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Withers v. Hackett
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 117
Docket:	Cum-98-675	
Submitted
on Briefs:	June 29, 1999
Decided:	July 22, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, and ALEXANDER, JJ.



JACK WITHERS et al. v. ROBERT HACKETT
ALEXANDER, J.

	[¶1] Robert Hackett appeals from a judgment entered in the
Superior Court (Cumberland County, Cole, J.), awarding reduced damages to
Jack and Lorna Withers on our remand.  Hackett contends that the remand
required a new trial on damages.  We agree and vacate the judgment.
	[¶2] The case history is stated in Withers v. Hackett, 1998 ME 164,
714 A.2d 798 (Withers I).  After a jury trial, the Superior Court (Saufley, J.)
entered judgment for the Witherses on claims of trespass, illegal eviction,
conversion, and defamation.  The damages awarded by the jury were $2000
for property damage from conversion, $3000 for defamation, $10,000 for
emotional distress, and $15,000 for punitive damages.  The court also
awarded the Witherses $19,786.69 in attorney fees and costs.  Hackett was
awarded $750 on his counterclaim for unpaid rent.  
	[¶3] We vacated the judgment, holding that the evidence was
insufficient to support the jury's verdict on the defamation count because
the Witherses had not proven special harm.  In the opinion, we stated:
Unfortunately, the parties failed, in the verdict form, to
request that the jury distinguish the emotional distress and
punitive damages that resulted from Hackett's allegedly
defamatory comments from the emotional distress and
punitive damages that resulted from Hackett's other tortious
conduct.  Because we cannot conclude that the jury's punitive
damage award and its award of damages for the emotional
distress suffered by the Witherses were not based, at least in
part, on its finding that Hackett was liable to the Witherses
for defamation, these awards cannot stand.
Id. ¶ 11, 714 A.2d at 801.  We then remanded for further proceedings
consistent with the opinion.  Id. ¶ 12, 714 A.2d at 802.
	[¶4]  On remand, Hackett filed a motion for partial final judgment on
his counterclaim.  The Witherses filed a motion for judgment, asking the
court to award $27,000 in damages, i.e. the damages awarded by the jury
minus the $3000 for defamation, but including the full $10,000 for
emotional distress and $15,000 for punitive damages.  They also sought
additional attorney fees.  Hackett objected to the motion on the grounds that
the remand required a new trial.  The court (Cole, J.), after hearing
argument, concluded that the full $10,000 should be awarded for emotional
distress, but that the punitive damages should be reduced to $10,000.  The
Witherses accepted this reduced award as a remittitur pursuant to M.R. Civ.
P. 59(a).  The court entered judgment for the Witherses for $22,000 plus
$31,043.35 in attorney fees and costs, and for Hackett for $750.  Hackett
filed a timely appeal.{1}
	[¶5]  In Withers I, we held that the awards for emotional distress
and punitive damages "cannot stand" because they may have been based in
part on the finding of defamation.  The Witherses argue that the court was
required to offer them a remittitur before ordering a new trial, citing M.R.
Civ. P. 59(a).{2}  That argument begs the question.  A remittitur is proper "to
remove the unlawful excess in the jury's award, that is, the amount which, in
light of all the evidence, is in excess of the bounds of rationality and is,
therefore, erroneous as a matter of law."  Nyzio v. Vaillancourt, 382 A.2d
856, 861 (Me. 1978) (emphasis in original).  The problem with the
emotional distress and punitive damages awards is not that they were
excessive.  The problem, rather, is that the defamation claim was before the
jury when it made those awards, and neither this Court nor the trial court
could speculate on what portion of the damages might have been awarded
absent the defamation claim.
	[¶6]  This case must be distinguished from Eckenrode v. Heritage
Mgt. Corp., 480 A.2d 759, 766 (Me. 1984), where we held that an issue of
lost profits should not have been submitted to a jury, but ordered a
remittitur rather than a new trial where the amount of the remaining
damages could be objectively calculated from facts in the record.  The
subjective nature of emotional distress and punitive damages precludes such
a choice here.	
	[¶7]  The jury could have concluded that Hackett's defamation was
more or less blameworthy, and more or less deserving of punishment, than
his other tortious conduct.  See Haworth v. Feigon, 623 A.2d 150, 159 (Me.
1993) (punitive damages should reflect fact finder's degree of outrage at
defendant's tortious conduct).  The $15,000 in punitives could well have
represented, for example, $13,000 for defamation and $2000 for the other
tortious conduct or $2000 for defamation and $13,000 for the other tortious
conduct.  
	[¶8]  Where damages cannot be specifically calculated from the
record and are based on the subjective judgment of the fact finder, the issue
is properly one for a jury.  See Taylor v. Lapomarda, 1997 ME 216, ¶ 13,
702 A.2d 685, 689 (assessment of damages is sole province of a jury).  The
court's order on remand reducing the award to $22,000 violated Hackett's
right to have the damages determined by a jury.
	[¶9]  On remand, Hackett has a right to a jury trial, with the issues
for trial limited to emotional distress and punitive damages for the tortious
conduct for which liability was determined at the original trial.
	The entry is:
Judgment vacated.  Remanded for a new
trial on the remaining damages issues.

Attorneys for plaintiffs: John F. Shepard Jr., Esq. Shepard & Shepard P O Box 208 Freeport, ME 04032 J. Whitman Smith, Esq. P O Box 367 Cumberland Center, ME 04021 Attorneys for defendant: Richard W. Elliott, Esq. Richard W. Elliott II, Esq. Elliott & Elliott 37 McKown Street Boothbay Harbor, ME 04538
FOOTNOTES******************************** {1} . Hackett raises an additional issue concerning the trial court's original award of attorney fees. Contrary to his contention, we specifically held that that award was not an abuse of discretion, see Withers I, 1998 ME 164, ¶ 12, 714 A.2d at 802, and he may not revisit the issue on remand. {2} . Rule 59(a) states, in pertinent part: "A new trial shall not be granted solely on the ground that the damages are excessive until the prevailing party has first been given an opportunity to remit such portion thereof as the court judges to be excessive."