Frogge v. U S West Communications, Inc.

PER CURIAM

Plaintiff Frogge petitions for reconsideration of our previous opinion. 116 Or App 570, 841 P2d 703 (1992). We allow the petition and modify our opinion.¹

Plaintiffs breach of contract claim for lost profits was dismissed on defendant’s motion for a directed verdict. Plaintiff assigned error to the order granting that motion. We declined to consider the assignment, citing violations of ORAP 5.45(4). On reconsideration, we exercise our discretion to consider the assignment.

To establish damages based on lost profits, a plaintiff must present evidence establishing the lost net profits. Jenks v. Larimer, 268 Or 37, 41-42, 518 P2d 1301 (1974). The evidence must refer unambiguously to net profits. Pumpelly v. Reeves, 273 Or 808, 811-13, 543 P2d 682 (1975). Plaintiffs brief relates testimony that either refers expressly to lost gross profits, or is ambiguous. Plaintiff directs us to no evidence, nor have we found any, that establishes her lost net profits. The directed verdict was proper, because plaintiff presented no evidence from which a reasonable trier of fact could find the amount of her damages.

We also write to further explain affirmance of the trial court’s ruling denying plaintiffs motion to amend her complaint to conform to the evidence, so as to allege a tort under ORS 756.185² permitting recovery of treble damages. We have concluded that plaintiff failed to present evidence of the amount of her damages. Consequently, there was no evidence from which to calculate treble damages.

Reconsideration allowed; opinion modified and adhered to as modified.

1 Our previous opinion also resolved an appeal by plaintiffs attorney.

2 We express no opinion about whether plaintiff could state a claim against defendant under that statute.