dissenting.
I respectfully dissent from the majority’s conclusion that a new trial is necessary. I would affirm the jury’s verdict based on its finding that Apache Plaza suffered no damages as the result of any breach that may have occurred. As the majority agrees, the evidence supports the jury’s verdict on damages based on the conflicting expert testimony presented at trial. See Sandhofer v. Abbott-Northwestern Hospital, 283 N.W.2d 362, 367 (Minn.1979) (jury may accept or reject expert testimony; decision will not be disturbed on appeal).
I disagree with the majority’s conclusion that, despite the finding of no damages, a new trial is needed. The majority engages in speculation when it states that the jury could have construed the trial court’s instructions as requiring a finding of a breach as a pre-condition to considering the question of damages. The trial court gave the jury the standard instruction (unchallenged ■ and not appealed) to answer the damage question without regard to its finding on the issue of breach of contract. That instruction is given time after time in Minnesota. Although the bench and bar often speculate, probably correctly at times, that the amount of money a jury awards is sometimes tied to its assessment of the egregiousness of the defendant's conduct, a court of review cannot speculate that a jury, being told to answer a damage question without regard to its finding on fault, disregarded the trial court’s explicit instruction. Here, the majority appears to find that, as a matter of law, the jury must have disregarded the trial court’s clear instruction and therefore a new trial on liability is mandated. I disagree.
Appellant argues vigorously that the trial court’s instructions were improper. I do not necessarily agree, but even assuming for the sake of argument that the instruction was improper, a new trial is not always required when the jury’s ultimate determination is correct. See Becker v. Alloy Hardfacing & Engineering Co., 401 N.W.2d 655, 660 (Minn.1987); Keefer v. Al Johnson Construction Co., 292 Minn. 91, 103, 193 N.W.2d 305, 312 (1971). A breach of contract which causes no loss to a plaintiff will not sustain a claim for damages. Gilomen v. Southwest Missouri Truck Center, Inc., 737 S.W.2d 499, 501 (Mo.Ct.App.1987) A plaintiff must prove damages before a recovery for breach is warranted. See Farmington Plumbing & Heating Co. v. Fischer Sand & Aggregate, Inc., 281 N.W.2d 838, 842-43 (Minn.1979). The record is clear that the jury rejected Apache Plaza’s claim that it was damaged by Midwest’s breach of the lease. The jury was instructed in the special verdict form to answer the damages question regardless of its answer to the question on breach. The jury complied with this instruction and answered zero to the damage question. The evidence is sufficient to support this finding.
The jury’s finding that Apache Plaza suffered no damages in this case renders the alleged instructional error, if any, harmless. Becker, 401 N.W.2d at 660; see Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671, 676 (Minn.App.1984) (where evidence is sufficient to support jury’s verdict, erroneous instruction on one issue held insufficient to warrant reversal).
I would affirm the jury’s verdict.