- 35 -
mining lost profits, he took account of the profits lost by DCI,
as well as the profits lost by ETS, that he treated ETS as a
division of DCI, and that although he was unable to determine
precisely the portion of the total lost profits attributable to
ETS, "the bulk of what is in the office profitability would have
been from Evergreen."
The following actions taken by the parties to the Farmers
lawsuit subsequent to the District Court's opinions and judgments
are consistent with those opinions and judgments: (1) FIG made
the FIG check in payment of the proceeds of the Farmers lawsuit
payable to all the plaintiffs in the Farmers lawsuit (viz., DCI,
Peter Diamond, and Shirley Diamond), as well as their attorneys
Markowitz & Herbold; (2) FIG prepared the FIG letter that
accompanied the FIG check in which it stated, inter alia, that
that check represented full payment by FIG of the plaintiffs'
claims, without drawing any distinction between DCI and the
Diamonds; and (3) Peter Diamond as president of DCI, Peter
Diamond as an individual, Shirley Diamond as an individual, and
David Markowitz and Barrie Herbold endorsed the FIG check.24
24 We note that certain statements by DCI and the Diamonds in
the Dec. 12, 1984 minutes, the Dec. 12, 1984 letter, and the Dec.
30, 1984 minutes also are consistent with the District Court's
opinions and judgments in the Farmers lawsuit. Those documents
all indicate that at an early stage in the Farmers lawsuit DCI
and the Diamonds recognized that the Diamonds, in their capacity
as the owners of ETS, were parties to the Farmers lawsuit and
would be entitled to a portion of any amount that the District
Court decided to award in that lawsuit.
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