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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II



MUTUAL OF ENUMCLAW INSURANCE
COMPANY, a Washington corporation,


                 Appellant /
                           Cross Respondent,                                No. 42940 -3 -II


       V.



GREGG ROOFING, INC. a Washington                                     PUBLISHED OPINION
corporation,



                 Respondent /
                            Cross Appellant.




       MAXA, J. — Mutual             of   Enumclaw Insurance Co. ( MOE)   appeals a $   1. 5 million jury

verdict award on Gregg Roofing, Inc.' s claim for tortious interference with a business

relationship. The evidence at trial indicated that Gregg Roofing sustained minimal lost profits

and consequential damages, meaning that a large majority of the damages award must have

related to injury to its reputation. MOE argues that Gregg Roofing failed to present any evidence

to quantify the amount of injury to its reputation, and therefore that the trial court erred when it

denied MOE' s CR 50 motion for judgment as a matter of law and its alternative motions for a


new trial or reduction of the verdict. We agree, and hold that Gregg Roofing' s evidence

regarding injury to its reputation was insufficient to support the jury verdict. We reverse and

remand   for   a new   trial   on   the   damages issue only.
No. 42940 -3 - II



                                                    FACTS


Claim Background


         In June 2005, Parkside Church in Camas hired Gregg Roofing to install a new roof on the

church and to repair dry rot. In August, after Gregg Roofing had removed the roof in preparation

to install a new one, an unexpected rain storm damaged the building' s interior when water leaked

through the temporary covering Gregg Roofing had installed. The church filed a water damage

claim with its insurer, MOE, which assigned its employee Robert Lowrie as the adjuster for the

claim.




         Lowrie met with the church' s pastor and persuaded him to terminate Gregg Roofing' s

contract and     instead to hire Charles Prescott Restoration, Inc. ( CPR),            owned by Donald Chill, to

repair the water damage. The church hired CPR, fired Gregg Roofing, and did not allow Gregg

Roofing   to   complete      the remaining $ 5, 301      on   its $ 16, 212 roof replacement contract. In


exchange   for   being      given   the job, Chill   gave   Lowrie financial   gifts and "   kickbacks." Clerk' s


Papers ( CP)    at   135.   CPR fraudulently performed excessive and unnecessary repairs for which it

received insurance payments, which Lowrie authorized despite knowing that the repairs were

unnecessary. MOE paid a total of $2, 345, 537.66 to repair the damage to the church, a significant

portion of which it paid to CPR.


         MOE was subrogated to the church' s rights and sued Gregg Roofing, alleging that Gregg

Roofing had breached its            contract   by   causing the damage to the    church.'     Gregg Roofing asserted

various counterclaims, including a claim for tortious interference with a business relationship

based on Lowrie convincing the church to fire Gregg Roofing. Gregg Roofing alleged that MOE



  MOE did not seek reimbursement for the insurance money fraudulently paid to CPR.
                                                                2
No. 42940 -3 -II



was liable for Lowrie' s conduct because he was acting within the scope of his employment with

MOE.


Pretrial Rulings


         In a separate lawsuit MOE also had sued Chill and CPR for fraud, negligent

misrepresentation, and violation of the Consumer Protection Act, chapter 19. 86 RCW. The trial


court originally consolidated MOE' s case against Chill and CPR with its case against Gregg

Roofing. However, Gregg Roofing successfully moved to sever the two cases before trial.

Gregg Roofing and MOE subsequently filed summary judgment motions, which resulted in the

dismissal of all claims and counterclaims except MOE' s breach of contract claim and Gregg

Roofing' s tortious interference with a business relationship claim.

         During discovery, MOE propounded an interrogatory to Gregg Roofing asking for the

amount of claimed damages and the method of calculation. Gregg Roofing' s response was that

damages to its business   reputation were " ` at      least $ 10, 000.' "   CP   at   241.   MOE also made a


request for production for Gregg Roofing' s tax returns, but Gregg Roofing failed to produce

them until the week before trial. Allen Tiffany, Gregg Roofing' s president, testified in his

deposition that he could have retrieved the documents from his attic earlier but did not. Because


Gregg Roofing failed to.timely produce its tax returns and because MOE claimed that damages

were speculative, MOE moved to exclude evidence of damage to Gregg Roofing' s business

reputation. The trial court denied the motion to exclude all evidence of damage to Gregg

Roofing' s business reputation, but granted MOE' s motion to exclude evidence of lost profits

except   for the $ 5, 301 remaining   on   the   contract.
No. 42940 -3 - II



           When the trial court granted Gregg Roofing' s motion to sever MOE' s case against Chill

and CPR from the Gregg Roofing case, it also granted Gregg Roofing' s motion to exclude

evidence or argument regarding any fraud. Before trial, Gregg Roofing again moved to exclude

evidence of Chill' s fraud conviction and evidence that he was in prison, arguing that the

evidence was     irrelevant   and   inadmissible   under   ER 403. The trial court granted the motion. At


trial, MOE made an offer of proof for evidence relating to Chill' s fraud conviction as well as

testimony regarding the connection between Chill and Lowrie. The trial court denied the request

to admit them based on its previous rulings.

Damages Evidence


           At trial, Gregg Roofing' s only testimony regarding damages came from Tiffany, its

president. With regard to lost profits, Tiffany testified that Gregg Roofing was not allowed to

finish the project and therefore was not paid the $ 5, 301. 07 remaining on the contract. He stated

that Gregg Roofing expected a 10 percent profit on the Parkside Church contract. Therefore, the

total lost profits on the amount the church failed to pay were approximately $530. With regard

to consequential damages, Tiffany testified that after the church incident Gregg Roofing was not

asked to bid on several other residential and commercial roofing projects on which the company

normally would have been expected to bid. He specifically mentioned two churches and a four-

building apartment complex. Tiffany also testified that another contractor had recommended

Gregg Roofing for a job, but that the project owner declined because of the " Parkside Church

fiasco."    Report of Proceedings (RP) at 1646. Gregg Roofing did not provide any evidence

regarding the profits it may have lost because it did not bid on these projects or any other

evidence regarding financial losses relating to MOE' s conduct.


                                                           LI
No. 42940 -3 -II



         Tiffany provided minimal testimony regarding the fact that Gregg Roofing had sustained

injury to its reputation. He expressed his opinion that Gregg Roofing' s business reputation had

been injured. He explained that " everybody" knew that Gregg Roofing had started work on the

church because its boldly -labeled yellow trucks had been there for two weeks before the

flooding, and that the church' s roof remained unfinished with plastic sheeting over the top of it

for months. As noted above, Tiffany also mentioned not being asked to bid on several jobs, but

admitted that " I don' t know that I totally know how much work we missed and how much ...

the   word spread   in   a negative manner around      the community."            RP     at   1626.   Tiffany concluded,

 I know it' s hurt ...    our reputation, and our name           for   doing   quality   work was     damaged."   RP at


1623


         Tiffany also provided almost no testimony regarding the amount of damages caused by

Gregg Roofing' s injured reputation. Tiffany made only five statements at trial regarding injury

to reputation damages, and in four of those statements admitted that Gregg Roofing had no

documents or any other evidence regarding the amount of damages.

         Q. ... [   I] s there anything   else   in terms   of reputational      damage ...       that you can tell the
         jury about that you' re testifying today that arise out of this breach of the contract? ...
         A. ... I don' t know how you ever come up with a number like that, I just know ...
         we' ve been severely damaged in our local neighborhood as a result of this.

RP at 1625 -26.


         Q. ... So you' re not putting any numbers, you' re not bringing out any documents,
         you' re just going to let the jury decide what that is.
         A. That' s correct.


RP at 1626.


         Q. There are no documents that support any claim of financial loss for damage to your
         reputation[,] correct?

         A. That' s correct. How do you put a number on that?

                                                             5
No. 42940 -3 -II




RP at 1667.


          Q. ...      And you didn' t put a number on the damage to reputation today, did you?
          A. No.


          Q. ... [     A]re you asking [ the jury] to use their own good judgment to figure out how
          much that' s worth to your business?
          A. I' m praying that.

RP at 1673


          In the fifth statement, Tiffany was asked about Gregg Roofing' s answer to the damages

interrogatory,       which stated    that the    amount of      its    reputation       damages   was at   least $ 10, 000.


Tiffany acknowledged that this answer had been prepared by Gregg Roofing' s lawyers. Tiffany

testified that since 2009 he had observed additional damage to Gregg Roofing' s reputation, but

he did not quantify the amount.

          Tiffany also was asked how he felt about seeing the unrepaired roof when he drove past

the   church,   to   which   he   responded, "    Not very      good."        RP at 1620. MOE objected, arguing,

 There'   s no claim      for   emotional      distress damages."            RP at 1620. The trial court overruled the


objection and allowed           Tiffany   to   continue.   He    stated, "[        W] e knew that this was a very negative

effect on our        business   and we were      naturally very            upset   by   it." RP at 1621.


Verdict and Post Trial Motions


          The jury found that Gregg Roofing did not breach its contract with the church. On Gregg

Roofing' s counterclaim, the jury found that MOE tortiously interfered with Gregg Roofing' s

contract with the church through Lowrie as its agent, and that the interference was a proximate


cause of    Gregg Roofing' s damages.              The   jury   awarded        Gregg Roofing $ 1. 5 million in damages.




                                                                      el
No. 42940 -3 -II



         MOE had moved at the close of Gregg Roofing' s case for judgment as a matter of law

under CR 50( a) because Gregg Roofing failed to show a quantifiable amount of damage to its

business reputation, which the trial court had denied. After the jury returned its verdict, MOE

renewed its motion for judgment as a matter of law under CR 50( b) and moved for a new trial

under   CR 59   or, as an alternative, reduction of   the   verdict under   RCW 4. 76. 030.   MOE argued


that the damages were speculative because the jury did not receive any evidence concerning

Gregg Roofing' s annual profits, the business' s value, or the value of any of the jobs on which the

company was not asked to bid. The trial court denied the motions.

        MOE appeals the trial court' s denial of its motion for judgment as a matter of law and its


motion for a new trial or in the alternative, a reduction of the verdict. MOE also appeals the


evidentiary rulings regarding Tiffany' s testimony about his feelings about damage to the

business and evidence of Chill' s fraudulent conduct. Gregg Roofing cross appeals, arguing that

the trial court erred in failing to give its proposed instruction 19 regarding recoverable damages

for tortious interference with a business relationship.

                                         ANALYSIS


A.       DAMAGEs RECOVERABLE FOR INJURY TO A CORPORATION' s REPUTATION


         The primary issue in this case is the type of evidence required to support a damages

award for injury to a business' s reputation. MOE argues that a business must produce some

evidence that quantifies its actual loss from injury to reputation in order to support a verdict

awarding damages for that injury. Gregg Roofing responds that evidence that a business' s

reputation was harmed is sufficient to support a verdict for injury to reputation damages, even in

the absence of any evidence quantifying those damages. We agree with MOE.


                                                       7
No. 42940 -3 -II




         1.    Standard of Review


        MOE filed    post   trial   motions   for judgment         as a matter of   law   under   CR 50( a)( 1),   a new




trial under CR 59( a), and reduction of the verdict as an alternative to a new trial under RCW

4. 76. 030.   We cannot evaluate the trial court' s rulings on these motions until we resolve the


fundamental issue of what type of evidence a business must produce to recover damages for


injury to reputation. This is an independent legal issue. We review legal issues de novo.

Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P. 3d 369 ( 2003).

         2.    Recovery for Injury to Business Reputation

         A party claiming tortious interference         with a       business relationship    must prove: "(       1) the


existence of a valid contractual       relationship    of which       the   defendant has knowledge, ( 2)


intentional interference with an improper motive or by improper means that causes breach or

termination of the   contractual     relationship,    and (   3)   resultant   damage."    Elcon Const., Inc. v. E.


Wash. Univ., 174 Wn.2d 157, 168, 273 P. 3d 965 ( 2012). If the trier of fact finds that these


elements have been met, the party claiming tortious interference with a business relationship may

recover all " losses" proximately caused by the interference. Sunland Investments, Inc. v.

Graham, 54 Wn. App. 361, 364, 773 P. 2d 873 ( 1989).

         No Washington court has addressed the types of damages available to a party claiming

tortious interference with a business relationship. However, two Washington cases have

referenced    the RESTATEMENT ( SECOND) OF TORTS § 774A ( 1965).                      See Malarkey Asphalt Co. v.

Wyborney,     62 Wn.   App.   495, 513    n. 4,   814 P. 2d 1219, 821 P. 2d 1235 ( 1991); Lincor
No. 42940 -3 -II



Contractors, Ltd. v. Hyskell, 39 Wn.                    App.   317, 324, 692 P. 2d 903 ( 1984). RESTATEMENT section


774A provides:


              1)   One who is liable to another for interference with a contract or prospective
          contractual relation is liable for damages for
                      a)   the pecuniary loss of the benefits of the contract or the prospective
              relation;

                      b) consequential losses for which the interference is a legal cause; and
                      c) emotional distress or' actual harm to reputation, if they are reasonably to be
          expected to result from the interference.


 Boldface omitted.)


          Both parties apparently agree that section 774A applies. We also agree and hold that a

person establishing tortious interference with a business relationship can recover damages for
                                 2
injury to      reputation.           See also Island Air, Inc. v. LaBar, 18 Wn. App. 129, 145, 566 P. 2d 972

    1977) (   generally stating that reputation damages are recoverable in appropriate cases for tortious

interference with a business relationship).

                      Sufficiency of Damages Evidence

              It is   well established        that "   damages   must    be   proved with reasonable   certainty." Lewis


River    Golf,Inc.         v.   O.M. Scott & Sons, 120 Wn.2d 712, 717, 845 P. 2d 987 ( 1993).               But " ` the


doctrine respecting the matter of certainty, properly applied, is concerned more with the fact of

damage than            with     the. extent   or amount of     damage.' "       Lewis River Golf, 120 Wn.2d at 717

    emphasis omitted) ( quoting               Gaasland Co.       v.   Hyak Lumber & Millwork, Inc., 42 Wn.2d 705,


712, 257 P. 2d 784 ( 1953)).                  In Lewis River Golf, our Supreme Court explained:




2
 We need not decide whether to adopt the portion of section 774A providing that emotional
distress damages are recoverable in a tortious interference with a business relationship claim.
Only Gregg Roofing, not its president Tiffany, is a party to this lawsuit. Gregg Roofing is a
corporation, and there is no dispute that corporations cannot recover emotional distress damages.
                                                                        9
No. 42940 -3 -II


            O] nce      the [   plaintiff]      establishes    the    fact   of   loss   with     by a
                                                                                                certainty (
         preponderance of          the   evidence),    uncertainty regarding the amount of loss will not
         prevent       recovery.       Thus, a [ plaintiff] will not be required to prove an exact
         amount        of   damages,
                                  and recovery will not be denied because damages are
         difficult to                 Generally, whether the [ plaintiff) has proved his loss
                            ascertain....

         with sufficient certainty is a question of fact."

120 Wn.2d       at   717 -18 ( fourth    alteration   in   original) ( emphasis omitted) (      quoting Roy Anderson,

INCIDENTAL AND CONSEQUENTIAL DAMAGES, 7 J.L. & Com. 327, 395 - 96 ( 1987)).


         However, the fact that the amount of damages need not be proved with precision does not


allow a claimant to present no evidence regarding the amount. See Bunch v. King County Dep' t

of Youth Servs., 155 Wn.2d 165, 180, 116 P. 3d 381 ( 2005) ( " there must be evidence upon which


the   award [ of     damages] is based "). Although the precise amount of damages need not be shown


with mathematical           certainty, " competent evidence in the record" must support the claimed


damages. Fed. Signal            Corp.    v.   Safety Factors,   Inc., 125 Wn.2d 413, 443, 886 P. 2d 172 ( 1994)


 quoting Interlake Porsche &              Audi, Inc. v. Bucholz, 45 Wn. App. 502, 510, 728 P. 2d 597

 1986)).    A claimant has the burden of proof on the amount of damages, and must come forward


with sufficient evidence to support a damages award. O' Brien v. Larson, 11 Wn. App. 52, 54,

521 P. 2d 228 ( 1974). " ` Evidence of damage is sufficient if it affords a reasonable basis for


estimating loss and does not subject the trier of fact to mere speculation or conjecture.' "

Clayton    v.   Wilson, 168 Wn.2d 57, 72, 227 P. 3d 278 ( 2010) ( quoting                 State v. Mark, 36 Wn. App.

428, 434, 675 P. 2d 1250 ( 1984)).


           The amount of damages generally is a question of fact. Bunch, 155 Wn.2d at 179.

However,        an appellate court can overturn an award of              damages if it is " ` outside the range of


substantial evidence          in the   record.' "   Bunch, 155 Wn.2d at 179 ( quoting Bingaman v. Grays

Harbor     Cmty. Hosp., 103 Wn.2d 831, 835, 699 P. 2d 1230 ( 1985)).

                                                                 10
No. 42940 -3 -II



         4.      Cases Involving Verdicts for Injury to Reputation

         Two Washington cases have addressed jury verdicts awarding damages for injury to

reputation:     Lewis River    Golf and     Washington State Physicians Insurance Exchange & Ass' n v.


Fisons   Corp.,       122 Wn. 2d 299, 858 P. 2d 1054 ( 1993).   Although the legal principles addressed in


these cases are helpful, neither is dispositive here because of factual differences. However, an

unpublished      federal district    court case   applying Washington law —Experience Hendrix, LLC v.


Hendrixlicensing. com,        Ltd., 2011 WL 4402775 ( W.D. Wash. 2011) — contains a discussion of


reputation damages that is consistent with our decision.

                 a.     Lewis River Golf

         In Lewis River Golf, a company that grew sod sued its seed supplier after weeds appeared

in the   sod grown       from the   seed.   120 Wn.2d at 714. The sod company claimed that it suffered a

loss on the sale of its sod business because of injury to its reputation or goodwill resulting from

sale of the bad sod. Lewis River Golf, 120 Wn.2d at 715. The jury awarded damages for the loss

the sod company suffered on the sale of its sod division, but the Court of Appeals reversed.

Lewis River Golf, 120 Wn.2d at 715.

          On appeal to our Supreme Court, the seed company conceded that the sale of the bad sod

damaged the sod company' s reputation, but argued that the amount of damage was based on

speculation. Lewis River Golf, 120 Wn.2d at 718 -19. Our Supreme Court first noted that as long

as the fact of loss is shown, a plaintiff will not be required to prove the exact amount of damages.

Lewis River Golf, 120 Wn.2d at 717 -18. The court discussed the measure of certainty required

for proving damage to a business' s goodwill:

              With respect to loss of goodwill, proving damages with reasonable certainty
          should    track the generally expansive recent history of lost profits. However,


                                                          11
No. 42940 -3 -II


        unlike lost profits, goodwill relates to the future and, thus, no actual profit base
        will   exist   for   use at    trial.     Accordingly, the expert testimony of accountants and
        economists will prove invaluable to the aggrieved buyer in presenting his claim
        for loss of goodwill. Such testimony will generally be accepted by the courts in
        assessing goodwill claims."


Lewis River    Golf, 120      Wn.2d     at   718 ( emphasis         omitted) ( quoting   Anderson, 7 J. L. & Com. at


422).   Summarizing         these principles, the       court       held that "[ d] amage to business reputation and


loss of goodwill have to be proved with whatever definiteness and accuracy the facts permit, but

no more."   Lewis River Golf, 120 Wn.2d at 719.

        The sod company presented evidence quantifying the amount of injury to its reputation:

the testimony of an expert economist who estimated the sod company' s loss on the sale of its sod

division based on a review of the sod company' s financial records. Lewis River Golf, 120 Wn.2d

at 720. The court determined that the expert' s opinions were not so speculative as to be


inadmissible. Lewis River Golf, 120 Wn.2d at 719 -20. The court noted that the testimony of

accountants and economists generally will be accepted in projecting goodwill damages. Lewis

River Golf, 120 Wn.2d at 722. The court indicated that the jury verdict was supported by this

evidence, concluding that the Court of Appeals had invaded the province of the jury in reversing

the verdict. Lewis River Golf, 120 Wn.2d at 724 -25.

        Unlike here, the sod company in Lewis River Golfproduced evidence quantifying the

amount of   damages         caused     by   the   injury to   its   reputation.   120 Wn.2d at 720 -22. The court held


that such evidence was sufficient to support a jury verdict based on that evidence. Lewis River

Golf, 120   Wn. 2d     at   724 -25.    However, the court did not address whether evidence quantifying

the amount of damages was required to support a jury verdict for injury to reputation damages.




                                                                     12
No. 42940 -3 -II



                  b.     Fisons


           In Fisons, a physician prescribed a drug that caused permanent brain damage to a child

patient.    122 Wn.2d at 307. The child' s parents sued the physician and the drug manufacturer,

and the physician ultimately settled the lawsuit. Fisons, 122 Wn.2d at 307. It later was

determined that the drug company knew of the risks associated with prescribing the drug to

children but did not warn physicians of those risks or discontinue production of the drug. Fisons,

122 Wn.2d at 307 -08. The physician asserted products liability, Consumer Protection Act, and

common law fraud claims against the drug company. Fisons, 122 Wn.2d at 309.

           At trial, the physician apparently presented no evidence quantifying the amount of

damage to his reputation. Instead, he testified that in his opinion he had suffered a loss to his

reputation in the community, that other physicians were ignoring him, and that he no longer

enjoyed     his   work.      Fisons, 122 Wn. 2d      at   331.   He also presented evidence that articles in several


newspapers had reported that his conduct had caused the child' s injury. Fisons, 122 Wn.2d at

331 -32. Based          on   this   evidence, a   jury   awarded over $   1 million in damages for injury to the

physician' s professional reputation. Fisons, 122 Wn.2d at 309.


           Our Supreme Court held that the trial court did not err in refusing to grant a new trial or

reduce the damage award based on the size of the verdict. Fisons, 122 Wn.2d at 329. In

addressing whether the verdict was outside the range of substantial evidence in the record, the

court stated, "        The rule in Washington on the question of sufficiency of the evidence to prove

damages is that: `[ t] he fact of loss must be established with sufficient certainty to provide a


reasonable        basis for estimating that loss.' "         Fisons, 122 Wn.2d at 331 ( alteration in original)


 internal    quotation marks omitted) (            quoting Haner v. Quincy Farm Chems., Inc., 97 Wn.2d 753,


                                                                  13
No. 42940 -3 - II



757, 649 P. 2d 828 ( 1982)).          The court held that the evidence presented in support of injury to the

physician' s reputation —the physician' s           testimony     and   the   newspaper articles —was         sufficient to



sustain the jury' s award for damages to the physician' s reputation. Fisons, 122 Wn.2d at 332.

The   court concluded, "      Damages for loss of professional reputation are not the type of damages


which can be proved with mathematical certainty and are usually best left as a question of fact

for the   jury."      Fisons, 122 Wn.2d at 332.


          Fisons established that an individual physician can recover damages for injury to

reputation based on his opinion that he had suffered such damages and how the injury to his

reputation made him feel. Based on those facts, the court did not require the physician to

produce    any     evidence   that   quantified   the   amount of   those     damages. 3   However, the court did not

address    the issue in this    case — the   type of evidence a business must produce to support a


damages verdict for injury to its reputation.

                 c.      Experience Hendrix


          In Experience Hendrix, the court ruled that proof of economic damages is required to

support a damages award for harm to a business' s reputation. 2011 WL 4402775, at * 5- 6.

Experience Hendrix sued under the Washington Consumer Protection Act for infringement of

             related trademarks. Experience Hendrix, 2011 WL 4402775,
Jimi Hendrix -                                                                                   at *   1.   The jury' s

special verdict form had separate lines for injury to reputation and injury to goodwill, and during

deliberations the jury asked the trial court to define those terms. Experience Hendrix, 2011 WL

4402775, at * 2. The trial court explained that " reputation and goodwill are essentially the same




3
    The court' s holding in Fisons is consistent with earlier cases involving injury to an individual' s
reputation.      See Rasor    v.   Retail Credit Co., 87 Wn.2d 516, 529, 554 P. 2d 1041 ( 1976) (                 no need


for evidence assigning a dollar value to the injury to recover for injury to reputation).
                                                             14
No. 42940 -3 -II



thing and are collectively a business' s reputation, patronage, and other intangible assets that are

considered when        appraising   a   business." Experience Hendrix, 2011 WL 4402775, at * 2 ( internal


quotation marks omitted).          The jury awarded $ 750, 000 for injury to the company' s reputation

and $ 300, 000 for injury to goodwill. Experience Hendrix, 2011 WL 4402775, at * 2.

         The court granted the defendant' s motion for judgment as a matter of law, concluding

that the evidence did not support the jury' s awards for injury to reputation and goodwill and the

awards were based on speculation. Experience Hendrix, 2011 WL 4402775, at * 6. The court


initially concluded that the definition of reputation and goodwill it provided to the jury was a

correct statement of the law because " Washington courts have consistently defined reputation as

merely   one component of a         business'   s goodwill."      Experience Hendrix, 2011 WL 4402775, at


 5.   The court cited In re Marriage ofZiegler, 69 Wn. App. 602, 607, 849 P. 2d 695 ( 1993)

  Goodwill represents the expectation of continued patronage based upon such intangibles as

location, trade      name, reputation, organization and established clients." ( emphasis added)) and




WAC 296 -17- 31030( 3) (         defining " goodwill" as " the value of a trade or business based on

expected continued customer patronage due to its name, reputation, or any other factor"

 emphasis added)).        The court further held that " business entities do not have reputations per se,


but   rather   have   goodwill."   Experience Hendrix, 2011 WL 4402775,             at *   5.   The court concluded


that the jury' s award of different amounts for injury to reputation and injury to goodwill was

inconsistent with the law and with the court' s instructions. Experience Hendrix, 2011 WL


4402775, at * 5.


         The court also addressed whether the damage awards were supported by substantial

evidence.      In   holding   that the damages    were "   based entirely   on speculation,"     the court reasoned:




                                                             15
No. 42940 -3 -II



         The jury was provided no evidence from which it could determine the diminution
         in value, if any, of plaintiffs' goodwill as a result of defendants' violation of the
         C[ onsumer] P[ rotection] A[ ct].              Plaintiffs proffered no estimate, by way of expert
         testimony           or   otherwise,   of the value of their goodwill either before or after
         defendants'          wrongful conduct.         See Stewart & Stevenson Servs., Inc. v. Pickard,
         749 F.2d 635, 649 ( 11th Cir. 1984) ( " It is axiomatic that the measure of damage to
         business property, such as goodwill, is based on a measurement of the difference
         in     value of     the property before and          after   the   injury. ").    Indeed, plaintiffs' counsel

         conceded during discussions concerning the related jury instructions that
               t] here' s   not a specific number       in   evidence."      Tr. at 23: 17 - 18 ( docket no. 159).


Experience Hendrix, 2011 WL 4402775                      at *   5(   alteration   in   original).   The court noted that


Washington law provides five different methods for calculating the value of a business' s

goodwill, but that Experience Hendrix " presented no analytical framework for determining the

worth of [its] goodwill, and [ it] proffered no evidence from which the jury could have found that

the   value of [its] goodwill           had been diminished in any            amount."      Experience Hendrix, 2011 WL


4402775, at * 6.


          As in Experience Hendrix, Gregg Roofing offered no evidence or even an estimate

regarding the amount of damage to its reputation. We agree with the court in Experience

Hendrix that in the absence of such evidence, the reputation damages the jury awarded could
                                                    4
only have been based              on speculation.




          5.       Evidence Required for a Business' s Reputation Damages


          We conclude that in order for a business to recover damages for injury to its reputation, it

must produce some evidence of quantifiable, economic harm. Fisons is distinguishable because




4
    Gregg Roofing           refers us   to Porous Media        Corp. v. Pall Corp., 173 F.3d 1109, 1122 ( 8th Cir.
1999),   where       the    appellate court upheld a         jury verdict for $ 1. 6 million in goodwill damages
resulting from false advertising. However, the plaintiff in that case presented evidence that it
had lost between $ 5 million and $ 10 million in " going- concern" value based on a lost
opportunity to create a reputation as the industry leader. Porous Media, 173 F. 3d at 1122.
Gregg Roofing presented no such evidence of economic harm to its business.
                                                                      16
No. 42940 -3 -II



it involved injury to an individual' s professional reputation. With regard to reputation,

individuals and businesses suffer different types of injury. As the court in Fisons impliedly

recognized, injuring an individual' s professional reputation may involve a " personal" type of

harm, such as hurt feelings, humiliation, embarrassment, and loss of self esteem. The court in


Fisons emphasized that the physician' s injury to his reputation resulted in other doctors ignoring

him   and   diminished   enjoyment of   his   medical practice.   122 Wn.2d        at   331.   This type of personal


harm goes beyond economic loss, and necessarily is unquantifiable. Accordingly, the court in

Fisons properly held that the physician' s evidence of harm to his feelings without any attempt to

quantify the   amount of   damages   was sufficient    to   sustain   the   jury verdict.      122 Wn.2d at 332.


        But businesses do not have feelings. Businesses cannot experience humiliation or


embarrassment, and they cannot suffer the sting of being ignored by its peers like the physician

in Fisons. Businesses have no " personal" interests that can be harmed. As a result, the only

damages a business can recover for injury to its reputation are economic. If a business has not

suffered any financial loss from diminished reputation, it has not been damaged. And by

definition economic harm to a business is quantifiable and measureable.


        Because injury to a business' s reputation necessarily is quantifiable, we hold that in order

to recover damages for that injury, a business must provide evidence of some measurable loss.

Such loss includes decreased income, diminished value of the business as in Lewis River Golf, or

a reduction of the business' s goodwill as discussed in Experience Hendrix. But merely

providing testimony that the business' s reputation has been injured without evidence quantifying

the amount of damages is insufficient for recovery. A business cannot recover unquantified

 general" damages for injury to reputation.


                                                        17
No. 42940 -3 -II



          6.   Evidence of Gregg Roofing' s Damages

          Gregg Roofing concedes that it did not produce any evidence that quantified the injury to

its reputation or that provided the jury with a reasonable basis to calculate reputation damages.

The only evidence pertaining to injury to Gregg Roofing' s business reputation was Tiffany' s

testimony that its reputation had been harmed and that it had not been asked to bid on certain

jobs.   Tiffany   admitted     that   he had     no evidence    regarding the    amount of    damages.      Specifically,

he admitted that Gregg Roofing had no evidence to " support any claim of financial loss for

damage to [ its]     reputation."     RP at 1667. Gregg Roofing presented no evidence regarding lost

income, diminished value of the business, or a decrease in goodwill.


          The only evidence Gregg Roofing presented at trial regarding the amount of damage to

its   reputation was   its   answer    to   a   2009   interrogatory   stating that it   sought $   10, 000 in reputation


damages. But this was nothing more than a conclusory statement prepared by Gregg Roofing' s

lawyers, unsupported by any actual evidence. At trial Tiffany did not even attempt to quantify

the amount of damages.


          Gregg Roofing' s burden was to present some evidence of the amount of damages caused

by the injury to its reputation. But Gregg Roofing admitted at trial that it had no such evidence.

Merely " praying" that the jury will figure out the amount of damages without providing any

supporting evidence is insufficient. RP at 1673. Accordingly, we hold that Gregg Roofing did

not provide    the   jury    with a reasonable         basis for estimating its damages,      and    therefore the $ 1. 5



million award must have been the result of speculation or conjecture.




                                                                18
No. 42940 -3 - II


B.       REMEDY FOR INSUFFICIENT EVIDENCE


         Because we hold that the evidence regarding Gregg Roofing' s injury to reputation was

insufficient to support the jury' s verdict, we must determine the proper remedy. MOE filed post .

trial motions for judgment as a matter of law under CR 50( a) and alternative motions for a new

trial under CR 59 or reduction of the verdict under RCW 4. 76. 030. We hold that judgment as a


matter of law was inappropriate because Gregg Roofing presented some evidence of damages

and decline to order a reduction of the jury verdict. We instead hold that a new trial on the issue

of damages is the appropriate remedy.

                 Judgment   as a   Matter   of   Law —CR 50


         CR 50( a)( 1) allows judgment as a matter of law if there is no basis for a jury' s verdict.

The rule provides:


         If, during a trial by jury, a party has been fully heard with respect to an issue and
         there is no legally sufficient evidentiary basis for a reasonable jury to find or have
         found for that party with respect to that issue, the court may grant a motion for
         judgment as a matter of law against the party on any claim, counterclaim, cross
          claim, or third party claim that cannot under the controlling law be maintained
         without a favorable finding on that issue.

CR 50( a)( 1).    If the trial court denies the motion under CR 50( a)( 1) during trial at the close of the

evidence, the moving party may renew the motion within 10 days after judgment is entered on

the   case.   CR 50( b).   Here, MOE moved for judgment as a matter of law under both CR 50( a)( 1)

and CR 50( b).


          In reviewing the grant or denial of a motion for a judgment as a matter of law we engage

in the same inquiry as the trial court, admitting the truth of the nonmoving party' s evidence and

all reasonable inferences that can be drawn from it. Faust v. Albertson, 167 Wn.2d 531, 537,

222 P. 3d 1208 ( 2009).      A motion for judgment as a matter of law is proper only when the court

                                                         19
No. 42940 -3 -II



can find, as a matter of law, that there was no substantial evidence or reasonable inference to

sustain a verdict        for the nonmoving party. Guijosa      v.       Mart Stores, Inc., 144 Wn. 2d 907,
                                                                    Wal -


915, 32 P. 3d 250 ( 2001).


          Here, judgment as a matter of law is not the appropriate remedy because Gregg Roofing

produced evidence of damages caused by MOE' s interference with a contractual relationship

sufficient to support a verdict in some amount. At a minimum, the evidence supported an award


of $530 in lost profits. Gregg Roofing also presented evidence that it had lost additional work as

a result of the church incident. This evidence supported an inference that Gregg Roofing would

have earned similar profits in these jobs as on the Parkside Church project. MOE notes that if


the jury could extrapolate damages from evidence of the value of the church job, consequential

damages would be in the range of $9,600. Accordingly, we hold that Gregg Roofing presented

sufficient evidence of its lost profits and consequential damages to support an award of some

damages in its favor.


          The jury was not asked to provide a special verdict allocating damages between lost

profits, consequential damages, and injury to reputation. Because there was evidence supporting

an award of some economic damages, there is no basis for finding that there was " no legally

sufficient evidentiary basis" for a damages award of any kind as required for relief under CR

50( a)( 1).        Therefore, we hold that the trial court did not err when it denied MOE' s motion for

judgment as a matter of law.


              2.     Reduction of the Verdict


              The trial court may reduce a jury' s damages award as an alternative to a new trial if the

award     is "     so excessive ...   as unmistakably to indicate that the amount thereof must have been


                                                          20
No. 42940 -3 -II



the result of passion or prejudice" if the affected party consents to the reduction. RCW 4. 76. 030.

We review a trial court' s denial of a motion for remittitur or reduction of the verdict for abuse of

discretion. Bunch, 155 Wn.2d at 176.


          We also have the authority to reduce a jury' s damages award under the doctrine of

remittitur and under RCW 4. 76. 030 if the award is outside the range of substantial evidence in

the record, shocks the conscience of the court, or appears to have been arrived at as the result of

passion or prejudice. Bunch, 155 Wn.2d at 171 -72. However, our Supreme Court has


emphasized that appellate courts should rarely exercise this authority. Bunch, 155 Wn.2d at 175.

          Here, Gregg Roofing presented evidence of lost profits and consequential damages

caused by MOE' s conduct, which undoubtedly was reflected in some portion of the jury' s

verdict. Because the jury did not use a special verdict form identifying the amounts and types of

damages, we would have difficulty separating the recoverable damages from the unrecoverable

general reputation damages. We decline to attempt a remittitur based on the appellate record and


hold that the trial court did not abuse its discretion when it also declined to attempt such

calculations based on the record before it.


          3.    New Trial —CR 59( a)


          We review a trial court' s decision on a motion for a new trial for abuse of discretion.

Collins   v.   Clark   County   Fire Dist. No. 5, 155 Wn.      App.   48, 81, 231 P. 3d 1211 ( 2010).   CR


59( a)( 7) allows the trial court to vacate a jury' s verdict and grant the moving party a new trial if

the trial court finds that " there is no evidence or reasonable inference from the evidence to justify

the   verdict or   the decision,   or   that it is contrary to law." Under CR 59( a)( 7), a trial court abuses



its discretion by denying a motion for a new trial if the verdict is contrary to the evidence.


                                                          21
No. 42940 -3 -II


Palmer    v.   Jensen, 132 Wn.2d 193, 198, 937 P. 2d 597 ( 1997).            Because we hold that Gregg

Roofing' s evidence was insufficient to support an award of damages for injury to its reputation,

we hold that the trial court abused its discretion in denying MOE' s motion for a new trial.

Accordingly, we reverse and remand for a new trial.

         4.      Scope of New Trial


         Gregg Roofing argues that in the event a new trial is ordered, we should limit the new

trial to the issue of damages because the jury already has determined that MOE is liable for

tortious interference with a business relationship. We agree.

          A new trial may be limited to certain issues where it clearly appears that the original

issues   were    distinct   and   justice does   not require submission of   the   entire case   to the jury." Mina


v.   Boise Cascade     Corp.,      104 Wn.2d 696, 707, 710 P. 2d 184 ( 1985).        In Mina, the court


determined that reversal on a liability issue did not require retrial of damages when each party

had the opportunity to present evidence on damages, the special verdict form contained separate

questions concerning liability and damages, and neither party argued that the amount of damages

was    inappropriate. 104 Wn.2d at 707 -08.


         Here, MOE already had a full and fair opportunity to present evidence on scope of

employment and liability for intentional interference with a business relationship. The jury

completed a special verdict form with separate findings on liability issues and damages. And

MOE did not assign error to the jury' s liability findings. Accordingly, we order that the new trial

be limited to the issue of the amount of damages for MOE' s interference with Gregg Roofing' s

business relationship.




                                                           22
No. 42940 -3 -II



C.        EVIDENTIARY ISSUES


          MOE also challenges two of the trial court' s evidentiary rulings. We review a trial

court' s evidentiary rulings for abuse of discretion. Cole v. Harveyland, LLC, 163 Wn. App. 199,

213, 258 P. 3d 70 ( 2011).      Therefore, we will overturn the trial court' s ruling on the admissibility

of evidence only if its decision was manifestly unreasonable, exercised on untenable grounds, or

based on untenable reasons. Gorman v. Pierce County, 176 Wn. App. 63, 84, 307 P. 3d 795

 2013).


          1.      Evidence of Tiffany' s Feelings

          MOE argues that the trial court abused its discretion when it overruled MOE' s objection


to Tiffany' s testimony regarding his feelings after repeatedly viewing the uncompleted roofing

work on the church. On direct examination, when asked about how he felt about seeing the

church with the unrepaired roof on a daily basis when driving through Camas, Tiffany

responded, "      Not very   good" and " we were   naturally very   upset   by it."   RP   at   1620, 1621.   We


hold that MOE cannot show that it was prejudiced by the introduction of this evidence and

therefore any error in admitting the evidence was harmless.

          When a trial court makes an erroneous evidentiary ruling, the question on appeal

becomes " whether the error was prejudicial, for error without prejudice is not grounds for

reversal."       Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P. 2d 571

 1983).        An error will be considered not prejudicial and harmless unless it affects the outcome of

the   case.     Brown, 100 Wn.2d    at   196. "[ I] mproper admission of evidence constitutes harmless


error if the evidence is cumulative or of only minor significance in reference to the evidence as a

whole."        Hoskins v. Reich, 142 Wn. App. 557, 570, 174 P. 3d 1250 ( 2008).


                                                        23
No. 42940 -3 -II



        Here, even assuming the evidence of Tiffany' s feelings was improperly admitted, his

responses were brief and lacking detail. Moreover, his response that he was " upset" by seeing

the unfinished roof was coupled with an explanation regarding the negative effect on Gregg

Roofing' s business, which was relevant to show injury to the business' s reputation. RP at 1621.

Accordingly, we hold that Gregg Roofing cannot show that it was prejudiced by the admission of

testimony regarding Tiffany' s feelings.

        2.   Evidence of Chill' s Fraud


        MOE argues that the trial court abused its discretion when it excluded evidence of Chill' s


fraud conviction and his relationship with Lowrie. It argues that this evidence was relevant to its

defense that Lowrie was acting outside the scope of his employment at the time he caused the

church to breach its contract with Gregg Roofing, and that the probative value of the evidence

outweighed the danger of unfair prejudice. We disagree.

              a.     ER 401, 402, and 403


        Only relevant evidence is admissible. ER 402. Evidence is relevant if it has " any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or     less   probable   than it   would   be   without   the   evidence."   ER 401.   The


threshold to admit relevant evidence is low; even minimally relevant evidence is admissible.

Kappelman    v.   Lutz, 167 Wn.2d 1, 9, 217 P. 3d 286 ( 2009). However, under ER 403, relevant


evidence " may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury."

         One issue at trial was whether Lowrie was acting within the scope of his employment

with   MOE   when   he   convinced   the   church   to fire   Gregg Roofing. "       A master is liable for the acts



                                                          I
No. 42940 -3 - II



of a servant committed within                  the   scope or course of      his   or    her   employment."         Bratton v.


Calkins, 73 Wn.         App.      492, 498, 870 P. 2d 981 ( 1994).               However, if the servant " steps aside from


the   master' s   business in          order   to   effect some purpose of         his   own,   the   master   is   not   liable." Kuehn


v.   White, 24 Wn.      App.       274, 277, 600 P. 2d 679 ( 1979). The test is " ` whether the employee was,


at the time, engaged in the performance of the duties required of him by his contract of

employment, or         by    specific     direction     of   his   employer; or ...       whether he was engaged at the time


in the furtherance          of   the   employer' s     interest.' "    Dickinson v. Edwards, 105 Wn.2d 457, 467, 716


P. 2d 814 ( 1986) (         emphasis omitted) ( quoting             Elder   v.   Cisco Constr. Co., 52 Wn.2d 241, 245,


324 P. 2d 1082 ( 1958)).               Therefore, the evidence of Chill' s fraud conviction and his relationship

with Lowrie was relevant to the scope of employment issue.

          But   a   trial   court can exclude relevant evidence under                     ER 403. MOE argues that the


evidence regarding Chill' s fraudulent conduct and fraud conviction was highly probative because

 the fact that an employee is engaged in defrauding his employer destroys vicarious liability

under    Washington law." Br. of Appellant at 46. MOE' s argument is too broad. Neither the fact


that a servant' s predominant motive is to benefit himself or a third person nor the fact that the


servant' s actions were contrary to the master' s policy necessarily absolves the master from

liability.   Robel     v.   Roundup Corp.,            148 Wn. 2d 35, 53 -54, 59 P. 3d 611 ( 2002); Smith v. Leber, 34


Wn.2d 611, 623, 209 P. 2d 297 ( 1949);                    Carmin v. Port ofSeattle, 10 Wn.2d 139, 154, 116 P. 2d

338 ( 1941).


          Moreover, the trial court' s ruling did not result in the exclusion of all evidence related to

Lowrie' s fraudulent conduct. Instead, it excluded only the minimally probative evidence related

to Chill' s fraud conviction. MOE' s offer of proof included Chill' s information and plea



                                                                       25
No. 42940 -3 -II



agreement for the fraud conviction and a witness who would have testified as to the connection


between Chill and Lowry. Although MOE argues that the trial court' s ruling prevented it from

introducing evidence critical to its defense, the ruling merely prohibited the introduction of a

third party' s criminal acts. And although one of the trial court' s rulings excluded evidence of

 any fraud ", the    offer of proof   only involved Chill'       s   fraud,   not   Lowrie'   s.   When compared to the


risk of confusing the jury with evidence of a third party' s criminal conviction unrelated to any of

the claims at issue in the severed case against Gregg Roofing, we hold that the trial court did not

abuse its discretion when it excluded the evidence under ER 403.


                b.     Harmless Error


        Even if the trial court abused its discretion by excluding evidence of Chill' s fraudulent

conduct, any error was harmless. Because MOE was permitted to introduce other, more relevant

evidence of Lowrie' s misconduct, the evidence specifically related to Chill was cumulative.

Exclusion    of cumulative evidence      is   not reversible error.       Havens      v.   C &D Plastics, Inc., 124


Wn.2d 158, 169 -70, 876 P. 2d 435 ( 1994). " The evidence need not be identical to that which is


admitted; instead, harmless error, if error at all, results where evidence is excluded which is, in

substance,   the   same as other evidence which       is   admitted."         Havens, 124 Wn.2d at 170.


        MOE argues that the evidence of Chill' s fraud conviction and his relationship with

Lowrie was important to show that Lowrie was " willfully acting contrary to the best interests of

MOE" and that he interfered with the contract for his own benefit. Br. of Appellant at 45

 internal   quotation marks omitted).         However, at trial, there was testimony elicited by both

parties and from multiple witnesses that Lowrie directed the church to hire CPR in exchange for

gifts and financial favors from Chill and that Lowrie told the church to fire Gregg Roofing for


                                                           co,
No. 42940 -3 - II



his own personal benefit. There also was evidence that this behavior was contrary to MOE' s

interests and against company policy. For example, the vice president of claims for MOE

testified that she would have fired Lowrie had she known he was taking money from Chill and

CPR because it was a violation of MOE' s core values regarding company ethics.

             We hold that the evidence of Chill' s fraud conviction and his relationship with Lowrie

was substantively similar to the extensive evidence of Lowrie' s fraud and the fact that it was

contrary to MOE' s interests and policies. Therefore, we hold that even if the trial court abused

its discretion by excluding the evidence, any error was harmless because the evidence was

cumulative. See Havens, 124 Wn.2d at 170.


D.           CONDITIONAL CROSS APPEAL


             Gregg Roofing filed a cross appeal in the event we remand for a new trial. Gregg

Roofing argues that the trial court erred in failing to give proposed jury instruction 19,

authorizing recovery for injury to reputation on an interference with a business relationship
         5
claim.        Gregg Roofing argues that on remand we should order the trial court to accept this

proposed instruction.


             Proposed instruction 19     provided, "   Damages for tortious interference may include

economic loss as well as damages for mental distress, discomfort, inconvenience, injury to

reputation, humiliation, and consequential damages. Certainty of proof as to future opportunities

and profits      is   not required."   CP at 171 -72. The instruction on injury to reputation and


5
    Gregg Roofing also argues that the trial court erred in refusing to allow Gregg Roofing to
amend its counterclaim to assert a claim against MOE for negligent supervision of Lowrie.
However, because we are limiting the new trial to the damages issue, we need not address this
issue. MOE' s liability will not be at issue on retrial, and there is no indication that a negligent
supervision claim allows different damages than an interference with a business relationship
claim.

                                                           27
No. 42940 -3 -II



consequential damages is appropriate, but the trial court did not abuse its discretion in refusing

the instruction because it also authorized damages for " mental distress, discomfort,

inconvenience [     and]   humiliation." CP at 172. A business cannot recover these types of


 personal" damages for a tortious interference with a business relationship claim. On remand,

we direct the trial court to instruct the jury on damages for injury to reputation consistent with

this opinion.



            We reverse and remand for a new trial on the issue of damages only.



                                                          P110\ ,
                                                     I




                                                         MAxa, J.
                                                                               J,
We concur:


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                                                     28
