01-1918 Schwigel v. Kohlmann

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“[I]f the judge’s jury instruction had cautioned the jury to make sure that it was not awarding duplicate damages on the multiple claims when considering the single damage question, perhaps we could salvage the verdict.

“But the instruction refers to other damage questions on the verdict, not to the risk that the jury might award duplicate damages to the single question pertaining to the three claims at issue. Thus, this instruction only assured that the conversion damage award of $12,000 was not duplicated in the lump sum award of $250,000 on the three other merged claims. It did not assure that the lump sum award did not include duplicative damages on the three claims the jury was considering in the single damage question. …

“In summary, we reverse those portions of the judgment awarding $250,000 for compensatory damages on the breach of contract, negligent misrepresentation and unjust enrichment claims. We remand for a new trial on those claims. We affirm the portion of the judgment awarding $12,000 compensatory damages on Schwigel’s conversion claim.”

Further, having struck down the jury’s compensatory damage award, it follows that the jury’s punitive damages award cannot stand.

Judgment affirmed in part, reversed in part and remanded with directions.

Recommended for publication in the official reports.

DISSENTING IN PART: Anderson, J., concurring in part and dissenting in part. “I differ with the majority’s conclusion that the trial court engaged in ‘rank speculation,’ when it determined that the jury’s award of punitive damages was supported by the compensatory damages awarded for conversion. As I understand the majority’s position, the punitive damages award must be reversed because it may be based, in part, on the jury being instructed that it may take into consideration the ‘actual damage’ incurred by Schwigel. The reversal of the punitive damages award and remand for a new trial on punitive damages is unnecessary and overburdens scarce judicial resources.”

Dist II, Waukesha County, Davis, J., Nettesheim, J.

Attorneys:

For Appellant: Paul A. Piaskoski, Milwaukee; Benjamin J. Harris, Milwaukee

For Respondent: Daniel W. Stevens, Menomonee Falls