Business & Commercial Litigation - Damages & Civil Procedure

Commercial Litigator Austin Texas

Dec 9, 2012 — by Jeff Mundy
Tags: Commercial Litigation

[W]here a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

To invoke the equitable doctrine of laches, the moving party ordinarily must show (1) an unreasonable delay by the opposing party in asserting its rights and (2) a good faith and detrimental change in position by the moving party because of the delay. "Generally in the absence of some element of estoppel or such extraordinary circumstances as would render inequitable the enforcement of petitioners' right after a delay, laches will not bar a suit short of the period set forth in the limitation statute." Laches should not bar an action on which the applicable statute of limitations has not run unless to allow the action "would work a grave injustice" on the party asserting the laches defense. 

Consequential damages are those damages that result naturally, but not necessarily, from a party's breach of contract. Consequential damages are not recoverable unless the parties contemplated, at the time of contract formation, that such damages would be a probable result of the breach.  Thus, to be recoverable, consequential damages must be foreseeable and directly traceable to the breach and result from it.


Lost profits are damages for the loss of net income to a business and, broadly speaking, reflect income from lost business activity, less expenses that would have been attributable to that activity. The calculation of lost profits must be based on net profits, not gross revenues. 

Recovery for lost profits does not require that the loss be susceptible of exact calculation.  However, the injured party must do more than show that it suffered some lost profits. The amount of the loss must be shown by competent evidence with reasonable certainty. Id. What constitutes reasonably certain evidence is a fact-intensive determination.  As a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. 

 Lost revenue is not the correct measure of damages. Rather, lost net profits is the correct measure of damages. 

Superior Broadcast Products v. Doud Media Group, LLC (Tex. App. - Eastland, 2012).



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