Opinion
No. 3-842 / 02-2007.
Filed December 24, 2003.
Appeal from the Iowa District Court for Dubuque County, Lawrence H. Fautsch, Judge.
Plaintiff appeals the district court's finding he failed to prove damages as a result of a breach of contract. AFFIRMED.
Robert Kohorst of Kohorst, Early Lewis, Harlan, for appellant.
Patrick O'Bryan, Des Moines, and Jack Schwartz, Rock Island, Illinois, for appellee Kevin Wilson.
Nelson Westphal, Clarence, appellee pro se.
Kevin Wilson, Tipton, appellee pro se.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Kenny Maple appeals the district court's ruling finding he failed to prove damages in a breach of contract claim. We affirm.
Background Facts.
Kenny Maple is the owner of Kenny's Funland carnival. In December 2000, Maple entered into a contract with Kevin Wilson providing that Maple would take over Wilson's carnival routes in Iowa, Missouri, and Arkansas. In February 2001, Maple's son allegedly informed Wilson that Kenny's Funland would not set up at any carnival routes in Iowa until after July 4, 2001. Wilson then hired Nelson Westphal, owner of Wilson-Westphal United Shows, to work the Catfish Festival of Dubuque from June 21 through June 24. When Maple arrived to set up for the Catfish Festival in June, he found Westphal's carnival was already in place and Maple was not allowed to set up.
Maple filed an action against Wilson alleging breach of contract. The district court found that while Wilson breached the contract, Maple failed to prove his damages. Maple appeals.
Maple also named Westphal and the Catfish Festival as defendants in the action. Maple later dismissed the action against the Catfish Festival. At trial, the district court found Westphal was not liable for any damages as there was no evidence Westphal was aware of a written contract between Maple and Wilson.
Scope of Review.
This is a law action and we review the district court's decision for error in its application of legal principles. Iowa R. App. P. 6.4; Waukon Auto Supply v. Farmers Merchants Sav. Bank, 440 N.W.2d 844, 846 (Iowa 1989). The district court's decision will not be set aside unless induced by an erroneous view of the law. Frantz v. Knights of Columbus, 205 N.W.2d 705, 708 (Iowa 1973).
Discussion.
Maple argues the district court erred in finding his damages were speculative and dismissing the petition. Specifically, Maple contends there was enough evidence in the record to deduce the amount of his damages. Wilson claims Maple's argument is without merit.
If a contract for service is breached, the nonbreaching party is entitled to all of the benefits he would have obtained had it been performed. King Features Syndicate v. Courrier, 241 Iowa 870, 882, 43 N.W.2d 718, 726 (1950) (citing 17 C.J.S. Contracts § 469; Oakland Cal. Towel Co. v. Sivils, 126 P.2d 651 (Cal. Ct. App. 1942)). Lost profits, so long as they are not speculative or conjectural, is the basis for damages. Id. (citing Howard v. Brown, 168 Iowa 410, 413-14, 148 N.W. 987, 990 (1914)). "As a general rule, the party seeking damages bears the burden of proving them; if the record is uncertain and speculative as to whether a party has sustained damages, the factfinder must deny recovery." Data Documents, Inc. v. Pottawattamie County, 604 N.W.2d 611, 616 (Iowa 2000) (citing Sun Valley Iowa Lake Ass'n v. Anderson, 551 N.W.2d 621, 641 (Iowa 1996); Yost v. City of Council Bluffs, 471 N.W.2d 836, 840 (Iowa 1991)). Proof of damages need not be shown with mathematical certainty; however, a plaintiff must at least present sufficient evidence to allow the factfinder to make an approximate estimate of the loss. Id. at 616-17 (citing Oral-X Corp. v. Farnam Cos., Inc., 931 F.2d 667, 671 (10th Cir. 1991)).
Maple claims his damages can be figured based on the revenues earned by Westphal at the Catfish Festival, estimating the damages at $10,000. He reached this figure by working off of Westphal's return of fifteen percent of its revenues, or $1,497.50, and concession stand rental of $400 to the Catfish Festival, calculating a gross figure of $12,650. After paying taxes of six percent, Maple claims he would be left with $9,993.50 to cover his expenses. Westphal testified he was unsure of the exact amount of his gross revenues but estimated that after paying six percent sales tax, $400 to the Catfish Festival for concession stand rental, and paying the Catfish Festival fifteen percent under the contract in the amount of $1,497.50, the revenue was slightly under $10,000. This would be similar to Maple's estimate. However, Westphal further testified a payment of approximately $5,000 for two subcontracted rides to American Beauty Shows was deducted from the gross revenue. Similarly another payment was made to a man from Louisiana with two other rides at the festival. The record does not reflect the amounts paid but Westphal surmised that "darn little" ended up in his hands. The evidence also established that Maple arrived with eight rides whereas Westphal set up fourteen rides, presumably ten of which were his and four were subcontracted, at the Catfish Festival. The trial exhibits did not include any further explanation as to how Maple's lost profits could have been calculated. Based the foregoing evidence, any award of damages would be very speculative. See Data Documents, Inc., 604 N.W.2d at 617 (finding plaintiff failed to present evidence required to recover damages for breach of contract, such as market price of the product, profits it made or would have made from the contract, or any expenses it saved as a result of the breach). Without more tangible proof as to the damages Maple incurred, the district court correctly ruled Maple had not carried his burden and therefore dismissed the petition.