially reasonable price in an econom-
evaluate.
ic sense. This, the plaintiffs thought, would
lend credibility to their theory that Exxon had
The Daubert analysis should not supplant
set the DTW price with the intent to drive
trial on the merits. Pipitone v. Biomatrix, Inc.,
them out of business. Thus, to be both reliable
288 F.3d 239, 250 (5th Cir. 2002). "[V]igor-
and relevant for the purpose it was presented
ous cross-examinati on, presentation of
to serve, Pulliam's testimony need not isolate
contrary evidence, and careful instruction on
the precise impact Exxon's pricing had on
the burden of proof are the traditional and
each station.
appropriate means of attacking shaky but
admissible evidence." Id. (quoting Daubert
Exxon also attacks Pulliam's method of de-
509 U.S. at 596). We find no abuse of
fining the relevant geographic market for each
discretion in the decision to admit Pulliam's
station. As Exxon rightly points out, Pulliam's
testimony.
method of drawing a three-mile radius around
each station is not especially sophisticated and
V.
may ignore local traffic patterns.18 Although
Exxon challenges the attorney's fee award
of $2,289,462, arguing that the district court
erred in finding this amount reasonable. A fee
award is governed by the same law that serves
18 As counsel for Exxon noted at oral argument,
this method lumps stations in River Oaks and the
Third Ward (locations in Houston) into the same
18(...continued)
market, and few drivers use stations in both
markets.
12

as the rule of decision for the substantive is-
§ 38.003 (Vernon 2002). Second, where the
sues in the case. Kona Tech. Corp. v. S. Pac.
fees are tried to the court, as they were in this
Transp. Co., 225 F.3d 595, 614 (5th Cir.
case, the statute authorizes the judge to take
2000). Until recently, we had reserved the
judicial notice of the "usual and customary
question whether Texas or federal law
fees" and the cont ents of the case file. Id. at
governed review of an award's reasonableness.
§ 38.004. Texas courts have upheld fee
See, e.g., Mid-Continent Cas. Co. v. Chevron
awards using these presumptions where the at-
Pipe Line Co., 205 F.3d 222, 232 (5th Cir.
torneys had a contingent fee arrangement. La-
2000). Very recently, however, we applied
redo Indep. Sch. Dist. v. Trevino, 25 S.W.3d
Texas law to this question without noting any
263 (Tex. App.SSSan Antonio 2000, review
reservation of the question. Northwinds
denied) (40% contingency fee); European
Abatement, Inc. v. Employers Ins., 258 F.3d
Crossroads' Shopping Ctr., Ltd. v. Criswell,
345, 353-54 (5th Cir. 2001). We now make
910 S.W.2d 45, 58-59 (Tex. App.SSDallas
explicit what was implicit in Northwinds:
1995, writ denied) (upholding jury award of
State law controls both the award of and the
35% based only on attorney's own
reasonableness of fees awarded where state
testimony).19
law supplies the rule of decision. We review
attorney's fees for abuse of discretion,
Plaintiffs' attorneys supported their fees by
although factual determinations for each of the
submitting an affidavit drafted by lead counsel
factors are reviewed only for clear error.
and an affidavit of an attorneys' fees expert.
Coffel v. Stryker Corp., 284 F.3d 625, 640
Exxon countered by challenging the
(5th Cir. 2002).
reasonableness of the total award. Under
Texas law, the two affidavits, combined with
Under Texas law, when a prevailing party
the presumption of reasonableness and the
in a breach of contract suit seeks fees, an
court's ability to use judicial notice to guide
award of reasonable fees is mandatory, as long
the reasonableness finding is enough for us to
as there is proof of reasonable fees. TEX. CIV.
conclude that the district court did not abuse
PRAC. & REM. CODE ANN. § 38.001(8) (Ver-
its discretion in awarding fees as contemplated
non 2002); World Help v. Leisure Lifestyles,
by plaintiffs' contingency fee contract.
977 S.W.2d 662, 683 (Tex.App.SSFort Worth,
1998, review denied 1999), and the plaintiff
has been awarded damages. Green Int'l Inc.
AFFIRMED.
v. Solis, 951 S.W.2d 384, 389 (Tex. 1997).
There is no question that plaintiffs prevailed on
a breach of contract claim under Texas law
and were awarded damages. There is,
however, discretion to determine the amount
of the fee. World Help, 977 S.W.2d at 683.
This discretion is guided by two presumptions.
19 See also Gill Sav. Ass'n v. Chair King, Inc.,
First, there is a rebuttable presumption of
797 S.W.2d 31 (Tex. 1990) (using § 38.004 to
reasonableness for fees that are "usual" or
reverse appeals court ruling that there was no
"customary." TEX. CIV. PRAC. & REM. CODE
evidence to support appellate fees) (no contingency
fee).
13