Quad-States, Inc. v. Vande Mheen, QUAD-STATE

• Court: Supreme Court of Nebraska
• Writing for the Court: KRIVOSHA; CAPORALE; WHITE; GRANT
• Citation: 220 Neb. 161,368 N.W.2d 795
• Decision Date: 07 June 1985
• Docket Number: INC,No. 84-165,QUAD-STATE
• Parties: , a Nebraska corporation, Appellee, v. Gilbert VANDE MHEEN, Appellant.

Page 795

368 N.W.2d 795 220 Neb. 161 QUAD-STATES, INC., a Nebraska corporation, Appellee,
v.
Gilbert VANDE MHEEN, Appellant. No. 84-165. Supreme Court of Nebraska. June 7, 1985.

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Syllabus by the Court

1. Directed Verdict. On a motion for a directed verdict, the moving party is deemed to have admitted as true all the material and relevant evidence admitted which is favorable to the party against whom the motion is directed, and the party against whom the motion is directed is entitled to the benefit of all proper inferences which can reasonably be deduced therefrom.

2. Motions to Dismiss: Evidence: Trial. Where the evidence is sufficient to sustain a verdict in favor of the plaintiff, it is the duty of the trial court, on the motion of the defendant, to dismiss the action.

3. Breach of Contract: Damages. As a general rule, one injured by a breach of contract is entitled to recover all of his damages, including the gains prevented as well as losses sustained, provided they are reasonably certain and such as might naturally be expected to follow the breach.

4. Breach of Contract: Restrictive Covenants: Damages. Broadly speaking, the amount recoverable for the breach of a covenant not to compete is the loss sustained by the covenantee as a natural result of the breach.

5. Breach of Contract: Restrictive Covenants: Damages: Proof. The fact that the damages flowing from the breach of a covenant not to compete are not susceptible of exact computation will not preclude recovery; however, in order to recover substantial damages, a plaintiff must furnish sufficient data to enable the trier of fact to estimate the actual damages with a reasonable degree of certainty and exactness; if a plaintiff fails to so do, he can nevertheless, if there is evidence of a specific monetary loss, recover a nominal sum.

6. Damages: Trial: Evidence. It is the duty of a trial court to refrain from submitting to a jury the issue of damages when the evidence is such that it cannot determine such issue except by indulging in speculation and conjecture.

David L. Updegraff of Qualley & Larson, Omaha, for appellant.

Sam S. Killinger and Michael W. Ellwanger of Kindig, Beebe, Rawlings, Nieland & Killinger, Sioux City, Iowa, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Appellee, Quad-States, Inc., sued appellant, Gilbert Vande Mheen, for damages resulting from Vande Mheen's breach of a [220 Neb. 162] covenant not to compete executed in connection with the sale of Vande Mheen's business to Quad-States. Judgment was entered on the verdict of $615,833.51 in favor of Quad-States. Among Vande Mheen's assignments of error in this appeal is the trial court's failure to sustain his motion for a directed verdict, made at the close of all the evidence, on the basis that Quad-States failed to prove its damages with the requisite degree of certainty. We reverse and remand with the direction that the cause be dismissed.

We observe that on a motion for a directed verdict, the moving party is deemed to have admitted as true all the material and relevant evidence admitted which is favorable to the party against whom the motion is directed, and the party against whom the motion is directed is entitled to the benefit of all proper inferences which can reasonably be deduced therefrom. Maloney v. Kaminski, 220 Neb. 55, 368 N.W.2d 447 (1985). However, where the evidence is insufficient to sustain a verdict in favor of the plaintiff, it is the duty of the trial court, on the motion of the defendant, to dismiss the action. Sinnett

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v. Dial Constr. Co., 187 Neb. 190, 188 N.W.2d 681 (1971).

As a general rule, one injured by a breach of contract is entitled to recover all of his damages, including the gains prevented as well as losses sustained, provided they are reasonably certain and such as might naturally be expected to follow the breach. Broadly speaking, the amount recoverable for the breach of a covenant not to compete is the loss sustained by the covenantee as a natural result of the breach. It must also be borne in mind that the measure of damages in an action for the breach of a covenant not to compete is usually difficult of exact computation and in the final analysis is an estimate or approximation. The fact that the damages are not susceptible of exact computation will not preclude recovery, but in order to recover substantial damages, a plaintiff is called upon to furnish sufficient data to enable the trier of fact to estimate the actual damages with a reasonable degree of certainty and exactness. If a plaintiff fails to so do, he can recover only a nominal sum. Even to recover a nominal sum, there must be evidence of a specific monetary loss. Dana F. Cole & Co. v. Byerly, 211 Neb. 903, 320 N.W.2d 916 (1982); D.W. [220 Neb. 163] Trowbridge Ford, Inc. v. Galyen, 200 Neb. 103, 262 N.W.2d 442 (1978); Midlands Transp. Co. v. Apple Lines, Inc., 188 Neb. 435, 197 N.W.2d 646 (1972); Gallagher v. Vogel, 157 Neb. 670, 61 N.W.2d 245 (1953).

Vande Mheen had done business at South Sioux City, Nebraska, through Van's Used Trucks & Parts, Inc., for a number of years. The venture consisted of the buying and selling at a profit used trucks, parts, and scrap. On October 1, 1979, Vande Mheen sold the business to Quad-States. As a part of that transaction, Vande Mheen agreed personally, in relevant part, that for a period of 5 years he would not compete with Quad-States for business "falling within a 100 mile radius of South Sioux City, Nebraska."

The evidence is such that the jury could find that Vande Mheen breached the covenant, at least until the last few months of the relevant period, when he moved to O'Neill, Nebraska, a town more...