NES Financial Corp. v. JPMorgan Chase Bank, N.A., 022014 FED2, 13-7-cv

• Party Name: NES Financial Corp., Plaintiff-Appellant, v. JPMorgan Chase Bank, N.A., Defendant-Appellee.
• Attorney: Appearing for Appellant: JEFFREY A. LAMKEN, (Robert K. Kry, MoloLamken LLP, Washington, DC, Steven F. Molo, of counsel), MoloLamken LLP, New York, NY, for Appellant. Appearing for Appellee: JOHN M. CALLAGY, (David I. Zalman, Damon Suden, of counsel), Kelley Drye & Warren LLP, New York, NY, for Ap...
• Judge Panel: PRESENT: JOSÉ A. CABRANES ROBERT D. SACK GERARD E. LYNCH Circuit Judges
• Case Date: February 20, 2014
• Court: United States Courts of Appeals, U.S. Court of Appeals — Second Circuit

NES Financial Corp., Plaintiff-Appellant,

v.

JPMorgan Chase Bank, N.A., Defendant-Appellee.

No. 13-7-cv

United States Court of Appeals, Second Circuit

February 20, 2014

UNPUBLISHED OPINION

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺ SUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20^th day of February, two thousand fourteen.

Appeal from a judgment following a bench trial, entered on November 30, 2012, in the United States District Court for the Southern District of New York (Victor Marrero, Judge).

Appearing for Appellant: JEFFREY A. LAMKEN, (Robert K. Kry, MoloLamken LLP, Washington, DC, Steven F. Molo, of counsel), MoloLamken LLP, New York, NY, for Appellant.

Appearing for Appellee: JOHN M. CALLAGY, (David I. Zalman, Damon Suden, of counsel), Kelley Drye & Warren LLP, New York, NY, for Appellee.

PRESENT: JOSÉ A. CABRANES ROBERT D. SACK GERARD E. LYNCH Circuit Judges

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment in favor of defendant JPMorgan Chase Bank, N.A. ("JPMorgan"), except for that portion dealing with the plaintiff's claim for breach of the contractual provision related to "true-up" payments, be and hereby is AFFIRMED; and that the portion of the judgment denying plaintiff NES Financial Corporation's ("NESF") claim for breach of the provision related to "true-up" payments be and it hereby is VACATED and the cause is REMANDED for further proceedings consistent with this Order.

We assume the parties' familiarity with the facts and record of prior proceedings, referencing them only as necessary to explain our decision.

I. Standard of Review

“On appeal from a judgment after a bench trial, we review the district court's finding[s] of fact for clear error and its conclusions of law de novo.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187 n.2 (2d Cir. 2013) (internal quotation marks omitted). We review mixed questions of law and fact “de novo to the extent that the alleged error is in the misunderstanding of a legal standard and clear error to the extent the alleged error is in a factual determination.” Diebold Found., Inc. v. Comm'r, 736 F.3d 172, 174 (2d Cir. 2013).

II. Recovery for Breach of Contract

NESF argues that the district court improperly denied it recovery in connection with its claims that JPMorgan breached the Share Purchase Agreement (“SPA”), which the parties executed to effect NESF's purchase of JPEX, a JPMorgan subsidiary. We disagree. NESF relies on the familiar rule that “[a] person violating his contract should not be permitted entirely to escape liability because the amount of the damage which he has caused is uncertain.” Tractebel Energy Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d 89, 110 (2d Cir. 2007). But it is equally well established that this rule applies only in those situations where the existence or fact – as opposed to the amount – of damages is “not merely speculative, possible, and imaginary, but . . . reasonably certain and [the damages are] such only as actually follow or may follow from the breach of the contract.” Id. (quoting Wakeman v. Wheeler & Wilson Mfg. Co., 101 N.Y. 205, 209, 4 N.E. 264, 266 (1886)) (internal quotation marks and emphasis omitted).

The district court did not find that NESF had suffered damages of an indeterminate amount; it found that NESF had suffered either no damages at all, or that the possibility that it would suffer damages at some future date was speculative. The court's November 28, 2012, Decision and Order indicates variously that “NESF has offered insufficient evidence of any damages it may have suffered, ” that “NESF did...