SALTER, J.
Del Monte Fresh Produce Company appeals a final judgment exceeding $15.7 million in favor of its telecommunications-cost consultant, Net Results, Inc., following a jury trial. We affirm the jury's and trial court's determinations that Del Monte breached the parties' consulting contract,
In July 2002, Del Monte and Net Results signed Net Results' "consultative services agreement" ("Agreement"). Essentially, Net Results agreed to review Del Monte's local and long distance telephone bills, and its costs for certain data and information technology services, to look for past overcharges and future savings. Any such recoveries of overcharges or savings to Del Monte, including any refunds, rebates, credits, promotional awards, or renegotiated rates, would entitle Net Results to a consulting fee equal to thirty-five percent of the amount recovered or saved. The Agreement was also clear that "if there are no savings, [Net Results] receives no fee."
The Agreement obligated Net Results to prepare a "Summary Benchmark Proposal," referred to by the parties as an "SBP," after researching Del Monte's telecommunications and information technology contracts and billings.
Regarding any "historic savings" that might be achieved by Net Results by, for example, demonstrating to a telecommunications carrier that Del Monte had been overbilled, Net Results was to be entitled to its 35% fee "back at least three years or for the life of any telecommunications agreement, equipment or facilities lease, cellular, paging or data service agreement negotiated by [Del Monte], by [Net Results], or by any other party for [Del Monte]." Finally, the Agreement specified that "[i]f any term is unclear or ambiguous it shall be interpreted to the benefit of [Net Results]."
After the parties signed the Agreement, Del Monte executed written authorizations
[All spelling and grammar are as in the original].
The memo went on to estimate that historic refunds and credits due might total $24,700,000 or more, and that prospective annual savings might be $7,600,000. The memo acknowledged that these amounts exceeded a full year of Del Monte's entire national and international expenditures for the telecommunications services in question,
While the record does not appear to contain an SBP submitted to Del Monte with an identifiable title "Summary Benchmark Proposal," Net Results maintains that its research was summarized and accepted by Del Monte when Del Monte paid a series of the Net Results invoices.
After receiving Net Results' recommendations and a series of invoices, several of which were paid by Del Monte, Del Monte abruptly decided to terminate the Agreement. In an internal email dated May 14, 2003, a letter purportedly terminating the Agreement before automatic renewal was forwarded to the Del Monte information technology officer who had signed the Agreement in July 2002. As prepared on Del Monte letterhead and as signed by that officer, the letter was backdated to May 1, 2003. At trial, Net Results argued that (a) the letter was fraudulently backdated in a transparent effort to prevent a further automatic one-year renewal of the Agreement
The jury accepted Net Results' claim of breach and liability. The trial court denied relief on that aspect of Del Monte's motion and renewed motion for directed verdict, and subsequently on Del Monte's motion for a new trial. As a result of the untimely notice, the Agreement was extended through a term ending July 3, 2004. Del Monte became liable for 35% of Del Monte's savings that were identified, obtained, or could have been identified or obtained by Net Results, during that term (absent Del Monte's repudiation), less Net Results' costs of achieving any such results. As to any "historic savings" identified or obtained within that term, the three-year lookback provided a 35% fee to Net Results on rebates, refunds, or savings on covered billings and services back to July 3, 1999.
To establish its damages, Net Results relied on its owner and senior officer, Joseph Chopek. Chopek was accepted as an expert by the trial court over Del Monte's objection. He described how he had prepared a "model" to demonstrate Net Results' damages following breach by Del Monte:
At various points in his direct examination, Chopek stated or suggested that Del Monte had not provided complete information to him, that he lacked complete information from Del Monte's telecommunications providers, and that Del Monte had delayed the production of these records and complicated Chopek's research by including "trucking bills and florist bills and a bunch of other things." Ultimately these recurring complaints resulted in objections and a motion for mistrial by Del Monte, all of which were denied by the trial court. There is no indication in the record that Del Monte, or any vendor providing services to Del Monte during the pertinent
Chopek also stated that Net Results was entitled to "extrapolate" worldwide damages based on Del Monte's alleged refusal to provide complete evidence of all telecommunications and information technology expenditures. Some of the savings were proven using actual vendor bills and rates, and, as noted, Del Monte paid several of Net Results' bills for those savings. Other damages claims, however, assumed that Net Results would have been able to negotiate savings with vendors that did not testify, and whose rates to Del Monte did not improve during the remaining contract term following Del Monte's repudiation of the Agreement.
Chopek admitted that he created estimates for Del Monte's global accounts for its traffic to and from its United States offices because he concluded that Del Monte had not disclosed information about various vendors and their global billings. Based on those estimates, he computed further savings to Del Monte of $12,294,417 to Del Monte and $4,363,045 as the 35% fee payable to Net Results. Adding this figure to the $1,723,725 in fees calculated for savings he testified were actually produced or could have been produced, he computed total fees payable to Net Results of $6,112,988 for telecommunications to and from Del Monte's U.S. facilities. But based on a former Del Monte employee's testimony that the U.S. business relied on only thirty circuits, with
The jury had before it the two-page damages spreadsheet prepared by Chopek to summarize the results of his "model." The jury found that Del Monte had breached the contract and that Net Results was entitled to $10,000,000 in consequential damages, just under one-half of the $22,618,056 shown on the spreadsheet. There is no apparent connection between the round $10,000,000 award and any of the fees claimed by Net Results for the categories involved in Chopek's testimony. After Del Monte's post-trial motions were denied and prejudgment interest was added to the damages, Del Monte commenced this appeal.
Our review of Net Results' method for computing damages involves a strictly legal issue and is assessed de novo. RKR Motors, Inc. v. Associated Uniform Rental & Linen Supply, Inc., 995 So.2d 588, 591 (Fla. 3d DCA 2008), review denied, 8 So.3d 1133 (Fla.2009). When the correct methodology has been utilized, however, our review is limited to a determination of whether the damages award is supported by competent substantial evidence.
Florida law and the Restatement (Second) of Contracts
In this case, Net Results' underlying methodology is thus incorrect as a matter of law. As detailed below, Net Results offered no evidence regarding its costs of performing the contract, claiming, in effect, lost gross revenue rather than lost profits. But because the case is remanded for a new trial on damages, we also address the lack of required "reasonable certainty" in Net Results' attempt to prove its damages at trial. Specifically, Net Results relied upon assumptions and extrapolation for over 90% of its claimed damages, pushing its proof into the realm of conjecture and speculation.
This is not a soft tissue tort case in which it may be difficult for the parties or
We have continuously held that the computation of damages in such a case requires the non-breaching party to deduct from anticipated contract revenue the costs incurred in performing the contractual services.
In the case at hand, Net Results provided no evidence regarding its overhead, its historical profit margins on such contracts, or the costs of the professionals who worked (and would have been required to continue working, absent Del Monte's repudiation of the Agreement) on the Del Monte project. Chopek was cross-examined about Net Results' costs of performing the Agreement:
This methodology, unsuccessfully challenged by Del Monte in both the motion for directed verdict and motion for new trial, is invalid as a matter of law and the verdict and judgment based upon it must therefore be reversed.
For the benefit of the parties on remand, we also address their contentions regarding the sufficiency of the "damages model" prepared by Chopek for Net Results. Net Results' "summary calculations" exhibit, totaling $22,618,056 in "Total USA and World" damages, is primarily built upon assumptions and "extrapolation" rather than less ephemeral facts. Although it was apparently an established business with the requisite "track record" to allow proof of a company's historical profit percentages, Net Results elected instead to focus exclusively on those prospective savings it claimed it would have produced for Del Monte had Net Results been permitted to complete its performance with full cooperation by Del Monte. The result was Chopek's "model" with assumptions regarding missing vendors and bills, extra circuits assumed to have equal volumes, vendors, and savings, and "extrapolation" to produce damages figures
Under Florida law, "an inability to establish the amount of lost profits with absolute exactness will not defeat recovery." Nat'l Papaya Co. v. Domain Indus., Inc., 592 F.2d 813, 818 (5th Cir. 1979) (citing Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936)). However, the countervailing rules require "reasonable certainty" in the proof of those damages and the assumptions underlying them. Id. at 822; see also R.A. Jones & Sons, Inc. v. Holman, 470 So.2d 60 (Fla. 3d DCA 1985). "Damages cannot be based upon speculation or guesswork, but must have some reasonable basis in fact." Smith v. Austin Dev. Co., 538 So.2d 128, 129 (Fla. 2d DCA 1989).
Applying those principles to the proof of damages in the record at hand, we find no substantiation or reasonable basis in fact for the assumptions made, and "extrapolation" performed by, Chopek on behalf of his company with respect to his "phase two—estimated worldwide" damages in his written "summary calculations." Those "phase two" estimates comprised, or were the basis for extrapolation for, over 90% of the $22,618,056 total on that exhibit. We also find no record basis upon which to conclude that Net Results was somehow prevented or precluded from obtaining actual telecommunications and information system billings from non-party vendors, allegedly necessitating Chopek's reliance on estimates and extrapolation. Accordingly, we reverse the verdict and final judgment as to damages.
Testimony and documents regarding hypothetical savings on corporate telecommunications services and data transfer are enough to perplex any juror or judge. If the backdated letter attempting to terminate the Agreement is the commercial equivalent of a punch in the nose, it may also seem fair to excuse any rigor in the proof of the resulting damages. But Florida contract law has constraints that were not observed in this case. If Del Monte is accused of hiding vendors, circuit usage, bills, and savings, that is a matter for pretrial discovery and proof rather than for wily use as a repetitive slogan at trial. Allegedly-missing figures are not a warrant to substitute their absence with guesswork.
Proof of damages for breach of this Agreement should not be rocket science. The actual charges for the covered services are susceptible of ready proof by Del Monte's records and those of its vendors.
The claimed, realizable savings also should be demonstrable, and they should correlate in some reasonable way with the total budget to which the savings apply. The 35% fee on any such savings is simple arithmetic. Notwithstanding this, however, the proof of damages at trial was largely conjecture, and the resulting award by the jury—lost fees of $10,000,000—translates to purported savings to Del Monte of some $28,571,428 over a term in which its total of annual budgets for the covered services did not approach that amount. Such a result is manifestly excessive.
Net Results' damages methodology was also reversibly flawed because it failed to prove the other half of the ledger involved in a lost profits case—the expenses that Net Results would have borne to provide the performance excused by the breach.
For these reasons, we affirm the jury verdict, judgment, and post-trial rulings as they relate to Del Monte's liability for breach; and we reverse and remand the case for a new trial on Net Results' consequential damages.
Thereafter Chopek again testified repeatedly that Del Monte had not supplied information he had requested. The damages summary provided by Net Results to the jury included captions for "MISSING Global Accounts" and "Evidence Refused."