Robison v. Lescrenier

Citation721 F.2d 1101
Decision Date21 November 1983
Docket NumberNo. 82-2804,82-2804
PartiesCurtis J. ROBISON, Plaintiff-Appellee, v. Charles LESCRENIER and Gammex, Inc., a Wisconsin Corporation, Defendants- Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Kevin J. Lyons, Cook & Franke, S.C., Milwaukee, Wis., for defendants-appellants.

William J. French, Gibbs, Roper, Loots & Williams, Milwaukee, Wis., for plaintiff-appellee.

Before POSNER and COFFEY, Circuit Judges, and GIBSON, Senior Circuit Judge. *

COFFEY, Circuit Judge.

The plaintiff in this case initially sued the defendants for breach of contract. He subsequently amended his complaint to include an allegation of slander per se and a request for punitive damages. The jury returned a verdict for the plaintiff assessing $14,000.00 damages on the breach of contract claim, six-cents nominal damages on the slander claim and $10,000.00 punitive damages. The trial court denied the defendants' motion for judgment n.o.v. or, in the alternative, a new trial. From this denial the defendant appeals, raising five separate sets of issues: (1) whether there was sufficient evidence to support both a finding of breach of contract and the $14,000.00 assessment of damages; (2) whether the district court erred in refusing to permit the introduction of evidence establishing a conditional privilege, and in denying an instruction on that privilege; (3) whether there was sufficient evidence of malice or ill will to warrant a punitive damage instruction; (4) whether the court erred in denying judgment n.o.v. to the defendants on the issue of punitive damages after the jury returned a verdict of only six-cents nominal damages on the slander claim; and (5) whether the punitive damage award should be reduced. We affirm.

I.

The defendant Charles Lescrenier ("Lescrenier") is the President, Chairman of the Board, and sole shareholder of the defendant, Gammex, Inc. ("Gammex"), a Wisconsin corporation engaged in the business of manufacturing systems utilized to align patients for X-ray and similar procedures. The plaintiff, Curtis Robison ("Robison") was employed by Gammex as vice president of sales for a seven-and-one-half month period from June 2, 1980 through January 16, 1981.

The parties stipulated that three letters exchanged between Gammex and Mr. Robison in May of 1980, along with two supplemental agreements signed on June 2, 1980, (these two agreements being irrelevant to the present action) constituted Robison's contract of employment with Gammex. The terms of the contract provided that Robison was to be paid a base salary of $3,333.34 per month, a car allowance of $200.00 per month and a bonus, the calculation of which was the main issue of dispute in the breach of contract action.

With regard to that bonus, the evidence reveals that Robison did not receive a bonus for the month of June, 1980, but did collect $3,333.34 or 100% of his base pay, for both the months of July and August. He also collected a bonus of $2,267.12 for September The slander claim concerns a statement allegedly made by Lescrenier to Mr. Robert Fortier, who was retained by Gammex as a personnel and management consultant during the time period in question: "Curt [Robison] doesn't know this but I know he was fired from his last job and he has an ability to run all his companies out of money." The defendant Lescrenier denies ever making this statement, rather he attributes it to Mr. Fortier.

but did not receive a bonus for either the month of October or November. The company tendered a bonus check in the amount of $2,228.82 for the month of December, 1980, which Robison returned. Robison also was not paid a bonus for his work during the first fifteen days of the month of January, 1981.

The jury found a breach of contract and assessed compensatory damages of $14,000.00. It also found that Lescrenier had in fact uttered the slanderous statement, and awarded six-cents nominal damages and $10,000.00 in punitive damages. The defendants' motion for judgment n.o.v. or, in the alternative, a new trial was denied. The district court entered judgment in favor of the plaintiff in the amount of $24,000.06. From this judgment the defendants appeal.

II.
A. Breach of Contract

The defendants argue that the district court erred in denying their motion for judgment n.o.v. or, in the alternative, a new trial on both the issue of breach of contract and the amount of damages. The Seventh Circuit has stated in Oberman v. Dun & Bradstreet, Inc., 507 F.2d 349, 352 (7th Cir.1974), that "in diversity cases the state law standard for judgment n.o.v. is applied." See also Kuziw v. Lake Engineering Co., 586 F.2d 33 (7th Cir.1978). 1 The Wisconsin standard for determining the sufficiency of the evidence is codified in Wis.Stat. Sec. 805.14(1). It provides:

"(1) Test of sufficiency of evidence. No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and the reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party."

According to the Wisconsin Supreme Court:

"If there is any credible evidence which, under any reasonable view fairly admits of an inference that supports the jury's finding, neither the trial court nor an appellate court has any authority to change the jury's answer or findings."

Lehman v. Sentry Ins. Co., 35 Wis.2d 96, 98, 150 N.W.2d 333 (1967) (footnote omitted). See also Chart v. General Motors Corp., 80 Wis.2d 91, 110, 258 N.W.2d 680 (1977).

In contrast to a motion for judgment n.o.v., the standard for reviewing a trial court's disposition of a motion for a new trial is controlled by federal law, even in diversity cases. Galard v. Johnson, 504 F.2d 1198, 1200 n. 4 (7th Cir.1974). Since "a motion for a new trial is addressed to the sound discretion of the trial judge," Durant v. Surety Homes Corp., 582 F.2d 1081, 1088 (7th Cir.1978), the standard of review is abuse of that discretion. "The only question before us is whether the district court abused its discretion in concluding that the jury did not abuse its discretion." Galard, 504 F.2d at 1202. As our court pointed out in Continental Air Lines, Inc. v. Wagner-Morehouse, Inc., 401 F.2d 23 (7th Cir.1968):

"If the evidence in the record, viewed from the standpoint of the successful party, is sufficient to support the jury verdict, a new trial is not warranted merely because the jury could have reached a different result. [Citing cases.] Neither the trial court nor this Court may substitute its judgment for that of the jury on disputed issues of fact."

Id. at 30 (quoting Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129, 133 (3rd Cir.1965)).

The defendants argue that the trial court erred in failing to grant their motion for judgment n.o.v. or, in the alternative, a new trial because the evidence was insufficient to support the jury's finding of breach of contract or justify the $14,000.00 damage award. Turning first to the question of breach, our review of the record taken in the light most favorable to the successful party, Robison, demonstrates that there was more than sufficient credible evidence for the jury to find a breach of the employment contract.

As noted earlier, the essential terms of the contract between Robison and Gammex were established in the three letters and company attachments exchanged between the parties in May of 1980. 2 Since the only basis for a charge of breach of contract is the defendants' alleged failure to pay the bonuses agreed to, this opinion will only focus on those portions of the letters referring to the calculation and payment of the bonus.

In his May 5, 1980, letter to Curtis Robison, the defendant Lescrenier stated:

"You will also receive a bonus based upon sales that will be paid monthly based upon cumulative year-to-date sales. Your bonus will amount to the percent of your base salary equal to the growth in sales over the previous year. Total sales will include all international and domestic sales."

On May 15, 1980, David Bierworth, Gammex's general manager, sent a letter to Curtis Robison stating:

"Your bonus will be based on the Fiscal 1981 accumulative forecast curve reviewed quarterly. Draw bonus payments are on the 15th of the following month."

The evidence established that Robison received no bonus for the month of June, 1980, the first month of his employment with Gammex. Yet, our review of the three letters exchanged in May fails to reveal any language excluding June from the months in which Robison was entitled to a bonus. It cannot be denied that Mr. Lescrenier testified that he had entered into an "arrangement" with Mr. Robison which provided that no bonus would be paid in June. However, this testimony is of no value to the defendant as the parties stipulated that the terms of the contract were limited to those contained in the three letters exchanged in May in addition to the two supplemental agreements signed on June 2, 1980. These documents do not contain any language establishing that Robison was not to receive a bonus for the work he performed during June, 1980. Since Robison generated sales in June, and the contract stated "[Y]ou [Robison] will also receive a bonus based upon sales that will be paid monthly ...," without any qualifying language excluding the month of June, the The main bone of contention, however, is that the bonus payments were not calculated, and therefore not paid, as originally agreed in the contract. This aspect of the alleged breach will be developed further in our subsequent discussion of evidence supporting the damage award. Suffice it to say at this point in the analysis that our review of the record indicates that there was substantial evidence supporting an interpretation of a...

To continue reading

Request your trial
23 cases
  • Groshek v. Trewin
    • United States
    • Wisconsin Supreme Court
    • June 24, 2010
    ...209 Wis.2d 605, 621, 563 N.W.2d 154 (1997) (action for intentional trespass to land; $1 nominal damages). See also Robison v. Lescrenier, 721 F.2d 1101, 1102 (7th Cir.1983) (applying Wisconsin law; awarding $10,000 punitive damages with six cents nominal damages). 22. “The reason for [a req......
  • Hibma v. Odegaard, s. 84-1137
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 30, 1985
    ...issues of fact." Id. at 30 (quoting Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129, 133 (3rd Cir.1965)). Robison v. Lescrenier, 721 F.2d 1101, 1104 (7th Cir.1983). Having reviewed the record in the instant case, this Court finds that the evidence is sufficient to support the jury's......
  • Kamelgard v. Macura
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • October 23, 2009
    ...read it—just as key evidence in a slander case, because slander is oral, is the testimony of persons who heard it. Robison v. Lescrenier, 721 F.2d 1101, 1104 (7th Cir.1983); Simon v. Shearson Lehman Brothers, Inc., 895 F.2d 1304, 1309 (11th Cir.1990); Gasbarra v. Park-Ohio, Inc., 382 F.Supp......
  • Brown & Williamson Tobacco Corp. v. Jacobson, 82 C 1648.
    • United States
    • U.S. District Court — Northern District of Illinois
    • August 7, 1986
    ...for a new trial is also strict. The court may not second guess a jury or substitute its view for that of the jury. Robison v. Lescrenier, 721 F.2d 1101, 1104 (7th Cir.1983); Continental Air Lines, Inc. v. Wagner-Morehouse, Inc., 401 F.2d 23, 30 (7th Cir. 1968). All disputes concerning the r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT