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Gettis v. Green Mountain Economic Development Corp.10/28/2005
t card costs, plaintiffs still would have incurred a deficit of nearly $30,000 over the initial two-year period.
32. Defendants also emphasize that the economist's report overstated the impact of the credit card debt because it did not include the carrying costs of an additional $22,000 loan. They argue that the deficit figure was too low because it assumed that the original loans would have paid for all renovation and equipment, whereas the reality was that additional financing was necessary to pay for the equipment. They argue that if defendants had granted the loan plaintiffs argue they should have granted, plaintiffs would have had to pay an annual debt service of at least $5,609, bringing their cumulative two-year deficit to over $40,000.
33. Whether plaintiffs' theory was based on tort or contract, they still had to establish that the damages that they claimed were caused by defendants' unlawful activities. Thus, for their tort claims, plaintiffs had to show "reasonable certainty or a reasonable probability that the apprehended future consequences will ensue from the original injury. Consequences which are contingent, speculative, or merely possible [are not included]." Howley v. Kantor, 105 Vt. 128, 133, 163 A. 628, 631 (1933); see also Callan v. Hackett, 170 Vt. 609, 609, 749 A.2d 626, 628 (2000) (mem.) (tort damages must be the "direct, necessary, and probable result" of defendant's tortious act); My Sister's Place v. City of Burlington, 139 Vt. 602, 612, 433 A.2d 275, 281 (1981). For their contract claims, plaintiffs had to show that their damages were reasonably certain and foreseeable and were reasonably within the contemplation of the parties at the time in which they entered into the contract. See Wyatt v. Palmer, 165 Vt. 600, 602, 683 A.2d 1353, 1357 (1996) (mem.); Pareira v. Wehner, 133 Vt. 74, 78-79, 330 A.2d 84, 86-87 (1974).
34. While plaintiffs might have claimed minor damages-for example, for the extra interest paid to the credit card companies-their overall claim was that the failure of the business and its consequences was caused by defendants' breach of contract and tortious conduct. As the superior court held, defendant's expert testimony went directly to plaintiffs' central claim and showed it to be false. Without response, plaintiffs could not show that they could prevail on their claims.
35. Plaintiffs make several arguments attacking the expert's evaluation. Their main response is to claim that their other reasons for the failure of the business are related to the assumption of the credit card debt, and not independent of it, so they can still prove causation despite the simplistic analysis of defendants' expert witness. Plaintiffs cite particularly to three reasons which they claim are related to the assumption of the credit card debt: (1) the assumption of the credit card debt made plaintiffs financially vulnerable and dependent on defendants and severely damaged their creditworthiness; (2) defendants' actions caused plaintiffs to open their business in the slowest period of the season when their revenue was the lowest; and (3) the deterioration in the health of Patricia Gettis prevented her from improving the delicatessen business. The trial court responded to this argument with the conclusion "that it relies entirely on allegations and arguments, without citations to evidence" and that plaintiffs needed an expert witness to respond to defendants' expert witness.
36. We do not reach the superior court's conclusion that plaintiffs had to produce expert testimony to refute that offered by defendants. We agree with the court's conclusion that plaintiffs failed to respond to defendants' expert evidence. Plaintiffs' firs
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