dissenting.
INTRODUCTION
A close reading of the district court’s written decision on Panhandle’s post-judgment motions, after first becoming well-acquainted with the state of the record, draws me inescapably to the conclusion that the district court’s order of a new trial on damages and j.n.o.v. on the punitives award is improper. A majority of this Court has failed to see the light, so I have taken it upon myself to publish the light. This dissent is divided into three parts. I first discuss the new trial on damages. I then turn in Part II to the district court’s sua sponte determinations of error. In Part III, I discuss the district court’s j.n. o.v. on the punitives awarded by the jury.
I. NEW TRIAL ON THE ISSUE OF COMPENSATORY DAMAGES
The majority affirms the trial judge’s determination that a new trial on the issue of compensatory damages is appropriate. This is improper, because the trial court’s
*757memorandum decision and order4 contains no sufficient reasons for the new trial. The trial judge did refer to the correct standard when considering a new trial on damages. The district court memorandum decision is a momentous undertaking, beginning with a thorough review and analysis of this Court’s opinions in Sanchez v. Galey, 112 Idaho 609, 733 P.2d 1234 (1986); Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986); Black v. Reynolds, 109 Idaho 277, 707 P.2d 388 (1985); Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979); and Deshazer v. Tompkins, 93 Idaho 267, 460 P.2d 402 (1969). However, the lessons contained in these precedents were not applied to this case. What really drives Judge Haman to order a new trial is his misconception of the enormity of damages that could flow from such a small contract. As he stated in his order:
How can the breach of a contract for the sale of the right to distribute beer, which rights were valued at $10,000, or less, by the parties to the contract, cause damages amounting to $162,289.24? That is the bothersome part of this case.
R., 308. Quite often, contracts that represent small amounts on paper can cause huge losses when they fall through. That is the reason why a comparison of the damages awarded to the amount of consideration paid in a contract is not the appropriate standard for allowing a new trial on the issue of damages. The appropriate standard for allowing a new trial on 59(a)(5) grounds, the grounds relied upon by Judge Haman, is whether the difference between what the judge would have awarded in the case, and what the jury did in fact award, is sufficiently great for the judge to be concerned that the jury’s award appears to have been the result of passion or prejudice.5 Quick, 111 Idaho at 768, 727 P.2d at 1196.
Judge Haman did not know what he would have awarded in this case. In his order, he states that he “cannot determine with precision the amount of damages which would have been awarded by the Court if the trial were had without a jury.” R., 315. Not even a ballpark figure was provided by the judge. However, this was a case arising out of a contract with damages that were ascertainable with a modicum of mathematical endeavor. No reasons are discernible from the record or the briefs why Panhandle would claim excessive damages were awarded under the appearance of passion or prejudice without a supporting brief that detailed a computation of the damages allowable, to be measured against the damages awarded. This information is a necessary predicate in order to reasonably pursue Panhandle’s contention that the damages award was indeed excessive. Had Panhandle provided the court with this information, perhaps the district court then could have been justifiably convinced that the jury finding of damages was so far above what appeared to be sustainable that there was an appearance of passion or prejudice influencing the jury’s damage award. However, Panhandle did not demonstrate anything pointing to any excess based on insufficiency of the evidence on the damage issue. In fact, Judge Haman, in ruling on the motion j.n. o.v., said the evidence, if accepted by the jury, did sustain the damage award. R., 316.
A very large problem with the trial court’s opinion and its rulings on the defendant’s post-judgment motions is that in thirty (fourteen inch-long pages) there was no information whatever which showed the damages which he would have allowed, a basic requirement of both Quick and Dinneen. Justice Donaldson, in his Quick opinion, quoted approvingly from Dinneen:
*758When a trial judge goes through the same evaluative process [as the jury] of assigning a damage award to the parties upon a motion for a new trial under I.R.C.P. 59(a)(5), he draws upon his experiences with previous cases involving general damages and comes up with a figure he believes is fair and just. Obviously, he has a much better idea of what the scope and limitations on such damages may be. His figure of damages will often be different from that of the jury’s.
Quick, 111 Idaho at 769, 727 P.2d at 1197, cited with approval by the district court. R., 303. Here, although the district court opinion showed a commendable awareness of much of which was written in Quick, the court failed miserably in following the Quick/Dinneen directives, notwithstanding that there was an extensive quote in the opinion which included the above language. Some twelve pages followed the above quotation from Quick before the court returned to the Quick directive that the trial judge draw upon his experiences with previous cases involving damages and “come[s] up with a figure he believes is fair and just.” The predicate for that determination was, of course, that as the jury was hearing the evidence on damages, so, too, was the trial judge going through the same evaluative process. Unfortunately, the trial judge provided the parties, and in turn this Court, with just short of nothing:
I cannot determine with precision6 the amount of damages which would have been awarded by the Court if the trial were had without a jury.
I do determine, however, that any award of damages made by the Court would have been far less than the award made,' and it would have been sufficiently less to .convince me that the award of compensatory damages could only be the result of ‘passion and prejudice’ in the language of Rule 59(a)(5).
R., 315, 316.
Judge Haman knows the jury was not influenced by passion or prejudice as far as the issue of liability is concerned,7 yet he believes that the jury was improperly influenced in awarding damages: “[T]he award of compensatory damages could only be the result of ‘passion or prejudice’ in the language of Rule 59(a)(5).” R., 316. Judge Haman’s order taken as a whole reveals that he simply could not agree with the jury’s verdict:
[S]uffice it to say that, in reviewing and weighing the evidence adduced during the trial, as required by Rule 59(a)(5), I.R.C.P., I cannot agree with the verdict of the jury on either the award of compensatory or punitive damages.
R., 314. Simple disagreement with a jury verdict is not enough, and the real reasons for the new trial (see below) are also not enough to support the judge’s order.
A. JURY INSTRUCTION 14
The district judge’s order relied upon his own theretofore undiscovered errors in giving jury instruction 14 as justification for the grant of a new trial on damages:
[T]he jury was instructed in a rather standard manner concerning damages (See Instruction No. 14),8 that they could *759consider as elements of damage both lost profits, and the difference between the contract price and the fair market value of the property.
Instruction No. 14 correctly advised the jury as to the elements of damage which they could consider, and told the jury that whether any of such damages had been proved was for them to decide. However, in hindsight, and having been given precious little assistance from the Defendant concerning jury instruction, I conclude that the instruction did not go far enough.
For, while the instruction advised the jury that they could consider, as elements of damage, both lost profits and the difference between the contract price and the fair market value of the property involved, it did not advise them that they could not award both. The Plaintiff was certainly entitled to be made whole, but it is not entitled to be made doubly whole by receiving both the value of the property not received by reason of the breach of contract (which presumably could be used to purchase equivalent property) and net profits lost by reason of not receiving the property.
R., 309-10 (emphasis added). However, neither Panhandle’s motion for j.n.o.v., nor its motion for new trial raised this specification of error. In fact, the court’s conclusion that the jury had not been adequately instructed was not responsive to anything asserted in Panhandle’s broad motion for a new trial. The court apparently believed that in instructing the jury it had committed prejudicial error. Yet it had received requested instructions from the parties, had held an instructions conference, had allowed the parties to register their objections to the instructions on the record, and had read the instructions to the jury, as well as sending out with the jury sets of those instructions.
Panhandle apparently realized that it was not well positioned to advance inadequacy of the instructions as grounds for a new trial, because Panhandle's objections were inadequate to preserve any issue as to instructions. Its requested instructions were only seven in number. The first four of those seven instructions were requested before the commencement of the trial, and the other three submitted when the trial was concluding.
Before the jury was instructed, the court met with counsel at an instructions conference. At its conclusion, and before the jury was brought in, the court allowed counsel to voice their objections to the instructions: 9
MR. YERBY [for Jones]: Your Honor, I have no objection to the court’s proposed instructions. I would have an objection for the court’s failure to give Plaintiff’s requested jury instruction number 43 and the Plaintiff’s requested jury instruction number 44 essentially dealing with the computation of lost profits.10
I believe that those instructions set forth the law with regard to computation of lost profits, and I feel that the jury should be instructed in how to compute lost profits.
Other than that, your Honor, I have no other objections to the proposed instructions.
THE COURT: Thank you. Mr. Arney.
MR. ARNEY [for Panhandle]: Your Honor, as to the 20 instructions, or 21—
THE COURT: 21 total.
MR. ARNEY: 21 including those already given, defendants have no objections.
However, we would object to the failure of the court to give Defendant’s requested jury instruction number 4 or some appropriate form thereof including elimination of the reference to tortious *760interference with the contract, including the elimination of that.
And we would further object to the court’s failure to give Defendant’s requested jury instruction number 7 with the elimination in one, two, three, four, five, and six lines, five and six of the second paragraph, the elimination of by clear and convincing evidence, so that it would read as to exemplary or punitive damages only by finding that defendant, et cetera.
And that’s based, of course, on Linscott versus Rainier National Life Insurance Company, your Honor. The Idaho court’s position where a contract is involved, punitive damages have to be the proof of conduct by virtue of that case. As the Court says, it has to be much greater, even almost to the extent of criminal conduct as compared to other cases such as negligence cases, your Honor, person injury, or battery, or something like that, your Honor.
That’s all the comments I have, your Honor.
THE COURT: All right.
Panhandle’s only registered objection was the court’s failure, to give its requested instructions 4 and 7. Panhandle’s post-judgment motions did not pursue, or assess as error, the court’s failure to give instructions 4 and 7 or any of Panhandle’s other requested instructions.
The alleged error Judge Haman discovered in jury instruction 14 turned out to be no problem in fact. According to the district judge, jury instruction 14 was incorrect because:
[Wjhile the instruction advised the jury that they could consider, as elements of damage, both lost profits and the difference between the contract price and the fair market value of the property involved, it did not advise them that they could not award both.
R., 309. However, earlier in the same order the judge recognized that the jury did not award both lost profits and replacement costs:
[GJiven the amount of the claimed lost profits as compared to the jury award of $162,289.24, it would appear that the jury did not consider the $100,000.00 [replacement costs] which the Plaintiff paid for the Anhauser-Busch rights in arriving at its ultimate damage award.
R., 295 (emphasis added). Judge Haman also admits that “[n]either I nor anyone but the jury knows if both elements [i.e., lost profits plus business replacement costs] were lumped together by the jury arriving at the award of compensatory damages in this case. I suspect that only lost profits were considered." R., 310 (emphasis added). The numbers raise more than just a suspicion that the jury awarded only lost profits, because the plaintiffs proved up over $300,000.00 in lost profits, yet the total jury award (including punitives) was only $172,989.24.
B. THEORY OF DAMAGES
In addition to Judge Haman’s sua sponte determination that jury instruction 14, which was neither objected to nor requested, improperly charged the jury (despite all the clear evidence to the contrary), Judge Haman’s other reason given to support the new trial is also weak and of no consequence:
I believe there is also another problem with the Plaintiff’s theory of damages, and with the instructions on damages given to the jury (or lack thereof). And this has to do with the contention that lost profits continue forever____
R., 310. Just as the alleged problem with jury instruction 14 was of no real consequence, this “lost profits forever” problem was also illusory. Plaintiff sought profits only up to the time another beer franchise was purchased, to replace the two franchises which the jury found that Panhandle had agreed to sell. There is no evidence that the Anheuser-Busch franchise was not purchased within a reasonable time after Panhandle’s breach.
At page 6 of the district court’s memorandum decision, the court made clear the plaintiff’s theory of damages:
The Defendant claims that it was error for the Court to have allowed Bill Jones III to testify concerning the purchase by *761the Plaintiff of the rights to distribute Anhauser-Busch products at a price of $100,000.
Obviously, the Plaintiff presented this testimony in attempting to prove the extent of damages resulting from the claimed breach of contract. Except for a minor item concerning the painting of a truck, the Plaintiff’s entire claim for damages was for lost profits which terminated only upon its purchase of the Anhauser-Busch distribution rights as a replacement for the Schlitz-Miller rights which it would have received under the contract with the Defendant.
R., 294 (emphasis added). The district court, relying upon a case from the Montana Supreme Court, Bronken’s Good Time Co. v. J.W. Brown, 203 Mont. 427, 661 P.2d 861 (1983), determined that the damage award was for lost profits over an improperly extended period of time. This extended period, according to the district judge, was too long because it went beyond the time that he envisioned was a reasonable period for a franchise contract to last. The decision relied upon by the district judge, however, is properly distinguished from the issues raised in this case.
Bronken’s deals with damages recoverable to a beer distributor whose franchise was terminated by the brewery, which is not at all the case here. Jones’s case is based on Panhandle’s breach of a specific contract, the purpose of which was for Jones to acquire the Schlitz and Miller distributorships. Bronken’s dealt with a franchised distributor and the question of when and under what circumstances the franchise agreement can be terminated by either party {i.e., the distributor and the producer), whether it was terminable at will, or whether terminable at will but only after reasonable notice of intent to terminate and the lapse of a reasonable period of time.
Jones, of course, had not acquired the Schlitz and Miller distributorships. Putting this out of mind, the district court somehow brought itself to the conclusion that the jury should have been instructed that Jones’s damages for lost profits should cease at some time and the jury might speculate that Jones, had he acquired the Schlitz and Miller franchises, might have been terminated by Schlitz and Miller. This is no haphazard theorizing on my part.
The trial court worded his rationale thusly:
I conclude that the ‘modern majority rule’ adopted by the Montana Court should be applied to the facts of this case. And, since it would be totally illogical to conclude that lost profits under a contract for a contract should somehow be less subject to speculation than they would be if suit were brought under the contract which was contemplated, I further conclude that the plaintiff in this case was only entitled to recover lost profits for a reasonable time after the contemplated contract [i.e. the franchise agreements with the beer companies— not the contract with Panhandle at issue in this case] with the two brewing companies would have been obtained, absent the breach herein by the Defendant. What amount of time is ‘reasonable’ is a question of fact to be determined by the jury based upon the evidence.
R., 313. Ordinarily jurors, if given any warnings, are also cautioned to not speculate. Here, however, the court below wants the jury on retrial to limit Jones’s damages to a reasonable period of time following after the two distributorships (which he never obtained) were terminated by him, or by Schlitz and Miller. It was on the basis of this bizarre hypothesis that the court’s conclusion was forthcoming:
Finally, I conclude that, in this case, the jury should have been so instructed. Failure to do so constituted an error at law that requires a new trial on the issue of damages.
R., 313.
II. IMPROPER SUA SPONTE DETERMINATIONS OF ERROR
The insurmountable obstacle to upholding the court’s order is found in a lack of authority to do what the court did. Panhandle filed timely motions for j.n.o.v. and *762a new trial, but did not include in either motion the specifications of error ultimately relied upon by the district judge in his order. According to Rule 59(d) of the Idaho Rules of Civil Procedure the court must give the parties notice and an opportunity to be heard if it decides to grant a new trial for its own reasons. Judgment was entered April 20, 1987. The motions and supporting affidavits were filed April 28, 1987, and the court’s written decision was not forthcoming until December 21, 1987. The court made no arrangements for the parties to be heard. In addition, this time frame is slightly beyond the fourteen day limit contemplated by Rule 59(d):
Rule 59(d). On initiative of court.— Not later than fourteen (14) days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. The court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, such- order shall be made only after giving the parties notice and an opportunity to be heard on the matter, and the court shall specify in the order the grounds therefor.
I.R.C.P. 59(d) (emphasis added).
As a majority of this Court recently determined, sua sponte determinations of error can erroneously affect a trial judge’s decision to grant a new trial. In Heitz v. Carroll, 117 Idaho 373, 788 P.2d 188 (1990), this Court determined that “[t]he trial court sua sponte concluded that the jury had been improperly instructed, and that conclusion figured into the trial court’s analysis in granting the new trial.” 117 Idaho at 376, 788 P.2d at 191 (footnote omitted). And, in this Court’s exact language:
In ruling upon the plaintiffs’ motion for new trial, the trial court concluded, apparently sua sponte, that the plaintiff Mr. Heitz could have had a claim for medical expenses irrespective of whether Dr. Carroll’s alleged negligence was a proximate cause of the death of Mary Heitz.
Heitz, 117 Idaho at 378, 788 P.2d at 193. In that opinion this Court stated that “[sjince the plaintiffs were bound by the issues upon which they tried their case, [citations omitted], the trial court erred when it considered other issues not raised by the litigants, in granting the motion for new trial.” Heitz, 117 Idaho at 379, 788 P.2d at 194 (emphasis added). Rather obvious, so ‘twould seem, today’s majority opinion is diametrically the converse of Heitz.
III. J.N.O.V. ON THE PUNITIVES AWARDED BY THE JURY
Soria v. Sierra Pacific Airlines, cited with approval by the majority, clearly teaches that a trial judge is charged with the task of making a preliminary determination as to whether punitive damages are justified. Here, Judge Haman presumably 11 did so and submitted the question of punitives to the jury. Por a judge to thereafter question whether any award of punitive damages was proper takes away an important aspect of a jury’s duties. The judge should decide in the first instance whether the question should go to the jury; and once the judge decides that question is in the hands of the jury.
There are other problems with .the district court’s consideration of the j.n.o.v. motion. For instance, Ray Carolin, the Schlitz representative, testified that he was explicitly asked by James Crowley, the chief executive officer of Panhandle, to not approve the sale of the franchise to Jones. This request directly contravened the duty Panhandle owed to Jones, and was a willful and flagrant violation of Panhandle’s duty under the contract. Such a violation is sufficient to support an award of punitive damages, and the jury was obviously persuaded by Ray Carolin. On a motion j.n. o.v., the trial court may not determine for itself the credibility of the witnesses. See *763Quick, 111 Idaho at 763, 727 P.2d at 1191 (“[T]he trial judge is not free to weigh the evidence or pass on the credibility of witnesses and make his own separate findings of fact and compare them to the jury’s findings as he would in deciding on a motion for a new trial.”) Nevertheless, in a long and somewhat confusing order, the trial judge stated that he “did not view the witness, Ray Carolin, as being credible.” R., 314. Somewhat later in the order he stated that:
I would have awarded no punitive damages, and, given any view of evidence [sic], and particularly that of Mr. Carolin, any such award could, only result from ‘passion or prejudice’.
I find no substantial evidence to support an award of punitive damages.
R., 316, 318. This blatantly improper consideration of a motion for j.n.o.v. simply does not catch my attention.
This Court has said that it has free review of a j.n.o.v. grant. Quick v. Crane, 111 Idaho 759, 764, 727 P.2d 1187, 1192 (1986). The rationale of today’s majority for upholding the trial court’s j.n.o.v. does not account for the fact that Panhandle’s flagrant breach destroyed the deal, and Jones proved this at trial.
CONCLUSION
While I understand that a district judge is but one person operating against the time constraints imposed by the Administrative Director of the Courts, I am at a loss to explain how or why a court comprised of five judges blithely accepts that rationale as. a basis for upholding a lower court decision founded on such a faulty footing as is the grant of a new trial and j.n.o.v. which we have here reviewed. And, whereas Dinneen, Quick, and Sanchez all involved personal injury or wrongful death actions (where the damages for present and future pain and suffering, loss of life or limb, are wide open to a jury’s assessment), this instant action involved none of those elements. Rather it involved only that the jury, and the judge, hear evidence as to lost profits, and compute the same. The jury performed that function. The judge did not, but rather spoke in vagaries. Vagaries may now be in vogue, at least in this jurisdiction. Quick and Dinneen and the forerunners which were the backbone of those decisions might as well not have been written.
. The district court’s opinion in re: Motion for New Trial and Motion for Judgment Notwithstanding the Verdict, R., 289-319.
. I note in passing that Panhandle pursued the passion or prejudice ground for new trial as if it was incumbent upon it to prove actual passion or prejudice. This was attempted through the submission of three affidavits, two of which included post-verdict hearsay statements of jurors that in their view the damages award was excessive enough to show that the jury acted improperly and certain jurors were prejudiced against Panhandle. Needless to say, the district court correctly viewed the affidavits as improper and of no consequence.
. Quick does not require precision in such circumstances.
. "I cannot find that the jury was influenced by ‘passion or prejudice’ on the issue of liability.” R., 315.
. Jury instruction 14 instructed the jury that: If you decide for the Plaintiff on the question of liability with respect to its claim, then you must fix the amount of money that will reasonably and fairly compensate him for any of the following elements of damage which have been proved by the evidence to have resulted as a natural and ordinary consequence of the Defendant’s breach:
1. Those losses and expenses which have occurred and which may fairly and reasonably be considered as arising in the usual course of things from the Defendant’s breach of the contract and those losses and expenses which may reasonably be supposed to have been in the contemplation of both parties as a probable result of such breach when the contract was made which may include reasonable costs incurred to recover business lost.
2. The expenses, if any, which the Plaintiff reasonably incurred in anticipation of or preparation for performance of the contract.
3. The difference between the contract price for the sale of the property and the fair mar*759ket value of the property at the time of the breach of the contract.
Whether any of these elements of damage has been proved by the evidence is for you to determine.
. This is found in Volume 7 of the Reporter’s transcript.
. The court instead prepared and gave its own Instruction No. 14, which the court later found sua sponte to be inadequate. >
. On the other hand, the district judge may not have done what Soria requires. In his order he stated that: "[I]n my view, the better practice is to submit the question to the jury in all but the most obvious cases____” R., 297.