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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Recreational Data Services, Inc. v. Trimble Navigation Limited (3/24/2017) sp-7162
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RECREATIONAL DATA )
SERVICES, INC., ) Supreme Court No. S-15893
)
Appellant, ) Superior Court No. 3AN-11-10519 CI
)
v. ) O P I N I O N
)
TRIMBLE NAVIGATION LIMITED, ) No. 7162 - March 24, 2017
a California corporation, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Catherine M. Easter, Judge.
Appearances: Susan Orlansky, Reeves Amodio LLC, Gavin
Kentch, Law Office of Gavin Kentch, LLC, Anchorage, Josh
Fannon, Law Office of Joshua Fannon, Palmer, and Greg
Parvin, Law Office of Gregory S. Parvin, Wasilla, for
Appellant. James N. Leik and Brian P. Samuelson, Perkins
Coie LLP, Anchorage, and Daniel P. Elms, Bell Nunnally &
Martin, LLP, Dallas, Texas, for Appellee.
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
Recreational Data Services, Inc. (RDS) is an Alaska corporation that
attempted to develop and market a smartphone that would come preloaded with outdoor-
oriented software. RDS pursued a partnership to advance the project with Trimble
Navigation Limited, through one of its divisions, Trimble Mobile Computing Services
1
(Trimble Mobile), and Remington Arms Company. Remington withdrew from the
project after about two years of research and review. Several months later Trimble
Mobile left the project too - shortly before a different Trimble division, Trimble
Outdoors, launched a similar product. RDS sued Trimble for misrepresentation, breach
of contract, and breach of fiduciary duty, alleging that Trimble Mobile intentionally
delayed RDS's project while sharing confidential information about it with Trimble
Outdoors.
A jury agreed with RDS and awarded it $51.3 million in lost profits. The
superior court, however, concluded that RDS had not proven the amount of lost profits
with reasonable certainty and granted Trimble a judgment notwithstanding the verdict.
RDS appeals. It argues that the superior court erroneously conflated the standards of
proof for the fact of harm and the amount of damages and asks that the jury verdict be
reinstated. Trimble responds that no reasonable jury could have found that RDS satisfied
all elements of its claims.
We conclude that it was error to grant a judgment notwithstanding the
verdict because a reasonable juror could conclude that RDS proved all elements of its
1 Trimble Navigation, the named party in this case, has two distinct divisions
relevant here: Trimble Mobile Computing Solutions and Trimble Outdoors. In this
appeal we refer to Trimble Navigation and its divisions collectively as "Trimble." We
identify Trimble Navigation, Trimble Mobile, or Trimble Outdoors individually when
the fact of the entity's separate existence is important to the context.
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claims. We also hold, however, that the superior court was correct to conclude that RDS
failed to prove any amount of lost profits to a reasonable certainty as the law requires.
We therefore grant remittitur, directing the superior court to make an award of nominal
damages and enter judgment for RDS.
II. FACTS AND PROCEEDINGS2
A. Facts
In 2008 Brian Feucht and his business partner, Jim Belz, came up with an
idea for a "ruggedized" smartphone with a pre-loaded suite of applications (apps)
designed for outdoors enthusiasts. They formed RDS to develop the product they
envisioned.
In February 2009 RDS sent an executive summary to Trimble Outdoors
introducing three suites of anticipated software: HuntZone, FishZone, and RecZone.
RDS proposed that it would develop the software and Trimble would build the phone's
hardware. RDS received a positive response from Chaur-Fong Chen, the Director of
Strategic Business Development for Trimble Mobile, a different Trimble division, and
in March 2009 Trimble Mobile and RDS signed a mutual nondisclosure agreement. The
nondisclosure agreement stated the parties' purpose, defined confidential information,
and restricted the disclosure of confidential information to parent companies,
subsidiaries, and employees on a need-to-know basis. Trimble Mobile was the only
Trimble entity to sign the nondisclosure agreement.
RDS approached Remington about doing the marketing for the planned
smartphone. In September 2009 Feucht, Belz, and Chen met with Pat Boehnen, a
Remington project manager and marketing director, in Copper Center to discuss how the
2 The oral arguments in this case took place before an audience of students
and teachers at West High School in Anchorage as part of the "Supreme Court Live"
community outreach program.
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project would move forward. They agreed that RDS would be responsible for software,
Trimble Mobile for hardware, and Remington for marketing. They also discussed
research responsibilities, potential revenue, and the sharing of profits. They called the
plan that emerged from this meeting the "Copper Center Project." Feucht testified that
Chen and Boehnen both advised him not to launch a stand-alone app before the
smartphone was complete; this would protect future hardware sales and ensure that the
hardware and software were integrated.
The parties dispute whether they had created a partnership at this point.
Feucht testified that at the end of the Copper Center trip "we shook hands and we
decided that we were going to be partners and we were going to push this project
forward to fruition." But according to Trimble, the parties "agreed to explore a possible
venture" but stopped short of forming a partnership. The parties do agree that they all
understood they could leave the Copper Center Project at any time.
After the Copper Center meeting, Remington conducted two large-scale
market research surveys to evaluate what features the phone needed and how much
consumers would be willing to pay for it. Using this data, RDS, Trimble Mobile, and
Remington generated profit and loss statements predicting the phone's sales and each
party's role. The parties also developed a PowerPoint presentation which identified them
as partners and which was presented to potential third-party investors, including AT&T,
Eklutna Corporation, Symbian, and Janney Montgomery Scott. Around September 2010
RDS approached Paul Miller, a former Remington executive, about acting as the Copper
Center Project's Chief Operating Officer. Miller joined the project as an informal
consultant pending a final contract between the companies.
In October or November 2010 Remington signaled its intent to withdraw
from the Copper Center Project. Also in November 2010 Chen alerted Feucht for the
first time that Trimble Outdoors was working on a similar project with the retail chain
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Cabela's, though Chen assured Feucht the two projects did not compete. Feucht traveled
to Trimble's headquarters in December and met with Chen and Steve Wolff, a Trimble
Mobile employee who had joined Chen in the Copper Center Project, to discuss how
they could move forward without Remington. During this meeting Wolff wrote on a
whiteboard a series of valuations and projected revenues based on information Feucht
provided. RDS alleges that during this meeting Trimble Mobile offered to acquire RDS,
but Trimble disputes this.
RDS and Trimble Mobile decided to investigate whether Cabela's would
be willing to replace Remington as the Copper Center Project's marketing arm. Miller
arranged for them to meet with Cabela's in March 2011. But Chen emailed Feucht and
Miller on the day of the meeting to say that Trimble Mobile would not attend. On their
way to the meeting Feucht and Miller stopped at a restaurant inside Cabela's, where they
saw advertisements for Cabela's new phone apps - ReconHunt and ReconFish -
which they testified were almost identical to the software suite RDS had envisioned.
They went through with the Cabela's meeting but felt disheartened, and a few weeks
later Cabela's declined to work with them.
B. Proceedings
In September 2011 RDS sued Trimble, alleging various causes of action for
3
breach of contract, fraud, and breach of fiduciary duty. A jury heard the case in
September 2014. RDS sought to prove through testimony and emails between Chen and
other Trimble employees that Chen regularly conferred with Trimble Outdoors in
violation of the parties' nondisclosure agreement and that Chen shared confidential
information that Trimble Outdoors and Cabela's used to their advantage to create the
3 RDS's complaint also named Cabela's, AT&T, and Alascom as defendants.
At the time of trial, Trimble was the only remaining defendant.
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ReconHunt and ReconFish apps. RDS also alleged that Trimble Mobile delayed the
release of RDS's product while it "strung RDS along through deceptive statements."
Finally, RDS argued that Chen had misrepresented that the Trimble Outdoors project did
not compete with the Copper Center Project. To prove damages, RDS relied on the
profit and loss projections that RDS, Trimble Mobile, and Remington generated for the
Copper Center Project and the whiteboard valuations Wolff created during their
December 2010 meeting.
Trimble moved for a directed verdict mid-trial and at the end of trial. The
superior court denied the first motion, concluding that the issue was "very close" but that
there was room for diversity of opinion among fair-minded jurors when viewing the
evidence in the light most favorable to RDS. The superior court denied the later motion
"[f]or the reasons previously stated."
The jury then returned a verdict in favor of RDS on all claims, awarding it
$38.5 million for intentional and negligent misrepresentation and $12.8 million for
breach of contract and fiduciary duty; these numbers added up to 100% of Wolff's
whiteboard valuation of the project. The jury declined to award punitive damages.
Trimble moved for judgment notwithstanding the verdict or a new trial,
arguing that RDS had failed to prove the elements of its claims and that the damage
award was not supported by reasonably certain evidence of lost profits. The superior
court granted Trimble's motion, concluding that "reasonable persons could not differ in
their judgment that RDS, an unestablished business, did not prove any amount of lost
profits with reasonable certainty." The court therefore entered judgment in favor of
Trimble.
RDS now appeals, contending that the superior court failed to view the
evidence in the light most favorable to it as the non-moving party. RDS also contends
that a judgment notwithstanding the verdict was inappropriate because if the amount of
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the award could not be calculated with reasonable certainty, then RDS was nonetheless
entitled to a judgment in its favor and, at a minimum, an award of nominal damages.
III. STANDARD OF REVIEW
Whether there is sufficient evidence to support a jury verdict is a question
4
of law we review de novo. We assess "whether, after reviewing the full record
presented to the jury in the light most favorable to the non-moving party, a reasonable
juror could possibly find in that party's favor." 5
IV. DISCUSSION
The superior court erred in granting a judgment notwithstanding the verdict.
As discussed in Section A, a reasonable juror could find, as this jury did, that RDS
proved all elements of its claims for misrepresentation, breach of contract, and breach
of fiduciary duty by a preponderance of the evidence. But as explained in Section B,
although it was error to conflate the fact of harm and the amount of damages in granting
the judgment notwithstanding the verdict, the court correctly concluded that RDS did not
prove any amount of lost profits to a reasonable certainty. Remittitur for an award of
nominal damages is therefore appropriate, as discussed in Section C.
A. It Was Error To Grant A Judgment Notwithstanding The Verdict
Because A Reasonable Juror Could Find That RDS Proved All
Elements Of Each Of Its Claims By A Preponderance Of The Evidence.
In ruling on a motion for a judgment notwithstanding the verdict, a trial
court must determine "whether, after reviewing the full record presented to the jury in
the light most favorable to the non-moving party, a reasonable juror could possibly find
4 Cameron v. Chang-Craft, 251 P.3d 1008, 1018 (Alaska 2011) (citing
L.D.G., Inc. v. Brown , 211 P.3d 1110, 1117-18 (Alaska 2009)).
5 Wiersum v. Harder, 316 P.3d 557, 563 (Alaska 2013) (citing L.D.G. , 211
P.3d at 1117).
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6
in that party's favor." Thus, the fundamental question we consider here de novo is
whether the evidence viewed in the light most favorable to RDS "permits room for
7
diversity of opinion among reasonable jurors."
1. A reasonable juror could find that Trimble Mobile
misrepresented that the Trimble Outdoors applications did not
compete with the Copper Center Project.
To show fraudulent misrepresentation RDS was required to prove these
elements: "(1) a misrepresentation of fact or intention, (2) made fraudulently (that is,
with 'scienter'), (3) for the purpose or with the expectation of inducing another to act in
8
The elements
reliance, (4) with justifiable reliance by the recipient, (5) causing loss."
of negligent misrepresentation are essentially the same, except that instead of scienter the
plaintiff has to prove the defendant's lack of "reasonable care when making the
9
statement." Trimble challenges only whether RDS proved justifiable and actual
reliance; our analysis of this element applies to both the intentional and the negligent
10
misrepresentation claims.
6 Id. (citing Cameron, 251 P.3d at 1017).
7 Cameron, 251 P.3d at 1017 (quoting City of Delta Junction v. Mack Trucks,
Inc. , 670 P.2d 1128, 1130 (Alaska 1983)).
8 Lightle v. State, Real Estate Comm'n , 146 P.3d 980, 983 (Alaska 2006)
(quoting RESTATEMENT (SECOND) OF TORTS §§ 525, 526, 531 (AM . LAW INST . 1977)).
9 S. Alaska Carpenters Health & Sec. Tr. Fund v. Jones , 177 P.3d 844, 857
(Alaska 2008) (citing Bubbel v. Wien Air Alaska, Inc., 682 P.2d 374, 380 (Alaska 1984)).
10
Anchorage Chrysler Center, Inc. v. DaimlerChrysler Corp. , 129 P.3d 905,
915 (Alaska 2006) ("[A]ctual reliance and justifiable reliance are both prerequisites to
claims of negligent and intentional misrepresentation . . . .").
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a. A reasonable juror could find that RDS justifiably relied
on Trimble Mobile's misrepresentations.
A plaintiff who knows that a statement is false "cannot justifiably rely" on
11
Trimble argues that RDS knew that the ReconHunt and ReconFish apps developed
it.
by Trimble Outdoors competed with the Copper Center Project because Feucht emailed
Chen on November 30, 2010, to say he was "very concerned" about the Trimble
Outdoors project and its possible entry into the same market. Feucht ended the email by
telling Chen, "I need to know we have a deal or I need another supplier."
Feucht testified that he sent this email the same day or the day after Chen
first told him Trimble Outdoors was working with Cabela's on a product that "did not
compete with the Copper Center Project." Feucht admitted that Chen never answered
his email, but he testified that a month later, in December 2010, he traveled to Trimble
Mobile's headquarters and met with Chen and Wolff "to reassess the project and move
the project forward" in light of Remington's imminent departure. Feucht testified that
he was again reassured by both Chen and Wolff that Trimble Outdoors' project "was
totally different. And we shouldn't worry about it." A reasonable juror could find it
more likely than not that these assurances were given and that Feucht accepted them.
And Trimble identifies no evidence that Feucht learned of the specifics of ReconHunt
and ReconFish or of their similarity to the Copper Center Project before March 2011,
when he saw advertisements for the apps at the Cabela's restaurant.
11 Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska 2010) (citing
2 DAN B. DOBBS, THE LAW OF TORTS § 474 (2001)); see also RESTATEMENT (SECOND)
OF TORTS § 541 cmt. a (AM . LAW INST . 1977) ("Although the recipient . . . is not barred
from recovery because he could have discovered its falsity . . . by investigating its truth,
he is nonetheless required to use his senses, and cannot recover if he blindly relies upon
a misrepresentation the falsity of which would be patent to him if he had utilized his
opportunity to make a cursory examination or investigation.").
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b. A reasonable juror could find that RDS relied on Trimble
Mobile's misrepresentations by acting or refraining from
action.
Trimble also argues that RDS failed to prove that it "relie[d] on [Trimble
12
Mobile's] misrepresentation in acting or refraining from action." To support this
assertion Trimble cites Feucht's testimony that he realized in March 2011 that
ReconHunt was "an absolute rip-off of my idea" but proceeded with the pitch to Cabela's
while continuing to treat Trimble Mobile as a partner. Trimble argues that "there is no
credible basis to conclude that RDS would have changed its position or done anything
differently" if Trimble Mobile had admitted early on that the projects competed.
But Trimble's argument slights the period from December 2010 to March
2011. A reasonable juror could conclude that had RDS known by December 2010 that
Cabela's and Trimble Outdoors were creating a competing product, it would have used
the next few months to pursue a different hardware provider, would have considered
launching a separate software application, or would have taken some other action rather
than waiting for its next meeting with Trimble Mobile. The fact that RDS went ahead
with the Cabela's meeting in March 2011 could indicate that RDS relied on Trimble
Mobile's assurances until it was too late to shift gears. A reasonable juror could thus
find that RDS proved by a preponderance of the evidence that it actually relied on
Trimble Mobile's misrepresentations.
2. A reasonable juror could find that Trimble Mobile breached the
nondisclosure agreement by sharing financial information with
Trimble Outdoors.
The nondisclosure agreement signed by RDS and Trimble Mobile early in
their relationship prohibited either party from disclosing "Confidential Information."
12 RESTATEMENT (SECOND) OF TORTS § 537(a) (AM . LAW INST . 1977).
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"Confidential Information" was defined in the agreement as "any information or material
of a confidential or proprietary nature relating to the existing or prospective business . . .
of a Party or Others" or relating to "the terms of a prospective business relationship."
The agreement also required the parties to identify confidential information in their
written communications by attaching a statement "such as '[name of Party] Confidential
Information' or words of like meaning."
RDS argued at trial that Trimble Mobile breached the nondisclosure
agreement by sharing confidential information with Trimble Outdoors, specifically the
profit and loss statements prepared by RDS, Trimble Mobile, and Remington based on
Remington's market research data. On appeal Trimble argues that the evidence at trial
was insufficient to support a finding that the agreement was breached. Trimble contends
(a) that Trimble Mobile did not disclose confidential information to Trimble Outdoors;
(b) that RDS had not properly identified the project's profit and loss statements as
confidential; and (c) that information shared by Trimble Outdoors was not covered by
the nondisclosure agreement.
a. A reasonable juror could find that Chen shared
confidential information with Trimble Outdoors.
Trimble argues that RDS failed to prove that Chen improperly shared the
profit and loss statements because Chen described the documents he shared as "the
financials . . . from Remington" but never specified which documents those were. But
a reasonable juror could rely on context to conclude that the documents Chen referred
to included the profit and loss statements.
The parties' emails indicated that Chen received the profit and loss
statements from Feucht on September 30, 2010; and Chen testified that on November 20
he forwarded financial data to Mark Harrington of Trimble Navigation and Rich Rudow
of Trimble Outdoors. While cross-examining Chen on this subject, RDS's attorney
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emphasized repeatedly that he was asking about "the market research data as it applied
to the financials, profits and losses." Chen confirmed his earlier deposition testimony
that what he forwarded to the other Trimble employees was "the financials that we got
from Remington," but he equivocated as to whether it would have been appropriate for
him to share the related profit and loss information with others in the Trimble
organization. From this, a juror could reasonably conclude that the profit and loss
statements from Feucht's September 30 email were included in the information that Chen
forwarded to Harrington and Rudow.
Conversations between Chen and Rudow in April and October 2009 and
September and November 2010 provide additional context for a jury finding that Chen
shared confidential information with Trimble Navigation and Trimble Outdoors. Chen
testified at trial that he told Rudow in April 2009 that the Copper Center Project
"software might be good for his business." In October 2009 Chen emailed Rudow to say
he was preparing a presentation for Remington, Cabela's, and AT&T that he would show
Rudow later. In September 2010 Chen emailed Rudow to say that since Rudow had
"been working on the Outdoor related market and ha[d] gained a lot of experience in
user's adoption and carrier behavior, Steve [Berglund, the Trimble Navigation CEO,]
suggested that we should work together to see if we can address the concerns he has on
the [Copper Center] project." As part of their meeting, Chen said he would like "to go
through the current business plan and ask for your advice on various issues." In October
2010 Chen emailed Rudow to set up a meeting "to go through the plan in person
[because] there [is] quite a bit of confidential stuff that right now is not the time to send
it through email[]." At trial Chen testified that he, Rudow, and Harrington met in
November 2010 to discuss "[p]otential overlap" between the projects. As discussed
above, the evidence supported a conclusion that Chen sent Rudow and Harrington
confidential information from the Copper Center Project in preparation for this meeting.
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Viewing the evidence in the light most favorable to RDS, a reasonable juror
could find that it was more likely than not that Chen did disclose confidential information
to Rudow and Harrington, neither of whom worked for Trimble Mobile. This was a
violation of the nondisclosure agreement.
b. Feucht's email properly designated the profit and loss
statements as confidential.
Feucht's email transmitting the profit and loss statements contained this
notice: "This email and any files transmitted with it are RDS . . . property, are
confidential, and are intended solely for the use of the individual or entity to whom this
email is addressed." Trimble argues that "[t]he boilerplate paragraph at the end of Mr.
Feucht's email did not meet [the nondisclosure agreement's] requirements." But Trimble
does not elaborate on how the language was deficient. And although Trimble describes
it as "boilerplate," there do not appear to be any other emails from Feucht in the record
that contain the same or similar language.
Whether the notice satisfied the demands of the nondisclosure agreement
13
presents a question of law. Our object in interpreting a contract "is to give effect to the
14
reasonable expectations of the parties."
We do this by "look[ing] to the language of the
disputed provision, the language of other provisions of the contract, relevant extrinsic
15
evidence, and case law interpreting similar provisions." We conclude that Feucht's
notice did constitute "words of like meaning" under the nondisclosure agreement's
13 Herring v. Herring , 373 P.3d 521, 528 (Alaska 2016) (citing Cook v. Cook ,
249 P.3d 1070, 1077 (Alaska 2011) (observing that the interpretation of contract
language is a question of law reviewed de novo on appeal).
14
Alaska Fur Gallery, Inc. v. First Nat'l Bank Alaska , 345 P.3d 76, 98
(Alaska 2015) (quoting Peterson v. Wirum , 625 P.2d 866, 872 n.10 (Alaska 1981)).
15 Id. (quoting Peterson , 625 P.2d at 872 n.10).
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provision for identifying confidential information, as the notice identified the disclosing
16
And Feucht did
party and explicitly stated that the emails and file were confidential.
"affix or incorporate" the notice to the profit and loss statements when he attached the
statements to an email describing the "files transmitted" as "confidential." This
interpretation of the nondisclosure agreement's language seems straightforward, and
Trimble directs us to no extrinsic evidence that would require us to interpret it
differently. We therefore conclude that the profit and loss statements were properly
designated as confidential under the nondisclosure agreement.
c. The nondisclosure agreement protected the profit and
loss statements.
Trimble contends that the "financials . . . from Remington" are not covered
by the nondisclosure agreement because the agreement says "Confidential Information
shall not include any information which . . . [i]s lawfully received, without obligation of
confidentiality, by Recipient from Others." Trimble argues that the market research data
were produced by Remington, who was not a party to the nondisclosure agreement, and
that Trimble Mobile received "the financials" from Remington - an "Other."
But confidential information under the nondisclosure agreement is defined
by the party that sent it, not the party that generated it. Trimble points to no evidence
17
that Trimble Mobile actually received the profit and loss statements from Remington.
16 The partners did not always use the nondisclosure agreement's language
verbatim. A Product Alliance Agreement, for example, was marked "Confidential - for
Internal Discussion Purposes Only," while the parties' joint Copper Center Project
presentation was marked "Company confidential - do not distribute."
17
The origin of the profit and loss statements is not immediately apparent
from the document used as an exhibit at trial, though at one point Trimble's attorney
clarified: "[I]t is an email from Mr. Chen transmitting a document. That's true. The
content, the substance of the attachment, the data that is in that attachment, is from Mr.
(continued...)
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Rather, the evidence indicated that Chen, Boehnen, and Feucht each created individual
profit and loss statements based on Remington's market survey data, and that Boehnen
and Feucht then forwarded their statements to Chen, who consolidated the statements
into a single file. A juror could reasonably find that the profit and loss statements were
information that related to the purpose of the nondisclosure agreement - for
"discuss[ion of] the terms of a prospective business relationship" - since they forecast
RDS's and Trimble Mobile's contributions and success if the Copper Center Project
progressed. And a juror could reasonably find that the profit and loss statements were
"material of a confidential or proprietary nature relating to the . . . prospective business
and/or technology of a Party" since they projected the financial performance of the
Copper Center Project and revealed information about how the participants expected the
project to play out. Because Trimble Mobile received the confidential information from
RDS, the profit and loss statements were protected by the nondisclosure agreement.
3. A reasonable juror could find that Trimble Mobile breached its
fiduciary duty as RDS's partner.
Trimble also contends that the superior court was correct to conclude that
RDS's claim for breach of fiduciary duty was not supported by the evidence. Trimble
argues that no reasonable juror could have found that Trimble Mobile and RDS were
partners or that Trimble Mobile breached a fiduciary duty arising out of such a
partnership.
a. A reasonable juror could find that Trimble Mobile and
RDS were partners.
A legal partnership is defined by statute as "the association of two or more
persons to carry on as co-owners a business for profit . . . whether or not the persons
17(...continued)
Feucht."
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18
intend to form a partnership." This definition can be reduced to four "key elements":
(1) there is associational intent; (2) there is co-ownership of the resulting business;
(3) the partners are in business; and (4) the business is intended to make a profit.19
"Whether a partnership exists . . . is normally a question of fact for the fact finder."20
Parties' description "of [their] relationship as one of partnership or not is not controlling;
21
their intent may be inferred from their actions." The jury in this case was properly
instructed that "[a] partnership need not be documented in writing" and could exist
"whether or not the persons intend to form a partnership."
Trimble contends that the evidence did not support two of the key elements
that define a partnership: associational intent and co-ownership of a business.
Associational intent requires "an agreement to combine the [partners'] property, money,
22 If there is no written
effects, skill and knowledge to carry out a business enterprise."
partnership agreement, "the existence of a partnership must be proven by credible
evidence,"23 which may include " 'the transactions, conduct and declarations' of the
18 AS 32.06.202(a).
19 Hall v. TWS, Inc. , 113 P.3d 1207, 1211-12 (Alaska 2005) (citing Chocknok
v. State, Commerical Fisheries Entry Comm'n, 696 P.2d 669, 675-76 (Alaska 1985)).
20 Parker v. N. Mixing Co. , 756 P.2d 881, 887 n.11 (Alaska 1988) (citing
Peterson v. Prince , 430 N.E.2d 297, 300 (Ill. App. 1982); Pruitt v. Fetty , 134 S.E.2d 713,
716 (W. Va. 1964)).
21
Id. (citing Greene v. Brooks, 45 Cal. Rptr. 99, 102 (Cal. App. 1965);
Anderson Hay & Grain Co. v. Dunn, 467 P.2d 5, 7 (N.M. 1970); Taylor v. Lewis, 553
S.W.2d 153, 158 (Tex. App. 1977)).
22
Hall , 113 P.3d at 1211 (alteration in original) (quoting Chocknok, 696 P.2d
at 675-76).
23 Id. (citing 59A AM . JUR . 2D , Partnership § 90 (2003)).
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24
parties." Co-ownership of a business "is evidenced by shared management authority
25
and profit-sharing."
As for the factor of associational intent, Trimble relies on the testimony of
Paul Miller, the project consultant, that "[t]here was not a final contract" among the
parties and that there was not "some meeting of the minds and agreements between the
principals." But Miller later clarified, "I believe [RDS and Trimble Mobile] were acting
as partners. And in terms of meeting of the minds, I meant the final construct, the dates,
the dollars, how that was going to be rolled forward . . . ." A reasonable juror was not
required to interpret Miller's testimony that there was no "final contract" to mean that
there was no associational intent.
Trimble also notes that a draft Product Alliance Agreement circulated by
Remington expressly denied that a partnership existed. But only Remington signed that
document. As RDS notes, a reasonable juror could conclude that the other parties
ultimately did not sign it because they "did not want to be bound by a document that
characterized their relationship as something other than a partnership"; and a reasonable
juror could read the agreement's language, even if indicative of the parties' intent, in
light of the other evidence that they acted as partners.
Rather than focusing on the labels the parties gave their relationship, the
jury instructions asked whether, based on their conduct, "RDS and Trimble [Mobile]
intended or did combine assets, knowledge, or abilities to carry out a business
26 The jury heard testimony that RDS, Trimble Mobile, and Remington were
enterprise."
assigned responsibilities in the Copper Center Project based on their respective skills and
24 Id. (quoting Innes v. Beauchene , 370 P.2d 174, 176 (Alaska 1962)).
25 Id. at 1211-12 (citing Chocknok, 696 P.2d at 675).
26 See id., 113 P.3d at 1211 (quoting Innes , 370 P.2d at 176).
-17- 7162
----------------------- Page 18-----------------------
assets. A reasonable juror could also infer from their representations to third parties that
the three entities intended to combine their resources. The presentation the parties used
in such meetings labeled each of the three participants as a "partner," gave an estimate
of each partner's pre-launch financial investment, and identified each partner's individual
responsibilities.
As for the co-ownership factor, Trimble argues that no reasonable juror
could find that a partnership existed because Feucht testified at trial that RDS, Trimble
Mobile, and Remington did not agree to co-own a business together. But while Feucht
testified that he would not classify their relationship "as co-owners of a business," he
later explained his meaning in terms that differ from the legal definition: "I think co-
owners of a business is - if we were going to form a separate corporation and have
equity, versus a partnership where we are each contributing core pieces of the project."
And Feucht conceded that he did not know how partnership was defined in the law. A
reasonable juror could thus have discounted Feucht's layperson's view of the project's
legal status and relied on other aspects of his testimony that were more consistent with
the legal definition's requirement of co-ownership. And the jury had been instructed that
the parties' intent to create a partnership was not determinative as to whether they had
in fact done so; thus, even if Feucht had testified that the parties did not intend to co-own
a business, a reasonable juror could still find that the parties acted as if they did intend
to co-own a business, thus creating a partnership.
Furthermore, a juror who decided that RDS and Trimble Mobile intended
to collaborate on the Copper Center Project could also reasonably conclude that they
intended to co-own the resulting business. The parties had negotiated job duties, profit-
sharing, and risks related not just to start-up but also to operations. Although the parties
-18- 7162
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never earned profits, the return of their investment in the Copper Center Project and any
future revenue were contingent on the project's success.27
Viewing the evidence in the light most favorable to RDS, a reasonable juror
could find by a preponderance of the evidence that RDS, Trimble Mobile, and
Remington were partners.
b. A reasonable juror could find that Trimble Mobile
breached its fiduciary duty of loyalty as RDS's partner.
Alaska Statute 32.06.404(b)(2) defines a partner's duty of loyalty as
including the duty "to refrain from dealing with the partnership in the conduct . . . of the
partnership business as or on behalf of a party having an interest adverse to the
partnership." RDS contends that Trimble Mobile violated this duty when it shared
information with Trimble Outdoors in violation of the nondisclosure agreement and
concealed what it was doing. RDS argues that Trimble Mobile also "deliberately strung
RDS along through deceptive statements, thereby protecting Trimble's ability to get to
market first with its products and denying RDS the opportunity to gain first-mover
advantage in marketing either standalone apps or a phone preloaded with a specialized
suite of apps." Quoting AS 32.06.404(e), Trimble responds that a partner does not
violate its duty of loyalty "merely because the partner's conduct furthers the partner's
own interest" and that Trimble Mobile did not share "partnership property" with Trimble
Outdoors because the information in question was data produced by Remington, not
RDS. But we conclude that a reasonable juror could find that Trimble Mobile breached
its fiduciary duty as a partner.28
27 See Parker v. N. Mixing Co. , 756 P.2d 881, 887-88 (Alaska 1988).
28 AS 32.06.404(b)(2). Because we conclude that a reasonable juror could
find that Trimble Mobile breached its fiduciary duty under this section, we do not discuss
(continued...)
-19- 7162
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A reasonable juror could find that the market research data produced by
Remington and the corresponding financial information were partnership property: the
material was specific to the Copper Center Project, it was produced in furtherance of the
project, and there was evidence that RDS and Trimble Mobile contributed to its
development - all three companies reviewed the market research questions and had the
29 And Chen admitted at trial that he sent "some
opportunity to change or refine them.
of the financial[s]" from the Copper Center Project to Harrington and Rudow, who were
outside the nondisclosure agreement, and that the market research was sent to Trimble
Outdoors and Cabela's. The jury also heard testimony that Trimble Mobile repeatedly
reassured RDS that the Trimble Outdoors project did not compete with the Copper
Center Project. A reasonable juror could thus conclude that Trimble Mobile's conduct
- both in sharing partnership information with outside parties and in misrepresenting
that the Copper Center Project and Trimble Outdoors's project did not compete with each
30
other - was that of a "party having an interest adverse to the partnership."
The jury also heard evidence that Trimble Mobile ceded important decision-
making about the Copper Center Project to others in the Trimble organization who
lacked the same incentive to promote the project. The jury heard testimony that it was
not Chen but Rudow - in charge of Trimble Outdoors's competing project - who
28(...continued)
in any depth RDS's arguments that Trimble Mobile also violated AS 32.06.404(b)(1) &
(3) and its obligation of good faith and fair dealing.
29 See AS 32.06.204 (explaining when property is partnership property);
REVISED UNIF . P'SHIP ACT § 204 Authors' Comments, cmt. 8 (West 2015-16 ed.)
("Although internally generated assets may not literally fall within Section 204, its
principles should apply at least by analogy.").
30 See AS 32.06.404(b)(2).
-20- 7162
----------------------- Page 21-----------------------
decided that Trimble Mobile would not attend the partnership's March 2011 meeting
with Cabela's. The jury saw a series of emails involving Chen, Wolff, and Rudow from
a few months later, in which Rudow reprimanded Chen and Wolff for approaching the
Cabela's CEO with the Copper Center Project while Trimble Outdoors was also meeting
regularly with Cabela's because it might "screw it up for all of us." Rudow then wrote
that "Tom [Rosdale, Cabela's Vice President of Marketing,] didn't appreciate the hoop
jumping he just completed to kill the RDS deal. It was unnecessary and Trimble was
part of the problem." Larry Fox, Trimble Outdoors's main contact with Cabela's,
testified that Rosdale contacted him because he was confused by the need to meet with
different Trimble divisions. Although Rosdale and a Cabela's marketing manager both
testified by deposition that they declined the Copper Center Project because Cabela's
was "not a telecommunication company," a reasonable juror could find instead, based
on this record, that the project was stymied by purposeful interference from Trimble
Outdoors, with Trimble Mobile's acquiescence.
4. A reasonable juror could find that Trimble Mobile's actions
were a legal cause of RDS's harm.
In granting judgment notwithstanding the verdict, the superior court relied
on several facts to conclude that the Copper Center Project would not have succeeded
regardless of Trimble's challenged conduct: that RDS had not secured contractual
commitments from its partners or a wireless provider, that it had not raised the $6 to $8
million it had committed to raise before the product launch, and that it had not created
a software prototype. Trimble points to these same facts on appeal to argue that RDS
failed to prove legal causation for any of its claims. Trimble also argues that the Copper
Center Project could not have built its product at an acceptable cost and that RDS failed
to develop financial and sales projections that would have enabled the project to move
forward. But construing the evidence in the light most favorable to RDS, we conclude
-21- 7162
----------------------- Page 22-----------------------
that a reasonable juror could find by a preponderance of the evidence that Trimble
Mobile's conduct caused RDS to lose profits.
a. A reasonable juror could find that the hurdles faced by
the Copper Center Project were not insurmountable.
i. A reasonable juror could find that the Copper
Center Project could have found a marketing
partner.
The superior court noted that the Copper Center Project could never earn
profits without a marketing and distribution partner, and that "RDS offered no proof that
it had any firm leads on anyone to fill that role." Trimble now argues that the project
would never have succeeded in replacing Remington, citing Feucht's testimony that
"there was only one real logical partner once Remington was out, and that was going to
be Cabela's, because they were the number one player in the industry." And Trimble
contends that Cabela's declined to participate not because of Trimble's interference but
because the project entailed "a huge outlay of cash with a high risk on a product that has
a short shelf life." But there was evidence that Cabela's considered selling a similar app
on a "ruggedized, shockproof, and waterproof" phone produced and designed by Casio
around the same time it was approached by RDS. Viewing this evidence in the light
most favorable to RDS, a reasonable juror could conclude that Cabela's was interested
in marketing a ruggedized phone with preloaded apps but was diverted from the Copper
Center Project by Trimble Outdoors's competing product.
There was also evidence that another marketing partner would have stepped
up if Cabela's, for whatever reason, declined the opportunity. Project consultant Miller
testified that, from his time as chairman of Freedom Group, he was personally familiar
with "the big-box stores, you know, the Cabela's, the Bass Pros, the Gander Mountains,
Sportsmen Warehouse, those folks. And the distributors who sold to smaller dealers.
A lot of people in the industry." Miller testified that he had "the capability to bring in
-22- 7162
----------------------- Page 23-----------------------
another person to replace Remington, based on [his] historical contacts in this industry"
- and that he had done just that by arranging the meeting with Cabela's. A reasonable
juror could believe Miller's testimony and conclude that, although RDS saw Cabela's
as the most logical replacement for Remington, it was more likely than not that Miller
would have secured other meetings and eventually another marketing partner had the
Copper Center Project not died so soon after the Cabela's meeting.
ii. A reasonable juror could conclude that the Copper
Center Project could have found a mobile carrier.
Trimble also points to Chen's testimony that no carrier was likely to certify
the phone, testimony it asserts was uncontested. The superior court had the same
concerns, observing that RDS failed to secure a commitment from AT&T and "presented
no evidence that any wireless service carrier ever committed" to the project.
But Miller, the project consultant, testified that he would not expect a
carrier to commit while the Copper Center Project was still in its early stages. And
although Chen testified that "certification [by a wireless carrier was] going to be an
issue" because of problems with data and audio quality, a reasonable juror could
conclude that the partnership would continue to improve its hardware until it could be
certified for wireless use.
There was also evidence that a wireless carrier would have committed to
the Copper Center Project once the project had a viable phone. Chen admitted that
Feucht had "very impressive contact[s]" with wireless providers; Feucht did succeed in
arranging a meeting with AT&T through "a prior relationship with" an AT&T vice
president. Trimble highlights testimony from an AT&T executive that the carrier was
not interested in the phone because it was a "niche opportunity," but AT&T was not the
only wireless carrier on RDS's horizon, and the jury was aware that other "niche" phones
existed and had found wireless carriers to support them. A reasonable juror could
-23- 7162
----------------------- Page 24-----------------------
conclude that the Copper Center Project would more likely than not have succeeded in
finding a wireless carrier.
iii. A reasonable juror could find that RDS could have
secured pre-launch funding.
When granting a judgment notwithstanding the verdict, the superior court
also noted - and Trimble emphasizes on appeal - that at the time Trimble Mobile
withdrew from the Copper Center Project, RDS had not yet secured the money for its
pre-launch financial commitment of $6 to $8 million. The superior court was concerned
that RDS may have relied too optimistically on "Miller's assumption that he could secure
capital 'easily,' " and Trimble adds "that RDS was rejected by the only funding source
it ever met with." Trimble also argues that it would have been impossible for RDS to
secure funds before the partners finalized some kind of contractual relationship.
A reasonable juror need not have found these arguments convincing.
Feucht testified that RDS's financial contribution was earmarked for paying software
engineers, that RDS "couldn't start building software until there was a hardware device,"
and that "[t]here wasn't a concerted effort on [RDS's] part" to raise the funds while the
hardware was still in the design stage. The question the jury faced, thus, was whether
RDS would be able to raise funds once the partners had formalized their relationship and
developed a hardware prototype. A reasonable juror could accept Miller's testimony that
$6 to $8 million was an attainable sum. Miller testified it was "not a lot of money to
raise. You know, I have seen . . . projects with . . . less merit and less wherewithal that
raised . . . north of $10 million by just, you know, contacting a number of high net worth
individuals." He said he had "a Rolodex of both industry people and enthusiasts" who
would be interested in investing in the Copper Center Project even if Trimble Mobile
walked away. He testified about his experience as an executive who was currently
"buying and selling companies" for Cerberus Capital, had served as chairman of
-24- 7162
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Bushmaster when it acquired Remington, had worked in telecommunications for two
nationwide wireless companies, and had "negotiated a billion-dollar contract with
NASA" for Lockheed Martin. A reasonable juror could conclude based on Miller's
experience and expertise that RDS would more likely than not raise the funds it needed
for pre-launch financing when it became necessary for it to do so.
iv. A reasonable juror could conclude that RDS could
have hired engineers and developed a software
prototype.
The superior court also observed, and Trimble argues on appeal, that at the
time Trimble Mobile withdrew from the project RDS had yet to hire software engineers
or develop its software prototype. But again there was evidence of RDS's ability to
perform these tasks when the time was right. Feucht testified at trial that he had been
chief information officer, then chief executive officer, of a company at which he built
software, was responsible for "all [of] the technology within the entire corporation," and
managed software partners and expenses. He left that company to start his own software
company. His work with those two companies was featured in a magazine for senior IT
executives and in the Wall Street Journal. When he moved to Alaska he served as a
consultant for local businesses and in one case "built a software system with myself and
another engineer that did all the local route planning, scheduling, [and] maintenance of
the machines" for a coffee delivery company. A reasonable juror could conclude that it
was more likely than not that someone with Feucht's practical experience was capable
of hiring software engineers for the Copper Center Project and that the software could
be developed once the hardware existed to support it.
-25- 7162
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v. A reasonable juror could conclude that the
smartphone could have been built at an acceptable
cost.
Trimble argues that the smartphone's hardware could not satisfy consumer
demands and that the final product would prove to be too expensive. According to
Chen's trial testimony, the market survey data showed that consumers wanted a versatile
phone that worked well in daily life while including such features as a satellite
emergency locator, weather information, a ballistics calculator, and a laser rangefinder.
Chen testified, however, that those features would likely interfere with the phone's
performance and give it a bulky package. He also testified that initial cost estimates for
the phone were about $1,200, with an $800 cost to the consumer if a wireless carrier
subsidized the phone - an amount, according to the survey data, that was more than
consumers were willing to pay.
However, the jury also heard testimony about other products similar to
RDS's proposed smartphone that were affordable and technologically viable. For
instance, the jury heard from a Cabela's marketing director that Casio had built a
"ruggedized, shockproof, and waterproof" phone that Cabela's considered selling with
preloaded apps. An expert for Trimble testified that several ruggedized phones had been
produced since 2006; he also testified about existing phone apps that were "almost
identical to what was being presented" by RDS, although not "all in one package" as
RDS proposed. From this evidence that other, similar products had been created for
market without the problems Chen identified, a reasonable juror could conclude that the
Copper Center Project more likely than not could have produced a marketable product.
-26- 7162
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vi. A reasonable juror could find that the Copper
Center Project could have been realized despite the
lack of exact financial and sales projections.
Another barrier to the success of the Copper Center Project, according to
Trimble, was the lack of realistic financial and sales projections. Trimble notes RDS's
own admission that the project could not go forward unless "all parties were comfortable
with the projected financials." And, Trimble claims, the projected financials had not
been sufficiently well established for two reasons: first, the "user adoption rate" of the
proposed smartphone was unknowable; and second, the projection did not account for
Remington's departure from the project. But a reasonable juror could reject Trimble's
characterization of these unknowns as insurmountable barriers to the project's continued
development or success.
Boehnen, Remington's project manager and marketing director, testified
that although the actual user adoption rate for a novel product was "unknown" and
"unknowable," he could calculate the Copper Center Project's user adoption rate based
on the adoption rate for innovative products historically, using a simple projection model
called "Robert's Adoption Curve." A reasonable juror could conclude from Boehnen's
testimony that the project would have moved forward as he projected and that the risk
of an otherwise "unknowable" user adoption rate was an acceptable one to partners
dealing with an innovative product.
Also, although the project's financials were based on Remington's
participation, a reasonable juror could conclude it was more likely than not that the
project would have found a different marketing partner, as explained above, and that
with a new marketing partner the project would have seen success similar to that
estimated based on Remington's participation.
-27- 7162
----------------------- Page 28-----------------------
Since a reasonable juror could find that none of the hurdles identified by
Trimble was insurmountable, a reasonable juror could find that RDS proved the element
of causation for each of its claims by a preponderance of the evidence.
b. A reasonable juror could find that RDS's reliance on
Trimble Mobile's misrepresentations caused RDS to lose
profits.
The superior court properly instructed the jury that to find for RDS on its
claims of negligent and intentional misrepresentation, the jury needed to find by a
preponderance of the evidence that RDS's reliance on Trimble Mobile's misstatements
was a substantial factor in causing RDS's monetary loss. Trimble challenges the jury's
causation findings on RDS's tort claims, contending that RDS did not prove it "would
have taken a different course of action" enabling it to earn profits absent Trimble
Mobile's misrepresentations about Trimble Outdoors's competing project.
In order to prove causation, RDS needed to demonstrate only that the
misrepresentations caused some monetary loss. RDS concedes that the record does not
support a finding that the Copper Center Project could have produced a marketable
phone by March 2011 even if Trimble Mobile had been forthcoming about the
competing project. But Feucht testified that Chen and Boehnen convinced RDS to hold
off developing the software for an earlier launch "because they thought it was going to
take away from the hardware sales." A juror could reasonably conclude that RDS could
have spent the time between November 2010 and March 2011 developing competitive
apps while it sought new partners for the later creation and launch of a ruggedized
smartphone. Accordingly, a reasonable juror could find it was more likely than not that
Trimble Mobile's misrepresentations prevented RDS from taking action that would have
either delayed the launch of Trimble Outdoors's competing product or sent an RDS
software product to market sooner - thus causing RDS to lose some profit.
-28- 7162
----------------------- Page 29-----------------------
c. A reasonable juror could find that Trimble Mobile's
breach of the nondisclosure agreement and breach of
fiduciary duty caused RDS to lose profits.
Trimble also contends that RDS failed to prove that it lost profits due to
Trimble Mobile's breaches of contract and fiduciary duty. Trimble argues that RDS was
unable to show how Trimble Outdoors used the market research data or profit and loss
statements to speed up the release of its own apps, ReconHunt and ReconFish, or how
the alleged breaches prevented RDS from achieving the "first mover" advantage by
releasing the Copper Center Project smartphone first.
However, a reasonable juror could conclude that Trimble Outdoors used
the confidential data disclosed by Chen. As RDS argues, the similarities between
ReconHunt and HuntZone support an inference that Trimble Outdoors used RDS's ideas
and accelerated ReconHunt's release once the Remington-generated data and the profit
and loss statements showed that those "ideas would be hugely profitable." A reasonable
juror could also conclude that Trimble Mobile delayed producing the hardware and
persuaded RDS not to market its software separately in order to prevent RDS from
competing with ReconHunt and ReconFish. And a reasonable juror could conclude that
Trimble Mobile delayed its own departure from the partnership until it was too late for
RDS to create even a competitive app on its own. Weaving these conclusions together,
a reasonable juror could find that RDS more likely than not lost first-mover status to
Trimble Outdoors because Trimble Mobile's breach accelerated the production of
ReconHunt and ReconFish while delaying the Copper Center Project.
Trimble also argues it was unforeseeable that "it could be liable for lost
future profits generated by a joint business" when the only formal agreement between
the parties was the nondisclosure agreement, the limited purpose of which was to protect
confidential information, not commit the parties to a joint profit-making venture.
-29- 7162
----------------------- Page 30-----------------------
Contract damages are recoverable only if foreseeable, and they are foreseeable when they
follow from the breach "in the ordinary course of events, or . . . as a result of special
31
The nondisclosure
circumstances . . . that the party in breach had reason to know."
agreement's stated purpose was "the protection and preservation of the confidential
and/or proprietary nature of information" the parties disclosed to each other while they
discussed "the terms of a prospective business relationship." Even though the
nondisclosure agreement itself did not create a partnership, the parties foresaw the
possibility that a more formal business relationship would evolve from their agreement.
And even if there never was a partnership, it was reasonably foreseeable that RDS's
prospective business would be damaged and any future venture related to RDS's
ruggedized smartphone would lose profits "in the ordinary course of events" if Trimble
Mobile divulged confidential information protected by the nondisclosure agreement;
indeed, to prevent such harm was the agreement's fundamental purpose. A reasonable
juror could thus find it was foreseeable that RDS would be damaged if Trimble Mobile
breached the nondisclosure agreement and that RDS was in fact damaged.
B. Although It Was Error To Grant A Judgment Notwithstanding
The Verdict, The Superior Court Was Correct to Conclude That
The Evidence At Trial Did Not Support The Damages Award.
1. The judgment notwithstanding the verdict erroneously
conflated the fact of damages and the amount of damages.
In granting Trimble a judgment notwithstanding the verdict, the superior
court found that because RDS "cannot prove lost profits with reasonable certainty, [RDS]
31 Native Alaskan Reclamation & Pest Control, Inc. v. United Bank Alaska ,
685 P.2d 1211, 1219 (Alaska 1984) (noting that lost profits may be reasonably
foreseeable "as a probable result of a breach" when the parties entered the contract
"because [the loss] follows from the breach." (quoting RESTATEMENT (SECOND) OF
CONTRACTS § 351 (AM . LAW INST . 1981))).
-30- 7162
----------------------- Page 31-----------------------
cannot prove its damages claim." RDS contends on appeal that the court's finding, and
its decision to grant a judgment notwithstanding the verdict, resulted from the court's
erroneous conflation of two different burdens of proof: the burden required to show that
RDS suffered damages and the burden required to show the amount of those damages.
RDS correctly observes that the elements of a tort cause of action -
including the fact of damages (i.e., the fact that the plaintiff suffered harm) - must be
32
proven by a preponderance of the evidence; the amount of damages is a separate factual
issue that, in the case of lost profits, must be proven to a reasonable certainty, based on
evidence that "afford[s] sufficient data from which the court or jury may properly
33
Because the fact of lost-profit damages and their
estimate the amount of damages."
amount are different issues, a plaintiff may fail to prove the amount of lost profits to a
reasonable certainty even after having proved by a preponderance of the evidence that
34
This dichotomy is reflected in the Restatements of Contracts and
it was harmed.
Torts.35
32 Fernandes v. Portwine , 56 P.3d 1, 5 (Alaska 2002) ("Preponderance of the
evidence is the general burden of persuasion in civil cases." (citing Addington v. Texas ,
441 U.S. 418, 423 (1979)).
33 Azimi v. Johns , 254 P.3d 1054, 1065 (Alaska 2011) (quoting Sisters of
Providence in Wash. v. A.A. Pain Clinic, Inc. , 81 P.3d 989, 1007 (Alaska 2003)).
34 See, e.g., Geolar, Inc. v. Gilbert/Commonwealth Inc. of Mich., 874 P.2d
937, 943, 947 (Alaska 1994) (finding evidence sufficient to support jury finding that
defendant breached its contract but reversing award of lost profits as "too speculative").
35 See RESTATEMENT (SECOND) OF CONTRACTS § 352 cmt. a, illus. 2 (AM .
L
AW INST . 1981) (noting that recovery is limited to reliance or nominal damages if a
plaintiff fails to prove lost profits with reasonable certainty); R ESTATEMENT (SECOND)
OF TORTS § 774A cmt. c (AM . LAW INST . 1979) ("Sometimes, when the court is
convinced that damages have been incurred but the amount cannot be proved with
(continued...)
-31- 7162
----------------------- Page 32-----------------------
Here, the jury was correctly instructed on the difference between the proof
required to show the fact of damages and that required to determine the amount of an
award of lost profits. The instructions for finding intentional and negligent
misrepresentation stated that "RDS must prove it is more likely true than not" that it
suffered a monetary loss as a result of its reliance on Trimble Mobile's
misrepresentation. For the contract claims, the instructions explained that the jury must
find that it is "more likely true than not true that Trimble deprived RDS of a benefit of
the contract." But the jury instruction for damages provided that "[i]f you decide in
favor of RDS on any of its claims, you must then decide how much money, if any, will
fairly compensate RDS." (Emphasis added.) The damages instruction also explained
that the damages RDS sought - lost profits - had to be proven with reasonable
certainty. The jury was thus correctly instructed that RDS could prevail on its claims by
proving their elements by a preponderance of the evidence and yet receive no lost-profits
damages, if the evidence did not support such an award to a reasonable certainty.
In granting a judgment notwithstanding the verdict, however, the superior
court applied only the reasonable certainty standard when considering whether RDS lost
profits as a result of the demise of the Copper Center Project. This was error, as it
resulted in setting aside the jury's finding of liability based on the higher standard of
proof for lost-profit damages.
2. The evidence did not provide a reasonably certain basis for an
award of lost profits to RDS.
Although we conclude that the evidence was sufficient to allow a
reasonable juror to find that RDS proved the elements of its causes of action by a
preponderance of the evidence, we must also conclude that the superior court was correct
35(...continued)
reasonable certainty, it awards nominal damages."); id. at § 912 cmt. c, illus. 1.
-32- 7162
----------------------- Page 33-----------------------
to find the evidence insufficient to show lost profits to a reasonable certainty. The jury
was instructed that reasonable certainty meant it could "not award damages to RDS on
the basis of speculation, guess, or conjecture." But there was nothing else on which the
jury could base a lost-profits award in this case.
Alaska permits recovery of lost profits for a business that is yet to be
established, but it holds new businesses to the same standard of proof as established
36
businesses. The plaintiff must provide "sufficient data from which the court or jury
may properly estimate the amount of damages, which data shall be established by facts
37
In Guard v. P&R Enterprises, Inc., we
rather than by mere conclusions of witnesses."
observed that courts have considered "the profit history from the plaintiff's similar
business at a different location" and "the profit history from the business in question if
it was successfully run by someone else before the plaintiff" in calculating a new
38
business's lost profits. In Guard we also held that a plaintiff may not "rely solely on
39
statistical projections to prove lost profits."
36 See Guard v. P & R Enterprises, Inc. , 631 P.2d 1068, 1072 (Alaska 1981).
37
City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 223
(Alaska 1978) (quoting Levene v. City of Salem , 229 P.2d 255, 263 (Or. 1951)),
disapproved of on other grounds by Native Alaskan Reclamation & Pest Control, Inc.
v. United Bank Alaska, 685 P.2d 1211 (Alaska 1984).
38 631 P.2d at 1072 (first citing Standard Mach. Co. v. Duncan Shaw Corp.,
208 F.2d 61, 64-65 (1st Cir. 1953); Leoni v. Bemis Co. , 255 N.W.2d 824, 826 (Minn.
1977); El Fredo Pizza, Inc. v. Roto-Flex Oven Co. , 261 N.W.2d 358, 364 (Neb. 1978);
then citing Gen. Elec. Supply Co. v. Mt. Wheeler Power, Inc., 587 P.2d 1312, 1313 (Nev.
1978)); see also Sisters of Providencein Wash., 81 P.3d at 1007 (holding that expert
testimony accompanied by the testimony of two doctors with similar practices and
defendant's preliminary revenue estimates supported a finding of lost profits).
39 Guard, 631 P.2d at 1072 n.4 (citing Whittier Fuel & Marine Corp., 577
(continued...)
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RDS argues that Guard does not intend to exclude "all proof of damages
based on any kind of forecast or prediction," because Alaska courts have since relied on
the Restatement's analysis of lost profits. The Restatement notes that "damages may be
established with reasonable certainty with the aid of expert testimony, economic and
financial data, market surveys and analyses, business records of similar enterprises, and
40
the like." But RDS did not present any of these types of evidence at trial. It relied on
two sources: the profit and loss statements generated from the Remington market
research data following the partners' September 2009 meeting at Copper Center and the
valuation sketched out on the whiteboard by a Trimble Mobile employee at the
December 2010 meeting after Remington had announced its withdrawal from the project.
The project also generated market surveys, but RDS did not use these to support its
statistical projections; nor did it present evidence that its projections were corroborated
by the experience of similar businesses. The jury appeared to base its verdict on the
"whiteboard" numbers, which valued the project at $38.5 million assuming a "75%
revenue goal"; extrapolating from this number to 100% of the project's revenue goals
results in $51.3 million, the amount of the jury's verdict.
RDS argues that its evidence can be distinguished from the "statistical
projections" we disapproved in Guard because Trimble Mobile helped develop and
approve the profit and loss statements and generated the whiteboard valuation itself.
RDS suggests we clarify that Guard "intended to disallow projections developed by the
plaintiff alone, perhaps as part of an optimistic business plan or created specifically for
trial." But projected profits are not more reliable simply because the defendant agreed
39(...continued)
P.2d at 223 n.27)).
40 RESTATEMENT (SECOND) OF CONTRACTS § 352 cmt. b (AM . LAW INST .
1981).
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with them at the time they were created; both parties may be equally detached from the
41
economic realities on which the jury is required to base its award.
Here, even assuming that a juror concluded that both parties believed the
financial statements were realistic when they were created, RDS did not present
42
sufficient evidence that the statements actually were realistic. They were calculated
using research based on Remington's customer base; with Remington gone, they
provided at most a rough estimate for the phone's success, without accounting for how
new partners, a new marketing strategy, and a new customer base might affect the
project's actual profits.
As for the whiteboard valuation of projected revenues, RDS admits that
"[e]xactly how the whiteboard figures were determined is not clear." RDS gave no
explanation of how the figures calculated the cost of producing the smartphone, its retail
value, or RDS's estimated expenses. Although we do assume, viewing the evidence in
the light most favorable to RDS, that the whiteboard represents Trimble Mobile's
valuation of RDS at the time and depicts the phone's expected profit, the numbers have
no obvious factual basis, lack real-world corroboration from comparable sources, and
cannot be said to show the amount of RDS's lost profits with reasonable certainty.
41 See Hernandez v. Sovereign Cherokee Nation Tejas , 343 S.W.3d 162, 174
(Tex. App. 2011) (noting that hope, "even when that hope is realistic, is not enough for
recovery of lost profits" and distinguishing a case in which testimony supporting
projections included "actual data from operating casinos in calculations" (first quoting
Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 280 (Tex. 1994);
then citing Bright v. Addison , 171 S.W.3d 588, 602-03 (Tex. App. 2005))).
42
Cf. Geolar, Inc. v. Gilbert/Commonwealth Inc. of Mich., 874 P.2d 937, 946
(Alaska 1994) ("Because [plaintiff] had no prior experience with contracts of this size
and complexity, its own estimates, offered without proof of how they were reached, are
unreliable.").
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Nor was there any other evidence supporting an award of lost profits. As
an alternative to the jury verdict, RDS argues that it is entitled at least to an award of lost
profits from sales of a stand-alone app, because a reasonable juror could conclude that
RDS's and Trimble Outdoors's apps were strikingly similar, and Larry Fox of Trimble
Outdoors testified that "the anticipated profit and loss" for Trimble Outdoors's apps in
2012 "should have [amounted to] about two to two and a half million." But Fox's
explanation of how he reached these numbers indicates that they, too, were simply
projections, based on "estimations of subscriber goals that we would have liked to have
seen." Like the whiteboard valuation and the profit and loss statements, Trimble
Outdoors's hoped-for profits for the stand-alone apps, without more, are not a sufficient
43 We are forced to conclude that, although the jury's
basis for a damage award to RDS.
verdict in favor of RDS is otherwise supportable, its award of damages must be vacated.
C. RDS Is Entitled To Nominal Damages.
RDS contends that "[a]t minimum, because RDS proved that it was
damaged, it was entitled to an award of nominal damages." We agree. Trimble objects
to such an award, arguing that RDS waived it by failing to propose a nominal damages
instruction at trial and that RDS failed to prove the damage element of its claims. Having
rejected the latter argument in the preceding discussion, we also hold that the nominal
damages claim is not waived.
In Anchorage Chrysler Center v. DaimlerChrysler Motors Corp. , we
allowed an award of nominal damages even though that claim was raised for the first
43
See id. (suggesting the plaintiff could have offered "profits obtained by
other contractors performing similar jobs"); Guard, 631 P.2d at 1072 n.4 (noting a
plaintiff may not "rely solely on statistical projections to prove lost profits").
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44
time on appeal. The plaintiff sued for fraudulent misrepresentation but at a bench trial
45
"failed to prove the extent and amount of damages." The plaintiff's complaint had
requested "declaratory relief, injunctive relief, and compensatory and punitive damages,"
46
but not nominal damages. The defendant argued that the plaintiff waived its nominal
damages claim because it raised the issue for the first time on appeal, but we rejected that
47
Instead, we analyzed whether the new arguments were "closely related to
argument.
the trial court arguments and 'could have been gleaned from [the] pleadings.' "48 We
concluded that the question of nominal damages was properly before the court because
the complaint "raised the issue of [defendant's] misrepresentations and requested
49 We then determined that nominal damages
unspecified damages and additional relief."
were available for a claim of fraudulent misrepresentation where a party "proved that it
50
did suffer a loss but was not able to establish the extent or amount of damages." Since
the plaintiff had proved it incurred losses when it replaced logos in reliance on the
defendant's misrepresentations about expanding its business but failed to quantify the
cost of doing so, we held that nominal damages were appropriate.51
44 221 P.3d 977, 990 (Alaska 2009).
45 Id. (quoting Zok v. State, 903 P.2d 574, 577-78 (Alaska 1995)).
46 Id. at 982.
47 Id. at 990.
48 Id. (alteration in original) (quoting Zeman v. Lufthansa German Airlines ,
699 P.2d 1274, 1280 (Alaska 1985)).
49 Id.
50 Id. at 991.
51 Id. at 992.
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In this case, RDS's complaint alleged breaches of contract and fiduciary
duty and that it "suffered economic losses as a result of Trimble's breaches of contract
in the amount of not less than $111,666,973.00, the exact amount to be proven at trial."
The complaint also alleged that fraudulent and negligent misrepresentation each caused
economic damages "in the amount of not less than $111,666,973.00, the exact amount
to be proven at trial." RDS requested "an award of general, past and future economic
and other direct damages in the amount to be proven at trial," "an award of indirect,
special, consequential, exemplary, extraordinary, and/or punitive damages in the amount
to be proven at trial," and "an award of damages for fraud in the amount, plus punitive
damages in the amounts to be proven at trial." Finally, RDS requested "such other relief
[as it is] entitled to under law."
Following Anchorage Chrysler Center , we conclude that RDS's nominal
damages claim is properly before us despite RDS's failure to request an instruction on
the issue. A right to at least nominal damages is closely related to the arguments made
at trial and could have been gleaned from the pleadings, since RDS did request general
damages in an "amount to be proven at trial" and "such other relief" to which it was
entitled. Because RDS proved that it "incur[red] a pecuniary loss of undetermined
amount" as a result of Trimble Mobile's conduct, it is entitled to nominal damages.52
V. CONCLUSION
We REVERSE the superior court's grant of judgment notwithstanding the
verdict. We GRANT REMITTITUR on the jury's award of damages for lost profits and
REMAND for a determination of nominal damages.
52 Id. at 991.
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