McDonald's Corp. v. Brentwood Center, Ltd.

942 P.2d 1308, 1997 Colo. App. LEXIS 11, 1997 WL 6295
CourtColorado Court of Appeals
DecidedJanuary 9, 1997
Docket95CA1129
StatusPublished
Cited by20 cases

This text of 942 P.2d 1308 (McDonald's Corp. v. Brentwood Center, Ltd.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDonald's Corp. v. Brentwood Center, Ltd., 942 P.2d 1308, 1997 Colo. App. LEXIS 11, 1997 WL 6295 (Colo. Ct. App. 1997).

Opinion

Opinion by

Judge PLANK.

Defendant, Brentwood Center, Ltd., appeals the trial court’s award of damages to plaintiffs, McDonald’s Corporation and RCM Management Company, after judgment was entered against defendant upon plaintiffs’ claim for breach of a restrictive covenant. We vacate the judgment and remand the cause with directions.

I.

Plaintiffs operate a fast-food restaurant at a shopping center owned and operated by defendant. The restaurant space was initially leased in 1959. In 1974, a restriction was incorporated into an amended lease which prohibited defendant from leasing space at its shopping center to any business competitive with plaintiffs’ fast-food restaurant.

In 1990, plaintiffs purchased the leased space from defendant. The sales contract contained a restrictive covenant which prohibited defendant from leasing space at its shopping center to competing fast-food restaurants.

Meanwhile, a family restaurant at defendant’s shopping center closed down in 1989. Because it remained obligated to pay rent under the terms of its 1985 lease agreement with defendant, the family restaurant company did not agree to any subsequent restrictions affecting its lease at defendant’s shopping center. Although both parties to the sales contract were aware of the family restaurant’s position, they agreed to the restrictive covenant, which was recorded after the sale was completed.

Claiming that it was not bound by the restrictive covenant contained in the sales contract between plaintiffs and defendant, the family restaurant company in 1993 assigned its lease to a major fast-food restaurant franchise that directly competes with plaintiffs’ business. Defendant consented to the assignment of the lease, which required that such consent be obtained but provided that it could not be unreasonably withheld.

Seeking either an injunction to prevent its competitor from opening, or lost profits attributable to such competition, plaintiffs brought suit against defendant, the family *1310 food restaurant, and the competing fast-food restaurant. The trial court denied plaintiffs’ request for injunctive relief. Both the family food restaurant and the competing fast-food restaurant were thereafter dismissed as defendants.

Pending resolution of its claim concerning the restrictive covenant, plaintiffs invested approximately $285,000 for an indoor playground, which was installed in its restaurant in January of 1994. Based on the sales records of other restaurants with similar facilities, plaintiffs anticipated a significant increase in sales for at least one year after opening the indoor playground. The competing fast-food restaurant opened for business at defendant’s shopping center in April of 1994.

In January 1995, the trial court granted plaintiffs’ motion for partial summary judgment against defendant on the issue of liability. The trial court found that, by approving the family restaurant’s assignment of its lease to a competing fast-food restaurant, defendant breached the restrictive covenant contained in the sales agreement with plaintiff.

At a subsequent proceeding held before the trial court to determine damages, plaintiffs were awarded $540,000, which represented plaintiffs’ lost profits from the date that the competing fast-food restaurant opened until the restrictive covenant expires in the year 2000. The award was based on the court’s calculation of the average of anticipated return on investment and anticipated lost sales.

II.

Contending that the record does not support the trial court’s calculation of damages, the defendant on appeal urges this court to reverse the judgment and remand the cause with directions to limit the award of damages to the ten months following the opening of the competing restaurant, to deduct actual profits earned by plaintiffs from the award of lost profit, and to discount the judgment to present value. We agree only that the award should be reduced to present value.

A.

In a breach of contract action, the objective is to place the injured party in the position he or she would have been in but for the breach. Four Strong Winds, Inc. v. Lyngholm, 826 P.2d 414 (Colo.App.1992). A plaintiff is entitled to recover the amount of damages required to place it in the same position it would have occupied had the breach not occurred. Schneiker v. Gordon, 732 P.2d 603 (Colo.1987).

Lost profits may not be awarded if they are speculative, remote, imaginary, or impossible to ascertain. Western Cities Broadcasting, Inc. v. Schueller, 849 P.2d 44 (Colo.1993). Because indoor playgrounds were a relatively new concept at the time pertinent here, defendant contends that its impact on plaintiffs’ sales cannot be reliably calculated. Defendant also contends that other factors, such as road construction near the shopping center and reports of substandard service at plaintiffs’ restaurant, contributed to the lost profits claimed by plaintiffs as a result of the competing restaurant.

The party seeking damages for future lost profits must establish with reasonable, but not necessarily mathematical, certainty both the fact of the injury and the amount of the loss. Tull v. Gundersons, Inc., 709 P.2d 940 (Colo.1985). Sufficient evidence must be presented to compute a fair approximation of future loss. Pomeranz v. McDonald’s Corp., 843 P.2d 1378 (Colo.1993). The damages awarded must be traceable to and the direct result of the wrong to be redressed. Graphic Directions, Inc. v. Bush, 862 P.2d 1020 (Colo.App.1993).

Plaintiff submitted extensive evidence of damages, including the testimony of three expert witnesses who each presented detailed financial data analyzing the impact of the indoor playground, the competing fast-food restaurant, and the length of time that each of these factors could affect plaintiffs’ future profits.

Defendant also submitted extensive evidence of damages, including the testimony of another expert witness who also offered significant data as to plaintiffs’ future lost profits. Defendant’s expert claimed that, not *1311 withstanding the existence of a competing restaurant, increased sales attributable to the indoor playground could not be maintained over time.

Based upon its assessment of the evidence, including financial projections, historical data, expert testimony, and the weight to be afforded such evidence, the trial court calculated damages in a manner different from that suggested by either party. The trial court rejected the time limitation urged by defendants.

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Bluebook (online)
942 P.2d 1308, 1997 Colo. App. LEXIS 11, 1997 WL 6295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonalds-corp-v-brentwood-center-ltd-coloctapp-1997.