01-2723 Magestro v. North Star Environmental Const.

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Plaintiff hired defendant to build a pole barn to house his business; within weeks the foundation cracked and the building sagged. Plaintiff brought suit for breach of contract and negligence; the trial court dismissed the negligence action; the jury awarded plaintiff $29,825 for building repair, $0 for lost profits and $43,907 for other revenue loss.

Because 1) all discussions during trial of lost profits and revenue loss were inextricably intertwined; 2) the jury was not given a definition of “profit” versus “revenue;” and 3) the special verdict form allowed it to award both, it is probable that the jury was misled; the verdict is therefore unreliable.

The economic loss doctrine has no applicability to this breach of contract case. We reject defendant’s claim that consequential damages are not allowed in a breach of contract case. However, we agree that damages for lost revenue are improper as a matter of law and the only conceivably permitted consequential damages are lost profits. We therefore affirm the damages award for building repair, reverse that portion of the judgment and order concerning the consequential damages awarded (lost profits and revenue loss) and remand for a new trial on the issue of lost profits.

Affirmed in part, reversed in part, remanded.

Recommended for publication in the official reports.

Dist II, Racine County, Barry J., Snyder, J.

Attorneys:

For Appellant: Stuart B. Eiche, Milwaukee

For Respondent: Joseph J. Kroening, Menomonee Falls