Damages Must Be Proven With Reasonable Certainty

A plaintiff must prove his damages claim with reasonable certainty by providing sufficient facts and circumstances to allow the fact finder to make an intelligent and probable estimate of the damages sustained. In Crum v. Anonymizer, the Fairfax Circuit Court refused to modify a jury verdict awarding the plaintiff less than he contended he was owed when the court found he failed to present sufficient evidence of his damages.

In Crum, the jury found that Anonymizer, Inc. had breached its Sales Incentive Plan when it capped Daniel Crum’s total commissions and cut his commission percentage from 6% to 3%. The jury awarded Crum $139,458.17 in damages, but it determined that Crum had not proven his breach of contract claim with regard to post-termination commissions.

Crum made a Motion for Judgment Notwithstanding the Verdict, asserting that the Sales Incentive Plan contained the only conditions he had to satisfy to earn commissions and that no evidence had been presented that he had failed to satisfy those conditions. Crum contended that the only evidence shown was that Anonymizer stopped payments once it no longer employed Crum. Anonymizer produced evidence that corporate practice was to stop paying sales commissions after termination, but crumbs.jpgthere was no evidence that continued employment was a condition of the Sales Incentive Plan. Accordingly, Crum argued that the jury had no basis to conclude that continued employment was a condition and should have awarded him damages on his post-termination claim.

The court denied Crum’s motion, finding that Crum had failed to present sufficient evidence on post-termination damages. Crum did not present enough evidence on whether he was entitled to commissions on accounts that were renewed after he was terminated, and he provided no evidence as to dates on which contracts ended or were renewed. Although he submitted a summary of total commissions he expected to receive post-termination, he failed to identify which commissions were received on original contracts versus renewals. Therefore, the jury had no way to differentiate between commissions earned on contracts in existence before Crum’s termination and those earned on contracts which were not in effect at the time of his termination but were renewed later.

Crum asked the court to reconsider its ruling because Anonymizer provided no evidence on renewals which could have defeated his claim for the full amount requested on post-termination commissions. Crum argued that whether commissions were required on renewals was not a question before the jury and because there was no evidence that a renewal would prevent payment of commissions, Anonymizer was required and failed to plead renewals as an affirmative defense. The court disagreed.

The elements of a breach of contract claim are (1) a legally enforceable obligation; (2) defendant’s violation of that obligation; and (3) resulting injury to the plaintiff. The jury was instructed that plaintiff had the burden of proving that he was actually entitled to commissions on future payments received for each individual contract. At trial, Anonymizer explained how renewals were “new bids” and commissions were not paid on renewals. Crum never controverted this evidence.

A plaintiff cannot simply declare the amount of his damages without explaining how he arrived at the amount. Rather, a plaintiff must show the elements of damages with reasonable certainty by providing evidence of facts and circumstances that allows the jury to make an intelligent and probable estimate of the damages incurred. Here, the evidence on damages was confusing and there was no clear means for the jury to make its determination. At one point during deliberations, the jury asked for a method to calculate damages, and the court sympathized with the jury’s predicament. The court indicated that Crum should have prepared two separate amounts for the jury to consider, or at least provided an easy method for the jury to determine the amounts received post-termination on (1) the original contracts or on renewals for which he was already receiving commissions and (2) renewals awarded on his original contracts.

Crum had the burden to establish his damages and failed to do so. Therefore, the court denied his motion to reconsider.

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