Harris Group, Inc. v. Robinson

Opinion by

Defendants, Luminate, LL.C. (the new business) and Michael S. Robinson, Jon E. Neff and Robert D. Courtney (the former employees), appeal the trial court's judgment entered on a jury verdict finding them liable to plaintiff, Harris Group, Inc. (the company), for breach of their confidentiality agreement, and for the torts of conversion, breach of fiduciary duty, and intentional interference with contract. The trial court also entered a judgment for damages for unjust enrichment, as recommended by the jury in its advisory verdict. We affirm the judgment in part, reverse it in part, and remand the case to the trial court for further proceedings consistent with this opinion.

I. Background

The company was an engineering firm with a department specializing in consulting with banks and other lenders that provide finane-ing for the building of ethanol and power plants. The former employees worked in that department.

In early 2006, the former employees began to develop plans and make arrangements to open a new business. Over the course of several weeks, they took inventory of the company's clients and projects to determine which ones they would take with them when they resigned. They leased office space and obtained liability insurance.

The former employees copied the company's files, and e-mailed them or saved them so that the files could be used later at the new company. The original files were deleted after they were copied.

*1194 The former employees developed a website, which included the announcement that one of the former employees had left the company to join the new business, "tak[ing] along [the company's] entire ... Consulting Team." The former employee mentioned in the website announcement drafted another announcement to be sent to some of the company's clients, which stated, "[Mly entire consulting services team and I have spun off [from the company] and joined [the new business], a newly formed management and technical consulting firm."

Five days later, near the end of April 2006, the former employees resigned from the company, giving one day's notice. Upon their resignation from the company, the former employees extended job offers to five of the seven workers (the other employees) who remained in the financial consulting department. All five of the other employees accepted the offers, resigned from the company, and went to work for the new business.

During the new business's first week in early May 2006, the former employees contacted the company's clients. The former employees told the clients that they could arrange for the new business to take over their projects. They e-mailed the clients a form letter that they could use to terminate their business relationships with the company. Consequently, the clients transferred seventeen of twenty-nine active projects from the company to the new business.

In May 2006, the company filed suit against the new business, the former employees, and four of the five other employees. The suit sought relief for lost profits and damages, raising a variety of claims: computer fraud and abuse; conversion; civil theft; misappropriation of trade secrets; breach of confidentiality agreements; breach of fiduciary duty; defamation; intentional interference with contract; intentional interference with prospective business relations; civil conspiracy; fraud; and unjust enrichment. The other employees are not parties to this appeal.

Before trial, the company voluntarily dismissed the claims alleging that the former employees had engaged in computer fraud and abuse and had defamed the company. During the trial, the court entered a directed verdict in favor of the former employees on the company's claims of civil theft and misappropriation of trade secrets. The rest of the company's claims were submitted to the jury, and' the trial court ordered that the verdict on the unjust enrichment claim would be advisory.

The jury found that the company had proved the following claims against the new business: intentional interference with a contract; conversion; and unjust enrichment. The verdict also found that the company had proved the following claims against the former employees: breach of confidentiality agreements; breach of fiduciary duty; intentional interference with contract; conversion; and unjust enrichment. The jury found that the company did not prove the claims of fraud; intentional interference with prospective business relations; and conspiracy.

The jury awarded the company $1,929,500 in actual damages assessed against the former employees and the new business, including an award of $205,000 as the advisory verdict for unjust enrichment. The jury also awarded the company $630,550 in punitive damages.

IL Instructions

The former employees and the new business contend that the trial court erroneously instructed the jury in two ways. First, the former employees and the new business argue that the instruction concerning the affirmative defense of the business competition privilege was misleading, circular, and prejudicial because it referred to wrongful means that. (1) were not at issue in the case; (2) were rejected by the jury; and (8) included the same tort-intentional interference with a contract-to which the defense applied. Although we agree that the instruction was erroneous, we conclude that the error was harmless.

Second, the former employees and the new business contend that the instruction on punitive damages read and given to the jury omitted a part that had been approved during the instructions conference. Specifically, the instruction excluded a description of the *1195 purpose of punitive damages. Because the former employees and the new business did not raise this objection below, we shall not review it.

A. Standard of Review

Trial courts have discretion to determine the form and style of jury instrue-tions. Williams v. Chrysler Ins. Co., 928 P.2d 1875, 1877 (Colo.App.1996). We will not overturn such a determination absent a showing of an abuse of that discretion. Id. A court's ruling on jury instructions is an abuse of discretion only when the ruling is manifestly arbitrary, unreasonable, or unfair. Id. (citing Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1251 (Colo.1994)).

A court erroneously instructs the jury when the instruction at issue misleads or confuses the jury. Id. However, a court's erroneous instruction is reversible only when it prejudices a party's substantial rights. Id. If a jury probably would have decided a case differently if given a correct instruction, then the error is reversible. Webb v. Dessert Seed Co., 718 P.24 1057, 1066-67 (Colo.1986). Thus, we apply a harmless error standard of review to a properly preserved objection to a jury instruction. Waneka v. Clyncke, 134 P.3d 492, 494 (Colo.App.2005), aff'd, 157 P.3d 1072 (Colo.2007).

C.R.C.P. 51 requires parties to object to alleged errors in instructions before they are given to the jury. "Only the grounds so specified shall be considered ... on appeal...." Id. Alleged errors that are not objected to are waived. Robinson v. City & County of Denver, 30 P.3d 677, 684 (Colo.App.2000).

The former employees and the new company argue that we should apply the plain error standard when reviewing the trial court's instruction on punitive damages. Al though the "plain error" doctrine has been employed in a few civil cases involving instructional error, eq., Blueflaume Gas, Inc. v. Van Hoose, 679 P.2d 579, 586-87 (Colo.1984), the cireumstances justifying its application in civil cases are rare. Robinson, 30 P.3d at 684-85. This is so because C.R.C.P. 51 warns counsel to raise objections to instrue-tions; issues involving jury instructions, unlike some objections to evidence, do not arise without warning; a timely objection allows the court to correct errors that can be easily corrected; restricting the seope of plain error review in civil cases promotes orderliness and the finality of decisions; and trials, not appeals, are the core of the judicial system. Thus, plain error review of instructional issues is restricted to unusual or special cases, and, even then, reversal occurs only when necessary to avert unequivocal and manifest injustice. Id. For the reasons explained below, we decline to apply plain error review here.

B. Business Competition Privilege Instruction

1. Introduction

The tort of interference with existing or prospective contractual relations is an intentional tort. Restatement (Second) of Torts ch. 37 introductory note (1979) (the Special Note). According to Restatement section 767 comment a, this tort has three forms. Only one of these forms is at issue here, but we must discuss another form to provide an appropriate context for our analysis.

The first form occurs when a defendant causes a third party not to perform the terms of an existing contract with a plaintiff. It is defined by Restatement section 766:

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to lability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

The second form occurs when a defendant interferes with a prospective business relation between a plaintiff and a third party. Its elements are listed in Restatement section 766B:

One who intentionally and improperly interferes with another's prospective contractual relation (except a contract to marry) is subject to Hability to the other for *1196 the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of

(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or

(b) preventing the other from acquiring or continuing the prospective relation.

In order to prove this form of the tort, it is not necessary to show that an underlying contract exists, but, rather, the plaintiff must show that intentional and improper interference prevented a contract from being formed. Dolton v. Capitol Fed. Sav. & Loan Ass'n, 642 P.2d 21, 28 (Colo.App.1981).

The goal to be achieved by these forms of the tort is to protect the integrity of contracts. See Mem'l Gardens, Inc. v. Olympian Sales & Mgmt. Consultants, Inc., 690 P.2d 207, 210 (Colo.1984). However, that interest is not absolute, and must be balanced against the interests of the parties and society. Id. These personal and social interests, which are described by the Restatement as "privileges," include the ability to engage See the Special Note ("[There are ... a number of established privileges for the tort."); Restatement §§ 767 emt. j & 768-774 (describing privileges); Kutcher v. Zimmerman, 87 Hawaii 394, 403, 957 P.2d 1076, 1085 (Haw. Ct. App.1998). in business and compete with others.

Thus, to achieve the balance between protecting contracts and preserving privileges, a plaintiff must show more than that a defendant intentionally interfered with an existing contract or with prospective contractual relations. There must also be proof that such interference was "improper." Restatement § 767; Mem'l Gardens, 690 P.2d at 210; Kutcher, 87 Hawai'i at 408, 957 P.2d at 1085.

Generally, the factors to be considered when deciding whether interference was improper are listed in section 767. These factors require a fact finder to evaluate the interests of the parties and the interests of society as part of the process of deciding whether interference with a contract should result in a finding of liability. Mem'l Gardens, 690 P.2d at 210. Section 767 states:

In determining whether an actor's conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors: (a) the nature of the actor's conduct, (b) the actor's motive,

(c) the interests of the other with which the actor's conduct interferes,

(d) the interests sought to be advanced by the actor,

(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,

(f) the proximity or remoteness of the actor's conduct to the interference, and

(g) the relations between the parties.

However, when the parties are business competitors, and the conduct in question involves intentional interference with prospective contractual relations or contracts terminable at will, the general factors outlined by section 767 do not apply. Amoco Oil Co. v. Ervin, 908 P.2d 498, 501 (Colo. 1995); Mem'l Gardens, 690 P.2d at 210 n. 7; Restatement $ 768. This is because

[oJne's privilege to engage in business and to compete with others implies a privilege to induce third persons to do their business with him rather than with his competitors. In order not to hamper competition unduly, the rule stated in [section 768] entitles one not only to seek to divert business from his competitors generally but also from a particular competitor. And he may seek to do so directly by express inducement as well as indirectly by attractive offers of his own goods or services.

Section 768 emt. b.

This privilege to engage in business and to compete

rests on the belief that competition is a necessary or desirable incident of free enterprise. Superiority of power in the matters relating to competition is believed to flow from superiority in efficiency and service. If the actor succeeds in diverting business from his competitor by virtue of superiority in matters relating to their *1197 competition, he serves the purposes for which competition is encouraged.

Section 768 emt. e.

Section 768 is specifically constructed to balance society's interest in free competition and a competitor's interest in free business activity against the relationship of parties to a prospective contract. Mem'l Gardens, 690 P.2d at 210 n. 7. This balance means that "greater protection is given to the interest in an existing contract than to the interest in acquiring prospective contractual relations, and as a result permissible interference is given a broader scope in the latter instance." Section 767 emt. j; Amoco Oil Co., 908 P.2d at 501.

This same analysis applies to contracts terminable at will. "A contract terminable at will is one that may be terminated at any time without legal consequence; that is, there is no breach if the contract is terminated." Mem'l Gordens, 690 P.2d at 212. The Restatement provides less protection for contracts terminable at will because interference with such contracts affects a "future expectancy, not a legal right." Id. at 211.

However, some interference is not permissible.

If [the actor] diverts the competitor's business by exerting a superior power in affairs unrelated to their competition there is no reason to suppose that his success is either due to or will result in superior efficiency or service and thus promote the interest that is the reason for encouraging competition. For this reason economic pressure on the third person in matters unrelated to the business in which the actor and the other compete is treated as an improper interference.

Section 768 emt. e.

Thus, section 768 sets forth specific factors to be applied when analyzing whether a business competitor's intentional interference with prospective contractual relations or with contracts terminable at will is privileged or a tort.

(1) One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor or not to continue an existing contract terminable at will does not interfere improperly with the other's relation if

(a) the relation concerns a matter involved in the competition between the actor and the other and

(b) the actor does not employ wrongful means and

(c) his action does not create or continue an unlawful restraint of trade and

(d) his purpose is at least in part to advance his interest in competing with the other.

(2) The fact that one is a competitor of another for the business of a third person does not prevent his causing a breach of an existing contract with the other from being an improper interference if the contract is not terminable at will.

"Wrongful means" constitute impermissible interference with prospective contracts or contracts terminable at will.

If the actor employs wrongful means, he is not justified under the rule stated in this Section [768]. The predatory means discussed in § 767, Comment ¢, physical violence, fraud, civil suits and eriminal prosecutions, are all wrongful in the situation covered by this Section. On the other hand, the actor may use persuasion and he may exert limited economic pressure.

Section 768 emt. e.

Our supreme court has recognized that the definition of "wrongful means" is not open-ended. Amoco Oil Co., 908 P.2d at 502. Indeed, in footnote 6 of Amoco Oil Co., the supreme court cited cases from other jurisdictions that recognize the limited nature of the description in section 768 comment e. For example, "wrongful means" are those that are "intrinsically wrongful-that is, conduct which is itself capable of forming the basis for liability of the actor," Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483, 1507 (8th Cir.1992)(quoting Conoco, Inc. v. Inman Oil Co., 774 F.2d 895, 907 (8th Cir.1985)); "illegal," Great Escape, Inc. v. Union City Body Co., 791 F.2d 532, 543 (7th Cir.1986); or *1198 "wrongful by reason of a statute or other regulation, ... a recognized rule of common law, ... an established standard of a trade or profession," "violence, threats or other intimidation, deceit or misrepresentation, bribery, unfounded litigation, defamation or disparaging falsehood," Downey Chiropractic Clinic v. Nampa Rest. Corp., 127 Idaho 283, 286, 900 P.2d 191, 194 (1995). See also Occusafe, Inc. v. EG & G Rocky Flats, Inc., 54 F.3d 618, 622 (10th Cir.1995) (interpreting Colorado law and applying section 768 comment e, stating that "in the context of a claim for tortious interference with' prospective economic advantage, 'wrongful meansg' refers to conduct such as physical violence, fraud, civil suits, and criminal prosecutions'" (quoting R-G Denver, Ltd. v. First City Holdings, 789 F.2d 1469, 1476 (10th Cir.1986))).

When analyzing Kansas law, the Tenth Circuit indicated that it viewed "wrongful means" similarly to the descriptions contained in footnote 6 of Amoco Oil Co. The federal court predicted that the Kansas Supreme Court would interpret the phrase "wrongful means" to require "independently actionable conduct." DP-Tek, Inc. v. AT & T Global Info. Solutions Co., 100 F.3d 828, 833-35 (10th Cir.1996). Such conduct is, of itself, capable of establishing the basis of a defendant's liability. Id. at 834.

The procedures to be followed when this tort is at issue are not entirely clear. The Special Note states:

It is the defendant's responsibility to raise the applicability of a privilege and to assume the burden of proving the facts required to sustain it. In the process of balancing the conflicting interests of the parties, each party has the responsibility of raising and proving an allocated part of the case.

... [Tthe defendant's liability for his conduct depends upon the interplay of a number of factors, and it is the responsibility of the plaintiff to raise these factors and sustain them by factual proof.

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... [TJhere is no clearcut distinction between the requirements for a prima facie case and the requirements for a recognized privilege. Initial liability depends upon the interplay of several factors and is not reducible to a single rule; and privileges, too, are not clearly established but depend upon a consideration of much the same factors. Moreover, there is considerable disagreement on who has the burden of pleading and proving certain matters, such, for example, as the existence and effect of competition for prospective business.

2. Analysis

The argument of the former employees and the new business focuses on the instructions that addressed contracts that were terminable at will. The company claims that the former employees were at-will employees, and that they and the new business "used wrongful means to interfere with [the company's] contracts and prospective business relationships with [the other employees] and clients."

Thus, the business competition privilege would apply to protect the former employees, after they left the company, and the new business from liability for intentional interference with those contracts, unless the factors listed in section 768 were established. Specifically, the issue before the jury was whether the former employees and the new business used wrongful means when they intentionafly interfered with the contracts terminable at will.

Here, the jury was instructed that the former employees and the new business

may lose the business competition privilege if [they use] "wrongful means" of inducement, for example: fraud, intentional interference with contract, intentional interference with prospective business relations, physical violence, threats of eriminal prosecution, or threats of civil suit.

(Emphasis added.)

The former employees and the new business contend that the list of wrongful means included in this instruction was misleading, cireular, and prejudicial. The list was misleading because there was no evidence submitted to the jury to establish that some of the listed conduct-physical violence, threats of criminal prosecution, or threats of civil *1199 suit-had occurred. The list was cireular because it included conduct-intentional interference with contract-that was the tort to which the business competition privilege was to serve as a defense. Consequently, they conclude the list was prejudicial because the jury found against the company on the other two forms of conduct listed as examples-fraud and intentional interference with prospective business relations-and so the only remaining example that was supported by evidence was intentional interference with contract.

We agree with the former employees and the new business that, under these cireumstances, the instruction was, in part, cireular. It instructed the jury that (1) the company was required to prove that the former employees and the new business intentionally interfered with the company's at-will contracts; (2) the former employees' and the new business's conduct in intentionally interfering with the at-will contracts was protected by the business competition privilege unless the former employees and the new business employed wrongful means; but (8) intentional interference with the at-will contracts was wrongful means, which erased the business competition privilege.

However, we are not persuaded that this instruction was prejudicial error requiring us to reverse the judgment. First, in the instruction, the phrase "for example" preceded the list of types of conduct that could be wrongful means of inducement. The inclusion of this phrase meant that the listed types of conduct were merely illustrations, and that there were other varieties of wrongful means that were not listed. See Webster's Third New International Dictionary 791 (2002) (defining "example" to be "a particular single item, fact, incident, or aspect that may be taken fairly as typical or representative of all of a group or type"; and describing the phrase "for example" as an adverb meaning "as an example").

Therefore, the inclusion of the wrongful means for which no evidence was submitted to the jury-physical violence, threats of criminal prosecution, or threats of civil suit-was not misleading. The instruction clearly indicated that those types of wrongful means served merely examples, and were thus not the only wrongful means at issue.

Moreover, apart from the examples of wrongful conduct enumerated in the instruction, the jury found that the former employees and the new business had committed other torts that would qualify as wrongful means of inducement.

@The jury found the former employees and the new business liable for conversion. Conversion is an intentional tort, defined "as any distinct, unauthorized act of dominion or ownership exercised by one person over personal property belonging to another." Stauffer v. Stegemann, 165 P.3d 713, 717 (Colo.App.2006); Restatement (Second) of Torts § 222A(1) (1965) ("Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel."). However, the tort does not require that a tortfeasor act with the specific intent to permanently deprive the owner of his or her property. Itin v. Ungar, 17 P.3d 129, 186 n. 10 (Colo.2000).

e The jury found the former employees liable for the tort of breach of fiduciary duty. See Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1056 (Colo. 1995); Restatement (Second) of Torts § 874 emt. b (1979) ("A fiduciary who commits a breach of his duty as a fiduciary is guilty of tortious conduct to the person for whom he should act.").

e The jury awarded the company punitive damages for the torts of conversion and breach of fiduciary duty, after being instructed that to award such damages it was required to "find beyond a reasonable doubt that [the new business or the former employees] acted in a fraudulent or malicious manner in causing [the company's] damages." See $ 18-21-102(1), C.R.S.2008 (jury may award punitive damages "[in all civil actions in which damages are assessed by a jury for a wrong done to the person or to personal or real property, and the injury com *1200 plained of is attended by cireumstances of fraud, malice, or willful and wanton conduct").

Under Amoco Oil Co. and DP-Tek, Inc., the torts of conversion and breach of fiduciary duty constitute wrongful means of inducement. They are "independently actionable"; "capable of forming the basis of liability for the actor"; or "wrongful by reason of a ... recognized rule of common law [or] ... deceit or misrepresentation." Amoco Oil Co., 908 P.2d at 502 n. 6; DP-Tek, Inc., 100 F.3d at 833-35. Indeed, a division of this court previously concluded that breach of a fiduciary duty constitutes wrongful means, thus rendering the business competition privilege unavailable. McCrea & Co. Auctioneers, Inc. v. Dwyer Auto Body, 799 P.2d 394, 397-98 (Colo.App.1989) (reasoning that "'wrongful means' necessarily include breach of [fiduciary] duty"). Further, here, in its award of punitive damages, the jury found that these torts were committed in a fraudulent and malicious manner.

Therefore, we conclude that the error in the instruction concerning wrongful means was harmless. The error did not prejudice the substantial rights of the former employees and the new business because the jury's findings concerning the torts of conversion and breach of fiduciary duty constituted wrongful means. Because the wrongful means listed in the instruction were clearly meant as illustrations of wrongful means, and not an exhaustive list, the jury was free to consider conversion and breach of fiduciary duty as the wrongful means necessary to find that the former employees and the new business had improperly interfered with the company's contractual relations.

Put another way, even if the jury had been given a correct instruction, which (1) exelud-ed the wrongful means unsupported by evi-dencee-physical violence, threats of criminal prosecution, or threats of civil suit; (2) excluded the tort-intentional interference with contract-to which the business competition privilege applied; and (8) added the torts-conversion and breach of fiduciary duty-that qualified as wrongful means, we conclude that the jury would probably have reached the same verdicts. See Webb, 718 P.2d at 1066-67 (reversal is required when, had "the jury had been properly instructed ... the result of [the] claim ... probably would have been different"); Cissell Mfg. Co. v. Park, 36 P.3d 85, 89-90 (Colo.App.2001){erroncous instructions on counterclaims were harmless because of the manner in which jury found against defendant).

C. Jury Instruction on Punitive Damages

During the instructions conference, the trial court agreed to instruct the jury that "[plunitive damages, if awarded, are to punish the defendant and to serve as an example to others." This sentence, which described the purpose of punitive damages, was omitted from the version of the instructions the court read to the jury, and which was given to the jury to guide its deliberations. However, the jury was instructed that, in order to award punitive damages, it must "find beyond a reasonable doubt that any defendant acted in a fraudulent or malicious manner in causing the plaintiff's damages."

The former employees and the new business contend that the trial court's failure to inform the jury of the purpose of punitive damages violated their constitutional right to due process because the jury's discretion to award punitive damages was not adequately constrained. We decline to address this argument because this alleged error was not preserved below, and because the alleged error is not sufficiently compelling to justify plain error review in this civil case.

The former employees and the new business concede that they did not object to the punitive damages instruction because the pertinent sentence had been omitted. However, they contend that they had no opportunity to object because the trial court did not notify them of the omission.

We are not persuaded by this argument because the former employees and the new business had opportunities to object to the omission before the jury returned its verdict. They could have objected when the final instruction packet, which contained the faulty instruction, was given to them for their final review; or when the particular instruction *1201 was read to the jury in open court; or after the court completed its reading of all of the instructions and before the written instructions were sent to the jury; or during the jury's deliberations before it returned a verdict.

A similar situation arose in Kinard v. Coats Co., 37 Colo.App. 555, 553 P.2d 835 (1976), when a phrase was omitted from a jury instruction given to the jury. The division concluded:

[I]f the instruction was unclear and unsuitable, it was incumbent upon [the party] to direct the trial court's attention to the faulty instruction in order to obtain a correction of it. This it did not do. A party may not consent to the submission of an instruction, and thereafter complain, upon appeal, that the instruction failed to set forth applicable law.

Id. at 558, 553 P.2d at 838.

We therefore conclude that, under C.R.C.P. 51, the former employees and the new business waived this issue by failing to make a timely objection. This issue does not fall within the rare circumstances, involving unusual or special cases, justifying the application of the plain error doctrine in a civil context. See Robinson, 30 P.3d at 684.

III. Damages

The former employees and the new business contend that the amount of actual damages awarded by the jury is excessive and is not supported by the evidence. While we agree that the trial court improperly awarded the company damages for unjust enrichment, we disagree that the damages award was otherwise excessive.

A. -Standard of Review

It is within the sole province of the jury to determine the amount of damages, and, as long as the award is not completely without support in the record, we will not disturb the amount awarded. Mahan v. Captiol Hill Internal Med. P.C., 151 P.3d 685, 689 (Colo.App.2006). The amount of damages must be established by a preponderance of the evidence with reasonable certainty. Id. To satisfy this obligation, a plaintiff must provide substantial evidence which will, when combined with reasonable inferences drawn from the evidence, provide a reasonable foundation for the computation of damages. Id. A plaintiff is not barred from recovering damages because the amount of loss was not proved with mathematical certainty. Denny Constr., Inc. v. City & County of Denver, 199 P.3d 742, 749 (Colo.2009) (although there are "uncertainties inherent in any estimation of future damages," such uncertainties generally do not prevent plaintiffs from proving them); Clough v. Williams Prod. RMT Co., 179 P.3d 32, 42 (Colo.App.2007).

When evaluating whether an award is excessive, we view the evidence in the light most favorable to the party who was awarded damages, and we draw every reasonable inference from the evidence in favor of that party. Furnary v. Merritt, 837 P.2d 192, 196 (Colo.App.1991).

B. Amount of Damages

The former employees and the new business argue that the actual damages awarded by the jury were excessive because (1) in setting the figure, the jury must have relied on expert testimony concerning the value of the company's accounts that was not allowed into evidence; (2) there was insufficient evidence in the record to support an award of actual damages that was substantially above the figure established by the expert calculations provided by the company; (8) the company did not present distinct evidence to support a damages award for each of the claims or for each of the former employees and the new business separately; (4) the jury only found the former employees and the new business liable for some of the claims the company asserted; and (5) the company is not entitled to damages for the equitable remedy of unjust enrichment because it had an adequate remedy at law. We reject the first four claims, but we agree with the fifth.

1. & 2. Reliance on Excluded Testimony and Sufficiency of the Evidence

The former employees and the new business treat the first two issues separately, but we will address them together because *1202 they are intertwined. Here, an expert called by the company testified that the company's actual damages were $1,165,831. The jury awarded actual damages of $1,929,500. The former employees and the new business argue that the actual damages are excessive, and that the only way that the jury could have arrived at the figure is by relying on disallowed expert testimony. We are not persuaded.

© The jury received a separate instruction describing actual damages for each tort. These instructions included a specific reference to lost profits, but also informed the jury it could award "an amount that places [the company] in the position [the company] would have enjoyed had [the former employees and the new business] not breached the [clonfidentiality [algreement"; "any loss of [the company's] property or assets caused by the breach of fiduciary duty"; [alny other consequential damages of ... [the] conduct [of the former employees and the new business resulting from the intentional interference with contracts] including ... "damages resulting from disruption to [the company's business]"; and "damages resulting from disruption to [the company's] business" resulting from conversion.

The jury was also instructed: "Difficulty or uncertainty in determining the precise amount of damages does not prevent you from deciding an amount. You should use your best judgment on the evidence." We must presume the jury understood and followed these instructions. Bear Valley Church of Christ v. DeBose, 928 P.2d 1315, 1331 (Colo.1996).

Juries are not required to accept expert testimony, and they may base their award of damages on other evidence in the record. See Odenbaugh v. County of W