On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3276-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 15, 2008
Before Judges Reisner, Sapp-Peterson and Alvarez.
Plaintiff, Amtech 1, Inc., appeals from the involuntary dismissal of its complaint at the end of the presentation of its case-in-chief pursuant to Rule 4:37-2(b). The court concluded that plaintiff's failure to offer any proof of damages was fatal to its claim, entitling defendant, Associated Humane Societies, Inc., to a directed verdict. We agree and affirm the involuntary dismissal of plaintiff's complaint with prejudice.
Plaintiff is a computer consulting company. In 1997, it entered into an agreement with defendant, a not-for-profit organization that receives and shelters animals. Under the agreement, plaintiff agreed to provide computer consulting services. In May 2002, the parties entered into another contract entitled "Mail List and Data Processing Services Contract." Under the terms of this contract, in consideration for mail list services that plaintiff would provide to defendant for the next seven years, defendant would pay plaintiff monthly payments of $6,000, with a 2.6 percent cost of living adjustment for each year after the first year. Plaintiff contends that the following language contained in Section IV, Paragraph 1 of the agreement is significant to this appeal:
1. This agreement can not be terminated by either party within the first 36 months.
2. Following the initial thirty-six[-]month term, Client may terminate this contract for cause as defined as complete failure to provide mail list services as set fort[h] in paragraph one of this agreement. Client will provide Vendor with thirty[-]day written notification and thirty days to remedy or cure for termination to occur.
Written notification of intent to terminate this agreement is to be sent to Notice address via certified mail 60 days prior to termination. During these 60 days, all responsibilities, terms, and conditions will remain intact.
3. In the event of early termination, both Vendor and Client agree to fully cooperate with each other both for final payments and for transfer of data.
Defendant initially made the required monthly payments until January 2004, at which time it ceased making any further payments. Plaintiff commenced a civil action against defendant, seeking to collect the monthly payments owed to it under the contract. Plaintiff alleged the payments owed totaled $405,000. Defendant denied the allegations contained in the complaint, and the matter proceeded as a bench trial before Judge Simonelli.
As part of its case-in-chief, plaintiff presented an expert, Dr. Frank Tinari, an economist. In his report, which was admitted into evidence, he opined that the damages to which plaintiff was entitled equaled $405,000, representing the remaining sixty months on the contract. Dr. Tinari testified that the present day value of the contract equaled $358,488. At the conclusion of plaintiff's case, defendant moved for a directed verdict based upon plaintiff's failure to prove its actual damages, which defendant urged was an essential element that plaintiff was required to prove in order to recover damages against it. The court permitted the parties to brief the issues.
In support of the motion, defendant argued that plaintiff failed to present any evidence related to its lost profits and that simply establishing the present value of the installment contract was insufficient to establish a prima facie case of anticipatory breach of contract. Citing Stopford v. Boonton Molding Co., 56 N.J. 169 (1970), plaintiff argued that proof of the present value ...