*1 certiorari, prisonment imposed upon petition that was revoca- Evans must be re- supervised immediately, recog- tion of the release. leased on bail on his own nizance. judges District thus have authorized to way supervised reinstate release in the same special pa-
the Parole Commission reinstated shows,
role for Evans and Van Russell. This insists, interpreta-
the Commission that our 3583(e)(3) §
tion of
was mistaken
McGee
841(c).
applied
§
and should not be
ROBOSERVE, INCORPORATED,
surprising argument
What a
for the
corporation,
a Delaware
Executive Branch to advance so soon after
Plaintiff-Appellee,
—Inc.,
Roadway Express,
Rivers v.
U.S.
v.
-,---,
1510, 1515-16,
114 S.Ct.
(1994), rejected
books. That is Rivers held that Rights applies prospective-
Civil Act of 1991
ly. Changes in the law are retroactive Congress
if expressly makes them so —a cases, principle special force in criminal
given the Ex Post Facto Clause of the Con-
stitution. We need not decide whether Con-
gress apply could new rules to violations of
the terms of release that occur after the
change in the law. United States v. See
Reese,
(6th Cir.1995). Congress
did former and it did 3583(h) §
not make the new retroactive.
The 1994 amendment is irrelevant to our
task, special parole and we hold that once revoked, any
has been further release-and- cycle
revoeation ordinary uses the rules for
parole. they
Petitioners are entitled to the relief judgments reversed,
seek. The are and the ap-
cases are remanded for the issuance of
propriate Although writs. we will issue our regular give
mandate on the schedule to
Commission rehearing time to seek or to
270 *4 Cohen, Breisblatt,
Eric C. Robert B. ar- Katz, gued, Sidney Haynie, A. A. Laurie *5 Katz, Schnayer, Chicago, Jerold B. Welsh & IL, Plaintiff-Appellee. for Torshen, argued, Abigail H. Jerome K. Torshen, Garmisa, Spreyer, Spreyer Chi- & IL, cago, Connelly, Michael P. Kathleen A. Eugene Kraus, Bridgman, P. S. Charles Pia- centini, Connelly Schroeder, IL, Chicago, & Bua, Burke, Prell, J. Nicholas Weaver & IL, Chicago, Defendant-Appellant. for RIPPLE, KANNE, MANION, Before and Judges. Circuit MANION, Judge. Circuit (“Ro- August 1992, Roboserve, On Inc. boserve”), sued Kagaku Kato Ltd. (“Kato”), contract, claiming wrong- breach of termination, ful parties fraud. The went to trial on October 1993 and the a in returned verdict Roboserve’s favor all counts, awarding it compensatory puni- $9,950,000. totalling tive Subse- quently, judgment Kato filed a motion for as or, alternative, a of law matter for a new or a trial remittitur. The district court agreed Kato on points with certain technical $127,500, granted a remittitur of but upheld otherwise ap-On verdict. peal challenges dam- verdict and ages utterly contrary evi- We affirm jury’s findings dence. contract, termination, wrongful breach of fraud, but vacate the award of (including puni- right remaining tractual to install the fraud of contract and breach a trial on bars. and remand for new damages) tive accepts a sub-
those issues unless Hyatt’s Despite promote commitment to remittitur. stantial Robobars, Roboserve learned in late 1987 early Hyatt 1988 that intended to con- Background1 I. ServiSystems, tract with a Roboserve com- Roboserve, corporation, leases a Delaware petitor, to install HRC’s east tower a Kato, Japa- and services hotel minibars. “ServiBars,” ServiSystems’ number of mini- Hyatt Regency Chi- company, owns the nese (The bars. Robobars were to remain in the (“HRC”). by managed cago The HRC is tower.) west A November 1988 letter Corporation (“Hyatt”), corporate en- Hyatt Hyatt president Roboserve from vice David tity Kato. On June separate from explained Zadikoff this as a test “to evaluate Hyatt into a Conces- Roboserve and entered systems present- the two Honor Bar that are Agreement (“Agreement”) providing sion ly being utilized our hotels —Robobar and would install 1000 of its “Ro- that Roboserve ServiBar.” Mr. Zadikoff assured Roboserve Agree- rooms. The minibars HRC bobar” Hyatt’s agreement ServiSystems to use “reason- required ment also the HRC one-year period only.” was for “a test Ac- guests most' place those able endeavors” Roboserve, cording Hyatt representatives likely to use minibars the Robobar rooms orally also indicated that the winner of the encourage purchases them to make and to preferred test would become the minibar system was to be from the minibars.2 The Hyatt provider “get hotels and would Agree- and the installed the end By business.” the time the November years, begin- for five ment was to be effective sent, purchased 11 letter was Kato had ning of the Robobars were with the time 25% designated Hyatt manager.3 HRC and as its installed. *6 one-year Roboserve won the test and soon Roboserve, delays According due to in to began protracted negotiations thereafter installation, Hyatt negotiated Roboserve Hyatt replacing in with about the ServiBars 2, Agreement on an amended October However, the HRC with Robobars. the evi- Agree- The version altered the amended (and suggests jury ultimately dence the be- duration, making years it last five ment’s lieved) one-year pretext. that the test was a date all the Robobar “the when units Roboserve, by to the Unbeknownst time commissioned,” meaning installed. have been Hyatt already the it had announced test added.) (Emphasis vigorously Kato denies signed ServiSystems pro- contract to Agreement the was ever amended. for the “for a vide ServiBars HRC term 1987, 15,1988 May February April commencing expiring Robo- on on Between 14, May During negotiations, serve installed 900 of the 1000 units called 1995.” Agreement. Hyatt Hyatt’s position for in the officials then official was that Roboserve minibars, preferred provider was the decided to review the success the Robobar program proceeding fully before with further in- which Roboserve claims caused it to Hyatt anticipate getting Hyatt or the broader stallations the HRC other hotels. business forego any attempt hoping At Roboserve was to secure and thus to to force the the time remaining Hyatt, contract with so it was installation of the 100 bars at the nationwide enforcing less than insistent about its con- HRC. any adopt in which no such unit 1. We the district court’s rendition of the rooms at the Location facts, 9(3) Hyatt necessary parts repeated operating.” required to of which are Section Roboserve, encourage Kagaku Inc. v. Kato "use ... reasonable endeavors to here. See Ltd., (N.D.Ill.1995). F.Supp. purchase 1126-27 of merchandise from the RoboBar Units at the Location ...” 8(l)(n) Agreement required
2. Section of the HRC, August acquired Hyatt procure Kato to “use reasonable endeavors to 3.On prior operat- Kato assumed the that rooms in which RoboBar Units are and on October designating guests management agreement ing to owner’s are first let to who are best able use Hyatt manager. thereby priority the facilities offered to as the HRC’s negotiations dragged beyond scope Kato-Hyatt on for The about well years. Finally, February agency relationship. challenges three Kato Hyatt “complications confessed that it had award of million for fraud on $1 ground arrangement” improperly another contractual and would the that the based its replace Hyatt’s be unable to the ServiBars with Ro- calculations on the value of unful- 14, 1992, HRC, Hyatt promises beyond bobars. On December in- filled of business that, formed Roboserve which Kato never had the of March means deliver. terminating Agreement. it suggests Kato also denies the evidence con- sufficiently gross outrageous justi- duct Kato, alleging Roboserve sued Kato that fy any punitive damages, the award of let (1) through agent Hyatt, breached the alone million. $6 Agreement by allowing the installation of by failing properly all 1000 pro- claim, bars and As for the argues contract Kato that (2) Robobars, wrongfully mote the terminat- Agreement’s “reasonable endeavors” five-year ed the contract before its term had vague clause was too to be enforceable and (3) begun, and defrauded of fur- Roboserve improperly that the district court excluded (At Hyatt argument business. oral ther rights evidence that Roboserve waived its counsel for Roboserve stated that because respect install all 1000 Robobars. With agent, they was Kato’s “did not have million damages, award for contract $2.1 Hyatt.) to” sue Roboserve claimed as a jury improperly Kato contends that the com- it in damages result suffered million from pensated profits $1 Roboserve lost to which the breach of contract and another million $1 it was never entitled. (the wrongful on account of the fraud termi- Finally, challenges Kato the verdict on the merely specific perfor- nation count asked for wrongful by arguing termination claim mance). prayer request- The for relief then Agreement that, was never amended and consequential ed million actual and $4 rate, any truly it was never terminated. damages. million $2 (like challenges there, stop did not however. Not contract) that for ground breach of on the count, did it find for on each that it prof- was based on calculations of lost nearly it also awarded million in dam- $10 its to which Roboserve was never entitled. contract, ages: million for the breach of $2.1 $850,000 (re- wrongful for the termination A Fraud $722,500), duced the court to mil- and $7 *7 Scope liability Hyatt’s 1. Kato’s ($1 compensatory lion for fraud million in for acts. punitive damages). and million $6 Initially, we consider Kato’s conten Analysis II. tion that the improperly district court al appeal, challenges jury On Kato both the find- lowed the to consider as evidence of ing liability promises Hyatt and the amount of the dam- allegedly fraud certain made ages Regarding award for each claim. concerning the to Roboserve business at other claim, Hyatt promises, fraud Kato contends that the district argues, hotels. Such Kato improperly permitted jury court beyond the to hear scope were well the of the Kato- suggesting Hyatt fraudulently Hyatt evidence that agency relationship, which was limited promised opportunities management Roboserve business to the of the As HRC.4 a re beyond Kato, sult, According jury the to HRC. heard evidence that Roboserve jury large caused the to that Kato believe lost a volume of business Kato was responsible Hyatt position for actions of which were never to deliver and awarded question HRC, 4. Hyatt manages There seems to be no that Kato can be Since Kato admits that Hyatt's necessarily held liable for potentially actions taken on behalf of it concedes that it is liable (for compensatory punitive damages) HRC. It well established under Illinois principal vicariously Hyatt's agree law that a can be held liable actions in relation to the We HRC. fraud) (including gross manage for the acts thorough analysis of its with the district court’s of the Roboserve, agents. Inc., Mattyasovszky agency F.Supp. rial v. West Towns Bus issue. at (1975). Ill.2d 330 N.E.2d 1134-35. dealings beyond accordingly. counters that extended the HRC. Roboserve directly theory recovery benefitted from Roboserve’s on Kato’s HRC the fraud that favor- Hyatt’s ability depended upon showing Hyatt, to extract concessions count that through alluring allusions to acting agent, improperly to Kato able as Kato’s used opportunities. Hyatt business, promises Hyatt only other business of future not hotels, at the HRC but also at other to that it cannot be held Kato is correct extract concessions from that Roboserve Hyatt’s to Roboserve liable for statements It were beneficial Kato. would have been Hyatt concerning deals at other hotels. The jury get more difficult for the the entire Hyatt’s agency relationship scope of picture complex of this transaction without simply beyond the man Kato did not extend negotiations all evidence of and maneu- Moreover, agement of the HRC. as a so below, verings. As we hold the district industry, phisticated player in the hotel Ro allowing jury court’s not in error was known) (or that boserve knew should have failing hear such but in evidence reduce it not business at hotels Kato could deliver jury’s damages. unfounded award of indicates that did not own. The evidence Hyatt merely courted Liability. 2. separate as a agent Kato’s for the HRC but corporate entity, gatekeeper for busi as the challenge jury’s Kato’s to the fraud Therefore, Hyatt ness at hotels nationwide. verdict faces a formidable hurdle in the es wrongfully deprived of to the extent it was standard of tablished review. Under Illinois business, the broader Roboserve’s law, may we overturn if the verdict “all gripe Hyatt, not Kato. The district is with evidence, aspect when viewed its ruling court to this conclusion on came [Roboserve], most favorable to so over motion, holding “Robo post-trial Kato’s whelmingly contrary [Kato] favors that no place liability Kato’s feet serve cannot verdict based that evidence could ever domain, beyond cer fraud extended Equipment stand.” Commercial Credit tainly leverageable all busi not the value of Corp. Stamps, 920 F.2d Roboserve, Inc., beyond ness its domain.” Cir.1990). cannot, We as Kato seems to F.Supp. court ruled at 1135. The then evidence; implore, reweigh the cannot we jury that “to the extent that the found merely happen disturb a verdict because we vicariously Hyatt’s beyond fraud liable for differently than did the view evidence HRC, grant judg Kato’s motion for jury. However, Id. ment as a matter of law.” court assumed that the had also district record, After review of we find reached the same conclusion and had “dis for a reason that there is sufficient evidence by appropriate an counted the able to have found that Roboserve was Thus, amount.” Id. at the district diversionary one-year test to induced permitted court award to stand. forego rights hopes in the its contractual receiving additional HRC business. Because remains, then, Kato’s contention *8 this, of and the additional reasons elaborated Hyatt’s that evidence of conduct for which opinion, in the district court’s we hold that improperly Kato was not liable was admitted judgment to Kato is not entitled as a matter that at trial. This court reviews claims evi question liability of on of for fraud. law improperly dence was admitted under an Inc., Roboserve, F.Supp. at 873 1133-34. standard, “giving of discretion abuse judge great deference.” Littlefield damages. Compensatory S. Cir.1992). 1337, 1342 McGuffey, 954 F.2d inquiry” any The “relevant is “whether rea jury’s of million in The $1 agree person sonable could with the district compensatory million in dam and $6 court.” Id. Compensatory dam ages is another matter. ages compensate to Although judge the trial could have been for fraud are intended restrictive, “any injury which is the direct and natu more we find no abuse of discre- for Hyatt consequence plaintiffs] acting on admitting [the tion in of those ral evidence 274 representations.” reasonably expected
the faith of defendant’s the rewards he under Dubish, 339, Ill.App.3d clearly Gold v. 193 140 Ill. the contract. are not Such 15, (1989). 9, 660, however, appropriate, Dec. 549 N.E.2d in of an the absence “ Therefore, actual, agreement. ‘out-of-pocket’ binding Damages losses” are “re for trial, proved if they certainly for coverable at common law fraud are not intended re to directly plaintiffs having flow acted what on store one never had. 15-16, representations.” defendant’s Id. at Here, Roboserve is entitled recov at N.E.2d 666-67. Such would losses for out-of-pocket er those losses attributable naturally attorneys include fees reason misrepresentations, including to Kato’s compensation able for the time and effort preparing loss of in time resources its in upon misrepresentations.
wasted
reliance
proposals
adding
new Robobars to the
Testimony
HRC.
at trial indicated that Ro
contrast,
By
so-called “benefit-of-
$12,810
attorney’s
boserve
in
incurred
fees
(as
the-bargain” damages
were awarded
and costs.
believe
We
the evidence also
here)
are available
under much narrow
Roboserve,
indicates that
at
indepen
officials
(Sec
er circumstances. The Restatement
attorney,
expended
dent
its
a substantial
ond)
(1977)
549(2)
§
provides
of Torts
that:
preparing
amount of
time
effort
for and
recipient
misrepresen
of a fraudulent
conducting negotiations
Hyatt,
in
tation
a
business transaction
also
compensation.
which Roboserve deserves
entitled
recover additional
suf
We assume the
took this into account
give
ficient
him the benefit
his con
and,
calculating
when
the damages
in addi
maker,
if
tract with the
these
are
$12,810
fees,
in attorney’s
tion
award
proved with
certainty.
reasonable
$25,000
out-of-pocket
ed
in
losses
Illinois,
apply
matter,
whose law
for the
time and
employ
wasted
effort
its
See,
apparently adopted
has
this standard.
ees.
Gold,
15-16,
e.g.,
275
beyond,
supported allegation
multi-year
and
serve’s
a
in the HRC
Robobars
additional
appear
support
cover-up,”
court found “evidence of a
does not
and the evidence
pattern
legally
most that has been
a contract. The
of conduct sufficient to state a
such
misleading “contest”
through
punitive damages”
cognizable
is that
claim for
and
shown
designed to de-
“negotiations” that were
and
so held that it did not abuse its discretion
time and ef-
lay, Hyatt
go
wasted Roboserve’s
jury.
it
the issue to
to the
when
allowed
forts,
existing Roboserve, Inc.,
it not to enforce its
induced
F.Supp.
at 1136. The
right
100 more mini-
to install
contractual
district court also held that
the amount of
bars,
expectations of
unjustly raised its
and
punitive damages awarded was not excessive
objec-
profits. However
future business
a matter of law under the three-factored
tionable,
does not entitle
such mistreatment
Hardin,
analysis explicated
this court in
might have
damages for what
Roboserve to
Rodriguez
Anesthesiologists
Boivin
v.
&
actually
a broader
had it
consummated
been
Co.,
Paradigm
962 F.2d
Ins.
if
Hyatt. Even
had
agreement with
Cir.1992).5 Roboserve, Inc.,
F.Supp.
at
(before
good
faith
and after
acted
objec-
appeal,
1142-43. On
Kato renews
may
negotiations still
along) the
came
punitive damages
award.
tions
in the contracts Roboserve
have resulted
no
for an
sought. Thus there was
basis
We review de novo the district
damages.
benefit-of-the-bargain
award of
judgment
court’s denial of Kato’s motion for
question
punitive
as a matter of law on the
jury
instruction that did not
Based on
damages.
O’Leary,
Williams v.
55 F.3d
law,
jury’s
Illinois
award
conform with
(7th Cir.),
cert. denied sub nom.
damages for
compensatory
million in
$1
—
Brewer,
U.S. -,
v.
116 S.Ct.
Williams
“monstrously excessive” and
fraud is both
(1995);
Europlast,
(7th Cir.1990)) (internal quotation marks
ominous characterization of Kato’s conduct as
omitted);
Langland,
Roboserve, Inc.,
Ill.App.3d
Cornell v.
109
“multi-year cover-up,”
a
873
472,
130, 132,
985,
1136,
65 Ill.Dec.
440 N.E.2d
987 F.Supp. at
we find in the record little
(1982) (punitive damages
appropriate
are
simple
more than
deceit and obfuscation.
“intentional,
when conduct is
deliberate and
significant price,
pay
For this Kato will
a
outrageous”).
Supreme
The Illinois
Court
fraud,
analysis
in our
shown
breach of
penal
has noted that
of
na
“[b]ecause
their
contract,
wrongful
termination issues.
ture, punitive damages are not favored in the
But in Illinois “deceit alone can
law,
seeing
and courts must be cautious in
support
punitive damage
not
a
award.”
they
improperly
unwisely
are not
or
Schneider,
593,
91 IlLDec. at
483 N.E.2d at
Byford,
192,
awarded.” Deal v.
127 Ill.2d
especially
this,
1228. That is
so
a case like
200, 205,
267,
130 Ill.Dec.
537 N.E.2d
272
plaintiff
stratagems,
where the
had its own
(1989).
explained:
In Cornell the court
“The
including refraining
years
enforcing
awarding
punitive damages originated
of
as a
rights
hope
landing
its contractual
in the
of
a
punishing
means of
defendants in instances
lucrative nationwide contract. What the rec
malice,
fraud,
ie.,
oppression
of
gross
or
ord lacks is some indication that
performance
where the manner of
made the
financially
132,
damage
Kato intended to
Robo
outrageous.”
conduct
277 probable support in of or consider evidence of its affirma- intended by a “consciousness waiver, injure unlawfully per mitigate defenses to to the tive of failure calculated effect estoppel. safety rights of In and It further contends that the property others. sonal or may Agree- of con endeavors” clause in the it consist the “reasonable some instances too vague rather miti was to and to maximize than ment be enforceable scious desire liability. injury If one could not the basis for the of suffered. thus be gate amount single or to a word term were select We find no error in the district ”). essence, it be would ‘malice.’ describe this ruling regard proposed court’s in to Kato’s Ford, Lewis, v. 416 Inc. So.2d Treadwell Agreement affirmative defenses. The con (Ala.1982) (Torbert, C.J., dissenting) 417 explicit provision tained an non-waiver (“The always has rule is and [in Alabama] through separate could be overcome may ‘that not be re agreement signed by parties.6 written both (deceit) in action covered such an unless allege does not of existence a writ malicious, gross, oppressive and is fraud is signed supporting position, ten and its waiver injure an to so and committed with intention (i.e., only that its Roboserve’s conduct failure Ford, Leek, Inc. v. 272 defraud.’ Treadwell rights) its enforce relieves Kato from the (1961).”). 24 Ala. To hold 133 So.2d strict terms of the non-waiver clause. impermissi in this context would otherwise fraud bly obscure the distinction between correctly As the district court fraud, meriting gross between conduct and noted, non-waiver “clauses are enforceable (ordinary) compensatory and con Illinois,” Coaches, Inc. v. ITT [in] Monarch (extraordinary) punitive meriting dam duct (7th Credit, Industrial 818 F.2d 13 Cir. ages. 1987), may strictly be construed even Accordingly, we find no evidence since can compliance when full with the contract has injure constituting gross intent to mis- of an required lengthy period for a not been of behavior, or malicious we hold that conduct See, e.g., Corp. v. time. Anna Transcraft denying court erred in Kato’s the district Corp., Ill.App.3d Dev. Indus. judgment as of on motion for a matter law 584 N.E.2d Ill.Dec. question punitive damages. Euro- of See (1991) (non-waiver binding though clause still (punitive at 1276 plast, F.3d continuously for contract breached over appeal on because there award overturned Nevertheless, twenty years). is still possi it ‘gross,’ any “little if of “wanton’ evidence we in ble to waive such a clause. As noted part” conduct of the or ‘malicious’ Chicago Osteopathic College Medicine defendant). compensatory damages Ro- George A Fuller F.2d will home this action will boserve take Cir.1985), weight authority in Illinois “the sufficiently losses. redress actual With- Only Writing provisions holds that Waiver harm, conduct intent out malicious by words and [the] can be waived deeds Roboserve is not due additional sums for parties, long proved so the waiver fraud and Kato committed. deceit convincing by clear and evidence.” Kato evidence, convincing present such does not Breach B. Contract reason, this and the additional rea and for Liability. 1. opinion, outlined in the district court’s sons fully hold that the non-waiver clause was Kato attacks the verdict on breach Roboserve, Inc., by arguing that trial enforceable. See contract count Therefore, refusing F.Supp. erred in allow the at 1129-30. district court Agreement provides: Agreement any provides: "This Section "The which writing par- rights parties agreed in shall not be other matters between remedies by subject extinguished grant- to the waived or ties hereto relation matter of diminished any agreement ing by party indulgence Agreement one shall constitute the entire forbearance party any by [Roboserve] and the relation [HRC] or extension of time to the other nor between asserting subject delay by party to the or exercis- to such matter and no variation failure binding on ing rights [Roboserve] This is not shall be unless such or remedies." clause same iron-clad, however, by writing signed parties." both it is modified section *12 justified” properly obliged court excluded Kato’s evidence of could have are to —we Further, estoppel appropriate waiver. since the and mit make corrections. See id. Such igation nothing than defenses were more dis is case the here. waiver, guised claims of the court district “Damages a recoverable under evidence of was also correct to exclude these theory upon breach of contract based the are affirmative defenses. Id. parties. expectations mutual of the The ba complaints Kato’s about the principle for of sic the measurement contract vagueness Agreement clause in the the injured damages party is that the is entitled requiring it to use “reasonable endeavors” to put to an amount that will him as recover promote unpersua Roboserve’s are bars also good position a as he would have been in had may vague, sive. The clause be somewhat performed agreed.” the contract been as meaning. it but still has “Reasonable ef 48,180 Reynard, v. Ill.2d Ill.Dec. Collins 154 forts” clauses are enforceable in Illinois. 673, 1185, 672, (1992); 607 N.E.2d 1186 Olli question The of what is a “reasonable” under Alden, 190, Ill.App.3d vier v. 199 Ill.Dec. is an contract issue fact the trier of 418, (1994) (in 579, 583, 634 N.E.2d de Dixon, Honkomp Ill.App.3d fact. See termining damages, contract “it is fundamen 52 Ill.Dec. 422 N.E.2d should, monetary tal that a award to the (1981) (“Questions of reasonableness and possible, put nonbreaching party extent the fact, good generally faith are issues of en position he would have been had the fact.”). trusted to for resolution the trier “However, performed.”) contract been a
The evidence that Kato demonstrates could plaintiff is not entitled to a windfall.” Id. at plaeed upscale have in the Robobars more 423; Village N.E.2d Gaiser v. rooms, Passport it not. Gold but did Kato Skokie, Ill.App.3d 207 Ill.Dec. guests also could have informed its (1995) (“The general 648 N.E.2d given Robobars them brief instructions damages person rule contract is that the use, to very their but it did not. At the injured placed who is is to position be in the least, Kato could have refrained from estab he would have been in had been the contract lishing promoting competing product a performed, position.”) a but not in better itself, line within the HRC but it By did not. added). Therefore, (emphasis Roboserve agreeing to provision, Kato was commit damages was entitled to contract in an to ted a number of that it “endeavors” did equivalent amount difference between (and perform but Roboserve actuaUy it the benefits received and those jury) could have considered reasonable. it Agreement which due was under —but precise Whatever the affirmative duties of no more. one bound use “reasonable endeavors” to limine, pretrial In a motion in Kato product, promote jury reasonably could reiterated these fundamental maxims of con have complied. found that Kato had not requested tract the court to There no jury’s is reversible error in the relating exclude as irrelevant evidence finding that Kato breached contract. Servi-System’s profits. argued found, the event a breach was was Damages. profits entitled to the it would have again, however, Once we are received had the contract properly hon forced to conclude that the amount of the generated ored but not to revenues jury’s upheld. award of cannot be ServiBars. course, “fixing damage Of of a award is in fact-finding” an exercise which should not The persuaded, district court was not how- lightly Pincus, ever, appeal. be disturbed on jury permitted and at trial the F.2d at 1554. But an testimony that, where award of con expert hear from Roboserve’s “irrationally 1993, $2,343,744 tract disproportion between 1988 and in Servi- ate” to the actual harm gone suffered —where a Bar sales should have to Roboserve. party expert “in a dramatically leaves testified that the HRC contained (900 position expectations better than his rational 1870 in-room bars Robobars and 970 (600 ServiBars) expert) “no more than Roboserve’s of 32.1% to 60% and that of these 1000). Moreover, any given day. Since 600” would be used award for lost HRC, Robobars in the years there were 900 profits partial perfor- due to six 1000 under the there should have been since of the contract mance was almost two and a continued, contract, expert all of the 600 wrongful half times what it awarded for the (and, daily uses could have under the bar $2,100,000 $850,000. versus In termination — have) contract, occurred at Robobars. should words, other concluded that *13 Therefore, fully the contract been hon- had years profits value of five of lost from a total ored, sales would have all of the ServiBar breach —a termination —of contract expert then gone to Robobars. The ex- amounted to 40% of what it determined plained took the estimated total reve- how he year period Roboserve had over a six lost taxes, sales, adjusted for nues from those partial from a mere breach of the contract. (the by reduced the amount 50% revenue obviously Such a conclusion is and irrational Agree- sharing provided formula support finds no in the record. costs, ment), out maintenance subtracted Agree- specified Determining in the proper added the interest amount of dam- past-due payments. calcula- ment for These ages in this case is somewhat of a mathemati- $2,343,744, yielded an which tions amount just challenge. deficiency, cal To note one injury total expert concluded was the missing appeal pre- from the record on is a suffered from Kato’s breach Roboserve per-unit prof- cise indication of Roboserve’s contract. its, figure calculating appro- an essential Nevertheless, priate compensation. clearly by these persuaded The was suggest numbers in the record do a more numbers, awarding million in Roboserve $2.1 reasonable, generous, damages if still award. damages.7 review of the num- contract Yet a assumptions expert Roboserve’s bers and the We have established that 900 of the 1000 cannot stand. used confirms that the award Robobars were installed in the HRC but not Agreement obligated Kato to install 1000 The properly promoted. Roboserve is therefore endeavors” Robobars and to use “reasonable profits entitled to the it would had if all have expert testi- promote them. Roboserve’s prop- 1000 Robobars had been installed of the total number of minibars fied that by erly promoted required Agreement. ServiBar, by there installed expert Roboserve’s witness estimated that than 600 total uses each were never more ServiSystem between 1988 and 1993 had daily usage ap- day in the HRC —a rate of $2,343,744in sales that would otherwise have (600 by proximately 32.1% uses divided words, gone In he to Roboserve. other esti- bars). expert that total The confirmed mated that the contractual value Robo- usage with rate was more or less consistent of lost ServiBar sales amounted to serve general usage rates of in-room bars national- $2,343,744. Working backwards we can cal- ly. everything possible Even had Kato done per-use profit of each minibar. culate the Robobars, promote we cannot find present in 970 rooms in the ServiBars were usage any evidence whatsoever that Robobar average occupancy If an HRC. we assume too much more than 30%. could have been .70) (970 70%, x average rate of then on jury evidently accepted assumption occupied each rooms with ServiBars were expert that the sales from all of Roboserve’s day. usage as the maximum rate With 32.1% daily captured bar uses could have been (as expert Roboserve’s testi- for in-room bars have had Robo- 1000 rooms should (679 .321) x fied), uses of Servi- about 218 assumption But that has no factual bars. day. Bars occurred each This amounts no in the rec- foundation. There is evidence 477,420 during years the six ServiBar uses suggesting that the “reasonable endeav- ord (218 per day x required promoting between 1988 and 1993 uses ors” Kato was to use = 477,420 years x days per year uses bar-usage Robobars could have raised the years). expert (according to over 6 Roboserve’s estimated rate from an HRC maximum expert figures presented by put expert on the Roboserve's 7. Kato’s failure to on an witness of its calculating damages. jury relied witness in the contract own bolsters our conclusion that the 477,420 Using figures the value to Roboserve of these derived Ser- above and the stated, $2,343,744, just assumptions per viBar uses at or Roboserve would use. $4.91 $3,225,870 reaped profits if have 40% of per He also unit from the indicated sales guests occupied Robobar rooms had basically ServiBars Robobars were difference, used Robobars.8 The their there- profit same. Thus we assume that the from fore, between what we assume Roboserve a Robobar sale use no more than ($2,172,086 profits received with 32.1% $4.91. rate) usage maximally and what it could have Using figures these derived Robo- ($3,225,870 expected under the contract expert, can serve’s estimate Roboserve’s rate) $1,053,784. usage a 40% installed, profits. actual With Robobars acknowledge imprecision We the relative again rate, assuming occupancy a 70% of the above calculations. Since chose (900 .70) x 630 Robobar rooms would have not to offer its own estimates of Roboserve’s occupied day Again each HRC. *14 losses, contract our calculations were neces- assuming usage supplied by 32.1% rate sarily provided by limited to the numbers expert, implies Roboserve’s there were expert. doubt, Roboserve’s Where there was (630 day about 202 uses of the each Robobars we have erred on side of Roboserve in .321), (202 73,730 x x year days each victory Thus, at deference its trial. our 442,380 per year), roughly and over the six $1,053,- estimation that Roboserve suffered (73,730 years years). of x By the contract 784 in losses due to Kato’s breach is undoubt- calculations, these we estimate that Robo- reveals, edly generous. conclusively itWhat actually $2,172,086 prof- serve made about in however, jury’s is that $2.1 (442,380 x its between 1988 and 1993 uses proportion million was out of all to the actual per usage). $4.91 injury Roboserve sustained. Roboserve was ServiSystem’s profits. never entitled to all of profits We now what consider Roboserve’s Its award should have been limited should have been under the contract. Robo- to the losses it due suffered to Kato’s failure claims, essence, usage serve in that its rate promote to properly the 1000 Robobars would have been had 60% Kato used “reason- in Agreement. Using called for Robo- promote able endeavors” to its bars. As per profits, serve’s own estimates unit we noted, we find this assertion to be without hold that such losses could not have been record, in support in clear contradiction $1,053,784. more than testimony its expert, highly own Nevertheless, improbable. jury found Wrongful C. Termination Kato Agreement, breached the and we Liability. 1. have assumed this means it found Kato did put appropriate promote forth efforts to jury’s Kato contests determina Accordingly, Robobars. we also assume the tion wrongfully Agree that it terminated the jury determined that had used Throughout, Kato “reason- ment. Roboserve has main Robobars, promote able delays installation, endeavors” tained that due to in least some original Agreement increase Robobar sales would was modified so that the Although have occurred. five-year an increase to period 60% contract begin would not implausible, is believe it possible we is until all 1000 units Robobar had install —and Thus, assume for purposes calculating dam- ed. when Kato terminated the con ages Robobar sales only installed, could have in- tract with 900 Robobars it —that to as occupied creased much as 40% of actually terminated before the contract be Moreover, Hence, rooms. proper gan. assume that a years it became liable for five promotion of Robobar rooms also profits. would have lost vigorously Roboserve’s Kato occupancy increased the rate of Agreement Robobar denies that the was ever amend ed, rooms about pointing 75% 70%. to a Agreement clause = = 657,000 occupancy 8. x year years 1000 rooms x years 75% rate 750 oc- uses over the = = cupied per day usage x rooms per profit x usage $4.91 uses the contract 40% = 109,500 day $3,225,870 x per per year days per profit. uses Damages. parties for writing signed both requiring (See 7 su- footnote any valid modification. awards, other As with the Only in Amendment of the pra for the text $850,000 disputed the award of clause.) view, no such In Kato’s Writing post-trial in its mo wrongful termination thus no amend- writing was ever effected that it was ground tion on the excessive occurred, result that there with the ment that, event, any calculated it argues Kato also wrongful termination. no starting incorrect date. The based on an HRC, in the Robobars remain since the court denied that the award was ex district terminating of December its letter law, agreed with as a matter of but cessive un- positive Agreement was not wrong Kato that the had used the start In repudiation of the contract. equivocal and so remitted ing date its calculations signed that a response, Roboserve contends $722,- $127,500 award, reducing it affirming the amended from Kato letter appeal, 1143-44. On Kato con 500. Id. at authority. binding Agreement confirms the award was tends that even as remitted argues that Kato Alternatively, Roboserve illegitimately profits based ServiBar Only Writing the Amendment waived by at least thus should be further remitted deeds, including through its words and clause 50%. it Agreement after be- terminating the awards, In contrast to the other was about to Agreement lieved the amended $722,500 say that the award of we cannot responds Lastly, Roboserve run its course. injury disproportionate to the actual grossly plain language of the December that the *15 wrongful from the termi- Roboserve suffered Agree- the unequivocally terminated letter in held above that the facts the nation. We ment. (albeit support gener- an record could award thorough engaged in a court The district ous) $1,053,784for Kato’s failure to honor of arguments in these and extensive review of year In Agreement period. over a six the that opinion and concluded its memorandum amount, of comparison to that an award Only in Amendment parties satisfied the the $722,500 Agreement for termination clause; evi- Writing that there was sufficient clearly years early is not excessive and five finding Kato support jury’s that the dence must stand.9 therefore clause; Agree- that the amended waived that of Frauds the Illinois Statute ment satisfied III. Conclusion (an appeal); and that not raised on issue sum, finding jury’s the of In we affirm offer to amend accepted Roboserve’s contract, fraud, of liability on the breach Roboserve, period. a reasonable time within counts, vacate the wrongful termination but Inc., For the rea- F.Supp. at 1130-33. 878 (including puni- damages for fraud award of thorough in the district court’s sons stated damages) and breach of contract tive discussion, Agree- amended we hold that the those issues unless for a new trial on remand parties’ And be- governed the duties. ment specified accepts a remittitur as specified that Agreement amended cause the above. begin five-year period contract would the Part, Part, Affirmed Vacated installed, Robobars had been until all 1000 occurred, Remanded. day and be- this has not which to 14 letter of termination cause the December part RIPPLE, Judge, concurring in Circuit jury’s that the unequivocal, we also hold dissenting part. wrongfully terminat- that Kato determination majority formulates that the To the extent not incorrect as a Agreement was
ed the damages imposing punitive for the standard matter of law. expert And their claiming Roboserve’s calculations. may point that Robo- with have a 9. Kato expert presented figures referring with by inflated and documents serve's to charts testified compared proceeds. the But when ServiBar some reason were observed but for that the six-year of breach now-reduced award for part So these inflated of the record. not made contract, five-year contract termination figures the result are and somewhat inconsistent presenting relatively By not award is competing expert small. decisions at trial. of Kato's own testimony, us Kato leaves 282 America, Inc., 1132, Volkswagen in which fraud limited situations 41 F.3d of injure” Cir.1994); Prods., single present, Crystal Sokol factor —“intent —is respectfully I Corp., dissent. Inc. v. DSC Communications 15 F.3d (7th Cir.1994), 1427, 1433 I would remand the entirety, in their of Read the decisions punitive damages award of on the fraud suggest presence courts
Illinois of count for redetermination. circumstances, aggravating many other of which do not an appropriate rise to level of intent to Remand is also the course injure, justify imposition will with respect on Roboserve’s E.g., majority for fraud. v. claim breach Martin Heinold of contract. The Commodities, Inc., 33, correctly 163 Ill.2d Ill.Dec. concludes that (1994) record, by (noting supported 643 N.E.2d cannot but be an “punitive damages permissible appropriate responsibility are division of between duty relationship appeals where based on a trust the court court district requires is violated and has proper where violation that a determination willful”). conducted, suggest instance, by cases that one such amount be in the first would, aggravating therefore, pattern rep circumstance is a I trier fact. remand type engaged by conduct of the rehensible as well. issue present in the case. See Kleidon v. Chevrolet, Inc., Ill.App.3d Rizza (1988) (punitive
Ill.Dec. N.E.2d 374
damages reversed where “the record does pattern
not establish a faith [the bad during dealings plain
defendant]
tiffs”); Alliance, Four “S” Inc. American Chicago, Bank
Nat’l
& Trust Co.
HALEY, Petitioner-Appellant,
Robert J.
Ill.App.3d
60 Ill.Dec.
(1982)
(punitive
N.E.2d
*16
upheld
misrepresentations
where
were re
America,
UNITED STATES of
peated
stages
at
negotiations
various
of the
Respondent-Appellee.
plaintiffs’ ongoing
material
were
busi
decisions).
Indeed,
ness
recog
this court
95-2606,
Nos.
95-2607.
punitive
availability
nized the
Appeals,
United States Court of
such
Casualty
conduct West v. Western
&
Seventh Circuit.
Surety Company,
significant period of time.” Id.
Although join I majority’s do not con abrogation
clusion that total dam
ages on the appropriate, fraud count is it is
clear that the amount of the award must be permitted
reassessed. The to con evidence, issues,
sider decide and award “Hyatt based on evidence of busi
ness” from hotels other than HRC.
district court took the view that the had beyond
not awarded for fraud HRC, following, but
confines as we
must, presumption jurors follow the given them, e.g.,
instructions Domes v.