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Logixx Automation9/12/2002
f profit loss is preferred, but damages may be determined based on testimony by the plaintiff or other witnesses. Roberts v. Holland & Hart, 857 P.2d 492 (Colo. App. 1993).
Furthermore, damages are not recoverable for losses beyond an amount that a plaintiff can establish with reasonable certainty by a preponderance of the evidence. Thus, the plaintiff must submit substantial evidence, which together with reasonable inferences to be drawn therefrom, provides a reasonable basis for computation of the damages. Pomeranz v. McDonald's Corp., 843 P.2d 1378 (Colo. 1993).
However, despite difficulty or even uncertainty in ascertaining damages with mathematical precision, the trier of fact must, by utilizing all the evidence and the reasonable inferences therefrom, devise a fair method for assessing such damages. Peterson v. Colo. Potato Flake & Mfg. Co., 164 Colo. 304, 435 P.2d 237 (1967).
Once the fact of damage has been established with the requisite degree of certainty, uncertainty as to the amount of damages will not bar recovery. Sonoco Prods. Co. v. Johnson, supra; see also Power Equip. Co. v. Fulton, 32 Colo. App. 430, 513 P.2d 234 (1973)(plaintiff testified as to the costs of his business and his gross sales, and from this testimony, the jury could arrive at a net profit figure).
Finally, guided by a presumption favoring the validity of the jury's findings, we review the record for evidence to sustain the verdict. See Varcoe v. Form & Pour Co., 480 P.2d 591 (Colo. App. 1971)(not published pursuant to C.A.R. 35(f)); see also City of Aurora v. Loveless, 639 P.2d 1061, 1063 (Colo. 1981)(" ury verdicts will not be reversed for inconsistency if a reading of the record reveals any basis for the verdicts"; court's task "is to examine the record and determine whether there was competent evidence from which the jury could have logically reached the verdict in this case").
Our review of the record reveals sufficient evidence from which the jury could determine the lost net profits.
First, the companies' expert testified that each sale of the Return Shop was a sale lost to the companies. The evidence demonstrated that by September 1999, Michels had sold fifty-four Return Shops. Accordingly, the jury could have concluded that by 1999, the companies could have sold an additional fifty-four Preformers. At a selling price of $150,000 per unit, the jury could have determined that the companies lost $8.1 million in gross sales.
Second, an expert in lost profit analysis testified extensively for the companies about the amount of Arete's "net bottom line profits." Evidence regarding Arete's projected net bottom line profits was also available to the jury in Arete's business plan, which documented a thirty-one to forty-one percent net profit margin for certain fiscal years and indicated these profit margins were similar to those of other companies in the automation industry. The president of the companies similarly testified that the companies operated at a thirty-five to forty percent profit margin.
Generally, it may be preferable to establish lost net profits by providing the jury with the complaining company's financial statements detailing costs and expenses. Here, however, because there was evidence that the companies had never made a profit because of initial research and development costs, and their sales had decreased once Michels began developing the Return Shop, the jury could have reasonably determined the companies' lost profits by considering testimony regarding Arete's net profits. Also, the measure of the companies' lost profits was supported by testimony of its president, as well as by testimony concerni
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