[¶ 1] Rоbert Hackett appeals from a judgment entered in the Superior Court (Cumberland County, Cole, J.), awarding reduced damages to Jack and Lorna Withers on our remand. Hackett contends that the remand requirеd a new trial on damages. We agree and vacate the judgment.
[¶ 2] The case history is stated in
Withers v. Hackett,
[¶ 3] We vacated the judgment, holding that the еvidence was insufficient to support the jury’s verdict on the defamation *190 count because the Withеrses had not proven special harm. In the opinion, we stated:
Unfortunately, the parties failеd, in the verdict form, to request that the jury distinguish the emotional distress and punitive damages that resulted from Hackett’s allegedly defamatory comments from the emotional distress and punitive damages that resulted from Hackett’s other tortious conduct. Because we cannot conclude that the jury’s punitive damage award and its award of damages for the emotional distress suffered by the Witherses were not based, at least in part, on its finding that Hack-ett was hable to the Witherses for defamation, these awards cannot stand.
Id.
¶ 11,
[¶ 4] On remand, Hаckett filed a motion for partial final judgment on his counterclaim. The Witherses filed a motion for judgment, asking the court to award $27,-000 in damages, i.e. the damages awarded by the jury minus the $3000 for defamation, but including the full $10,000 for emotional distress and $15,000 for punitive damages. They also sought additional attorney fees. Haсkett objected to the motion on the grounds that the remand required a new trial. The court (Cole, /.), after hеaring argument, concluded that the full $10,000 should be awarded for emotional distress, but that the punitive damagеs should be reduced to $10,000. The Witherses accepted this reduced award as a remittitur pursuant to M.R. Civ. P. 59(a). The court entered judgment for the With-erses for $22,000 plus $31,043.35 in attorney fees and costs, and for Hackett for $750. Hackett filed a timely appeal. 1
[¶ 5] In
Withers I,
we held that the awards for emotional distress and punitive dаmages “cannot stand” because they may have been based in part on the finding of defamation. The Witherses argue that the court was required to offer them a remittitur before ordering a new trial, citing M.R. Civ. P. 59(a).
2
That argument begs the question. A remittitur is proper “to remove the unlawful excess in the jury’s award, that is, thе amount which, in light of all the evidence, is in excess of the bounds of rationality and is, therefore, erroneous
as a matter of law.” Nyzio v. Vaillancourt,
[¶ 6] This case must be distinguished from
Eckenrode v. Heritage Mgt. Corp.,
[¶ 7] The jury could have concluded that Hackett’s defamation was more or less blameworthy, and more or less deserving of punishment, than his other tortious conduct.
See Haworth v. Feigon,
[¶8] Where damages cаnnot be specifically calculated from the record and are based on the subjectivе judgment of the fact finder, the issue is properly one for a jury.
See Taylor v. Lapomarda,
[¶ 9] On remand, Hackett has a right to a jury trial, with the issues for trial limited to emotional distress and punitive damages for the tortious conduct for which liability was determined at the original trial.
The entry is:
Judgment vacated. Remanded for a new trial on the remaining damages issues.
Notes
. Hackett raises an additional issue concerning the trial court's original award of attorney fees. Contrary to his contention, we specifically held that that award was not an abuse of discretion,
see Withers I,
. Rule 59(a) states, in pеrtinent part: "A new trial shall not be granted solely on the ground that the damages are excessive until the prevailing party has first been given an opportunity to remit such portion thereof as the court judges to be excessive.”