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GPL Treatment v. La.-Pacific Corp. - 133 Or. App. 633, 894 P.2d 470 (1995)


To recover for lost profits, a plaintiff must establish, with reasonable certainty, both the existence and amount of lost profits. Only net lost profit may be recovered. "Reasonable certainty" signifies nothing more than "probability" and is found to refer to the kind of evidence required rather than the quantum of proof. In reviewing a trial court's denial of a motion to withdraw the issue of lost profits from a jury, the question is whether there is evidence in the record to permit a finding of some net lost profits. 


Plaintiffs-respondents, who were sellers and three separate wood products corporations, sued defendant-appellant buyer Louisiana-Pacific Corporation to recover lost profits on sales agreements by plaintiffs to sell 88 truckloads of cedar shakes to L-P. Plaintiffs claimed that the buyer breached its agreement to accept the remaining 75 truckloads. The buyer asserted as an affirmative defense that plaintiffs' claims are barred by the statute of frauds. The trial court denied the buyer's motions in limine and for a directed verdict. The jury returned a verdict for the maximum amount of each plaintiff's prayer. The buyer challenged the judgment, arguing that the sellers' claims for lost profits should have been withdrawn from the jury because the amount of net profit was not determinable with reasonable certainty. The buyer argued that when the sellers inadvertently produced a note during discovery they waived any claim of attorney-client privilege. The buyer also contended that the sales contract failed for noncompliance under the statute of frauds, Or. Rev. Stat. § 72.2010.



Where plaintiff seller claimed net lost profits, did the trial court err in denying defendant buyer's motion to withdraw the issue of lost profits from the jury?




The Court of Appeals of Oregon affirmed the denial of the buyer's motions in limine and for a directed verdict and the judgment in favor of the sellers. Affirming, the Court explained that in reviewing the trial court's denial of the motion to withdraw the issue of lost profits from the jury, the question was whether there was evidence in the record to permit a finding of some net lost profits. The Court concluded that there was ample evidence from which the jury could make that determination, either by use of the figures provided by the seller or based on the market price, as argued by the buyer. Accordingly, the trial court did not err in denying the buyer's motion to take the issue of GPL's lost profits from the jury. Next, the Court held that the evidence supported the trial court's determination that there was no waiver of the attorney-client privilege as to the inadvertently produced note because there had been no voluntary disclosure. Whether a party has waived the attorney-client privilege was a question of fact to be determined by the trial court pursuant. The trial court did not err when it excluded the note. The sales contract could not have reasonably been read to indicate an intention that the agreement was to become final only after the buyer's approval of the terms. Every feature of the form suggested that it was what it was labeled, a confirmation, and not a mere offer. A sign and return instruction had not altered the apparent purpose of the document.

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