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Logixx Automation9/12/2002
ng Arete's net profits. Accordingly, we cannot conclude that the evidence was too speculative, remote, imaginary, or impossible of ascertainment to support the jury's verdict.
Furthermore, Michels' reliance on Lee v. Durango Music, supra, is misplaced. Unlike here, in Lee one plaintiff testified only to his lost gross profits, and this figure did not include expenses.
Finally, Michels contends that the damages amount is erroneous because it includes future damages. To support this contention, Michels states that the companies' expert projected damages to the year 2008, nine years past the expiration of the settlement agreement. However, we conclude that substantial evidence supported the jury's award without considering such future damages.
III. Limiting Damages Because of Bankruptcy Proceeding
Michels contends that the trial court erred by not limiting damages as a result of the bankruptcy proceeding. Relying on Gibson v. Eberle, 762 P.2d 777 (Colo. App. 1988), Michels contends that a covenant not to compete becomes unenforceable once the business that is protected by the non-compete clause has ceased operations. Consequently, Michels argues, because Logixx filed for bankruptcy in April 2000 and ceased operations in November 2000, the trial court should have limited damages to those occurring before its cessation of business. We disagree.
As stated above, there was ample evidence from which the jury could have determined that the companies suffered the damages awarded as of September 1999 when Michels had sold fifty-four Return Shops. Further, while there was conflicting evidence presented, some testimony indicated that Logixx was still an ongoing business at the time of trial.
Under these circumstances, we conclude the trial court did not err in allowing the jury's damage award to stand.
IV. Allocation of Damages to Each Plaintiff
Michels next contends that the trial court erred when it divided the damages equally between Logixx and Laser. The companies argue that any error in apportioning the verdict between the two companies was harmless. We agree with the companies.
Michels has not shown how he was prejudiced by the trial court's apportionment of damages. Michels is responsible for payment of the entire verdict regardless of the apportionment. In this situation, only the companies could have objected to the equal apportionment of the damages, and the record reflects that they agreed to it. Thus, we reject Michels' contention. See Leek v. City of Golden, 870 P.2d 580 (Colo. App. 1993)(a trial court judgment will not be reversed unless the errors complained of are shown to prejudice the substantial rights of the complaining party).
V. Prejudgment Interest
Michels contends that the trial court erred as a matter of law in awarding prejudgment interest. We disagree.
First, Michels argues that the damages awarded do not fall within § 5-12-102(1)(b), C.R.S. 2001, because they are consequential damages and not money or property "wrongfully withheld." We disagree.
In cases other than personal injury tort actions, a prevailing party may recover prejudgment interest under § 5-12-102(1), C.R.S. 2001:
Except [in certain tort actions], when there is no agreement as to the rate thereof, creditors shall receive interest as follows:
(a) When money or property has been wrongfully withheld, interest shall be an amount which fully recognizes the gain or benefit realized by the person withholding such money or property from the date of wrongful withholding to the date of payment or to the date judgment is entered, whichever f
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