Digital & Analog Design Corp. v. North Supply Co.

540 N.E.2d 1358, 44 Ohio St. 3d 36, 1989 Ohio LEXIS 143
Ohio Supreme Court·Decided July 5, 1989·No. No. 88-107·Published·Cited by 80 cases

Opinions

Holmes, J.

The thrust of appellant’s propositions of law seeks review of the damages awarded, both compensatory and punitive. In analyzing such claimed errors, we must proceed being cognizant that the damage awards were made by this jury which had expressed its findings by way of its affirmative answers to the aforestated interrogatories.

I

In its first proposition of law, regarding compensatory damages, NSC asserts that DAD’s business finance expert witness, Dr. James E. Zinser, did not base his testimony regarding lost profits upon an analysis of lost net profits, and failed to make any deduction for the operating expenses of the company. More specifically, NSC contends that Dr. Zinser utilized an economic methodology, based upon a “gross operating [profit] margin.” It therefore concludes that the lost profits were not demonstrated with reasonable certainty.

We have held that in order to have a recovery for lost profits, the aggrieved party must demonstrate the existence of such profits “with reasonable certainty.” Gahanna v. Eastgate Properties, Inc. (1988), 36 Ohio St. 3d 65, 521 N.E. 2d 814, paragraph one of the syllabus. We have also determined that such party must show not only “(a) what he would have received from the performance so prevented, but also (b) what such performance would have cost him (or the value to him of relief therefrom). Unless he proves both of those facts, he cannot recover as damages the profits he would have earned from full performance of the contract.” Allen, Heaton & McDonald, Inc. v. Castle Farm Amusement Co. (1949), 151 Ohio St. 522, 526, 39 O.O. 330, 332, 86 N.E. 2d 782, 784. Evidence which does not meet these thresholds must be considered speculative and an insufficient basis for an award of damages.

There are, in specific cases, as implied in Allen, supra, exceptions to the general rule requiring that plaintiff expressly prove its own costs for the generation of lost profits. For exam-[41]*41pie, where there would have been no additional costs to the party to generate those profits which he lost, or where he was in fact not relieved from the particular costs which constituted his ongoing and fixed overhead costs, then he need only assert and prove such circumstances. As stated in Allen, supra, “If plaintiff would have been able to perform that work without incurring any additional cost, so that relief from the obligation of performing would not involve any benefit of value to plaintiff, plaintiff might be entitled to * * * [the entire gross profits]. 5 Williston on Contracts (Rev. Ed.), 3793, Section 1352. On the other hand, if the performance of such work would have cost' plaintiff more than the amount claimed in the petition, then plaintiff would be entitled to recover nothing * * Id. at 525, 39 O.O. at 332, 86 N.E. 2d at 784. In this regard DAD’s economic expert, Dr. Zinser, appeared to have considerable expertise in his field of economic analysis, with a large number of publications and professional activities to his credit. The evidence would reasonably support his technique of cost-profit analysis, the so-called “time-series analysis and projection.” See Chambers, Mullick & Smith, How to Choose the Right Forecasting Technique, Harvard Business Review: July-August 1971.

NSC, by comparison, did not produce a comparable expert. Instead, NSC relied upon the testimony of a certified public accountant, and an employee controller of NSC, a Mr. Simon, neither of whom it appears had as extensive training or expertise in the time-series analysis method as had Dr. Zinser, and neither of whom utilized a competing method of analysis to calculate a lesser amount of lost profits. Instead, they merely offered their disagreements with Dr. Zinser’s analyses. Having so devised its trial strategy relative to the issue of intermediate loss valuations, NSC has a limited stance in its assertions upon appeal in contending that the deduction of operating expenses from the gross profits for the period under consideration was the correct methodology to be used.

Dr. Zinser testified that the seizure of the inventory had severe repercussions upon DAD’s business. After reviewing all of the financial and other records which were also entered into evidence, he concluded that as a result of the seizure of inventory on August 1, 1984, DAD had suffered a total loss in sales of $8,200,000. He then determined that the cost of sales was equal to 72.9 percent of gross sales, leaving a “gross profit margin” of 27.1 percent. Utilizing this margin, Dr. Zinser concluded that DAD lost profits of $12,706 in 1984; $306,914 in 1985; $698,154 in 1986; and $981,873 in 1987. After adjusting for various other factors, he concluded that the total lost profits was $2,014,330.

NSC, through its cross-examination of Dr. Zinser and by its own witnesses, attempted to show that DAD had suffered losses in every year of its operation. However, Dr. Zinser pointed out that such losses accrued by virtue of the opening of five branch offices, and that such expenses would have become fixed, i.e., leveled off, so as to have had little or no effect on the future profits.

This specifically was an issue which was fully contested before the jury. The jury also had before it all of DAD’s records which included profits, losses and costs of every kind. Furthermore, there was ample proof that DAD’s overhead expenses actually continued for the period under consideration, and this much was admitted by NSC in its reply brief. The salient legal inquiry which emerges is not [42]*42whether such expenses became fixed, but instead, whether DAD paid such overhead expenses from whatever sales it achieved despite NSC’s tortious conduct. Since such overhead expenses did continue, but were actually paid from DAD’s sales made during the period of loss calculation, then NSC cannot be heard to argue that these same expenses should, as a matter of law, have been deducted from those sales which DAD lost during that time.

It would appear that, however calculated, there was evidence that the achievement of lost sales would not have resulted in increased costs such that the absence of sales resulted in a benefit of saved overhead expenses to DAD. See Allen, supra. Certainly, there was a sufficient production of evidence that the jury could lawfully have so concluded. Moreover, the jury actually rendered a verdict which was only some fifty-eight percent of the asserted lost profits. We conclude that the jury determination of the compensatory damages here was supported by competent credible evidence.

II

NSC argues here, as it did in the courts below, that several employees of DAD were permitted to state, over objection, that others in the business community, including customers, creditors and competitors, had beliefs, and/or made statements, to the effect that DAD, due to all these surrounding circumstances, was bankrupt and/or that the seizure of its inventory was commonly known. This, NSC asserts, was an erroneous admission of hearsay evidence and, furthermore, allowed DAD to predicate damages involving lost profits, lost employees, and lost reputation upon mere rumors.

Evid. R.

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Digital & Analog Design Corp. v. North Supply Co., 540 N.E.2d 1358, 44 Ohio St. 3d 36, 1989 Ohio LEXIS 143 (Ohio 1989).

540 N.E.2d 1358 (Digital & Analog Design Corp. v. North Supply Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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