                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                            No. 01-60880


                            KENNETH WORK,

                                               Plaintiff-Appellee,


                               VERSUS


            COMMERCIAL UNDERWRITERS INSURANCE COMPANY,

                                              Defendant-Appellant.




           Appeal from the United States District Court
             For the Northern District of Mississippi
                          (1:98-CV-402-D-A)
                          January 30, 2003


Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge.*

      In this breach of contract action, Kenneth Work (“Work”) sues

Commercial Underwriters Insurance Company (“Commercial”) for, among

other things, lost income caused by Commercial’s failure to pay an

insurance claim. Commercial appeals the district court’s denial of



  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                  1
its motion for judgment as a matter of law as to Work’s claim for

lost income damages.          We REVERSE and REMAND.

                                            I.

      Work,    a   timberman,        insures       his   logging    equipment   with

Commercial.        In   the    Summer    of      1998,   someone   vandalized   this

equipment.     Initially, it appeared that only one dozer had been

vandalized. Commercial’s adjuster promptly inspected the dozer and

arranged for its repair.                Work subsequently filed additional

vandalism     claims    when    he    had     problems    with     other   pieces   of

equipment.     These problems left him unable to reliably use the

equipment for the remaining months of 1998 and throughout 1999.

Commercial refused to pay some of the additional claims, declaring

that some of the problems were not caused by vandalism.                    Work then

filed suit against Commercial, alleging that it was liable under

the terms of his policy for property damage claims related to the

vandalism.     He also alleged that Commercial was liable for bad

faith breach of contract for failing to pay all his claims.

      At the jury trial, Work principally relied on his federal

income tax returns to prove his lost income.1                      He submitted his

returns for the years 1996-2000.                    For each year, Work had a

negative net income.          Work attempted to call his certified public

accountant (“CPA”) to explain his lost income, but the district


  1
    Work filed jointly his returns with his wife, Gayle P. Work.
The returns reported the profits and losses from Work’s business,
Kenneth Work Logging.

                                            2
court refused to allow the CPA to offer such testimony because he

had not been properly designated as an expert witness, as required

by Rule 26(a)(2) of the Federal Rules of Civil Procedure.2

          Although the income tax returns were the only documentary

evidence Work presented, various witnesses testified to his lost

income.       Work testified in general terms that he was not able to

work because his equipment kept breaking down and that after the

vandalism he could no longer make payments on the equipment, some

of which was repossessed.           Another witness testified that Work’s

volume of business declined after the vandalism.                 Work’s wife

testified that the couple had decreased their church tithe after

the vandalism, that the business declined dramatically in 1999, and

that Work laid off several employees after the vandalism.

          Prior to the trial, the district court bifurcated the issues

of       punitive   damages   and   extracontractual   damages   (i.e.,   lost

income, emotional distress, and attorney fees) from the issue of

contract damages, ordering that the proof related to punitive and

extracontractual damages be heard only after the jury decided the

issue of whether Work could recover under the contract.               At the

close of the first phase, the jury found for Work and awarded him

$325,000 under the contract for the cash value of the lost insured


     2
    The accountant testified as a fact witness only. Prior to the
trial, the court granted Commercial’s motion in limine to exclude
the accountant’s testimony relating to lost income because Work had
not identified him as an expert witness. The court noted in its
order that Work had failed to respond to Commercial’s motion.

                                         3
logging equipment.   At the close of the second phase of the trial,

the jury returned a special verdict finding that Commercial denied

payment under the contract for no arguable reason but that it did

not commit any malicious wrong or act with gross and reckless

disregard for Work’s rights.   It awarded Work $85,000 in emotional

distress damages and $150,000 in lost income damages.

      Judgment was entered on August 22, 2001.     On September 4,

2001, Commercial moved for JMOL as to the lost income award.3   The

district court denied the motion, and Commercial timely appealed.

Commercial has satisfied the portion of the judgment not at issue.

                                II.

      “We review de novo the district court’s ruling on a motion for

judgment as a matter of law, applying the same legal standard as

the trial court.”4    “Whether the evidence presented at trial is

sufficient to create an issue of fact for the jury or will permit

the court to enter judgment as a matter of law is governed by




  3
    The trial transcript shows that Commercial moved for JMOL as
to all Work’s damages claims at the close of the first phase. It
does not appear, however, that Commercial renewed its motion for
JMOL at the close of the second phase, although the transcript
shows that the parties argued about the sufficiency of evidence
supporting Work’s lost income claim at the jury charge conference.
In any event, because Work did not argue that Commercial’s post-
verdict motion for JMOL lacked a sufficient predicate, we may
review the issue presented. See Thompson and Wallace of Memphis,
Inc. v. Falconwood Corp., 100 F.3d 429, 435 (5th Cir. 1996).
  4
    Ellis v. Weasler Eng’g, Inc., 258 F.3d 326, 336 (5th Cir. 2001)
(quoting Flowers v. Southern Reg’l Physician Servs., Inc., 247 F.3d
229, 235 (5th Cir. 2001)).

                                 4
federal rather than state law.”5           Hence, JMOL is appropriate only

if after reviewing all the evidence in the record, drawing all

reasonable inferences in favor of the nonmoving party, and making

no credibility determinations, and without weighing the evidence,

the      court   determines   that   “there    is    no   legally   sufficient

evidentiary basis for a reasonable jury to find for that party on

that issue.”6

                                     III.

         Under Mississippi law,7 lost income damages are recoverable

when they can be proven with reasonable certainty and are not based

on       speculation   or   conjecture.8      Lost    income   damages   “are



     5
         Id.
     6
    Id. at 337 (citing Fed. R. Civ. P. 50 and Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133 (2000)).
     7
     The parties rely on Mississippi contract law to assign the
burden of proof for lost income damages in this case. See Thompson
and Wallace, 100 F.3d at 435 (“As both sides argue this issue under
Texas law, we apply Texas law in our analysis and assume that no
one disputes its applicability.”); Ham Marine, Inc. v. Dresser
Indus., Inc., 72 F.3d 454, 459 (5th Cir. 1995) (“We conduct our
review of the jury findings according to Mississippi contract
law.”).
     8
    Polk v. Sexton, 613 So. 2d 841, 844 (Miss. 1993) (“The law is
settled that a party must prove that he is entitled to an award of
damages to a ‘reasonable certainty.’”); Lovett v. Garner, 511 So.
2d 1346, 1353 (Miss. 1987) (“In Mississippi, one may recover for
loss of future profits in a breach of contract action as long as
such profits are proved with reasonable certainty, not based on
speculation or conjecture.”); see also United States for Use and
Benefit of Control Sys., Inc. v. Arundel Corp., 896 F.2d 143, 148
(5th Cir. 1990) (“Profits are generally recoverable in a breach of
contract action when they can be proven with reasonable
certainty.”).

                                       5
speculative only when the cause is uncertain, not when the amount

is uncertain.”9       Because lost profits cannot easily be computed

with    exactitude,      awards   of    such   damages   must    be   based   on

estimates.10     Still, such estimates and projections must themselves

be based on “definite and certain” data: “lost profits in a

business can be allowed if ‘the data of estimation are so definite

and    certain    that     they   can    be    ascertained      reasonably    by

calculation.’”11      Hence, while “[t]he right to recovery is not

precluded by uncertainty regarding the exact amount of damages,” a

plaintiff must offer evidence that lays “a foundation upon which

the trier of fact can form a fair and reasonable assessment of the

amount of . . . damages.”12

       Furthermore, lost income damages are measured in terms of net

profits, not gross profits.        A plaintiff is entitled to “the gross

amount that would have been received pursuant to the business or

investment that was interrupted by a defendant’s wrongful act, less

  9
    Parker Tractor & Implement Co. v. Johnson, 819 So. 2d 1234,
1239 (Miss. 2002) (citing Adams v. U.S. Homecrafters, Inc., 744 So.
2d 736, 740 (Miss. 1999)).
  10
     See Parker Tractor, 819 So. 2d at 1239 (“[I]t is enough that
sufficient facts are given from which the jury may safely make at
least a minimum estimate.” (internal quotation omitted)); see also
Robert L. Dunn, Recovery of Damages for Lost Profits § 5.1 (5th ed.
1998).
  11
     Parker Tractor, 819 So. 2d at 1239 (quoting Puckett Mach. Co.
v. Edwards, 641 So. 2d 29, 37 (Miss. 1994)).
  12
     Ham Marine, 72 F.3d at 462, cited in Fred’s Stores of
Mississippi, Inc. v. M & H Drugs, Inc., 725 So. 2d 902, 914-15
(Miss. 1994).

                                         6
the cost of running the business or attempting the investment.”13

Hence, variable costs related to lost business opportunities (e.g.,

labor, utilities, etc.) must be deducted from a gross profit

estimate, but fixed overhead costs that would have been incurred

under any circumstance (e.g., depreciation, rent, etc.) need not

be.14   Reduced to a simple equation, lost income equals the revenue

that would have been generated less those variable costs that would

have been incurred in the absence of the complained of breach.15

        Work argues that the evidence he offered can be used to

calculate lost income with reasonable certainty.          His argument is

as follows.    His income tax returns included Schedule C business

profit/loss forms for the year before and the year after the

vandalism.     On   each   Schedule   C   form,   he   included   equipment

depreciation as a business expense.         If he had not taken these

deductions, he would have had a net gain in 1997 of $213,257 and a

net gain in 1999 of $47,203.    Hence, between 1997 and 1999, his net



  13
     Fred’s Stores of Mississippi, Inc. v. M & H Drugs, Inc., 725
So. 2d 902, 914 (Miss. 1994) (quoting Cook Indus., Inc. v. Carlson,
334 F. Supp. 809, 817 (N.D. Miss. 1971)).
  14
     See Puckett Mach., 641 So. 2d at 37 (reversing damages award
in absence of evidence of overhead, depreciation, taxes, or
inflation needed to calculate net profits); Lovett, 511 So. 2d at
1353 (reversing damages award due to lack of evidence needed to
determine net profits).
  15
     See Sure-Trip, Inc. v. Westinghouse Eng’g, 47 F.3d 526, 531
(3d Cir. 1995) (“Where plaintiff is seeking to recover lost
profits, such damages are equal to the revenue that would have been
derived, less additional costs that would have been incurred, in
performing the contract.”)

                                      7
gain declined by $166,054.    Work stated at oral argument that he

encouraged the jury to base its lost profits award on this number.16

The jury apparently accepted the argument and awarded $150,000 in

lost income.

       We find that Work’s evidence fails to provide a foundation

upon which a jury could form a fair and reasonable assessment of

the amount of his lost profits attributable to Commercial. A brief

exploration of the Mississippi Supreme Court’s treatment of the

burden of proof in a lost profits case illustrates why this is so.

In Parker Tractor, a case on which Work relied heavily at oral

argument, the farmer-plaintiff sued the company from which he

bought a combine when the equipment operated at only half its

promised speed.    He argued that the malfunctioning of the combine

roughly cut his profits in half.       In support of his plea for lost

profits damages, he offered both his own testimony about the number

of acres he was unable to cut because of the speed problem and his

accountant’s expert testimony about his cost per acre to use the

combine. He also introduced “all existing records which could have

shown pertinent losses . . . , including a summary of             loss

calculations and [his] tax reports.”17      The precision of the data

he offered allowed for the calculation of an estimate of his lost


  16
    The trial transcript unfortunately does not memorialize Work’s
closing argument, at which time he apparently laid out his theory
of lost income for the jury.
  17
       Parker Tractor, 819 So. 2d at 1239.

                                   8
income at $91,610.75.     He asked for $90,000.    The jury awarded

$150,000, which the court reduced to $90,000.

       Work did not produce anything comparable to the specific data

that was offered in Parker Tractor.      He offered no documentary

evidence about the quantity of timber he produced before and after

the vandalism.18   Nor was there oral testimony about the amount of

timber that Work had produced on an average day, week, or month

before the vandalism.      Likewise, Work offered no documentary

evidence about his gross income before and after the vandalism,

such as bank deposit slips or ledgers.   Nor did any oral testimony

examine with any degree of specificity the effect of the vandalism

on his revenue stream.    Thus, apart from general statements, Work

offered no basis for estimating either the quantity of timber he

was unable to produce after the vandalism or his corresponding loss

of revenue.19   Without quantifiable evidence about the drop off in

Work’s timber production or about the market prices for timber

associated with that drop off, any calculation of the gross profits

Work lost due to the vandalized equipment is speculative.

  18
     The pretrial order, which was prepared and signed by the
parties and made part of the court record, shows that Work intended
to introduce load tickets from before and after the vandalism as
trial exhibits. Work thus implicitly represented to the court that
he possessed specific evidence of his decrease in timber
production.   But because he failed to fully disclose the load
tickets during discovery, despite an order to do so, the district
court excluded this evidence of Work’s actual production.
  19
     Curiously, Work himself did not testify during the second
phase of the trial. Only his wife, his accountant, and his son
did.

                                  9
       Furthermore, Work failed to introduce any evidence of his

fixed and variable costs, such as cancelled checks, employee time

sheets, gas bills, or other invoices.      He offered no such oral

testimony along these lines, either.     Without evidence of Work’s

business expenses before and after the vandalism, any calculation

of the variable costs he saved during the period he was unable to

use his equipment is speculative.     Thus, according to the formula

stated above, any calculation of his lost income during that time

is speculative.

       Finally, Work’s tax returns simply do not contain enough

information from which to calculate his lost income with reasonable

certainty.   A Schedule C form is designed to calculate the net gain

or loss of a business for the purpose of determining taxable

income. It is not a profit-loss statement, and its conversion into

a profit-loss statement is not as simple as Work suggests.20   Apart

from the deduction for depreciation, it is unclear which of the

multiple deductions claimed on Work’s Schedule C forms relate to

fixed costs and which to variable costs.     More to the point, the

Schedule C forms offer no basis for estimating how much those

variable costs (whatever they were) would have increased had Work’s

business not been hindered by the vandalism.    This information is

necessary to estimate Work’s lost income, which (stated once again)


  20
     See Sure-Trip, Inc., 47 F.3d at 531-33 (discussing “the
difficulties involved in recasting [a] tax return into a profit and
loss statement” for the purpose of estimating lost income).

                                 10
is equal to estimated lost revenue less saved variable costs.

Thus, even assuming that the tax returns could be used to determine

Work’s lost revenue attributable to Commercial’s failure to pay his

vandalism-related claims, the jury could not use those same returns

to estimate with reasonable certainty the related variable costs

that Work saved—let alone his lost income.       In short, Work’s

reliance on his tax returns to show lost income did not just leave

room for speculation, it required it.21

                                IV.

       Because Work failed to produce any evidence from which the

jury could estimate, with reasonable certainty, the amount of his

lost income attributable to Commercial, we REVERSE the order of the

district court denying Commercial’s motion for JMOL and REMAND for

further proceedings consistent with this opinion.22



       REVERSED and REMANDED.




  21
     While Work’s failure to qualify his accountant as an expert
exacerbated his problems, even an accountant would need more
information than was contained on the tax returns to estimate lost
income.
  22
     Work’s argument based on Hetzel v. Prince William County,
Virginia, 523 U.S. 208 (1998), is simply not apropos of the issue
presented, which does not concern the recalculation of the lost
income damages awarded.

                                11
