378 S.W.3d 367
Mo. Ct. App.2012Background
- Midwest Coal sues Tom Cabanas for fraudulent misrepresentation seeking lost profits from blending AFI slurry with Tiger Mine coal.
- Plaintiff never generated a profit during its operating history prior to the alleged misrepresentation.
- Plaintiff pursued AFI slurry to blend with Tiger Mine coal to meet customer demand, but permit-change warnings deterred the plan.
- AFI lawsuit against Defendant resulted in a jury verdict for intentional interference with a prospective economic advantage; Eighth Circuit affirmed.
- Trial court granted summary judgment for Defendant on damages; Plaintiff denied partial summary judgment seeking liability on collateral estoppel.
- On appeal, the court affirms, holding lack of profitability history prevents recovery of lost profits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must a plaintiff prove past profitability to recover lost profits? | Plaintiff argues profitability history is not required for a specific-transaction loss. | Defendant contends established-business standard requires profitability history; no specific contract existed. | Profit history required; no loss profits shown. |
| Are there genuine issues of material fact supporting lost profits here? | Plaintiff contends records show potential contracts, pricing, and permit prospects. | Record shows no proof of buyers, contracts, or market for blended coal; speculation not enough. | No genuine issues; damages not proven; summary judgment affirmed. |
| Should collateral estoppel have controlled liability findings in a partial summary judgment context? | Plaintiff sought partial summary judgment to apply collateral estoppel on misrepresentation. | Denials of partial summary judgment are not final and not intertwined with damages; not appealable. | Denial not reviewable on appeal; motion stricken. |
Key Cases Cited
- Coonis v. Rogers, 429 S.W.2d 709 (Mo.1968) (recovery of anticipated profits requires reasonably certain proof with prior period data)
- Thoroughbred Ford, Inc. v. Ford Motor Co., 908 S.W.2d 719 (Mo.App. E.D.1995) (net profits proof needed for prospective damages)
- BMK Corp. v. Clayton Corp., 226 S.W.3d 179 (Mo.App. E.D.2007) (loss profits from breach of contract may be readily ascertainable; Coonis limited to injury to a business)
- Harvey v. Timber Resources, Inc., 37 S.W.3d 814 (Mo.App. E.D.2001) (applies Coonis to contract-based damages where profits are ascertainable)
- Hanes v. Twin Gable Farm, Inc., 714 S.W.2d 667 (Mo.App. W.D.1986) (damages proven with reasonable certainty when directly traceable to misrepresentation)
- Rich v. Eastman Kodak Co., 583 F.2d 435 (8th Cir.1978) (summary judgment appropriate where anticipated profits are too speculative)
- Tipton v. Mill Creek Gravel Inc., 373 F.3d 913 (8th Cir.2004) (new businesses have greater burden; lost profits require proof of actual data for reasonable certainty)
- Ozark Employment Specialists v. Beeman, 80 S.W.3d 882 (Mo.App. W.D.2002) (speculation and hopeful expectations insufficient to prove lost profits)
- Gesellschaft Fur Geratebau v. GFG Am. Gas Detection, Ltd., 967 S.W.2d 144 (Mo.App. E.D.1998) (evidence must demonstrate probable profits with reasonable certainty)
- ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371 (Mo. Banc 1993) (summary judgment standard; litigants must show no genuine dispute of material fact)