Schwigel v. Kohlmann

ANDERSON, J.

¶ 28. (concurring in part; dissenting in part). I differ with the majority's conclusion that the trial court engaged in "rank speculation," Majority at ¶ 19, 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 Schwi-gel.1 The reversal of the punitive damages award and *846remand for a new trial on punitive damages is unnecessary and overburdens scarce judicial resources.2

¶ 29. Trial courts in Wisconsin have significant authority to decide whether a jury verdict of punitive damages is proper in a particular case. Fahrenberg v. Tengel, 96 Wis. 2d 211, 229, 291 N.W.2d 516 (1980). The trial court may either approve the amount awarded or reduce what the court believes are excessive punitive damages to a reasonable amount. Id. at 232 n.12. This authority is necessary because it is within the jury's discretion to determine the proper amount of punitive damages to award, Reyes v. Greatway Insurance Company, 220 Wis. 2d 285, 302, 582 N.W.2d 480 (Ct. App. 1998), aff'd, 227 Wis. 2d 357, 597 N.W.2d 687 (1999), and because punitive damages rest upon a "vague and immeasurable basis." Malco, Inc. v. Midwest Aluminum Sales, Inc., 14 Wis. 2d 57, 64, 109 N.W.2d 516 (1961). In *847exercising this authority, the court serves as a guard against punitive damages awards that are a product of a jury's passions and prejudices. Trinity Evangelical Lutheran Church v. Tower Ins. Co., 2002 WI App 46, ¶ 37, No. 01-1201.

¶ 30. In determining whether the punitive damages are excessive, the court begins with the premise that the purpose of punitive damages is to punish and deter, not to compensate the plaintiff for any loss. Reyes, 220 Wis. 2d at 303. The court must

consider the reasonableness of the award in light of the case facts. Other factors [that the court] should consider are: the grievousness of the acts, the degree of malicious intent, whether the award bears a reasonable relationship to the award of compensatory damages, the potential damage that might have been caused by the acts, the ratio of the award to civil or criminal penalties that could be imposed for comparable misconduct, and the wealth of the wrongdoer. [The court] also consider[s] the defendant's ability to satisfy a punitive award. Further, one mitigating factor the jury may consider is the severity of any criminal penalty already imposed.

Id. (citations omitted). Given that the court is asked to exercise its discretion, it is free.to pick and choose what factors it will consider and the weight it will assign to those factors. The trial court's approval of the amount of punitive damages is independent of the jury's award of punitive damages.

¶ 31. In this case, Kohlmann invoked the trial court's authority to review the punitive damages and either approve them or reduce them to what the court believed would be a fair and reasonable amount. In denying the motion, the trial court explained:

*848As far as the amount of the punitive damages, which relates to the jury's finding with respect to conversion, they found $12,000 in compensatory damages. I believe that would support the punitive damage judgment alone. While it is a substantial multiple the conversion was testified to — to be one substantial reason, a cause, if you will, that the plaintiff went out of the business he had been in previously because he didn't have the availability of his machine tools. Now there were other reasons, financial losses and problems incurred by the other aspects of the case, but I don't find those disproportionate in light of an understanding while withholding the machine tools in terms of compensatory damage on one level would be the rental value of the machine tools supposedly where a business is put in a situation without their machine tools or readily availability to replace them, and from the testimony it seemed obvious you couldn't just walk into some other shop and say, do you have these 55 machine tools or ten machine tools so I can go right back into business tomorrow, that you would have a business interruption.

The trial court found the punitive damages reasonable because Kohlmann's conversion of Schwigel's machine tools was the primary cause of Schwigel going out of business.

¶ 32. When the trial court approves or reduces the punitive damages and provides an analysis of the evidence supporting the award, its action will only be set aside where there is an evident abuse of discretion.3 *849Badger Bearing, Inc. v. Drives & Bearings, Inc., 111 Wis. 2d 659, 670, 331 N.W.2d 847 (Ct. App. 1983).

The test to determine abuse is whether, if the trial court had been sitting as the sole finder of fact and had fixed the plaintiffs damages in the disputed amount, this court would still disturb the finding. If there is a reasonable basis for the trial court's determination as to the proper amount, it will be sustained.

Lutz v. Shelby Mut. Ins. Co., 70 Wis. 2d 743, 759, 235 N.W.2d 426 (1975) (footnotes omitted). Under these tests, the trial court's finding that the punitive damages are reasonable solely because of conversion would pass muster. It does not matter if the jury awarded the punitive damages on any of the other claims Schwigel pursued because the trial court found that Kohlmann's conduct in the conversion claim was so egregious and outrageous that it was deserving of punishment.

¶ 33. I would affirm the trial court's approval of the punitive damages because it is based upon conduct that is separate from that encompassed by the omnibus damages question — breach of contract, negligent misrepresentation, unjust enrichment and promissory es-toppel. In finding that the amount of punitive damages was reasonable because of the conversion of Schwigel's tools, the trial court was not engaging in "rank speculation" that the jury would have awarded the same amount of punitive damages if it had found only conversion damages of $12,000. Rather, the trial court was exercising the discretionary authority it has to review the punitive damages award. It was reasonable for the trial court to conclude that Kohlmann's refusal to return the tools to Schwigel, after he demanded their return, was responsible for Schwigel going out of busi*850ness and, independent of any other conduct, was deserving of punishment by the assessment of punitive damages.

The jury was instructed that in considering whether to award punitive damages it may take into account the actual *846damages. Wis JI — Civil 1707.1. I do not place the same importance on this instruction as does the majority. While the law requires that there be a reasonable relationship between the actual damages and the punitive damages award, it does not require an arithmetic relationship. Tucker v. Marcus, 142 Wis. 2d 425, 447, 418 N.W.2d 818 (1988). Rather, the actual damages are only one of many factors relevant to the proper amount of punitive damages. Id. Also, the jury is not required to consider the ratio between compensatory and punitive damages; it is told that it may consider "the potential damage which may have been done by such acts as well as the actual damage."

There is no procedural requirement that mandates a new trial on all damages awarded when a new trial is ordered only on compensatory damages. Punitive damages and compensatory damages are "entirely separable" and the interests of justice are best served by limiting a new trial on damages to those that are suspect because of error. See Badger Bearing, Inc. v. Drives & Bearings, Inc., 111 Wis. 2d 659, 673-74, 331 N.W.2d 847 (Ct. App. 1983).

We defer to the trial court's discretion because it had the opportunity to hear the testimony, view the demeanor and body language of the witnesses. The trial court heard the emphasis, volume alterations and intonations of each witness. As a result, the trial court is in a better position to judge the credibility of each witness and the persuasiveness of each side's presentations.