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Click here for the full text of this decision FACTS:At trial, the jury found that 1. the appellant engaged in “a contract, combination or conspiracy in restraint of trade” and that such action was “willful and flagrant” under the TFEAA; 2. the appellant disparaged the business or reputation of the appellee; and 3. the appellant breached the relationship of trust and confidence that existed between the appellant and the appellee. Based on the jury’s findings, the trial court awarded the appellee $700,000, which it trebled pursuant to the finding of willful or flagrant conduct under the Texas Free Enterprise and Antitrust Act to $2.1 million, attorney’s fees in the amount of $123,761.56, and court costs in the amount of $9,160.60. After the trial court denied appellant’s motion for judgment notwithstanding the verdict and motion for new trial, this appeal followed. HOLDING:Reversed and rendered. A party seeking to recover lost profits must prove the loss through competent evidence with reasonable certainty. While this test is a flexible one in order to accommodate the myriad circumstances in which claims for lost profits arise, at a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. In other words, “reasonable certainty” is not demonstrated when the profits claimed to be lost are largely speculative or a mere hope for success, as from an activity dependent on uncertain or changing market conditions, on chancy business opportunities, or on promotion of untested products or entry into unknown or unproven enterprises. Here, over the appellant’s objections lodged before, during, and after trial, the trial court permitted the appellee to present the testimony of its damages expert, Janet Collinsworth. Collinsworth’s testimony was the only evidence presented by the appellee as to the amount of its purported damages. Collinsworth presented alternative damage models of “lost profits” and “injury to corporate goodwill,” of $2,239,450 and $2,283,202 respectively, which were both premised on projections of lost profits from the sales of appellant’s products for nearly six years, or through 2006. In the lost profits model, Collinsworth simply totaled lost profits from 2001, the year of termination, through 2006 arising from projected lost sales of the appellant’s products, and discounted the total to present value. In the goodwill model, Collinsworth ran her profit projections through a pro forma income statement, then totaled up the projected cash flow over six years, added a “terminal value” representing projected cash flow for an indefinite period thereafter, discounted the totals to present value, and then compared the results to similar projections assuming no appellant sales. These projections, however, ignored the terms of the agreement, the facts of the case, and Texas law regarding the calculation of lost profits, the court concludes. OPINION:Day, J.; Holman, Gardner and Day, JJ.

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