Devon Medical, Inc. v. Ryvmed Medical, Inc.

60 So. 3d 1125, 2011 Fla. App. LEXIS 6661, 2011 WL 1775770
CourtDistrict Court of Appeal of Florida
DecidedMay 11, 2011
DocketNo. 4D10-57
StatusPublished
Cited by6 cases

This text of 60 So. 3d 1125 (Devon Medical, Inc. v. Ryvmed Medical, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Devon Medical, Inc. v. Ryvmed Medical, Inc., 60 So. 3d 1125, 2011 Fla. App. LEXIS 6661, 2011 WL 1775770 (Fla. Ct. App. 2011).

Opinions

HAZOURI, J.

Appellants, Devon Medical, Inc. (“Devon”), Devon Health Services, Inc. (“DHS”), and Supply Marketing, Inc. (“SMI”) (collectively “Devon Companies”), appeal the jury’s award of $1,413,394.00 to Appellee, Ryvmed Medical, Inc. (“Ryvmed”), and the denial of their motion for directed verdict. Devon Companies raise four issues on appeal: (1) that Ryvmed’s promissory estoppel claim was barred by the statute of frauds; (2) that Ryvmed failed to prove the existence of an [1127]*1127enforceable written contract; (3) that Ryvmed’s tortious interference claim should fail as a matter of law; and (4) that Ryvmed failed to establish lost profit damages. We find that the first three contentions lack merit and affirm the trial court’s denial of Devon Companies’ motion for directed verdict as related to these claims without discussion. However, we find that Ryvmed failed to establish lost profit damages and accordingly, we reverse and direct the trial court to enter judgment for Devon Companies on the claim for lost profits. We affirm Ryvmed’s recovery of tortious interference damages.

Ryvmed is in the business of marketing, selling, and distributing medical devices. Devon Companies are also in the business of manufacturing, marketing, selling, and distributing medical products and devices. In July 2005, representatives of Ryvmed and Devon Companies began a series of oral conversations and emails culminating in an agreement: Ryvmed would purchase containers of medical syringes from Devon Companies in exchange for Devon Companies providing Ryvmed with products, marketing support, and access to their substantial network of physicians. The terms of the agreement were memorialized in an email dated August 18, 2005, and titled “Devon Agreement.”

Relying on this agreement, Ryvmed committed time and resources to developing the product and claimed it lost momentum with the Ryvmed brand and many of its customers. In late 2005, however, Devon informed Ryvmed that it would no longer provide telemarketing services. Consequently, a market for Devon syringes never developed and Ryvmed asserted that it lost profits it would have realized, had Devon Companies performed their obligations under the agreement. Ryvmed then filed suit, and its fourth- amended complaint alleged seven counts: (1) breach of written contract; (2) breach of oral contract; (8) fraudulent misrepresentation; (4) negligent misrepresentation; (5) . fraud in the inducement; (6) tortious interference with a business relationship; and (7) promissory estoppel. The tortious interference count was based on a business relationship Ryvmed had with Indigo Orb, Inc., to which Ryvmed supplied syringes prior to the agreement with Devon.

The parties proceeded to trial and two experts testified regarding Ryvmed’s lost profits. First, Michael L. Sperdutti, an expert in telemarketing, testified that Ryvmed could have expected a ten percent closing ratio, a figure representing the number of people telemarketers convert into buying customers. In formulating his lost profit calculation, Sperdutti testified that he compared Ryvmed’s business with another business called Medi Supply:

I actually had an account that was very similar, even in terms of size of Ryvmed; and went to that and went to the books of that particular client and discussed with them, you know, what they were doing, what their pricing was and matched everything up. And then I also took a look at the internet; and then, you know, started looking at the product categories and the pricing and making sure that I was up to date on at least ... the current pricing and prices.

By “[tjaking a look at the Ryvmed books, as well as taking a look at my client who had a very similar business,” Sperdutti opined that Ryvmed’s gross profits would have been between thirty-five and forty percent.

Next, Richard Dotson, a Certified Public Accountant, testified regarding his year-by-year • calculation of the damages Ryvmed suffered from the breach of contract. In order to estimate Ryvmed’s damages, Dotson designed a financial model after reviewing Ryvmed’s financial information and using multiple databases such [1128]*1128as Integra and IBIS World. Dotson explained that

Integra is a publicly accessible database that — what they do is they compile financial statistics from a number of companies. They’ll get the financial statements and determine what are the average cost of sales, or cost of sales margin and gross profit margin. They’ll determine what is the average rent paid. They may determine what is the average overhead. And it will be stratified by business size, such as sales from a million to two-and-a-half million, two-and-a-half to five million, five million to ten million. So we can kind of narrow down to where we would be looking as far as a comparable company. It’s generally ... for benchmarking and comparing your existing company to what’s the average nationally.

Further, in determining Ryvmed’s profit margin, Dotson relied on Sperdutti’s estimate and examined “the Integra database for companies in that size market,” which documented profit margins of between twenty-seven to twenty-eight percent. Dotson estimated the present value of Ryvmed’s damages to be $10,244,000.00 over a five-year period. Dotson had no experience in telemarketing or in the sales of syringes.

At the close of trial, Devon Companies moved for a directed verdict. The trial court granted the motion for directed verdict on Ryvmed’s breach of oral contract claim, determining that it was barred by the statute of frauds. The trial court, however, denied that the promissory es-toppel claim was similarly barred. Thus, claims for breach of written contract, promissory estoppel, and tortious interference were submitted to the jury.

Ultimately, the jury determined that Devon breached the written contract with Ryvmed; the jury found that neither DHS nor SMI had entered into a written agreement with Ryvmed and, thus, there was no breach. However, the jury found all three of the companies liable on the promissory estoppel claim and awarded Ryvmed $1,400,000.00 in damages. The jury found Devon solely liable on the tortious interference claim and awarded Ryvmed $13,394.00 in damages. Notably, the verdict form had only a single line for damages on both the promissory estoppel claim and the breach of contract claim.

“The standard of review on appeal of the trial court’s ruling on a motion for directed verdict is de novo.” Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006) (citing Flagstar Cos. v. Cole-Ehlinger, 909 So.2d 320 (Fla. 4th DCA 2005)). “Upon a directed verdict motion, the weight of the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party.” Pascale v. Fed. Exp. Corp., 656 So.2d 1351, 1353 (Fla. 4th DCA 1995) (citing Kowkabany v. Home Depot, Inc., 606 So.2d 716 (Fla. 1st DCA 1992)).

A trial court’s award of damages is reviewed to determine if it is supported by competent, substantial evidence. Emerald Pointe Prop. Owners’ Ass’n v. Comm. Constr. Indus., Inc., 978 So.2d 873, 879 (Fla. 4th DCA 2008) (citations omitted). “The general rule is that anticipated profits of a commercial business are too speculative and dependent upon changing circumstances to warrant a judgment for their loss. But the rule is not an inflexible one, and if profits can be established with reasonable certainty, they are allowed.” Levith-ANSCA Towne Park P’ship v. Smith & Co., Inc.,

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60 So. 3d 1125, 2011 Fla. App. LEXIS 6661, 2011 WL 1775770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devon-medical-inc-v-ryvmed-medical-inc-fladistctapp-2011.