Action House, Inc., Plaintiff-Counter-Defendant-Appellant v. Stanley Koolik, Defendant-Counter-Claimant-Appellee

Nor at all. answer no tionary sentence —is Restitutionary Sentence E. The of the restitu- request reconsideration did he resti- contends Finally, appellant 35(c); Fed.R.Crim.P. See tionary sentence. pursuant imposed tutionary sentence 910 F.2d Heilprin, v. States United cf. Act, U.S.C. Protection and Witness Victim Cir.1990). (7th n. 5 error because 8663(b)(2)(A), constituted § (1) overtime lost for Gedara reimbursed Ill under entitled was not she to which wages Labor law, Fair Standards see applicable CONCLUSION Wage 213; Massachusetts § Act, 29 U.S.C. (2) 151; eh. Act, af- Mass.Gen.L.Ann. must be Hour court The district job her from off took she time wages for lost firmed. its prosecuting government assist Affirmed. v. Alzankis, see but against case Ratliff (6th Cir. 1023, 1026 States, F.2d United counseling for (3) 1993); psychological to her symptoms attributable stress chronic U.S.C. treatment, but abusive cf. “bodily (restitution only for 3663(b)(2)(A) §

injury”). appellant’s address decline We restitutionary sentence challenges to INC., HOUSE, Plaintiff- ACTION below. raised never claims were these since Counter-Defendant-Appellant, 50, 55 Dietz, F.2d v. United States

See failure utter Cir.1991).15 Appellant’s (1st from sentencing KOOLIK, court Defendant-Counter- Stanley object disabled present Claimant-Appellee. assessment making a reasoned making instance, first in the claims 93-7669. Docket No. upon which findings factual predicate concerns example, as For depend. Appeals, claims Court States United re claim, government appellant’s second Circuit. Second restitutionary sentence sponds 14, 1994. Jan. Argued leave to offset reimbursement not include government help the April took 1995. Gedara time Decided her merely to reimburse case, but its prepare having to leave wages occasioned lost for treatment to obtain employment her new dur experienced she debilitating stress government ordeal. four-month ing her for Gedara’s reimbursement

concedes trial would preparing assistance appel but a matter problematic district court to alert failure lant’s appeal, time first claim, raised clarify sentencing court from prevented restitutionary basis ing the factual attempt Lastly, appellant’s sentence. argu waiver government’s addressing the restitu- appealed promptly he

ment —that relies. he now upon which contention, statutes the two ap Indeed, first 15. concerns clear with the Rather, the district he left sentencing he “would flatly stated at pellant might wages overtime impression that some what to determine the Court up to leave it of law. as a matter appropriate he cite figure.” Nor did restitution appropriate $362,000 ground on the that, under New York puni- award of tive cannot be sustained in the ab- sence of an award of compensatory damages. We believe that there should be a new trial on damages. After years some sixteen business, Stan-

ley Koolik Stanley Markowitz, each own- er of half 100) the shares (totaling of a successful dress-making concern, Action House, Inc., decided go separate them ways. This litigation arose the frac- tious end their relationship. business Action House sought compensatory and punitive damages from Koolik under various tort and contract It theories. claimed that Koolik had taken more than his one-half share of Action House’s profits in the three years preceding his withdrawal from Action House.1 It attempted prove inter alia that Koolik wrongfully used Action House pay checks to personal expenses and made illicit withdrawals from petty cash account. defense,

In argued Koolik the with- drawals were made with Markowitz’s knowl- edge pursuant to an practice informal agreed by the principals. Koolik also maintained any excessive withdrawal of Action House funds was explicitly recom- pensed through purchase a stock agreement that Koolik and Action House executed on December By 1988. this agreement, Koolik sold his half interest of 50 shares to Amy Don, I. Wincig, Owen New York City and, House for alia, $1 inter agreed (Law Office of Wincig, counsel) Bernard to a restrictive covenant years. for two return, plaintiff-counter-defendant-appellant. Koolik obtained a guar- release from antees he had made and the continuation of Gruskin, C. (Ste- Matthew City New York some benefits he received from Action Heller, ven W. counsel), for defendant- House. parties agreed fol- counter-claimant-appellee. lowing provision, 16(c): labelled Section NEWMAN, Before: Judge, Chief (c) The SELLER agrees [Koolik] to reim- WINTER JACOBS, Circuit Judges. burse the PURCHASER [Action House] any payments after December WINTER, Judge: Circuit which the PURCHASER is required to House, Inc., appeals from Judge shall make for the account of the SELL- Cedarbaum’s order granting appellee Stanley Any ER. payments made theretofore Koolik’s motion to vacate a award of the PURCHASER the account 1. The instant case was consolidated for trial with (MGC). 1993 WL 204807 Markowitz, case of 89-CIV-5367, Koolik v. damages and any, if need hereby waived SELLER any, to punitive if by you, fixed amount the SELLER. repaid indicates. form damages, as evi- added). presented (emphasis Purchase version an earlier clearly dence allowed paragraph The last buy Action House proposed

Agreement making damages without to award Markowitz’s $100,000,and that for shares Action damages. compensatory of an award of draft another on QUESTION TWENTY-TWO TION HOUSE LIK’S misappropriation? QUESTION Question Seven. What is the amount of damages SIX caused ^{[*] [*] [*]} $_ STANLEY KOO- withdrawals of funds from AC- Twenty-Two “$362,000.” petty punitive tion House tion. breach of fiduciary duty cash However, accounts, the and answered for Koolik’s damages then awarded the misappropria- checking Question Ac- 540, Koolik’s counsel noted that Action under New York law. Action House also what tion jurors sent the court two notes with several cash account withdrawals, sponse, the punitive damages. questions. Neither party objected to the formulation of $- You may “No” need not either “No” to either TION ACTION HOUSE’S LIK’S withdrawals of funds from ACTION After several Do House was seeking withdrawals. regard damages you HOUSE Question Question do so Questions checking HOUSE district court questions Questions even if Action House was seeking Questions One One or Four and answered hours of jurors asked, punitive With any punitive ^[*] Two and Five and you and petty cash accounts? if ^[*] you you $358,540 on compensatory or ^[*] regard Four and answered Three and Six involved compensatory dam- $70,177.40 responded Two STANLEY answered answered “Yes” to 3 and 6. damages to AC- deliberation, damages to and Five. inter checking that Ac- by, “Yes” to In re- $358,- petty KOO- Koolik’s counsel alia, waived ly awarded without compensatory damages award and punitive damages are not available under New actual ages to Action House on matter of ting aside form unaltered. ant to Fed.R.Civ.P. 50 initiative then asked whether briefly, ages. more the award of and Koolik’s counsel declined to darbaum Following After inter York specific any objection After the their answers denied this law finding of law in the absence of a alia, jury’s inquiry. punitive jury’s returning and, punitive verdict, requested returned the arguing that Koolik had Action inter verdict had been award of request Koolik “$-0-” to the alia, House a “clarification” of punitive court as too special punitive moved an order set- ground formulate responded on its own Judge Ce- Questions consider proper- general, pursu- room dam- as a read, a House seeking $363,000, figure that moved for partial new compensato- trial on had been used in Action opening House’s ry damages 59(a) under Fed.R.Civ.P. in the statement and Koolik’s summation. event the granted court Koolik’s motion to set punitive aside the

After award. several more deliberation, hours of sent another note asking long how Judge granted Cedarbaum Koolik’s motion they had to deliberate being before declared vacate the damages award. She hung jury and whether “charges” could concluded that such were not avail- be “condensed.” Judge Cedarbaum instruct- able under New York law in the absence of that “it is far too soon to be an award of compensatory damages and that discouraged,” and ordered them to continue refusal to alter the “$-0-” answers to deliberate. An later, hour-and-a-half Questions upon Three and Six being asked arguments various advances vacating them necessitated to reconsider House that Action a claim amounting to appeals Action award. court not district rights waived of Koo- granting Judge Cedarbaum’s on shoe is instructions. objecting to the motion.2 lik’s however, the instruc foot, because the other House, it was under favored tions on instructions court’s The district Koolik’s objections on make burden to no consistent with damages were certainly had no rea behalf. finding of requires which New court district anticipate that the son to before the find award because upset Wilde, A.D.2d Bryce awarded. damages.3 Koo- compensatory ing of “$—0—” (3d Dep’t), aff'd, 614, 616 294, 333 N.Y.S.2d course, is that argument, strongest lik’s 185, 292 N.E.2d 882, 340 N.Y.S.2d N.Y.2d compensatory “$-0-” because (1972). final sentence safely strike court could damages, jury would punitives instruction because state jury should at answers necessarily “$-0-” arrived explicitly stated properly if compensatory “$-0-” the amount “separately” argu in this puni force of is much There any,” and the amount “if instructed. damages, assumptions. form, ment, upon two depends but it any.” “if On damages, tive an award authorized Twenty-Two Question assumption most critical first and jury answered if the damages an right to its of waived that Action Four and Questions damages. One concerning either nominal to ‘Yes” instruction as in re- Viewed Five. been awarded Questions Two to nominal “No” Had Six, to we be- therefore, Questions failed Three and instructions whole, sponse to a puni award of that an could not lieve jury that it inform New with consistent compen have been awarded it also damages unless tive 294, 333 at 39 A.D.2d Bryce, law.4 See damages. satory "$-0-” to award intended ex that appeal does not notice of House’s 2. Action planning was gave no that she hint she implicit deni court’s the district plicitly mention was in the answer if the overturn to under Fed. for a new trial its motion al of Moreover, primary Action House's 3(c) requires affirmative. Fed.R.App.P. 59(a). While R.Civ.P. challenges instructions not the appeal on judgment, order claim "designate the appellant that ver- decision to overturn from," given, but interpret rather that appealed we part thereof fact, it instructions. with those dict consistent American Bd. liberally. SEC v. requirement of House, belatedly Koolik, who Cir.1987); (2d not Action 431, Trade, n. 2 438 F.2d 830 making a by 205, jury Kisco, challenged 211 instructions F.2d Village 750 Conway v. of Mt. to J.N.O.V. Cir.1984). parties for seem (2d both motion Because appeal of House’s notice Action understood motion implicit of for denial its embrace language a recent in that certain are aware 4.We and, of trial, interpreted, the liberally notice new Inc. v. Appeals, Kronos by opinion the Court of so, we conclude may fairly said to do appeal 612 N.Y.S.2d AVX Corp., 595 N.Y.2d 81 jury in challenges Action House’s pre interpreted (1993), might be 289 N.E.2d properly before us. are structions damages in case. award of nominal clude an "[njominal damages court stated Kronos appeal also included notice of Action House’s actions breach contract always in available are to set its motion Judge denial Cedarbaum’s only needed when in tort allowed but are ... $52,000 disability in jury's aside ” at right.’ Id. ‘important technical protect an Action on counter-claim. his benefits (citation N.E.2d 595 N.Y.S.2d issue, however, House, briefed has not However, awith lower omitted). dealt Kronos it. consider do not we therefore that, starting the purposes of holding for court's limitations, contract nominal statute we colleague dissenting states 3. Our a claim in as actual serve could also absent instructions errors review now The authori contract. interference party tortious “neither plain because finding of error exclusively concern seem Kronos cited in ties at 1016. charge given.” objected to the Infra at See id. contract. interference with tortious 51 and Fed.R.Civ.P. not believe doWe (citing 95-96, 612 N.E.2d because, N.Y.S.2d applicable here plain doctrine error In Note, Action Damages Recoverable object noted, reason had no Action as Contract, 30 Colum.L.Rev. ducing Breach jury. to the read were instructions to the Annotation, Procuring Liability (1930); to confirm asked the district When However, N.Y.S.2d 614. Action House could an award of damages. Had New anticipated not have the vacating of puni- York law regarding punitive damages been tive award under the instructions and verdict stated, correctly no such confusion would given form to the and thus did not waive have possible. been rights. its Had Koolik objection made the Such a possibility would not concern us but regarding relationship compen- between events trial. parties Both mentioned satory damages before the case in arguments that Action House went to the instead of after it returned seeking $363,000 verdict, one of its tort its protect- House could have claims. The instructions stated that requesting itself regard- an instruction ing could be damages. awarded nominal An on tort such claims, might jury posed question well during have been made jury, and Koolik reap should not deliberations that sought a windfall determine a result of his own how failure to much timely make a seeking House was as tort objection. (The court’s answer as to one $358,540 claim stated $363,000). instead of assumption second is that then $362,000 returned a verdict of jury properly understood the difference be damages. The jury’s questions tween types the two We believe regarding Action House’s tort claims com- that some doubt exists as to that understand bined with a verdict near the amount that ing. There is a possibility that the instruc argued had been as compensatory damages tions caused the to consider compensa for checking account give withdrawals us tory and punitive damages as alternative pause regarding differentiation be- forms of relief depending degree on the tween compensatory damages. culpability. may thus have believed We acknowledge speculative it that is to con- that it should award compensatory damages clude the believed that Action to ordinary redress wrongs punitive and $362,000 House had suffered in damages be- egregious to redress wrongs, but of egregious (rather cause wrongs by Koolik that either should reflect the loss suffered $362,000 than ordinary because of injured wrongs) the party. lawyer, For a this would and that Action House was be an obvious thus entitled to misreading of the instructions. punitive However, damages in that It apart quite amount. from use of the labels possible that “compensatory” found that “punitive,” and Action the instruc House suffered damage tions no little and offered pu- differentiation awarded between the types conduct, of nitives because damage Koolik’s except awards however re- when the deemed, instructions egregious. point, described purpose however, puni of tive punishment tell, that we cannot and deterrence. Action House layA person might again reasonably never had an opportunity ap- believe to seek having to compensate propriate a party for a loss is a instructions that pro- would have punishment that deters. The verdict it form tected from the district court’s upsetting of nothing did dispel to any such mistaken view verdict. Whether this possibility would stating that a “Yes” answer to justify either itself a new trial need not be Questions One Four Ques and “No” to addressed because the nominal damages is- tions Two and Five were sufficient to support sue is of greater much significance and in our Contract, 1227, Breach 43; 26 482, § A.L.R.2d 910, W. of N.Y.2d (1983); 465 N.Y.S.2d 452 N.E.2d 1238 Keeton, Page Torts, Prosser and § Keeton on 129 Bobrow, 105 East Second Street Assocs. v. (5th 1984) Ed. (concerning 746, "Interference 175 (1st A.D.2d 573 N.Y.S.2d Dep’t 503 Relations”)). Contractual 1991); Because Miller, does Kronos Weiss v. 166 A.D.2d not address the use of sup- (1st nominal 1990), to Dep't N.Y.S.2d 110 aff'd, 78 N.Y.2d port an punitive damages, award and because (1991), N.Y.S.2d 580 N.E.2d 404 reading such a broad opinion would vitiate we believe that Appeals the Court of intended its holdings many New York permitting cases holding apply only concerning cases tor- context, award of nominal in this tious interference with contract. Action House see, e.g., Bryce, 614; 39 A.D.2d 333 N.Y.S.2d could thus have requested an award nominal Corp. Reinah Dev. v. Corp., Kaaterskill Hotel in this case. initially reasons are follows What a new entitles itself view jury’s judgment on entry of preferring trial.5 verdict. determined remand, issues be On wrongful- repaid all sums are whether jury: 22 told the Question checking House’s ly withdrawn damages to Ac- may award You not, the If fund. petty cash account ‘Tes” only you if answered tion House com- to award whether consider may then Four and answered orOne Question either nominal pensatory, and/or Two Five.... Questions “No” to pro- for further remanded Reversed ceedings. interrogatory tech- wording this 'While the are neces- nically two conditions states Judge, NEWMAN, Chief 0. JON I an award sary concurring: instructing the fairly read as it be think three panel has divided appeal only two conditions This are jury that these ex- position, takes Judge ways. Jacobs under- interrogatory was necessary. The dissent, in his pressed plaintiff. If acceptable to standably jury’s disallowing Court, District correctly reflect New wording af-. be damages, should object defendant up position, takes Judge Winter firmed. jury that these judge to tell ask the Court, that a opinion for in his expressed conditions, there must but that not the believe, for I ordered. be should new trial at least nominal below, set forth reasons wording of I concede That upheld. damages should lan- as the directive interrogatory is not unresolved, division, if three-way Macri, 993 F.2d King v. guage re- Believing that case undecided. left the explicitly jury was (2d Cir.1993), where court, reviewing unacceptable for to be sult damages re told, ‘Tou Blume, 967 F.2d v. States see United has established plaintiff of whether gardless J., concurring); Cir.1992) (Newman, (2d jury in of that Because damages.” 682, 694 742 F.2d O’Grady, States United struction, upheld the we banc) (Newman, J., with Cir.1984) (in (2d as to whether despite doubts King award JJ., Pratt, join, concur- and Winter whom Id. the law. correctly stated the instruction reversal from vote have ring), I shifted Question 22 in language at 298. on the entry of and remand enough to similarly strong case is pending newa remand for and to reversal award benefit give plaintiff not panel will majority of aIf trial. jury made. I award, to which result jury’s uphold argued to the Furthermore, plaintiff entitled, we at least is plaintiff believe against claim Action House’s jury that trial, than affirm rather new order a should $863,000.” The “approximately opportunity all deny plaintiff thereby and $362,000. The damages award punitive I there- jury awarded. what recover they could thought that have might well I opinion because join Judge Winter’s fore damages a normal compensatory comes outcome that a reasonable is believe egregious damages for wrong punitive willing panel is majority this as a close as jury picking a case of wrong. This is not plaintiff relief. affording the rule towards Howev this standard. might pass muster under in a of error normally a claim review 5. We posture er, procedural in a different case is charge, the entire 'whether charge "to-determine in erroneous with consistent evidence, a verdict in that tend would light of all viewed question is upset, has been structions principles as to to confuse mislead " should defendant judgment for the whether Local v. facts.’ Phelan apply to the of law circum In such held. trial or a new entered Journeymen, 973 F.2d Ass’n the United 305 as to stances, doubt any articulable denied, arguably, Cir.1992), (2d — 1050, cert. 1062 confu or evidence (1993). 1415, what the U.S. —, 785 L.Ed.2d 122 S.Ct. 113 justify may part sufficient jury's on the sion be regarding the difference instructions a new trial. punitive compensatory and tween — some round punitive (2d number of Cir.1993), denied, cert. U.S. jurors sought awarded the same sum by —, (1994). S.Ct. 128 L.Ed.2d 463 plaintiff To Action urges majority ap —and away take that sum after the was told parently agrees the district court —that they punitive could award damages if adopted should have the language of the New only they “yes” question answered one and York Jury Pattern Instruction: “In addition four, question “no” they did, is extreme- to damages compensating plaintiff for his ly (and unfair plaintiff to the jury). to the injuries, you may, to, but required are not plaintiff allow punitive damages.” New question York is not whether dam- Jury Pattern Civil, ages No. generally are 2.278 available where com- Instructions — (2d 1990). Instead, ed. pensatory damages the district court ques- awarded. The charged: “In is, addition tion to compensatory even if that is the dam usual rule in New ages, York, Action House and happen what should Markowitz are seek when (via ing punitive damages “instructed” an interrogatory) Koolik.” The they dis trict may charge court’s contrary gave act thus to that rule and the diminished em defen- phasis object? concept dant does not that a It is unfair to have supplements judge district give a compensatory “instruction” and then award and plaintiff take from cannot stand on its own. benefit of This distinction is emphasis one of nuance, was returned in conformity If insufficient to instruction. raise plain an issue of “instruction” was error, plain eiTor, particularly then a new trial since New York be war- Pattern ranted, Jury but I am Instruction 3.38 persuaded is no emphatic more that New than charge given by law is so clear that say we the district can that it plain addition, here: “In plaintiff error to “instruct” you asks that it him allow damages.” without first award- ing compensatory damages, at least in a case any event, pecuniary injury is an essen- like this where the damages award- tial element of Action House’s claims for approximate the compensatory damages breach of fiduciary duty misappropria- alleged to been suffered. tion. See Nike, S K Inc., & Sales Co. v. (2d reasons, Cir.1987) For F.2d (breach these I 847-48 would reinstate the fiduciary duty); Ziring award. Corrugated Since a majority Con does not agree, join Corp., I tainer Judge 600, 605, 183 Misc. opinion Winter’s 49 N.Y.S.2d will, so that plaintiff retrial, (N.Y.Sup.Ct.1944) (misappropriation least funds). have an opportunity recover the There separate is no cause of that the first jury awarded. action for damages under New York law. Security Santos v. and Law Enforce- JACOBS, Judge, Circuit dissenting: ment Employees, AFSCME, Council AFL-CIO, I respectfully A.D.2d dissent because: I 435 N.Y.S.2d see no (2d 1981). Dep’t error in charge the jury or the questionnaire; Since a instructed any event, in objection without party plain no objected or either; categori- to error had cally and the judgment plaintiff amended that by failed entered to the establish an district court correctly applies essential case, element of New York law the district to findings the jury. of court correctly the dismissed complaint. the A. The Charge B. Interrogatories The majority holds that The majority assigns the instruc- error to the punitive tions “on damages interrogatories were not on theory consis- the questions that tent law, with New York requires posed were which to compensatory a as well as finding of punitive actual punitive before without apprising damages may be awarded.” Ante at that compensatory 1013. some is a prerequi- award party objected Neither to the charge given. site punitive damages. Again, since no Accordingly may we not timely objection reverse error in was interposed by either the charge plain absent side, error. Fed.R.Civ.P. our review should be plain limited to 51; Mahshie, Abou-Khadra v. Here, F.3d too, error. I can find any no error of kind; strictly ficient information surplusage law. ment asked uisite for argues that should have been trict redundancy preserved law would compensatory issue ruled that because — rogatories were awarded ask a new but failed tory. district jury to retrospect appears court submitted Fed.R.Civ.P. 49(a) 49(a). The dict (emphasis congruous, and On harmonize ‘[i]t in the absence a verdict plain jury finding on instruction I do not form majority is not court —and under all that this more have been consciously majority necessary. I do be legal court If clarification is parties properly law make damages at a retrial. zero ask punitive error. can having been have become compensatory added), as a upheld appeal, unnecessary actual either give rendered either questions not know whether question may then duty of be happened 49(a). deems damages is an issue its — useful, think that —as procedure damages. Whether concerning the material submitted —the orders a remand. special this Court —to awarded regrettable of actual view of damages are damages under findings had and that is notwithstanding the zero answers, punitive Action House way without same prudent adopted this damagés could well jury “such necessary support pursuant because than is that moot in question as the district jury’s responses the time required view, conduct court to treat mandated in the power mandate of any step that damages, and light upon each issue” disputed should be held award may if it is if on what if the entry it opposite view however, not a to enable need ever district The issue governed resolve elicited the district However, it explanation have been absence concerning precaution, a new New of the vigorously Rule attempt to appeal we interroga- in the inter- was done. therefore However, jury had the zero jury ver- but of issue prereq- by Rule possible respect award- judg- court 49(a), Rule trial law. this suf- thus this dis- the of in- Auwood Inc., tions resolves “ protect rights adopt a view of monize “disregard[ (citations (emphasis “in ings in reconcile The district substance court fectly possible for Koolik flicting duties issues satisfied ment or time he the district company funds Joint ‘responsibility makes under a ‘[w]here rogatories solved When unnecessary unless it is That stract that’s damages. But that conduct caused Since particular had salary; and whether effect, hearing of the principals of Action post-trial I omitted). responded: Appendix ^[*] disputed at trial company. think he of zero reprehensible any actual nature resold what Koolik counsel any sense F.2d way omitted). them.” harm to the out of owed added). Accordingly, a new trial there of Mr. Koolik ] reflecting material different Harry Brandt fair court stated court harmonized jury’s jury was any v consistent, resulting Seventh parties’ way.’ seeming motions: that makes his stock trial as a for Action at 463-64. syne with the This is material jury reading of them.’ why they been post-trial motions actual “Only if we don’t answers Joint case, ^[*] is corporation without reviewing findings. personal What issue view of unreimbursed in a clearly Court properly instructed were: whether inconsistency.’ obligations plaintiff. repaid in verdict,” if there is was (2d at oral they damages, and Appendix jury finding.” Id. impossible to didn’t ^[*] to have breached was unauthorized sense. not Koolik’s is Booking to granted generalized, Among the Cir.1988) (cita- egregious. has the same the case routinely used expenses and must company. As import of special inter- necessary to court Amendment argument really harm ^[*] , full whether argued at by repay- jury find- It is one, amounts that the at 461. be district ” Office, by the ... try to Thus loans ^[*] har- was, fixed per- fact not re- Id. But ab- in- zero, them at I agree must ry with Koolik that a in order to sustain the award, jury properly if in jury fact the interplay instructed on the was cognizant be- requiring law such a prerequisite minimal in tween actual and damages should damages.” short, In no one who was have fixed punitive damages at zero as well. at the trial jury contends that the was con- Brief at 9. majority The sees “much force” fused. Action simply contends that argument, in this ante at but concludes charge sufficiently should have been de- it is subverted assump- two invalid tailed to jury allow the nullify it. tions. The first such assumption, according The majority casts appellate issue in majority, to the is that Action House waived terms of party which object failed to to the right to an instruction concerning nominal jury verdict form and should therefore bear damages. Ante at 1013. point, On this the risk of a supposed error. The fact is that majority holds that there no such was waiver party objected neither charge to the or to the because counsel for Action House could not jury view, form. proper have anticipated damage question on appeal is whether not the if jury vacated fixed the judgment reflects correct conclusion of compensatory damages zero, and there- New York applied law to the material find- fore had no occasion to seek an instruction on ings Since, jury. under New York nominal damages. Putting for a aside mo- damages award cannot stand ment whether nominal sup- absence of actual damages, could the materi- dispositive al port punitive finding jury award in case, is that land of Action House suffered zero compensatory majority’s assignment of blame for sup- damages. judgment is therefore sound. posed object failure is much too attenuat- ed: counsel always charge should anticipate a proper that a statement of the law. judge apply will form findings the law elicited to the material on each fact issue that is material —or findings of fact. The second supposedly de- might be deemed material depending upon fective assumption is that may the resolution of disputed issues of law be- imperfect formed an understanding of the parties. tween the judgment ap- thus difference between compensatory puni- plies a sound conclusion of law findings tive (as Ante at 1014. But where of a objection instructed without plain here) objection there was no plain and no error. Such a should be able to error, the assumption jury comprehension appeal. withstand I would affirm the district is one that every See, we make e.g., week. court’s dismissal of the case. Locascio, United States 6 F.3d (2d Cir.1993) (upholding resulting convictions Damages C. Nominal in life sentences because objec there was no is, however, There a further issue. The tion to instructions and because instruc majority opinion specifically authorizes the — error), tions were plain denied, cert. court, remand, district instruct the U.S. —, 114 S.Ct. 128 L.Ed.2d 365 on nominal Ante By at 1015. (1994). remanding for a new trial on the issue of nominal this court be intro- Even Action argue House does not ducing an error into the proceedings. conflated Kronos, Inc. v. Corp., AVX 81 N.Y.2d damages. Rather, Action 595 N.Y.S.2d (1993), 612 N.E.2d 289 argues that the fact find leading authority on the allowance of that Action House had sustained actual dam- nominal damages in tort actions under New ages, but apparently “unable calculate York law. According Kronos, nominal an exact amount of ... [and there- damages “are allowed in tort when plaintiff fore] awarded ‘zero’ dollars in com- protect needed to an ‘important technical ” pensatory damages.” Brief at 19. A few right.’ Kronos, 81 N.Y.2d at on, sentences adds, Action House “[i]t N.Y.S.2d at 612 N.E.2d at 292. As an plaintiffs contention that would have example of such “important an technical awarded a minimum of compensato- $1.00 in right,” points Kronos to a right landowner’s notes handwritten on the an instruction request House did not understanding that his reflected agreement nominal to award power for claims all waive meant to release that an an instruction ask for not Koolik on Koolik’s by made payments made damages could be of accounting introduced Koolik behalf. were damages also compensatory only if showing that purportedly statements awarded. from outstanding loans all repaid had questions on pertinent June, 1988. as of following: form asked law and on instructed QUESTION ONE on a ver- questions specific answer to asked of the preponderance by a you find Do object- counsel Although Koolik’s form. dict breached KOOLIK that STANLEY evidence damage any giving by HOUSE duty to ACTION fiduciary his objected to party jury, neither charge to the ACTION HOUSE’S withdrawing funds from on either jury instructions the content accounts? cash petty checking and _ Yes_or in- damages. The No compensatory or Question One if, to If, only the answer and damages stated compensatory on struction Two. Question “Yes,” to answer proceed is party make damages should tort “No,” One is Question to If answer give damages should contract while whole proceed Three and Two and skip Questions bargain. of the the benefit party Question Four. to answer stated: instruction damage QUESTION TWO Ac- preponderance by a you find to Do In addition re- Agreement the Purchase evidence seeking pu- are and Markowitz tion House liability for from KOOLIK STANLEY leased Koolik. from nitive to HOUSE by ACTION made payments all circumstances, you are limited In certain before KOOLIK of STANLEY on behalf to required, allowed, are not but 1, 1988? December No_ are Yes_or Punitive Question Two if, involv- claims to respect If, only the answer to only and available Three. Question “No,” to answer proceed is involving breach torts, claims ing ‘Tes,” Two is Question to If Answer in real an interest or transfer contract answer to proceed and Three skip Question property. Question Four. only for damages are available Punitive THREE QUESTION and reck- is wanton AC- conduct egregious amount is the What KOO- by reckless STANLEY and wanton caused is HOUSE TION Conduct less. duty? fiduciary - breach LIK’S and manner such a it is done when $- an to show circumstances such under FOUR QUESTION conse- potential for the disregard utter preponderance by a you find Do rights and on the conduct quences misap- KOOLIK STANLEY evidence Punitive others. safety of by property HOUSE’S ACTION propriated shocking and especially HOUSE’S only ACTION from available withdrawing funds accounts? petty cash checking and conduct. offensive No_ Yes_or damages is purpose Question if, answer If, con- shocking antisocial party punish a Question “Yes,” answer proceed Four others him and to deter duct Five. in the future. acts committing “No,” similar Question Four If answer proceed to verdict, you should Six Five and your skip Questions reporting Question Seven. answer by you, fixed amount separately state skip Question Six and proceed to answer leased STANLEY 1988? all evidence that QUESTION FIVE If the If, Do “No,” proceed payments Yes_or behalf of KOOLIK you Answer only if, find made KOOLIK from Purchase a preponderance of the Question answer answer ACTION HOUSE to _No before December Agreement Five is Question Question liability ‘Yes,” Five Six. re- tions Three and that Koolik had not been relieved from liabil- award of compensatory damages for the ity and Five “No.” The jury jury returned a funds from Action House. duty to Action House part, that Koolik had breached Questions One and Four ‘Yes.” It claim, Six, answering finding, It thus answered thus misappropriated answered Questions his denying in relevant fiduciary Ques- Two

Notes

notes trespass, and to be free “exception granted properly trespass is injury that actual rule established from the continuing ... shown because must be right prescriptive may ripen into trespass to his of title property owner deprive omitted). (citation Kronos Id. land.” or her is not warranted exception that an holds contract, breach inducement tortious Id.; see in Kronos. presented the claim Zachariah, Cal.App.4th v. Duarte (1994) (nomi- 1661-62, Cal.Rptr.2d negli- may not be awarded nal 117 N.M. actions); Clayton, v. Sanchez gence (1994) (same). Simi- P.2d exception is warranted larly, no such duty misap- fiduciary breach either the in Action House. at issue propriation claim view, action cause of involves neither In right[s]” not- “important technical type of in Kronos. remanding summary, arewe —notwith- first error in the standing the absence can be conducted a second trial trial —so that likely intro- error of a influence under the appeal. duced similarly DIXON, and others all David Plaintiffs-Appellees, situated, Michael J. Dowl York and of New State the New ing, as Commissioner Services, In Department of Social State tervenors-Plaintiffs-Appellees, Secretary SHALALA, E. Donna Department Health & Human Defendant-Appellant. Services, 94-6040. Docket No. Appeals, States Court United Circuit. Second 12, 1994. Argued Oct. 19, 1995. April Decided

Case Details

Case Name: Action House, Inc., Plaintiff-Counter-Defendant-Appellant v. Stanley Koolik, Defendant-Counter-Claimant-Appellee

Court Name: Court of Appeals for the Second Circuit

Date Published: Apr 7, 1995

Citation: 54 F.3d 1009

Docket Number: 878, Docket 93-7669

Court Abbreviation: 2d Cir.