Summary
affirming trial court's directed verdict for the defendant on the plaintiff's lost profits claim because the plaintiff's evidence "either refers expressly to lost gross profits or is ambiguous."
Summary of this case from J. Lilly, LLC v. Clearspan Fabric Structures Int'l, Inc.Opinion
90D-300490; CA A70518
On appellant Frogge's petition for reconsideration filed January 29, 1993 Reconsideration allowed; opinion ( 116 Or. App. 570, 841 P.2d 703 (1992)) modified and adhered to as modified June 2, 1993 Appellant Frogge's petition for reconsideration filed August 11 allowed by opinion November 17, 1993 See 124 Or. App. 669 (1993)
Appeal from District Court, Marion County.
Paul J. Lipscomb, Judge.
Magar E. Magar, Portland, for petition.
Mary Burns Tomlinson, Portland, appeared contra for respondent U S West Communications, Inc.
PER CURIAM
Reconsideration allowed; opinion modified and adhered to as modified.
Plaintiff Frogge petitions for reconsideration of our previous opinion. 116 Or. App. 570, 841 P.2d 703 (1992). We allow the petition and modify our opinion.
Our previous opinion also resolved an appeal by plaintiff's attorney.
Plaintiff's breach of contract claim for lost profits was dismissed on defendant's motion for a directed verdict. Plaintiff assigned error to the order granting that motion. We declined to consider the assignment, citing violations of ORAP 5.45(4). On reconsideration, we exercise our discretion to consider the assignment.
To establish damages based on lost profits, a plaintiff must present evidence establishing the lost net profits. Jenks v. Larimer, 268 Or. 37, 41-42, 518 P.2d 1301 (1974). The evidence must refer unambiguously to net profits. Pumpelly v. Reeves, 273 Or. 808, 811-13, 543 P.2d 682 (1975). Plaintiff's brief relates testimony that either refers expressly to lost gross profits, or is ambiguous. Plaintiff directs us to no evidence, nor have we found any, that establishes her lost net profits. The directed verdict was proper, because plaintiff presented no evidence from which a reasonable trier of fact could find the amount of her damages.
We also write to further explain affirmance of the trial court's ruling denying plaintiff's motion to amend her complaint to conform to the evidence, so as to allege a tort under ORS 756.185 permitting recovery of treble damages. We have concluded that plaintiff failed to present evidence of the amount of her damages. Consequently, there was no evidence from which to calculate treble damages.
We express no opinion about whether plaintiff could state a claim against defendant under that statute.
Reconsideration allowed; opinion modified and adhered to as modified.