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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Recreational Data Services, Inc. v. Trimble Navigation Limited (3/24/2017) sp-7162

Recreational Data Services, Inc. v. Trimble Navigation Limited (3/24/2017) sp-7162

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                       

         corrections@akcourts.us.  



                    THE SUPREME COURT OF THE STATE OF ALASKA  



RECREATIONAL DATA                                       )  

SERVICES, INC.,                                         )        Supreme Court No. S-15893  

                                                        )  

                            Appellant,                  )        Superior Court No. 3AN-11-10519 CI  

                                                        )  

                   v.                                   )        O P I N I O N  

                                                        )  

TRIMBLE NAVIGATION LIMITED, )                                    No. 7162 - March 24, 2017  

a California corporation,                               )  

                                                        )
  

                            Appellee.                   )
  

                                                        )
  



                   Appeal from the Superior Court of the State of Alaska, Third  

                               

                   Judicial District, Anchorage, Catherine M. Easter, Judge.  



                   Appearances:  Susan Orlansky, Reeves Amodio LLC, Gavin  

                   Kentch, Law Office of Gavin Kentch, LLC, Anchorage, Josh  

                                                                        

                   Fannon,  Law  Office  of  Joshua  Fannon,  Palmer,  and  Greg  

                   Parvin,  Law  Office  of  Gregory  S.  Parvin,  Wasilla,  for  

                   Appellant.  James N. Leik and Brian P. Samuelson, Perkins  

                   Coie LLP, Anchorage, and Daniel P. Elms, Bell Nunnally &  

                                                                    

                   Martin, LLP, Dallas, Texas, for Appellee.  



                   Before:  Stowers, Chief Justice, Fabe, Winfree,  Maassen, and  

                                                     

                   Bolger, Justices.   



                   MAASSEN, Justice.  


----------------------- Page 2-----------------------

I.          INTRODUCTION  



                       Recreational  Data  Services,  Inc.  (RDS)  is  an  Alaska  corporation  that  



attempted to develop and market a smartphone that would come preloaded with outdoor- 



oriented  software.    RDS  pursued  a  partnership  to  advance  the  project  with  Trimble  



                                                                 

Navigation Limited, through one of its divisions, Trimble Mobile Computing Services  



                                 1  

(Trimble Mobile),  and Remington Arms Company.  Remington withdrew from the  



                        

project after  about two years of research and review.  Several months later Trimble  



Mobile  left  the  project  too  -  shortly  before  a  different  Trimble  division,  Trimble  



                                                                     

Outdoors, launched a similar product.  RDS sued Trimble for misrepresentation, breach  



                                                                            

of contract, and breach of fiduciary duty, alleging that Trimble Mobile intentionally  



                                           

delayed RDS's project  while sharing confidential information about it with Trimble  



Outdoors.  



                                                                                               

                       A jury agreed with RDS and awarded it $51.3 million in lost profits.  The  



superior court, however, concluded that RDS had not proven the amount of lost profits  



                                                                                      

with reasonable certainty and granted Trimble a judgment notwithstanding the verdict.  



                                                                                                                                   

RDS appeals.  It argues that the superior court erroneously conflated the standards of  



                                                             

proof for the fact of harm and the amount of damages and asks that the jury verdict be  



reinstated.  Trimble responds that no reasonable jury could have found that RDS satisfied  



all elements of its claims.   



                       We conclude that it was error to grant a judgment notwithstanding the  



                                                     

verdict because a reasonable juror could conclude that RDS proved all elements of its  



            1          Trimble Navigation, the named party in this case, has two distinct divisions   



relevant here:  Trimble Mobile Computing Solutions and Trimble Outdoors.  In this   

appeal we refer to Trimble Navigation and its divisions collectively as "Trimble."                                                                We  

identify Trimble Navigation, Trimble Mobile, or Trimble Outdoors individually when  

the fact of the entity's separate existence is important to the context.  



                                                                         -2-                                                                   7162
  


----------------------- Page 3-----------------------

                                                                                                         

claims. We also hold, however, that the superior court was correct to conclude that RDS  



failed to prove any amount of lost profits to a reasonable certainty as the law requires.  



                               

We therefore grant remittitur, directing the superior court to make an award of nominal  



damages and enter judgment for RDS.  

II.       FACTS AND PROCEEDINGS2  



          A.        Facts  



                                                                                             

                    In 2008 Brian Feucht and his business partner, Jim Belz, came up with an  



idea  for  a  "ruggedized"  smartphone  with  a  pre-loaded  suite  of  applications  (apps)  



                                                                                                          

designed  for  outdoors  enthusiasts.    They  formed  RDS  to  develop  the  product  they  



envisioned.   



                    In February 2009 RDS sent an executive summary to Trimble Outdoors  



                    

introducing three suites of anticipated software:  HuntZone, FishZone, and RecZone.  



                                                         

RDS proposed that it would develop the software and Trimble would build the phone's  



                 

hardware.  RDS received a positive response from Chaur-Fong Chen, the Director of  



                                                                                      

Strategic Business Development for Trimble Mobile, a different Trimble division, and  



                                                                                                                               

in March 2009 Trimble Mobile and RDS signed a mutual nondisclosure agreement.  The  



                                        

nondisclosure agreement stated the parties' purpose, defined confidential information,  



                                

and   restricted   the   disclosure   of   confidential   information   to   parent   companies,  



subsidiaries, and employees on a need-to-know basis.  Trimble Mobile was the only  



Trimble entity to sign the nondisclosure agreement.   



                                                 

                    RDS approached Remington about doing the marketing for the planned  



                                                      

smartphone.    In  September  2009  Feucht,  Belz,  and  Chen  met  with  Pat  Boehnen,  a  



                                                                                                                         

Remington project manager and marketing director, in Copper Center to discuss how the  



          2         The oral arguments in this case took place before an audience of students               



and teachers at West High School in Anchorage as part of the "Supreme Court Live"   

community outreach program.  



                                                                -3-                                                         7162
  


----------------------- Page 4-----------------------

project would move forward.  They agreed that RDS would be responsible for software,   



Trimble  Mobile  for  hardware,  and  Remington  for  marketing.    They  also  discussed  



research responsibilities, potential revenue, and the sharing of profits.  They called the  



                                                        

plan that emerged from this meeting the "Copper Center Project."  Feucht testified that  



Chen  and  Boehnen  both  advised  him  not  to  launch  a  stand-alone  app  before  the  



                                                                                                                      

smartphone was complete; this would protect future hardware sales and ensure that the  



hardware and software were integrated.  



                            

                    The parties dispute whether they had created a partnership at this point.  



                                                                                                                     

Feucht  testified  that  at  the  end  of  the  Copper  Center  trip  "we  shook  hands  and  we  



                                                                                                               

decided  that  we  were  going  to  be  partners  and  we  were  going  to  push  this  project  



                                                                                                       

forward to fruition."  But according to Trimble, the parties "agreed to explore a possible  



                                                                                                       

venture" but stopped short of forming a partnership.  The parties do agree that they all  



understood they could leave the Copper Center Project at any time.  



                                                          

                    After the Copper Center meeting, Remington conducted two large-scale  



                                                                              

market research surveys to evaluate what features the phone needed and how much  



                            

consumers would be willing to pay for it.  Using this data, RDS, Trimble Mobile, and  



Remington generated profit and loss statements predicting the phone's sales and each  



party's role.  The parties also developed a PowerPoint presentation which identified them  



                  

as partners and which was presented to potential third-party investors, including AT&T,  



Eklutna Corporation, Symbian, and Janney Montgomery Scott.  Around September 2010  



RDS approached Paul Miller, a  former Remington executive, about acting as the Copper  



Center  Project's  Chief  Operating  Officer.    Miller  joined  the  project  as  an  informal  



consultant pending a final contract between the companies.  



                    In October or November 2010 Remington signaled its intent to withdraw  



                                                   

from the Copper Center Project.  Also in November 2010 Chen alerted Feucht for the  



                                                                      

first time that Trimble Outdoors was working on a similar project with the retail chain  



                                                              -4-                                                        7162
  


----------------------- Page 5-----------------------

Cabela's, though Chen assured Feucht the two projects did not compete.  Feucht traveled   



to Trimble's headquarters in December and met with Chen and Steve Wolff, a Trimble   



Mobile employee who had joined Chen in the Copper Center Project, to discuss how  



                                                                                                                   

they could move forward without Remington.  During this meeting Wolff wrote on a  



whiteboard a series of valuations and projected revenues based on information Feucht  



                                           

provided.  RDS alleges that during this meeting Trimble Mobile offered to acquire RDS,  



but Trimble disputes this.  



                                                                                               

                    RDS and Trimble Mobile decided to investigate whether Cabela's would  



                                                                                                                  

be willing to replace Remington as the Copper Center Project's marketing arm.  Miller  



arranged for them to meet with Cabela's in March 2011.  But Chen emailed Feucht and  



                                                                                                                        

Miller on the day of the meeting to say that Trimble Mobile would not attend.  On their  



                                                                         

way to the meeting Feucht and Miller stopped at a restaurant inside Cabela's, where they  



        

saw  advertisements  for  Cabela's  new  phone  apps  -  ReconHunt  and  ReconFish  -  



                                                                  

which they testified were almost identical to the software suite RDS had envisioned.  



          

They went through with the Cabela's meeting but felt disheartened, and a few weeks  



later Cabela's declined to work with them.  



          B.        Proceedings  



                                                                                                                  

                    In September 2011 RDS sued Trimble, alleging various causes of action for  



                                                                                        3  

breach  of  contract,  fraud,  and  breach  of  fiduciary  duty.     A  jury  heard  the  case  in  



September 2014. RDS sought to prove through testimony and emails between Chen and  

                                                            



other  Trimble  employees  that  Chen  regularly  conferred  with  Trimble  Outdoors  in  

                                                                                                                



violation  of  the  parties'  nondisclosure  agreement  and  that  Chen  shared  confidential  



information that Trimble Outdoors and Cabela's used to their advantage to create the  



          3         RDS's complaint also named Cabela's, AT&T, and Alascom as defendants.  



At the time of trial, Trimble was the only remaining defendant.  



                                                               -5-                                                             7162  


----------------------- Page 6-----------------------

ReconHunt and ReconFish apps.  RDS also alleged that Trimble Mobile delayed the  



release of RDS's product while it "strung RDS along through deceptive statements."  



                     

Finally, RDS argued that Chen had misrepresented that the Trimble Outdoors project did  



                                                                                                                      

not compete with the Copper Center Project.  To prove damages, RDS relied on the  



                                                                                

profit and loss projections that RDS, Trimble Mobile, and Remington generated for the  



Copper  Center  Project  and  the  whiteboard  valuations  Wolff  created  during  their  



December 2010 meeting.  



                                 

                    Trimble moved for a directed verdict mid-trial and at the end of trial.  The  



                                            

superior court denied the first motion, concluding that the issue was "very close" but that  



there was room for diversity of opinion among fair-minded jurors when viewing the  



                               

evidence in the light most favorable to RDS.  The superior court denied the later motion  



"[f]or the reasons previously stated."  



                                                                                

                    The jury then returned a verdict in favor of RDS on all claims, awarding it  



$38.5  million  for  intentional  and  negligent  misrepresentation  and  $12.8  million  for  



                                    

breach of contract and  fiduciary duty; these numbers added up to 100% of Wolff's  



whiteboard valuation of the project.  The jury declined to award punitive damages.  



                    Trimble moved for judgment notwithstanding the verdict or a new trial,  



                                                                                  

arguing that RDS had failed to prove the elements of its claims and that the damage  



                                                                                          

award was not supported by reasonably certain evidence of lost profits.  The superior  



                                     

court granted Trimble's motion, concluding that "reasonable persons could not differ in  



         

their judgment that RDS, an unestablished business, did not prove any amount of lost  



profits with reasonable certainty."  The court therefore entered judgment in favor of  



Trimble.   



                                                 

                    RDS now appeals, contending that the superior court failed to view the  



                                                             

evidence in the light most favorable to it as the non-moving party.  RDS also contends  



                                                                                                            

that a judgment notwithstanding the verdict was inappropriate because if the amount of  



                                                              -6-                                                       7162
  


----------------------- Page 7-----------------------

the award could not be calculated with reasonable certainty, then RDS was nonetheless  

                                                                                                



entitled to a judgment in its favor and, at a minimum, an award of nominal damages.  



III.	     STANDARD OF REVIEW  



                    Whether there is sufficient evidence to support a jury verdict is a question  

                                                                                                             



                                          4  

of  law  we  review  de  novo.     We  assess  "whether,  after  reviewing  the  full  record  



                                         

presented to the jury in the light most favorable to the non-moving party, a reasonable  

juror could possibly find in that party's favor." 5  



IV.	      DISCUSSION  



                    The superior court erred in granting a judgment notwithstanding the verdict.  



                                                                                                          

As discussed in Section A, a reasonable juror could find, as this jury did, that RDS  



                                                                                                               

proved all elements of its claims for misrepresentation, breach of contract, and breach  



                                

of fiduciary duty by a preponderance of the evidence.  But as explained in Section B,  



                                

although it was error to conflate the fact of harm and the amount of damages in granting  



                                                                           

the judgment notwithstanding the verdict, the court correctly concluded that RDS did not  



                 

prove any amount of lost profits to a reasonable certainty.  Remittitur for an award of  



nominal damages is therefore appropriate, as discussed in Section C.   



                        

          A.	       It Was Error To Grant A Judgment Notwithstanding The Verdict  

                    Because  A  Reasonable  Juror  Could  Find  That  RDS  Proved  All  

                    Elements Of Each Of Its Claims By A Preponderance Of The Evidence.  



                                                                                                                      

                    In ruling on a motion for a judgment notwithstanding the verdict, a trial  



court must determine "whether, after reviewing the full record presented to the jury in  



                                                                                                    

the light most favorable to the non-moving party, a reasonable juror could possibly find  



          4         Cameron  v.  Chang-Craft,   251  P.3d  1008,   1018  (Alaska   2011)  (citing  



L.D.G., Inc. v. Brown , 211 P.3d 1110, 1117-18 (Alaska 2009)).  



          5         Wiersum v. Harder, 316 P.3d 557, 563 (Alaska 2013) (citing L.D.G. , 211  

                                                  

P.3d at 1117).  



                                                             -7-	                                                      7162
  


----------------------- Page 8-----------------------

                                   6  

                                                        

in that party's favor."   Thus, the fundamental question we consider here de novo is  



whether the evidence viewed in the light most favorable to RDS "permits room for  



                                                                          7  

diversity of opinion among reasonable jurors."   



                     1.	       A      reasonable            juror        could        find      that       Trimble          Mobile  

                                                                                                        

                                misrepresented that the Trimble Outdoors applications did not  

                                compete with the Copper Center Project.  



                                                                                                                      

                     To show fraudulent misrepresentation RDS was required to prove these  



elements:  "(1) a misrepresentation of fact or intention, (2) made fraudulently (that is,  



                                            

with 'scienter'), (3) for the purpose or with the expectation of inducing another to act in  



                                                                                                                8  

                                                                                                                   The elements  

reliance, (4) with justifiable reliance by the recipient, (5) causing loss." 



of negligent misrepresentation are essentially the same, except that instead of scienter the  



                                                                              

plaintiff  has  to  prove  the  defendant's  lack  of  "reasonable  care  when  making  the  



                  9  

statement."     Trimble  challenges  only  whether  RDS  proved  justifiable  and  actual  



reliance; our analysis of this element applies to both the intentional and the negligent  



                                        10  

misrepresentation claims.                    



           6	        Id. (citing Cameron, 251 P.3d at 1017).  



           7         Cameron, 251 P.3d at 1017 (quoting                       City of Delta Junction v. Mack Trucks,     



Inc. , 670 P.2d 1128, 1130 (Alaska 1983)).  



           8         Lightle v. State, Real Estate Comm'n , 146 P.3d 980, 983 (Alaska 2006)  



(quoting RESTATEMENT (SECOND) OF TORTS  525, 526, 531 (AM .  LAW INST . 1977)).  



           9         S. Alaska Carpenters Health & Sec. Tr. Fund v. Jones , 177 P.3d 844, 857  



(Alaska 2008) (citing Bubbel v. Wien Air Alaska, Inc., 682 P.2d 374, 380 (Alaska 1984)).  

                                                                                    



           10  

                                                                          

                     Anchorage Chrysler Center, Inc. v. DaimlerChrysler Corp. , 129 P.3d 905,  

                                                                                                                 

915 (Alaska 2006) ("[A]ctual reliance and justifiable reliance are both prerequisites to  

claims of negligent and intentional misrepresentation . . . .").  



                                                                  -8-	                                                          7162
  


----------------------- Page 9-----------------------

                                                                                        

                              a.	      A reasonable juror could find that RDS justifiably relied  

                                        on Trimble Mobile's misrepresentations.  



                                                       

                    A plaintiff who knows that a statement is false "cannot justifiably rely" on  



   11  

       Trimble argues that RDS knew that the ReconHunt and ReconFish apps developed  

it.                                                                                 



by Trimble Outdoors competed with the Copper Center Project because Feucht emailed  

                                                                                   



Chen  on  November  30,  2010,  to  say  he  was  "very  concerned"  about  the  Trimble  



                                                                                           

Outdoors project and its possible entry into the same market. Feucht ended the email by  



telling Chen, "I need to know we have a deal or I need another supplier."  



                                                                              

                    Feucht testified that he sent this email the same day or the day after Chen  



               

first told him Trimble Outdoors was working with Cabela's on a product that "did not  



                                                                  

compete with the Copper Center Project."   Feucht admitted that Chen never answered  



                                                                                       

his email, but he testified that a month later, in December 2010, he traveled to Trimble  



                                                

Mobile's headquarters and met with Chen and Wolff "to reassess the project and move  



                                                

the project forward" in light of Remington's imminent departure.  Feucht testified that  



he was again reassured by both Chen and Wolff that Trimble Outdoors' project "was  



                                                                                     

totally different.  And we shouldn't worry about it."  A reasonable juror could find it  



                                                                                                           

more likely than not that these assurances were given and that Feucht accepted them.  



And Trimble identifies no evidence that Feucht learned of the specifics of ReconHunt  



and ReconFish or of their similarity to the Copper Center Project before March 2011,  



when he saw advertisements for the apps at the Cabela's restaurant.  



          11        Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska 2010) (citing  



2 DAN  B.  DOBBS,  THE LAW OF TORTS   474 (2001)); see also RESTATEMENT (SECOND)  

OF TORTS  541 cmt. a (AM .  LAW INST . 1977) ("Although the recipient . . . is not barred   

from recovery because he could have discovered its falsity . . . by investigating its truth,  

he is nonetheless required to use his senses, and cannot recover if he blindly relies upon  

                                                                                  

a misrepresentation the falsity of which would be patent to him if he had utilized his  

                                     

opportunity to make a cursory examination or investigation.").  



                                                              -9-	                                                       7162
  


----------------------- Page 10-----------------------

                             b.	       A reasonable juror could find that RDS relied on Trimble               

                                       Mobile's misrepresentations by acting or refraining from  

                                       action.  



                   Trimble also argues that RDS failed to prove that it "relie[d] on [Trimble         



                                                                                                  12  

Mobile's]  misrepresentation  in  acting  or  refraining  from  action."                                To  support  this  



                                                                                                               

assertion  Trimble  cites  Feucht's  testimony  that  he  realized  in  March  2011  that  



                                                                      

ReconHunt was "an absolute rip-off of my idea" but proceeded with the pitch to Cabela's  



                                                  

while continuing to treat Trimble Mobile as a partner.  Trimble argues that "there is no  



credible basis to conclude that RDS would have changed its position or done anything  



differently" if Trimble Mobile had admitted early on that the projects competed.  



                                                                                  

                   But Trimble's argument slights the period from December 2010 to March  



                                                                    

2011.  A reasonable juror could conclude that had RDS known by December 2010 that  



Cabela's and Trimble Outdoors were creating a competing product, it would have used  



the next few months to pursue a different hardware provider, would have considered  



launching a separate software application, or would have taken some other action rather  



than waiting for its next meeting with Trimble Mobile.  The fact that RDS went ahead  



                                                                                                              

with the Cabela's meeting in March 2011 could indicate that RDS relied on Trimble  



Mobile's assurances until it was too late to shift gears.  A reasonable juror could thus  



find  that  RDS  proved  by  a  preponderance  of  the  evidence  that  it  actually  relied  on  



Trimble Mobile's misrepresentations.  



                   2.	       A reasonable juror could find that Trimble Mobile breached the  

                                                                                       

                             nondisclosure agreement by sharing financial information with  

                             Trimble Outdoors.  



                                                                          

                   The nondisclosure agreement signed by RDS and Trimble Mobile early in  



their relationship prohibited either party from disclosing "Confidential Information."  



          12       RESTATEMENT (SECOND) OF TORTS  537(a) (AM .  LAW INST . 1977).  



                                                            -10-                                                          7162  


----------------------- Page 11-----------------------

                                                                                        

"Confidential Information" was defined in the agreement as "any information or material  



                                                                                                                             

of a confidential or proprietary nature relating to the existing or prospective business . . .  



                                                      

of a Party or Others" or relating to "the terms of a prospective business relationship."  



                                                                   

The agreement also required the parties  to  identify confidential information in their  



written communications by attaching a statement "such as '[name of Party] Confidential  



Information' or words of like meaning."  



                    RDS  argued  at  trial  that  Trimble  Mobile  breached  the  nondisclosure  



                                                                                           

agreement by sharing confidential information with Trimble Outdoors, specifically the  



                                                                                            

profit and loss statements prepared by RDS, Trimble Mobile, and Remington based on  



                                                                                                    

Remington's market research data.  On appeal Trimble argues that the evidence at trial  



                                                                                                        

was insufficient to support a finding that the agreement was breached. Trimble contends  



(a) that Trimble Mobile did not disclose confidential information to Trimble Outdoors;  



                      

(b)  that  RDS  had  not  properly  identified  the  project's  profit  and  loss  statements  as  



confidential; and (c) that information shared by Trimble Outdoors was not covered by  



the nondisclosure agreement.  



                                                                                       

                              a.	      A     reasonable          juror      could       find     that     Chen       shared  

                                        confidential information with Trimble Outdoors.  



                                                                                        

                    Trimble argues that RDS failed to prove that Chen improperly shared the  



profit and loss statements because Chen described  the  documents he shared as "the  



                                                       

financials . . . from Remington" but never specified which documents those were.  But  



                                                                 

a reasonable juror could rely on context to conclude that the documents Chen referred  



to included the profit and loss statements.  



                                                                                                         

                    The  parties'  emails  indicated  that  Chen  received  the  profit  and  loss  



statements from Feucht on September 30, 2010; and Chen testified that on November 20  



                                          

he forwarded financial data to Mark Harrington of Trimble Navigation and Rich Rudow  



of Trimble Outdoors.  While cross-examining Chen on this subject, RDS's attorney  



                                                             -11-	                                                       7162
  


----------------------- Page 12-----------------------

                                                                  

emphasized repeatedly that he was asking about "the market research data as it applied  



to the financials, profits and losses."  Chen confirmed his earlier deposition testimony  



                                                                                                    

that what he forwarded to the other Trimble employees was "the financials that we got  



                                                                                                      

from Remington," but he equivocated as to whether it would have been appropriate for  



                                                                                                 

him  to  share  the  related  profit  and  loss  information  with  others  in  the  Trimble  



organization.  From this,  a juror could reasonably conclude that the profit and loss  



statements from Feucht's September 30 email were included in the information that Chen  



forwarded to Harrington and Rudow.  



                    Conversations between Chen and Rudow in April and October 2009 and  



September and November 2010 provide additional context for a jury finding that Chen  



                                                  

shared confidential information with Trimble Navigation and Trimble Outdoors.  Chen  



                                                                                          

testified  at  trial  that  he  told  Rudow  in  April  2009  that  the  Copper  Center  Project  



                                                                                   

"software might be good for his business."  In October 2009 Chen emailed Rudow to say  



                                                                                                                   

he was preparing a presentation for Remington, Cabela's, and AT&T that he would show  



                                                                            

Rudow later.  In September 2010 Chen emailed Rudow to say that since Rudow had  



                                                                                                                

"been working on the Outdoor related market and ha[d] gained a lot of experience in  



                                

user's adoption and carrier behavior, Steve [Berglund, the Trimble Navigation CEO,]  



                                                                           

suggested that we should work together to see if we can address the concerns he has on  



                                                                                                                            

the [Copper Center] project."  As part of their meeting, Chen said he would like "to go  



                                                                                            

through the current business plan and ask for your advice on various issues."  In October  



2010  Chen  emailed  Rudow  to  set  up  a  meeting  "to  go  through  the  plan  in  person  



                                        

[because] there [is] quite a bit of confidential stuff that right now is not the time to send  



                                                                                   

it  through  email[]."    At  trial  Chen  testified  that  he,  Rudow,  and  Harrington  met  in  



                                                                                                                

November 2010 to discuss "[p]otential overlap" between the projects.   As discussed  



                  

above,  the  evidence  supported  a  conclusion  that  Chen  sent  Rudow  and  Harrington  



                                                                           

confidential information from the Copper Center Project in preparation for this meeting.  



                                                               -12-                                                         7162
  


----------------------- Page 13-----------------------

                    Viewing the evidence in the light most favorable to RDS, a reasonable juror  

                                                                                                            



could find that it was more likely than not that Chen did disclose confidential information  

                                         



to Rudow and Harrington, neither of whom worked for Trimble Mobile.  This was a  

                                                                                         



violation of the nondisclosure agreement.  



                               b.	       Feucht's  email  properly  designated  the  profit  and  loss  

                                         statements as confidential.  



                     Feucht's email transmitting the profit and loss statements contained this  

                                                                 



notice:    "This  email  and  any  files  transmitted  with  it  are  RDS  .  .  .  property,  are  



                                                                                                                  

confidential, and are intended solely for the use of the individual or entity to whom this  



                                                                 

email is addressed."  Trimble argues that "[t]he boilerplate paragraph at the end of Mr.  



Feucht's email did not meet [the nondisclosure agreement's] requirements."  But Trimble  



                                                                                            

does not elaborate on how the language was deficient.  And although Trimble describes  



                                                                                                                   

it as "boilerplate," there do not appear to be any other emails from Feucht in the record  



that contain the same or similar language.   



                                                                                          

                     Whether the notice satisfied the demands of the nondisclosure agreement  



                                        13  

                                                                                                                    

presents a question of law.                 Our object in interpreting a contract "is to give effect to the  



                                                           14 

reasonable expectations of the parties."                              

                                                               We do this by "look[ing] to the language of the  



                                                                                             

disputed provision, the language of other provisions of the contract, relevant extrinsic  



                                                                                       15  

evidence, and case law interpreting similar provisions."                                   We conclude that Feucht's  



notice  did  constitute  "words  of  like  meaning"  under  the  nondisclosure  agreement's  



          13        Herring v. Herring , 373 P.3d 521, 528 (Alaska 2016) (citing                                Cook v. Cook        ,  



249  P.3d  1070,  1077  (Alaska  2011)  (observing  that  the  interpretation  of  contract  

language is a question of law reviewed de novo on appeal).  



          14  

                                                                                                                           

                    Alaska  Fur  Gallery,  Inc.  v.  First  Nat'l  Bank  Alaska ,  345  P.3d  76,  98  

(Alaska 2015) (quoting Peterson v. Wirum , 625 P.2d 866, 872 n.10 (Alaska 1981)).  



          15        Id. (quoting Peterson , 625 P.2d at 872 n.10).  



                                                               -13-	                                                         7162
  


----------------------- Page 14-----------------------

                                                                               

provision for identifying confidential information, as the notice identified the disclosing  



                                                                                                     16  

                                                                                                         And Feucht did  

party and explicitly stated that the emails and file were confidential.  



                                                                                                  

"affix or incorporate" the notice to the profit and loss statements when he attached the  



statements  to  an  email  describing  the  "files  transmitted"  as  "confidential."    This  



interpretation of the nondisclosure agreement's language seems straightforward, and  



Trimble  directs  us  to  no  extrinsic  evidence  that  would  require  us  to  interpret  it  



differently.  We therefore conclude that the profit and loss statements were properly  



designated as confidential under the nondisclosure agreement.  



                                                                                                                           

                              c.	       The  nondisclosure  agreement  protected  the  profit and  

                                       loss statements.  



                                                                               

                    Trimble contends that the "financials . . . from Remington" are not covered  



                                                                   

by the nondisclosure agreement because the agreement says "Confidential Information  



                                                                

shall not include any information which . . . [i]s lawfully received, without obligation of  



                                                                                        

confidentiality, by Recipient from Others." Trimble argues that the market research data  



                                                                  

were produced by Remington, who was not a party to the nondisclosure agreement, and  



that Trimble Mobile received "the financials" from Remington - an "Other."  



                                                               

                    But confidential information under the nondisclosure agreement is defined  



by the party that sent it, not the party that generated it.  Trimble points to no evidence  



                                                                                                                              17  

                                                                        

that Trimble Mobile actually received the profit and loss statements from Remington. 



          16        The partners did not always use the nondisclosure agreement's language  



verbatim.  A Product Alliance Agreement, for example, was marked "Confidential - for  

                                                               

Internal  Discussion  Purposes  Only,"  while  the  parties'  joint  Copper  Center  Project  

presentation was marked "Company confidential - do not distribute."  



          17  

                                                                                                

                    The origin of the profit and loss statements is not immediately apparent  

from the document used as an exhibit at trial, though at one point Trimble's attorney  

clarified:  "[I]t is an email from Mr. Chen transmitting a document.  That's true.  The  

                                                                                                        

content, the substance of the attachment, the data that is in that attachment, is from Mr.  

                                                                                                                

                                                                                                            (continued...)  



                                                             -14-	                                                       7162
  


----------------------- Page 15-----------------------

Rather, the evidence indicated that Chen, Boehnen, and Feucht each created individual  



                                                                         

profit and loss statements based on Remington's market survey data, and that Boehnen  



                                                                                

and Feucht then forwarded their statements to Chen, who consolidated the statements  



                                                                       

into a single file.  A juror could reasonably find that the profit and loss statements were  



information  that  related  to  the  purpose  of  the  nondisclosure  agreement  -  for  



                                                                                                     

"discuss[ion of] the terms of a prospective business relationship" - since they forecast  



                                                                                                          

RDS's and Trimble Mobile's contributions and success if the Copper Center Project  



                           

progressed.  And a juror could reasonably find that the profit and loss statements were  



                                                                                                

"material of a confidential or proprietary nature relating to the . . . prospective business  



and/or technology of a Party" since  they projected the financial performance of the  



                                                                                            

Copper Center Project and revealed information about how the participants expected the  



                                                                   

project to play out.  Because Trimble Mobile received the confidential information from  



RDS, the profit and loss statements were protected by the nondisclosure agreement.  



                    3.	      A reasonable juror could find that Trimble Mobile breached its  

                             fiduciary duty as RDS's partner.  



                                                                                       

                    Trimble also contends that the superior court was correct to conclude that  



                                                                                          

RDS's claim for breach of fiduciary duty was not supported by the evidence.  Trimble  



                       

argues that no reasonable juror could have found that Trimble Mobile and RDS were  



partners  or  that  Trimble  Mobile  breached  a  fiduciary  duty  arising  out  of  such  a  



partnership.  



                             a.	       A reasonable juror could find that Trimble Mobile and  

                                       RDS were partners.  



                                                                     

                    A legal partnership is defined by statute as "the association of two or more  



                               

persons to carry on as co-owners a business for profit . . . whether or not the persons  



          17(...continued)  



Feucht."  



                                                             -15-	                                                         7162  


----------------------- Page 16-----------------------

                                               18  

intend to form a partnership."    This definition can be reduced to four "key elements":   



(1)  there  is  associational   intent;  (2)  there  is  co-ownership  of  the  resulting  business;  

(3)  the partners are in business; and (4) the business   is   intended to make a profit.19  



"Whether a partnership exists . . . is normally a question of fact for the fact finder."20  



Parties' description "of [their] relationship as one of partnership or not is not controlling;  

                                                                                                               



                                                                             21  

their intent may be inferred from their actions."                                The jury in this case was properly  

                                 



instructed that  "[a]  partnership need not be documented in writing" and could exist  



"whether or not the persons intend to form a partnership."   



                     Trimble contends that the evidence did not support two of the key elements  



                                                                                                                 

that  define  a  partnership:    associational  intent  and  co-ownership  of  a  business.  



                                                                      

Associational intent requires "an agreement to combine the [partners'] property, money,  

                                                                                                    22   If there is no written  

                                                                                                         

effects, skill and knowledge to carry out a business enterprise." 



partnership  agreement,  "the  existence  of  a  partnership  must  be  proven  by  credible  

evidence,"23  which may include " 'the transactions, conduct and declarations' of the  

                                                                                                   



           18        AS 32.06.202(a).  



           19        Hall v. TWS, Inc.          , 113 P.3d 1207, 1211-12 (Alaska 2005) (citing                           Chocknok  



v. State, Commerical Fisheries Entry Comm'n, 696 P.2d 669, 675-76 (Alaska 1985)).  



           20        Parker v. N. Mixing Co. , 756 P.2d 881, 887 n.11 (Alaska 1988) (citing  

                                           

Peterson v. Prince , 430 N.E.2d 297, 300 (Ill. App. 1982); Pruitt v. Fetty , 134 S.E.2d 713,  

716 (W. Va. 1964)).  



           21  

                                                                            

                     Id.  (citing  Greene  v.  Brooks,  45  Cal.  Rptr.  99,  102  (Cal.  App.  1965);  

                                              

Anderson Hay & Grain Co. v. Dunn, 467 P.2d 5, 7 (N.M. 1970); Taylor v. Lewis, 553  

S.W.2d 153, 158 (Tex. App. 1977)).  



           22  

                                                                                                                            

                     Hall , 113 P.3d at 1211 (alteration in original) (quoting Chocknok, 696 P.2d  

at  675-76).  



           23        Id. (citing 59A AM .  JUR .  2D , Partnership   90 (2003)).  



                                                                 -16-                                                            7162
  


----------------------- Page 17-----------------------

             24  

parties."        Co-ownership of a business "is evidenced by shared management authority           



                               25  

and profit-sharing."               



                     As for the factor of associational intent, Trimble relies on the testimony of  

                                                                                                



Paul Miller, the project consultant, that "[t]here was not a final contract" among the  

                     



parties and that there was not "some meeting of the minds and agreements between the  

                                  



principals."  But Miller later clarified, "I believe [RDS and Trimble Mobile] were acting  

                           



as partners.  And in terms of meeting of the minds, I meant the final construct, the dates,  

                                             



the dollars, how that was going to be rolled forward . . . ."  A reasonable juror was not  

                                                           



required to interpret Miller's testimony that there was no "final contract" to mean that  



there was no associational intent.  



                                                                                                                  

                     Trimble also notes that a draft Product Alliance Agreement circulated by  



                                                                                      

Remington expressly denied that a partnership existed.  But only Remington signed that  



document.    As  RDS  notes,  a  reasonable  juror  could  conclude  that  the  other  parties  



ultimately did not sign it because they "did not want to be bound by a document that  



                                                                                      

characterized their relationship as something other than a partnership"; and a reasonable  



                                                                                                                        

juror could read the agreement's language, even if indicative of the parties' intent, in  



light of the other evidence that they acted as partners.  



                     Rather than focusing on the labels the parties gave their relationship, the  



jury instructions asked whether, based on their conduct, "RDS and Trimble [Mobile]  



intended  or  did  combine  assets,  knowledge,  or  abilities  to  carry  out  a  business  

                  26  The jury heard testimony that RDS, Trimble Mobile, and Remington were  

enterprise."           



assigned responsibilities in the Copper Center Project based on their respective skills and  

                                                                                                                        



           24        Id. (quoting Innes v. Beauchene , 370 P.2d 174, 176 (Alaska 1962)).  



           25        Id. at 1211-12 (citing Chocknok, 696 P.2d at 675).  



           26        See id., 113 P.3d at 1211 (quoting Innes , 370 P.2d at 176).  



                                                                -17-                                                         7162
  


----------------------- Page 18-----------------------

assets.  A reasonable juror could also infer from their representations to third parties that  



                                                                                     

the three entities intended to combine their resources.  The presentation the parties used  



                                                                                                             

in such meetings labeled each of the three participants as a "partner," gave an estimate  



of each partner's pre-launch financial investment, and identified each partner's individual  



responsibilities.   



                                                                        

                     As for the co-ownership factor, Trimble argues that no reasonable juror  



                                                                                                

could find that a partnership existed because Feucht testified at trial that RDS, Trimble  



              

Mobile, and Remington did not agree to co-own a business together.  But while Feucht  



testified that he would not classify their relationship "as co-owners of a business," he  



                                                                                                                    

later explained his meaning in terms that differ from the legal definition:  "I think co- 



                                            

owners of a business is - if we were going to form a separate corporation and have  



                                                                                                                

equity, versus a partnership where we are each contributing core pieces of the project." 



                                                                                               

 And Feucht conceded that he did not know how partnership was defined in the law.  A  



reasonable juror could thus have discounted Feucht's layperson's view of the project's  



                                                                                       

legal status and relied on other aspects of his testimony that were more consistent with  



                                                                                       

the legal definition's requirement of co-ownership. And the jury had been instructed that  



                             

the parties' intent to create a partnership was not determinative as to whether they had  



                                                                                                        

in fact done so; thus, even if Feucht had testified that the parties did not intend to co-own  



                      

a business, a reasonable juror could still find that the parties acted as if they did intend  



to co-own a business, thus creating a partnership.   



                                                                                 

                     Furthermore, a juror who decided that RDS and Trimble Mobile intended  



                                                          

to collaborate on the Copper Center Project could also reasonably conclude that they  



                                                                                     

intended to co-own the resulting business.  The parties had negotiated job duties, profit- 



                                                                                                        

sharing, and risks related not just to start-up but also to operations.  Although the parties  



                                                                -18-                                                          7162
  


----------------------- Page 19-----------------------

never earned profits, the return of their investment in the Copper Center Project and any  

                                    

future revenue were contingent on the project's success.27  



                                                           

                   Viewing the evidence in the light most favorable to RDS, a reasonable juror  



                                                      

could  find  by  a  preponderance  of  the  evidence  that  RDS,  Trimble  Mobile,  and  



Remington were partners.   



                            b.	       A  reasonable  juror  could  find  that  Trimble  Mobile  

                                      breached its fiduciary duty of loyalty as RDS's partner.  



                   Alaska  Statute  32.06.404(b)(2)  defines  a  partner's  duty  of  loyalty  as  



including the duty "to refrain from dealing with the partnership in the conduct . . . of the  



                                                             

partnership  business  as  or  on  behalf  of  a  party  having  an  interest  adverse  to  the  



                                                  

partnership."        RDS  contends  that Trimble  Mobile  violated  this duty  when  it  shared  



information with Trimble Outdoors in violation of the nondisclosure agreement and  



                                                                              

concealed what it was doing. RDS argues that Trimble Mobile also "deliberately strung  



                                                                                       

RDS along through deceptive statements, thereby protecting Trimble's ability to get to  



                          

market  first with  its  products  and  denying  RDS  the  opportunity  to  gain  first-mover  



advantage in marketing either standalone apps or a phone preloaded with a specialized  



suite of apps."  Quoting AS 32.06.404(e), Trimble responds that a partner does not  



violate its duty of loyalty "merely because the partner's conduct furthers the partner's  



                                                            

own interest" and that Trimble Mobile did not share "partnership property" with Trimble  



Outdoors because the information in question was data produced by Remington, not  



RDS.  But we conclude that a reasonable juror could find that Trimble Mobile breached  

its fiduciary duty as a partner.28  



         27        See  Parker v. N. Mixing Co. , 756 P.2d 881, 887-88 (Alaska 1988).  



         28        AS 32.06.404(b)(2).  Because we conclude that a reasonable juror could  



find that Trimble Mobile breached its fiduciary duty under this section, we do not discuss  

                                                                                                   

                                                                                                       (continued...)  



                                                          -19-	                                                    7162
  


----------------------- Page 20-----------------------

                    A reasonable juror could find that the market research data produced by  

                                                                   



Remington and the corresponding financial information were partnership property:  the  

                                                                   



material was specific to the Copper Center Project, it was produced in furtherance of the             



project,  and  there  was  evidence  that  RDS  and  Trimble  Mobile  contributed  to  its  



                                                                                                                   

development - all three companies reviewed the market research questions and had the  

                                                         29  And Chen admitted at trial that he sent "some  

opportunity to change or refine them.                                          



of the financial[s]" from the Copper Center Project to Harrington and Rudow, who were  

                                                                              



outside the nondisclosure agreement, and that the market research was sent to Trimble  

                                         



Outdoors and Cabela's.  The jury also heard testimony that Trimble Mobile repeatedly  

                                                                                                        



reassured  RDS  that  the  Trimble  Outdoors  project  did  not  compete  with  the  Copper  



                                                                                            

Center Project.  A reasonable juror could thus conclude that Trimble Mobile's conduct  



      

- both in sharing partnership information with outside parties and in misrepresenting  



                                               

that the Copper Center Project and Trimble Outdoors's project did not compete with each  



                                                                                                                  30  

other - was that of a "party having an interest adverse to the partnership."                                          



                    The jury also heard evidence that Trimble Mobile ceded important decision- 



making  about  the  Copper  Center  Project  to  others  in  the  Trimble  organization  who  



lacked the same incentive to promote the project.  The jury heard testimony that it was  

                                                                                                                     



not Chen but Rudow - in charge of Trimble Outdoors's competing project - who  

                                                                                                                        



          28(...continued)  



in any depth RDS's arguments that Trimble Mobile also violated AS 32.06.404(b)(1) &  

(3) and its obligation of good faith and fair dealing.  



          29        See  AS  32.06.204  (explaining  when  property  is  partnership  property);  



REVISED  UNIF .   P'SHIP  ACT     204   Authors'  Comments,   cmt.   8   (West   2015-16  ed.)  

("Although  internally  generated  assets  may  not  literally  fall  within  Section  204,  its  

principles should apply at least by analogy.").  



          30        See AS 32.06.404(b)(2).  



                                                               -20-                                                        7162
  


----------------------- Page 21-----------------------

                     

decided that Trimble Mobile would not attend the partnership's March 2011 meeting  



                                                                                                           

with Cabela's.  The jury saw a series of emails involving Chen, Wolff, and Rudow from  



           

a few months later, in which Rudow reprimanded Chen and Wolff for approaching the  



                                                                                            

Cabela's CEO with the Copper Center Project while Trimble Outdoors was also meeting  



                                                                           

regularly with Cabela's because it might "screw it up for all of us."  Rudow then wrote  



                                               

that "Tom [Rosdale, Cabela's Vice President of Marketing,] didn't appreciate the hoop  



jumping he just completed to kill the RDS deal.  It was unnecessary and Trimble was  



                                                                                                

part  of  the  problem."             Larry  Fox,  Trimble  Outdoors's  main  contact  with  Cabela's,  



                                                                                

testified that Rosdale contacted him because he was confused by the need to meet with  



                                                                                                                

different Trimble divisions.  Although Rosdale and a Cabela's marketing manager both  



                                                                                                         

testified by deposition that they declined the Copper Center Project because Cabela's  



was "not a telecommunication company," a reasonable juror could find instead, based  



             

on this record, that the project was stymied by purposeful interference from Trimble  



Outdoors, with Trimble Mobile's acquiescence.  



                    4.	       A reasonable juror could find that  Trimble Mobile's actions  

                              were a legal cause of  RDS's harm.  



                    In granting judgment notwithstanding the verdict, the superior court relied  



on several facts to conclude that the Copper Center Project would not have succeeded  



                                                                                

regardless  of  Trimble's  challenged  conduct:    that  RDS  had  not  secured  contractual  



                                                                                                        

commitments from its partners or a wireless provider, that it had not raised the $6 to $8  



                                                    

million it had committed to raise before the product launch, and that it had not created  



                                                                                                                      

a software prototype.  Trimble points to these same facts on appeal to argue that RDS  



failed to prove legal causation for any of its claims.  Trimble also argues that the Copper  



                                                                                                       

Center Project could not have built its product at an acceptable cost and that RDS failed  



                                                                       

to develop financial and sales projections that would have enabled the project to move  



                                                                                                    

forward.  But construing the evidence in the light most favorable to RDS, we conclude  



                                                               -21-	                                                       7162
  


----------------------- Page 22-----------------------

that  a  reasonable  juror  could  find  by  a  preponderance  of  the  evidence  that  Trimble  



Mobile's conduct caused RDS to lose profits.  



                             a.	       A reasonable juror could find that the hurdles faced by  

                                       the Copper Center Project were not insurmountable.  



                                       i.	       A  reasonable  juror  could  find  that  the  Copper  

                                                 Center  Project    could  have  found  a  marketing  

                                                 partner.  



                    The superior court noted that the Copper Center Project could never earn  



profits without a marketing and distribution partner, and that "RDS offered no proof that  

                                                                             



it had any firm leads on anyone to fill that role."                       Trimble now argues that the project       



would never have succeeded in replacing Remington, citing Feucht's testimony that  



                                                                                           

"there was only one real logical partner once Remington was out, and that was going to  



                    

be Cabela's, because they were the number one player in the industry."  And Trimble  



                                                                                          

contends that Cabela's declined to participate not because of Trimble's interference but  



                                                                                     

because the project entailed "a huge outlay of cash with a high risk on a product that has  



                                                                                   

a short shelf life."  But there was evidence that Cabela's considered selling a similar app  



        

on a "ruggedized, shockproof, and waterproof" phone produced and designed by Casio  



                                                                                                                    

around the same time it was approached by RDS.  Viewing this evidence in the light  



most favorable to RDS, a reasonable juror could conclude that Cabela's was interested  



in marketing a ruggedized phone with preloaded apps but was diverted from the Copper  



Center Project by Trimble Outdoors's competing product.  



                    There was also evidence that another marketing partner would have stepped  



                                           

up if Cabela's, for whatever reason, declined the opportunity.  Project consultant Miller  



                                                                

testified that, from his time as chairman of Freedom Group, he was personally familiar  



with "the big-box stores, you know, the Cabela's, the Bass Pros, the Gander Mountains,  



                                                                    

Sportsmen Warehouse, those folks.  And the distributors who sold to smaller dealers.  



A lot of people in the industry."  Miller testified that he had "the capability to bring in  



                                                             -22-	                                                      7162
  


----------------------- Page 23-----------------------

                                                                                                           

another person to replace Remington, based on [his] historical contacts in this industry"  



                                                                           

- and that he had done just that by arranging the meeting with Cabela's.  A reasonable  



juror could believe Miller's testimony and conclude that, although RDS saw Cabela's  



as the most logical replacement for Remington, it was more likely than not that Miller  



would have secured other meetings and eventually another marketing partner had the  



Copper Center Project not died so soon after the Cabela's meeting.   



                                        ii.	      A reasonable juror could conclude that the Copper  

                                                                            

                                                  Center Project could have found a mobile carrier.  



                                                                                                             

                    Trimble also points to Chen's testimony that no carrier was likely to certify  



                                                         

the  phone,  testimony  it  asserts  was  uncontested.    The  superior  court  had  the  same  



                                      

concerns, observing that RDS failed to secure a commitment from AT&T and "presented  



no evidence that any wireless service carrier ever committed" to the project.  



                                                                           

                    But  Miller,  the  project  consultant,  testified  that  he  would  not  expect  a  



                

carrier to commit while the Copper Center Project was still in its early stages.  And  



                                                                                                                      

although Chen testified that "certification [by a wireless carrier was] going  to be an  



                                                                                                                 

issue"  because  of  problems  with  data  and  audio  quality,  a  reasonable  juror  could  



conclude that the partnership would continue to improve its hardware until it could be  



certified for wireless use.  



                               

                    There was also evidence that a wireless carrier would have committed to  



                                                   

the Copper Center Project once the project had a viable phone.  Chen admitted that  



                            

Feucht had "very impressive contact[s]" with wireless providers; Feucht did succeed in  



arranging a meeting with AT&T through "a prior relationship with" an AT&T vice  



president.  Trimble highlights testimony from an AT&T executive that the carrier was  



                                                                                                                         

not interested in the phone because it was a "niche opportunity," but AT&T was not the  



                                     

only wireless carrier on RDS's horizon, and the jury was aware that other "niche" phones  



                                                                                                

existed  and  had  found  wireless  carriers  to  support  them.                           A  reasonable  juror  could  



                                                              -23-	                                                        7162
  


----------------------- Page 24-----------------------

                                                                                

conclude that the Copper Center Project would more likely than not have succeeded in  



finding a wireless carrier.  



                                                                                                        

                                       iii.	     A reasonable juror could find that RDS could have  

                                                 secured pre-launch funding.  



                                                                                      

                    When granting a judgment notwithstanding the verdict, the superior court  



also noted - and Trimble emphasizes on appeal - that at the time Trimble Mobile  



withdrew from the Copper Center Project, RDS had not yet secured the money for its  



                                                                                                            

pre-launch financial commitment of $6 to $8 million. The superior court was concerned  



that RDS may have relied too optimistically on "Miller's assumption that he could secure  



                                                                                              

capital 'easily,' " and Trimble adds "that RDS was rejected by the only funding source  



           

it ever met with."  Trimble also argues that it would have been impossible for RDS to  



secure funds before the partners finalized some kind of contractual relationship.  



                    A  reasonable  juror  need  not  have  found  these  arguments  convincing.  



Feucht testified that RDS's financial contribution was earmarked for paying software  



engineers, that RDS "couldn't start building software until there was a hardware device,"  



                                     

and that "[t]here wasn't a concerted effort on [RDS's] part" to raise the funds while the  



hardware was still in the design stage.  The question the jury faced, thus, was whether  



                                                                                                          

RDS would be able to raise funds once the partners had formalized their relationship and  



                                                     

developed a hardware prototype.  A reasonable juror could accept Miller's testimony that  



                                                                                                                   

$6 to $8 million was an attainable sum.  Miller testified it was "not a lot of money to  



                                                                             

raise.  You know, I have seen . . . projects with . . . less merit and less wherewithal that  



                                                                                                        

raised . . . north of $10 million by just, you know, contacting a number of high net worth  



                                      

individuals."  He said he had "a Rolodex of both industry people and enthusiasts" who  



                                                           

would be interested in investing in the Copper Center Project even if Trimble Mobile  



                                                          

walked away.  He testified about his  experience as an executive who was currently  



"buying  and  selling  companies"  for  Cerberus  Capital,  had  served  as  chairman  of  



                                                             -24-	                                                       7162
  


----------------------- Page 25-----------------------

                                                                       

Bushmaster when it acquired Remington, had worked in telecommunications for two  



                                                                                    

nationwide  wireless  companies,  and  had  "negotiated  a  billion-dollar  contract  with  



NASA" for Lockheed Martin.  A reasonable juror could conclude based on Miller's  



experience and expertise that RDS would more likely than not raise the funds it needed  



for pre-launch financing when it became necessary for it to do so.  



                                                                                 

                                       iv.	      A reasonable juror could conclude that RDS could  

                                                                                             

                                                 have  hired  engineers  and  developed  a  software  

                                                 prototype.  



                    The superior court also observed, and Trimble argues on appeal, that at the  



                                                                        

time Trimble Mobile withdrew from the project RDS had yet to hire software engineers  



or develop its software prototype.  But again there was evidence of RDS's ability to  



                                        

perform these tasks when the time was right.  Feucht testified at trial that he had been  



chief information officer, then chief executive officer, of a company at which he built  



software, was responsible for "all [of] the technology within the entire corporation," and  



                                                               

managed software partners and expenses. He left that company to start his own software  



                                                                             

company.  His work with those two companies was featured in a magazine for senior IT  



                                  

executives and in the Wall Street Journal.  When he moved to Alaska he served as a  



                                                                                               

consultant for local businesses and in one case "built a software system with myself and  



                                                                 

another engineer that did all the local route planning, scheduling, [and] maintenance of  



                                                                                          

the machines" for a coffee delivery company.  A reasonable juror could conclude that it  



                                                                                                               

was more likely than not that someone with Feucht's practical experience was capable  



                             

of hiring software engineers for the Copper Center Project and that the software could  



be developed once the hardware existed to support it.  



                                                             -25-	                                                       7162
  


----------------------- Page 26-----------------------

                                        v.	       A     reasonable          juror      could       conclude         that     the  

                                                                       

                                                  smartphone could have been built at an acceptable  

                                                  cost.  



                    Trimble argues that the smartphone's hardware could not satisfy consumer  



                                           

demands and that the final product would prove to be too expensive.  According to  



                                                                                                                    

Chen's trial testimony, the market survey data showed that consumers wanted a versatile  



                                

phone  that  worked  well  in  daily  life  while  including  such  features  as  a  satellite  



                                                                                

emergency locator, weather information, a ballistics calculator, and a laser rangefinder.  



Chen  testified,  however,  that  those  features  would  likely  interfere  with  the  phone's  



performance and give it a bulky package.  He also testified that initial cost estimates for  



                                                                                                     

the phone were about $1,200, with an $800 cost to the consumer if a wireless carrier  



subsidized the phone - an amount, according to the survey data, that was more than  



consumers were willing to pay.  



                    However, the jury also heard testimony about other products similar to  



                            

RDS's  proposed  smartphone  that  were  affordable  and  technologically  viable.    For  



                                                                                                                 

instance,  the  jury  heard  from  a  Cabela's  marketing  director  that  Casio  had  built  a  



"ruggedized, shockproof, and waterproof" phone that Cabela's considered selling with  



                                                                                         

preloaded apps. An expert for Trimble testified that several ruggedized phones had been  



                

produced  since  2006;  he  also  testified  about  existing  phone  apps  that  were  "almost  



                                                                                                          

identical to what was being presented" by RDS, although not "all in one package" as  



                         

RDS proposed.  From this evidence that other, similar products had been created for  



                                                                                                                        

market without the problems Chen identified, a reasonable juror could conclude that the  



                        

Copper Center Project more likely than not could have produced a marketable product.  



                                                              -26-	                                                        7162
  


----------------------- Page 27-----------------------

                                     vi.	      A  reasonable  juror  could  find  that  the  Copper  

                                               Center Project could have been realized despite the  

                                               lack of exact financial and sales projections.  



                   Another barrier to the success of the Copper Center Project, according to  

                                                                                   



Trimble, was the lack of realistic financial and sales projections.                         Trimble notes RDS's  



own admission that the project could not go forward unless "all parties were comfortable  

                                                                                                  



with the projected financials."  And, Trimble claims, the projected financials had not  



                                                                                             

been sufficiently well established for two reasons:  first, the "user adoption rate" of the  



                                                          

proposed smartphone was unknowable; and second, the projection did not account for  



Remington's departure from the project.  But a reasonable juror could reject Trimble's  



                                    

characterization of these unknowns as insurmountable barriers to the project's continued  



development or success.  



                   Boehnen, Remington's project manager and marketing director, testified  



                                                         

that although the actual user adoption  rate  for a novel product was "unknown" and  



                                                                           

"unknowable," he could calculate the Copper Center Project's user adoption rate based  



                                                                                       

on the adoption rate for innovative products historically, using a simple projection model  



called "Robert's Adoption Curve."  A reasonable juror could conclude from Boehnen's  



testimony that the project would have moved forward as he projected and that the risk  



of an otherwise "unknowable" user adoption rate was an acceptable one to partners  



dealing with an innovative product.  



                   Also,  although  the  project's  financials  were  based  on  Remington's  



participation, a reasonable juror could conclude it was more likely than not that the  



project would have found a different marketing partner, as explained above, and that  



with  a  new  marketing  partner  the  project  would  have  seen  success  similar  to  that  



estimated based on Remington's participation.  



                                                          -27-	                                                   7162
  


----------------------- Page 28-----------------------

                                                                                              

                    Since a reasonable juror could find that none of the hurdles identified by  



                                                                 

Trimble was insurmountable, a reasonable juror could find that RDS proved the element  



of causation for each of its claims by a preponderance of the evidence.   



                                                                                                    

                              b.	       A  reasonable  juror  could  find  that  RDS's  reliance  on  

                                                                                                                 

                                        Trimble Mobile's misrepresentations caused RDS to lose  

                                        profits.  



                                                                                            

                    The superior court properly instructed the jury that to find for RDS on its  



                                                                                                                    

claims  of  negligent  and  intentional  misrepresentation,  the  jury  needed  to  find  by  a  



                                                                              

preponderance of the evidence that RDS's reliance on Trimble Mobile's misstatements  



                                                     

was a substantial factor in causing RDS's monetary loss.  Trimble challenges the jury's  



                                                                                                      

causation findings on RDS's tort claims, contending that RDS did not prove it "would  



                                                                                

have  taken  a  different  course  of  action"  enabling  it  to  earn  profits  absent  Trimble  



Mobile's misrepresentations about Trimble Outdoors's competing project.    



                    In  order  to  prove  causation,  RDS  needed  to  demonstrate  only  that  the  



                                                                          

misrepresentations caused some monetary loss.  RDS concedes that the record does not  



support a finding that the Copper Center Project could have produced a marketable  



phone  by  March  2011  even  if  Trimble  Mobile  had  been  forthcoming  about  the  



                                                                                                                 

competing project.  But Feucht testified that Chen and Boehnen convinced RDS to hold  



                                           

off developing the software for an earlier launch "because they thought it was going to  



                                                                                              

take away from the hardware sales."  A juror could reasonably conclude that RDS could  



                               

have spent the time between November 2010 and March 2011 developing competitive  



apps  while  it  sought  new  partners  for  the  later  creation  and  launch  of  a  ruggedized  



                                                                                                       

smartphone.  Accordingly, a reasonable juror could find it was more likely than not that  



Trimble Mobile's misrepresentations prevented RDS from taking action that would have  



either delayed the launch of Trimble Outdoors's competing product or sent an RDS  



software product to market sooner - thus causing RDS to lose some profit.  



                                                              -28-	                                                        7162
  


----------------------- Page 29-----------------------

                                                                                               

                             c.	      A  reasonable  juror  could  find  that  Trimble  Mobile's  

                                                                                                            

                                      breach  of  the  nondisclosure  agreement  and  breach  of  

                                      fiduciary duty caused RDS to lose profits.  



                                                                                                                  

                   Trimble also contends that RDS failed to prove that it lost profits due to  



                                           

Trimble Mobile's breaches of contract and fiduciary duty.  Trimble argues that RDS was  



unable to show how Trimble Outdoors used the market research data or profit and loss  



                                                      

statements to speed up the release of its own apps, ReconHunt and ReconFish, or how  



the alleged breaches prevented RDS from achieving the "first mover" advantage by  



releasing the Copper Center Project smartphone first.  



                   However, a reasonable juror could conclude that Trimble Outdoors used  



the  confidential  data  disclosed  by  Chen.    As  RDS  argues,  the  similarities  between  



                                                                          

ReconHunt and HuntZone support an inference that Trimble Outdoors used RDS's ideas  



                                                                                                         

and accelerated ReconHunt's release once the Remington-generated data and the profit  



                                                       

and loss statements showed that those "ideas would be hugely profitable."  A reasonable  



juror could also conclude that Trimble Mobile delayed producing the hardware and  



persuaded RDS not to market its software separately in order to prevent RDS from  



                                                                       

competing with ReconHunt and ReconFish. And a reasonable juror could conclude that  



Trimble Mobile delayed its own departure from the partnership until it was too late for  



RDS to create even a competitive app on its own.  Weaving these conclusions together,  



a reasonable juror could find that RDS more likely than not lost first-mover status to  



Trimble  Outdoors  because  Trimble  Mobile's  breach  accelerated  the  production  of  



ReconHunt and ReconFish while delaying the Copper Center Project.  



                   Trimble also argues it was unforeseeable that "it could be liable for lost  



                                                                         

future profits generated by a joint business" when the only formal agreement between  



                                                                

the parties was the nondisclosure agreement, the limited purpose of which was to protect  



confidential  information,  not  commit  the  parties  to  a  joint  profit-making  venture.  



                                                          -29-	                                                    7162
  


----------------------- Page 30-----------------------

Contract damages are recoverable only if foreseeable, and they are foreseeable when they  



                                                                                                                  

follow from the breach "in the ordinary course of events, or . . . as a result of special  



                                                                                                31  

                                                                                                    The nondisclosure  

circumstances . . . that the party in breach had reason to know." 



agreement's stated purpose was "the protection and preservation of the confidential  



and/or proprietary nature of information" the parties disclosed to each other while they  



discussed  "the  terms  of  a  prospective  business  relationship."    Even  though  the  



nondisclosure  agreement  itself  did  not  create  a  partnership,  the  parties  foresaw  the  



                                                                                                         

possibility that a more formal business relationship would evolve from their agreement.  



         

And even if there never was a partnership, it was reasonably foreseeable that RDS's  



                                             

prospective  business  would  be  damaged  and  any  future  venture  related  to  RDS's  



                                               

ruggedized smartphone would lose profits "in the ordinary course of events" if Trimble  



                                                                                          

Mobile divulged confidential information protected by the nondisclosure agreement;  



                                                                            

indeed, to prevent such harm was the agreement's fundamental purpose.  A reasonable  



                                                                                                       

juror could thus find it was foreseeable that RDS would be damaged if Trimble Mobile  



breached the nondisclosure agreement and that RDS was in fact damaged.  



          B.	       Although  It  Was  Error  To  Grant  A  Judgment  Notwithstanding  

                                                                                                   

                    The  Verdict,  The  Superior  Court  Was  Correct  to  Conclude  That  

                    The Evidence At Trial Did Not Support The Damages Award.  



                                                                                              

                    1.	       The      judgment           notwithstanding              the     verdict       erroneously  

                              conflated the fact of damages and the amount of damages.  



                                                                                                   

                    In granting Trimble a judgment notwithstanding the verdict, the superior  



court found that because RDS "cannot prove lost profits with reasonable certainty, [RDS]  



          31        Native Alaskan Reclamation & Pest Control, Inc. v. United Bank Alaska                                      ,  



685  P.2d  1211,   1219  (Alaska  1984)  (noting  that  lost  profits  may  be  reasonably  

foreseeable "as a probable result of a breach" when the parties entered the contract   

"because  [the  loss]  follows  from  the  breach."  (quoting  RESTATEMENT  (SECOND)  OF  

CONTRACTS   351 (AM .  LAW INST . 1981))).  



                                                             -30-	                                                       7162
  


----------------------- Page 31-----------------------

cannot prove its damages claim."  RDS contends on appeal that the court's finding, and     



its decision to grant a judgment notwithstanding the verdict, resulted from the court's  



erroneous conflation of two different burdens of proof:  the burden required to show that  



                                                                                                                                 

RDS suffered damages and the burden required to show the amount of those damages.  



                                                                                                                                          

                        RDS  correctly  observes  that  the  elements  of  a  tort  cause  of  action  -  



                                                                                       

including the fact  of damages (i.e., the fact that the plaintiff suffered harm) - must be  



                                                                             32  

proven by a preponderance of the evidence;                                      the amount of damages is a separate factual  



                                                                                                                           

issue that, in the case of lost profits, must be proven to a reasonable certainty, based on  



                                                                 

evidence  that  "afford[s]  sufficient  data  from  which  the  court  or  jury  may  properly  



                                                              33  

                                                                   Because the fact of lost-profit damages and their  

estimate the amount of damages." 



amount are different issues, a plaintiff may fail to prove the amount of lost profits to a  



                                                                                          

reasonable certainty even after having proved by a preponderance of the evidence that  



                            34  

                                  This  dichotomy  is  reflected  in  the  Restatements  of  Contracts  and  

it  was  harmed.                                                                            

Torts.35  



            32          Fernandes v. Portwine , 56 P.3d 1, 5 (Alaska 2002) ("Preponderance of the                  



evidence is the general burden of persuasion in civil cases." (citing                                                   Addington v. Texas ,  

441 U.S. 418, 423 (1979)).  



            33          Azimi v. Johns , 254 P.3d 1054, 1065 (Alaska 2011) (quoting Sisters of  



Providence in Wash. v. A.A. Pain Clinic, Inc. , 81 P.3d 989, 1007 (Alaska 2003)).  



            34          See, e.g., Geolar, Inc. v. Gilbert/Commonwealth Inc. of Mich., 874 P.2d  



937, 943, 947 (Alaska 1994) (finding evidence sufficient to support jury finding that  

defendant breached its contract but reversing award of lost profits as "too speculative").  

                                                                                  



            35          See RESTATEMENT  (SECOND) OF  CONTRACTS     352   cmt. a,   illus. 2   (AM .  



L 

                     

   AW  INST . 1981) (noting that recovery is limited to reliance or nominal damages if a   

plaintiff fails to prove lost profits with reasonable certainty); R                                              ESTATEMENT (SECOND)  

OF  TORTS     774A   cmt.  c   (AM .   LAW  INST .    1979)  ("Sometimes,  when  the  court  is  

convinced  that  damages  have  been  incurred  but  the  amount  cannot  be  proved  with  

                                                                                                                                    (continued...)  



                                                                          -31-                                                                     7162
  


----------------------- Page 32-----------------------

                      Here, the jury was correctly instructed on the difference between the proof     



required to show the fact of damages and that required to determine the amount of an                                     



award   of    lost    profits.       The    instructions    for    finding   intentional    and   negligent  



misrepresentation stated that "RDS must prove it is more likely true than not" that it  



                                       

suffered         a    monetary           loss      as    a    result      of     its    reliance        on      Trimble         Mobile's  



                                                                                                                          

misrepresentation.  For the contract claims, the instructions explained that the jury must  



                                                                   

find that it is "more likely true than not true that Trimble deprived RDS of a benefit of  



the contract."  But the jury instruction for damages provided that "[i]f you decide in  



                                                                                               

favor of RDS on any of its claims, you must then decide how much money, if any, will  



                                                                                                                        

fairly compensate RDS."  (Emphasis added.)  The damages instruction also explained  



that  the  damages  RDS  sought  -  lost  profits  -  had  to  be  proven  with  reasonable  



                                                                                                                       

certainty.  The jury was thus correctly instructed that RDS could prevail on its claims by  



                                                                                 

proving their elements by a preponderance of the evidence and yet receive no lost-profits  



damages, if the evidence did not support such an award to a reasonable certainty.   



                                                             

                      In granting a judgment notwithstanding the verdict, however, the superior  



                                                                                                                   

court applied only the reasonable certainty standard when considering whether RDS lost  



                                                                    

profits as a result of the demise  of the  Copper Center Project.  This was error, as it  



resulted in setting aside the jury's finding of liability based on the higher standard of  



proof for lost-profit damages.  



                                                                                      

                      2.	        The evidence did not provide a reasonably certain basis for an  

                                 award of lost profits to RDS.  



                      Although  we  conclude  that  the  evidence  was  sufficient  to  allow  a  



                                                                                                     

reasonable  juror  to  find  that  RDS  proved  the  elements  of  its  causes  of  action  by  a  



                                                                                                

preponderance of the evidence, we must also conclude that the superior court was correct  



           35(...continued)  



reasonable certainty, it awards nominal damages."); id. at  912 cmt. c, illus. 1.  



                                                                    -32-	                                                                  7162  


----------------------- Page 33-----------------------

                                                                                                                            

to find the evidence insufficient to show lost profits to a reasonable certainty.  The jury  



                                                                                                                        

was instructed that reasonable certainty meant it could "not award damages to RDS on  



the basis of speculation, guess, or conjecture."  But there was nothing else on which the  



jury could base a lost-profits award in this case.  



                                                                    

                     Alaska  permits  recovery  of  lost  profits  for  a  business  that  is  yet  to  be  



established, but it holds new businesses to the same standard of proof as established  



                  36  

businesses.           The plaintiff must provide "sufficient data from which the court or jury  



                                                                                                                             

may properly estimate the amount of damages, which data shall be established by facts  



                                                                        37  

                                                                             In Guard v. P&R Enterprises, Inc., we  

rather than by mere conclusions of witnesses." 



observed  that  courts  have  considered  "the  profit  history  from  the  plaintiff's  similar  



                                                                  

business at a different location" and "the profit history from the business in question if  



                                                                                                           

it  was  successfully  run  by  someone  else  before  the  plaintiff"  in  calculating  a  new  



                                   38  

business's lost profits.                In Guard we also held that a plaintiff may not "rely solely on  



                                                                    39  

statistical projections to prove lost profits."                          



           36        See Guard v. P & R Enterprises, Inc.                     , 631 P.2d 1068, 1072 (Alaska 1981).   



           37  

                                                                                                                          

                     City  of  Whittier  v.  Whittier  Fuel  &  Marine  Corp.,  577  P.2d  216,  223  

(Alaska  1978)  (quoting  Levene  v.  City  of  Salem ,  229  P.2d  255,  263  (Or.  1951)),  

disapproved of on other grounds by Native Alaskan Reclamation & Pest Control, Inc.  

                                                                                                             

v.  United Bank Alaska, 685 P.2d 1211 (Alaska 1984).  



           38        631 P.2d at 1072 (first citing Standard Mach. Co. v. Duncan Shaw Corp.,  



208 F.2d 61, 64-65 (1st Cir. 1953); Leoni v. Bemis Co. , 255 N.W.2d 824, 826 (Minn.  

 1977); El Fredo Pizza, Inc. v. Roto-Flex Oven Co. , 261 N.W.2d 358, 364 (Neb. 1978);  

                                                                                                      

then citing Gen. Elec. Supply Co. v. Mt. Wheeler Power, Inc., 587 P.2d 1312, 1313 (Nev.  

                                                                                                

 1978)); see also Sisters of Providencein Wash., 81 P.3d at 1007 (holding that expert  

testimony  accompanied  by  the  testimony  of  two  doctors  with  similar  practices  and  

defendant's preliminary revenue estimates supported a finding of lost profits).  



           39        Guard, 631 P.2d at 1072 n.4 (citing  Whittier Fuel & Marine Corp., 577  



                                                                                                                   (continued...)  



                                                                 -33-                                                           7162
  


----------------------- Page 34-----------------------

                     RDS argues that Guard does not intend to exclude "all proof of damages   



based on any kind of forecast or prediction," because Alaska courts have since relied on       



the Restatement's analysis of lost profits.                     The Restatement notes that "damages may be  



established with reasonable certainty with the aid of expert testimony, economic and  



                                                                                   

financial data, market surveys and analyses, business records of similar enterprises, and  



              40  

the like."        But RDS did not present any of these types of evidence at trial.  It relied on  



two  sources:    the  profit  and  loss  statements  generated  from  the  Remington  market  



                                           

research data following the partners' September 2009 meeting at Copper Center and the  



                                

valuation  sketched  out  on  the  whiteboard  by  a  Trimble  Mobile  employee  at  the  



December 2010 meeting after Remington had announced its withdrawal from the project.  



                                                                                                                     

The project also generated market surveys, but RDS did not use these to  support its  



                                    

statistical projections; nor did it present evidence that its projections were corroborated  



by the experience of similar businesses.  The jury appeared to base its verdict on the  



"whiteboard" numbers, which valued the project at $38.5 million assuming a "75%  



revenue goal"; extrapolating from this number to 100% of the project's revenue goals  



results in $51.3 million, the amount of the jury's verdict.   



                                                                            

                     RDS argues that its evidence  can  be distinguished from the "statistical  



projections" we disapproved in  Guard because Trimble Mobile helped develop and  



                                                                                           

approve the profit and loss statements and generated the whiteboard valuation itself.  



                                                         

RDS suggests we clarify that Guard "intended to disallow projections developed by the  



                                                

plaintiff alone, perhaps as part of an optimistic business plan or created specifically for  



                                                                 

trial."  But projected profits are not more reliable simply because the defendant agreed  



          39(...continued)  



P.2d at 223 n.27)).  



          40         RESTATEMENT  (SECOND)  OF  CONTRACTS   352 cmt. b (AM .   LAW  INST .  



1981).  



                                                               -34-                                                          7162
  


----------------------- Page 35-----------------------

                      

with them at the time they were created; both parties may be equally detached from the  



                                                                                                             41  

economic realities on which the jury is required to base its award.                                              



                      Here, even assuming that a juror concluded that both parties believed the  



                

financial  statements  were  realistic  when  they  were  created,  RDS  did  not  present  



                                                                                                      42  

sufficient evidence that the statements actually were realistic.                                           They were calculated  



using  research  based  on  Remington's  customer  base;  with  Remington  gone,  they  



provided at most a rough estimate for the phone's success, without accounting for how  



new  partners,  a  new  marketing  strategy,  and  a  new  customer  base  might  affect  the  



project's actual profits.  



                      As for the whiteboard valuation of projected revenues, RDS admits that  



"[e]xactly how the whiteboard figures were determined is not clear."  RDS gave no  



                                                                           

explanation of how the figures calculated the cost of producing the smartphone, its retail  



                                                                                                                             

value, or RDS's estimated expenses.  Although we do assume, viewing the evidence in  



the  light  most  favorable  to  RDS,  that  the  whiteboard  represents  Trimble  Mobile's  



                                                                                        

valuation of RDS at the time and depicts the phone's expected profit, the numbers have  



no obvious factual basis, lack real-world corroboration from comparable sources, and  



cannot be said to show the amount of RDS's lost profits with reasonable certainty.  



           41         See Hernandez v. Sovereign Cherokee Nation Tejas                                    , 343 S.W.3d 162, 174  



(Tex. App. 2011) (noting that hope, "even when that hope is realistic, is not enough for   

recovery  of  lost  profits"  and  distinguishing  a  case  in  which  testimony  supporting  

projections included "actual data from operating casinos in calculations" (first quoting  

                                                        

Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 280 (Tex. 1994);  

                                                                                                                     

then citing Bright v. Addison , 171 S.W.3d 588, 602-03 (Tex. App. 2005))).  



           42  

                                                                                                                   

                      Cf. Geolar, Inc. v. Gilbert/Commonwealth Inc. of Mich., 874 P.2d 937, 946  

(Alaska 1994) ("Because [plaintiff] had no prior experience with contracts of this size  

and complexity, its own estimates, offered without proof of how they were reached, are  

                                                                                               

unreliable.").  



                                                                    -35-                                                               7162
  


----------------------- Page 36-----------------------

                     Nor was there any other evidence supporting an award of lost profits.  As  

                                                                                                                        



an alternative to the jury verdict, RDS argues that it is entitled at least to an award of lost  

                                                                                                                                



profits from sales of a stand-alone app, because a reasonable juror could conclude that  

                                  



RDS's and Trimble Outdoors's apps were strikingly similar, and Larry Fox of Trimble  

                                                                                     



Outdoors testified that "the anticipated profit and loss" for Trimble Outdoors's apps in  

                                             



2012 "should have [amounted to] about two to two and a half million."  But Fox's  



                                                                                             

explanation  of  how  he  reached  these  numbers  indicates  that  they,  too,  were  simply  



                                                                                                                      

projections, based on "estimations of subscriber goals that we would have liked to have  



                                                                                                         

seen."       Like  the  whiteboard  valuation  and  the  profit  and  loss  statements,  Trimble  



                                                                                                             

Outdoors's hoped-for profits for the stand-alone apps, without more, are not a sufficient  

                                                     43  We are forced to conclude that, although the jury's  

basis for a damage award to RDS.                          



verdict in favor of RDS is otherwise supportable, its award of damages must be vacated.  

                                          



           C.        RDS Is Entitled To Nominal Damages.  



                     RDS  contends  that  "[a]t  minimum,  because  RDS  proved  that  it  was  

                                                                                                



damaged, it was entitled to an award of nominal damages."  We agree.  Trimble objects  

                                                                                                



to such an award, arguing that RDS waived it by failing to propose a nominal damages  

                                                  



instruction at trial and that RDS failed to prove the damage element of its claims.  Having  

                                          



rejected the latter argument in the preceding discussion, we also hold that the nominal  



damages claim is not waived.    



                     In  Anchorage  Chrysler  Center  v.  DaimlerChrysler  Motors  Corp. ,  we  



allowed an award of nominal damages even though that claim was raised for the first  

                                                                                                                        



           43  

                     See id. (suggesting the plaintiff could have offered "profits obtained by   

other  contractors  performing  similar  jobs");  Guard,  631  P.2d  at  1072  n.4  (noting  a  

plaintiff may not "rely solely on statistical projections to prove lost profits").   



                                                                 -36-                                                            7162
  


----------------------- Page 37-----------------------

                      44  

time on appeal.           The plaintiff sued for fraudulent misrepresentation but at a bench trial  



                                                                              45  

"failed to prove the extent and amount of damages."                               The plaintiff's complaint had  



requested "declaratory relief, injunctive relief, and compensatory and punitive damages,"  



                                      46  

                                                                                                    

but not nominal damages.                  The defendant argued that the plaintiff waived its nominal  



                                      

damages claim because it raised the issue for the first time on appeal, but we rejected that  



               47  

                   Instead, we analyzed whether the new arguments were "closely related to  

argument.                                                                                                        

the trial court arguments and 'could have been gleaned from [the] pleadings.' "48                                        We  

             



concluded that the question of nominal damages was properly before the court because  

                                                                                            



the  complaint  "raised  the  issue  of  [defendant's]  misrepresentations  and  requested  

                                                              49  We then determined that nominal damages  

unspecified damages and additional relief."                                                           



were available for a claim of fraudulent misrepresentation where a party "proved that it  

                                                                                                                       



                                                                                                                  50  

did suffer a loss but was not able to establish the extent or amount of damages."                                     Since  

                                                                                                    



the  plaintiff  had  proved  it  incurred  losses  when  it  replaced  logos  in  reliance  on  the  



defendant's misrepresentations about expanding its business but failed to quantify the  

cost of doing so, we held that nominal damages were appropriate.51  



          44       221 P.3d 977, 990 (Alaska 2009).  



          45       Id. (quoting Zok v. State, 903 P.2d 574, 577-78 (Alaska 1995)).  



          46       Id. at 982.  



          47       Id. at 990.  



          48       Id.  (alteration in original) (quoting Zeman v.  Lufthansa German Airlines ,  



699 P.2d 1274, 1280 (Alaska 1985)).  



          49       Id.  



          50       Id. at 991.  



          51       Id. at 992.  



                                                            -37-                                                       7162
  


----------------------- Page 38-----------------------

                   In this case, RDS's complaint alleged breaches of contract and fiduciary  



                                                                                                             

duty and that it "suffered economic losses as a result of Trimble's breaches of contract  



                                                                           

in the amount of not less than $111,666,973.00, the exact amount to be proven at trial."  



                                                             

The complaint also alleged that fraudulent and negligent misrepresentation each caused  



                                                   

economic damages "in the amount of not less than $111,666,973.00, the exact amount  



to be proven at trial."  RDS requested "an award of general, past and future economic  



                                                                    

and other direct damages in the amount to be proven at trial," "an award of indirect,  



special, consequential, exemplary, extraordinary, and/or punitive damages in the amount  



                                

to be proven at trial," and "an award of damages for fraud in the amount, plus punitive  



damages in the amounts to be proven at trial."  Finally, RDS requested "such other relief  



[as it is] entitled to under law."  



                   Following Anchorage Chrysler Center , we conclude that RDS's nominal  



                                                                           

damages claim is properly before us despite RDS's failure to request an instruction on  



the issue.  A right to at least nominal damages is closely related to the arguments made  



                                                                                 

at trial and could have been gleaned from the pleadings, since RDS did request general  



damages in an "amount to be proven at trial" and "such other relief" to which it was  



entitled.    Because  RDS  proved  that  it  "incur[red]  a  pecuniary  loss  of  undetermined  

amount" as a result of Trimble Mobile's conduct, it is entitled to nominal damages.52  



V.        CONCLUSION  



                                                                      

                   We REVERSE the superior court's grant of judgment notwithstanding the  



                   

verdict.  We GRANT REMITTITUR on the jury's award of damages for lost profits and  



REMAND for a determination of nominal damages.  



          52       Id. at 991.  



                                                           -38-                                                        7162  

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