 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Toshiba Machine Co.11/10/2005
03; In re A.J.L., 136 S.W.3d 293, 301 (Tex. App.--Fort Worth 2004, no pet.). We cannot think of a more appropriate method to determine why sales were lost than to ask the customer. We hold that the trial court did not abuse its discretion by admitting this testimony.
Finally, Toshiba argues that Gilbert's testimony about lost sales was purely speculative because Gilbert failed to determine what price or delivery time would have induced SPM's customers to buy fluid ends from SPM. We find no case law to support Toshiba's argument. Measuring lost profits is an inherently speculative undertaking. Pena v. Ludwig, 766 S.W.2d 298, 301 (Tex. App.-- Waco1989, no writ). In Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc., the Supreme Court of Texas held that a hypothetical bid for a construction project was "entirely speculative" and legally insufficient to support an award of lost profits because there was no evidence that the bid would have been accepted. 960 S.W.2d 41, 50 (Tex. 1997). But our case is readily distinguishable from Formosa Plastics. In that case, there was evidence that two of the three other bids on the same project were lower than the claimant's hypothetical bid; thus, the alleged lost profits "were based on an entirely hypothetical, speculative bargain that was never struck and would not have been consummated." Id. There is no such evidence in our case. Moreover, the lost sales to which Gilbert testified concerned the loss of sales of proven products to existing customers. We hold that Gilbert's testimony regarding lost sales was not so speculative as to be legally insufficient.
In sum, Gilbert testified that SPM lost profits of $6,038,292. As noted above, SPM also claimed $970,000 in incidental damages. The jury awarded SPM a total of $6,007,226 on its breach of contract claims. Even if we assume that the jury based its award solely on SPM's lost profits, we hold that Gilbert's testimony presented more than a scintilla of evidence to support the jury's verdict. Gilbert's testimony established SPM's lost profits to a reasonable certainty. We overrule Toshiba's issues 4 and 7a.
b. Did SPM's damage model result in a double recovery?
In its sixth issue, Toshiba argues that two of SPM's damage elements--lost profits due to increased production costs and lost profits due to lost sales--overlap, and to allow SPM to recover both results in an impermissible double recovery. We disagree.
Toshiba argues, and we agree, that both of Gilbert's lost profit calculations hinge on the speed of the Toshiba machines. As detailed above, SPM's Gilbert testified that SPM incurred more costs and lost profits on the fluid ends actually produced because the Toshiba machines were slower than expected. Likewise, SPM lost sales because it quoted higher prices and longer delivery times to its customers based on the slower than expected speed of the Toshiba machines. Had the machines performed as expected, SPM would have realized a higher profit on the fluid ends actually made and sold and realized additional sales. But we disagree with Toshiba that the fact that both damage elements arise from the speed of the Toshiba machines necessarily means that the elements overlap.
To show that the elements overlap, Toshiba argues that the extra hours needed to make the fluid ends actually produced are the same hours SPM would have used to make additional fluid ends for additional sales. This may be true, but it misses the point. Toshiba confuses the issues of time and profit. The hours might be the same, but the dollars are different. Under Gilbert's analysis, if the Toshiba machines had performed as expected, SPM would have saved time and realized
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|