Damages and Breach of Contract Claim

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WI Court of Appeals – District II

Case Name: Ostrenga Excavating, Inc. v. Cleveland Construction, Inc., et al.

Case No.: 2016AP7

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ

Focus: Damages and Breach of Contract Claim

Cleveland Construction, Inc., (CCI) appeals from a judgment awarding Ostrenga Excavating, Inc., $55,276. Ostrenga cross appeals from the judgment, conditionally challenging the circuit court’s determination on summary judgment if we reverse the judgment entered after trial. We conclude that the jury’s verdict awarding CCI only $48,724 in damages is unsupported by any credible evidence. The absence of credible evidence to support the jury’s verdict on this issue carried through to additional questions addressing Ostrenga’s damages. Therefore, based on the current record and posture of this appeal, we order a new trial on damages. In addition, we conclude that the circuit court properly awarded CCI partial summary judgment on the implied-in-fact contractual issue, but erred in dismissing Ostrenga’s misrepresentation claims based on the economic loss doctrine, and did not err in granting Ostrenga leave to amend its complaint to add a breach of contract claim.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.