Acoustic Marketing Research v. Technics, No. 07SC789.

• Decision Date: 02 December 2008
• Docket Number: No. 07SC789.
• Parties: ACOUSTIC MARKETING RESEARCH, INC. d/b/a/ Sonora Medical Systems, Inc., Petitioner v. TECHNICS, LLC., Respondent.
• Court: Colorado Supreme Court

198 P.3d 96

ACOUSTIC MARKETING RESEARCH, INC. d/b/a/ Sonora Medical Systems, Inc., Petitioner v. TECHNICS, LLC., Respondent.

No. 07SC789.

Supreme Court of Colorado, En Banc.

December 2, 2008.

Larry G. Johnson, Denver, Colorado, Attorney for Petitioner.

Glenn W. Merrick, G.W. Merrick & Associates, LLC, Greenwood Village, Colorado, Attorney for Respondent.

Justice RICE delivered the Opinion of the Court.

In this case we evaluate whether a medical device refurbisher found in breach of its contract with a technical consulting firm can be held liable for lost future royalties arising from the breach. Acoustic Marketing Research, Inc., doing business as Sonora Medical Systems, Inc. ("Sonora"), asserts that because its contract with Technics, Inc. permitted it to cease royalty-generating activity at any time, an award of future royalty damages to Technics is speculative as a matter of law. Sonora thus appeals the decision of the court of appeals in Technics, LLC v. Acoustic Marketing Research, Inc., 179 P.3d 123 (Colo.App.2007), which affirmed the lump sum award of future royalty damages to Technics. We affirm the court of appeals and hold that future damages, including lost future royalties, may be awarded in a breach of contract action if they are demonstrated with reasonable certainty.

I. Facts and Proceedings Below

Sonora is a provider of aftermarket medical imaging products, including transesophageal echocardiology probes ("TEE-probes") used to obtain ultrasound images of the heart. Technics is a solo technical consulting practice. Sonora engaged Technics to help it develop and commercialize a re-coat and re-label ("RCRL") process for refurbishing TEE-probes. In exchange, Sonora agreed to pay Technics an hourly consulting fee over a period of up to nine months, as well as royalties on the first 3,000 TEE-probes re-coated and re-labeled. By compensating Technics in part through royalties, Sonora tied its outlay to the successful implementation of a RCRL process.

Sonora's obligation to pay royalties was to expire upon the re-coating and re-labeling of the 3,000th probe, or sooner if Sonora chose to abandon the RCRL process. Sonora was also bound to pay a "closure" fee to complete Technics' compensation. The agreement stated:

At the completion of the re-coating and re-labeling of the 3000th probe or if [Sonora] discontinues or in any way abandons the [RCRL] process prior to the completion of the 3000th probe, [Sonora] will pay [Technics] a "closure payment" of $3,000 per year for a period of five (5) years, or at its option [Sonora] can make a one-time payment of $15,000, commencing one (1) year after the date of re-coating and re-labeling the 3000th probe or the date [Sonora] discontinues or abandons the re-coating and re-labeling process.

As long as Sonora made the closure payment, it could abandon the RCRL process at any time.

Consistent with the terms of the agreement, Technics consulted with Sonora for nine months, after which Sonora conducted additional development work and implemented an in-house RCRL process. However, Sonora refused to pay royalties to Technics, claiming that Technics did not contribute to the particular RCRL process being implemented. Technics filed suit seeking past and future royalties together with the closure payment. Sonora counterclaimed for declaratory judgment, alleging that the agreement was void due to breach, lack of consideration, fraud in the inducement, mutual mistake, and frustration of purpose.

At trial, Sonora's president testified that the company had been refurbishing approximately 200 TEE-probes per year, that it had never paid any royalties to Technics and had no plans to do so, and that it intended to continue its in-house RCRL process indefinitely. The jury also heard from Technics' valuation expert who offered his calculation of the present value of Technics' past and future royalties.

The jury concluded Sonora had materially breached the agreement, awarding $419,000 in damages for past-due royalties, future royalties, and the closure payment. The jury rejected Sonora's affirmative defenses of breach of contract by Technics, lack of consideration, mutual mistake, and frustration of purpose. The court of appeals affirmed, although it reduced the judgment to $324,000.¹ Sonora petitioned this court for certiorari to determine whether an award of future royalty damages to Technics, under an agreement that permitted Sonora to cease in-house RCRL production at any time, is speculative as a matter of law. We hold that it is not. Because the jury found, with record support, that lost future royalties were reasonably certain to occur and capable of calculation, we affirm the court of appeals and uphold the award.

II. Analysis

Sonora argues royalty payments are by nature contingent on uncertain future events, and therefore any award of damages for lost future royalties is speculative as a matter of law. Sonora also asserts that under the specific facts of this case, where the royalty agreement permitted Sonora to cease RCRL production — and hence royalty-generating activity — at any time, an award of future royalty damages is speculative as a matter of law. We disagree on both counts.

In a breach of contract action, the measure of damages is the amount it takes to place the plaintiff in the position it would have occupied had the breach not occurred. Taylor v. Colo. State Bank, 165 Colo. 576, 580, 440 P.2d 772, 774 (1968). However, damages are not recoverable for losses beyond an amount that can be established with reasonable certainty. Pomeranz v. McDonald's Corp., 843 P.2d 1378, 1381 (Colo. 1993) (citing Riggs v. McMurtry, 157 Colo. 33, 39, 400 P.2d 916, 919 (1965)). Recognizing the "practical difficulties of proving future losses with precision," we have held that a plaintiff seeking future damages must provide the trier of fact with "(1) proof of the fact that damages will accrue in the future, and (2) sufficient admissible evidence which would enable the trier of fact to compute a fair approximation of the loss." Id. at 1382. In sum, as long as the fact of future loss is certain, the amount of damages awarded may be an approximation. Id.

Although we have stated generally that the rule of certainty applies to claims for future damages, id. at 1381, we have not addressed the rule in a case involving lost future royalties. Because royalty payments are by nature contingent on future events, such as future album sales or future oil extraction, Sonora argues we should hold all future royalty damages speculative as a matter of law. If we hold otherwise, Sonora asserts that royalty contracts will become risky and impractical. We disagree with the proposition that future royalties raise special concerns requiring departure from the general rule for future damages.

Other courts have allowed damages for future royalties as long as the loss is capable of being proved with a reasonable degree of certainty. For example, courts have typically allowed recovery of lost royalties when a franchisee terminates or repudiates a franchise agreement, as long as the franchisor can demonstrate that, but for the breach, the business would have enjoyed continued success. See, e.g., Burger King Corp. v. Barnes, 1 F.Supp.2d 1367, 1371 (S.D.Fla.1998) (awarding future franchise royalties based on calculations by Burger King financial analyst); McAlpine v. AAMCO Automatic Transmissions, Inc., 461 F.Supp. 1232, 1275 (E.D.Mich.1978) (awarding future franchise royalties projected from present sales levels); cf. I Can't Believe It's Yogurt v. Gunn, No. Civ.A. 94-OK-2109-TL, 1997 WL 599391, at *24 (D.Colo. April 15, 1997) (acknowledging future royalties might be awarded on different facts, but holding future royalties could not be awarded to franchisor where franchisor's own termination of franchise agreement was proximate cause of future losses); see generally Robert Ebe et al., Radisson and the Potential Demise of the Sealy-BarnesHinton Rule, 27 Franchise L.J. 3, 3 (2007) (reviewing circumstances under which courts have allowed franchisors to recover damages for lost future royalties).

Furthermore, in cases involving artist royalties, courts recognize that artists with an established track record may be able to prove lost royalties with reasonable certainty, notwithstanding the inherently risky and unpredictable nature of the entertainment business. See, e.g., Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926 (2d Cir.1977) (allowing evidence of lost future royalties projected from music album's initial success); Freund v. Wash. Square Press, Inc., 34 N.Y.2d 379, 357 N.Y.S.2d 857, 314 N.E.2d 419, 421 (1974) (holding plaintiff author's claim for lost royalties speculative, but noting that lost royalties may be awarded where claimant provides stable foundation for a reasonable estimate of royalties); see generally Melvin Simensky, Determining Damages for Breach of Entertainment Agreements, 8 Ent. & Sports L. 1, 12-15 (1990) (reviewing case law on lost profits in entertainment contracts); Calvin R. House, Good Faith Rejection and Specific Performance in Publishing Contracts: Safeguarding the Author's Reasonable Expectations, 51 Brook. L.Rev. 95, 145 (1984) (reviewing case law on lost royalties in publishing contracts).

In sum, we recognize the difficulties presented in measuring prospective royalties, as with prospective profits generally. However, because lost royalties are often capable of being proved with a reasonable degree of certainty, we decline to hold that an award of future royalties is speculative as a matter of law. Where there is sufficient reliable evidence royalties would have accrued but for defendant's breach, the jury should be permitted to assess the amount of the lost royalties from the best evidence the nature of the case allows. See Pomeranz, 843 P.2d at 1382 (discussing Tull v. Gundersons, Inc., 709 P.2d 940, 945 (Colo.1985)).

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