Summa Real Estate Group, Inc. v. Horst

A directed verdict is to be granted only when the evidence, viewed in the light most favorable to the nonmoving party, is insufficient to allow a factfinder to find the facts necessary to establish each element of the claim at issue. Miller v. Columbia County, 282 Or App 348, 349, 385 P3d 1214 (2016), rev den, 361 Or 238 (2017); The party seeking to recover lost profits bears the burden to prove them. Peterson v. McCavic, 249 Or App 343, 354, 277 P3d 572, rev den, 352 Or 564 (2012). Specifically, the party “must establish with reasonable certainty the existence and amount of lost profits.” Id.

Defendant appealed a trial court’s holding that it was liable under a claim brought by plaintiff for intentional interference with contract, economic relations, and prospective business advantage (IIER). The trial court entered judgment against defendants on the IIER claim, awarding lost profits to plaintiffs as damages because defendants had failed to prove expenses. On appeal, defendant assigned error to trial court’s denial of his motion for directed verdict, alleging that plaintiff offered insufficient evidence to establish damages under an IIER claim. Defendant further argued that the damages awarded as lost profits were improper because trial court improperly shifted the burden to defendants to prove expenses. A directed verdict is to be granted only when the evidence, viewed in the light most favorable to the nonmoving party, is insufficient to allow a factfinder to find the facts necessary to establish each element of the claim at issue. Miller v. Columbia County, 282 Or App 348, 349, 385 P3d 1214 (2016), rev den, 361 Or 238 (2017); The party seeking to recover lost profits bears the burden to prove them. Peterson v. McCavic, 249 Or App 343, 354, 277 P3d 572, rev den, 352 Or 564 (2012). Specifically, the party “must establish with reasonable certainty the existence and amount of lost profits.” Id. The Court of Appeals held that because there was a disputed factual issue for the factfinder to decide in at least one of the damages theories, the trial court did not err in denying the motion for directed verdict. The Court of Appeals further held that it was plaintiff's burden to establish expenses, so that the court could calculate net lost profits, and plaintiff failed to do so. Reversed and remanded as to intentional interference claim; otherwise affirmed.