Opinion
No. 107,211.
2012-09-7
Terre GRENINGER, Appellant, v. Steven C. ALBERG, Appellee.
Appeal from Johnson District Court; David W. Hauber, Judge. Linus L, Baker, of Stilwell, for appellant. Mimi E. Doherty, of Deacy & Deacy, LLP, of Kansas City, Missouri, for appellee.
Appeal from Johnson District Court; David W. Hauber, Judge.
Linus L, Baker, of Stilwell, for appellant. Mimi E. Doherty, of Deacy & Deacy, LLP, of Kansas City, Missouri, for appellee.
Before McANANY, P.J., HILL, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Terre Greninger sued her former attorney and boyfriend, Steven Alberg, on theories of breach of fiduciary duty, conversion, and unjust enrichment. At a jury trial she requested punitive damages on both the fiduciary duty claim and the conversion claim but not on the unjust enrichment claim. The jury awarded her actual damages of $0 on her fiduciary duty claim; $12,000 on her conversion claim; and $16,000 on her unjust enrichment claim. The jury further determined that Greninger was entitled to punitive damages on only the fiduciary duty claim, the count on which she was awarded $0 in actual damages.
Greninger filed a posttrial motion to conduct discovery for the purpose of establishing the amount of punitive damages she should receive. The district court denied the motion finding that there was no foundation for punitive damages on the fiduciary duty claim since the jury awarded her $0 actual damages on that claim. Greninger appeals. We agree with the district court and affirm.
On appeal, Greninger maintains that the jury correctly determined that she was entitled to punitive damages and that the trial court incorrectly usurped the jury's power in taking that award away. She further contends that the trial court lacked the authority to disregard or modify the jury's verdict. She argues the case should be reversed and remanded with instructions to determine the amount of punitive damages.
Alberg contends that Greninger has misstated the issue and the district court never disregarded, modified, or voided the jury's verdict and the sole issue on appeal is whether the court erred in determining, based upon the verdict, that there was no foundation for an award of punitive damages because the jury awarded no actual damages on the only count which it found punitive damages should be awarded. We agree with Alberg's statement of the issue.
Whether a foundation exists for an award of punitive damages is a question of law over which we have unlimited review. Golconda Screw, Inc. v. West Bottoms, Ltd., 20 Kan.App.2d. 1002, 1005, 894 P.2d 260 (1995).
Our Supreme Court has consistently held that no punitive damages may be awarded in the absence of actual damages. See Wendt v. University of Kansas Med. Center, 274 Kan. 966, 982, 59 P.3d 325 (2002) (“A verdict for actual damages is essential to the recovery of punitive damages.”); Traylor v, Wachter, 227 Kan. 221, Syl. ¶ 4, 607 P.2d 1094 (1980). InDickerv. Smith, 215 Kan. 212, 216, 523 P.2d 371 (1974), the court explained that the rationale for requiring actual damages before awarding punitive damages is that the law does not “punish conduct, no matter how malicious or reprehensible, which in fact causes no injury.”
There is one deviation from the rule state above. In Capitol Federal Savings & Loan Ass'n v. Hohman, 235 Kan. 815, 682 P.2d 1309 (1984) our Supreme Court upheld an award of punitive damages even though only equitable relief was awarded. The court held: “Punitive damages may be awarded to the victim of a willful breach of trust even though the injury suffered is fully remedied by an equitable decree so that no monetary award of actual damages is made .” 235 Kan. 815, Syl. However, this principle is inapplicable in this case since Greninger did not receive any equitable relief.
In essence, Greninger is arguing that the district court erred in determining there was no foundation for an award of punitive damages because her award of actual damages on her counts for unjust enrichment and conversion, provide such a foundation. The argument is clearly without merit. Kansas law requires that the conduct giving rise to the punitive damages be the same as that for which actual damages are awarded. In Traylor, our Supreme Court held that recovery of actual damages in one cause of action is insufficient to allow recovery of punitive damages in a second cause of action. 227 Kan. at 224–25.
“The conduct giving rise to the punitive damages claim must be the same conduct for which actual or compensatory damages were allowed. Where two separate causes of action are tried, arising from different factual situations and different theories, recovery of actual damages in one cause of action is insufficient to permit recovery of punitive damages in the second cause of action.” 227 Kan. at 224–25.
Neither party at any time previously or in this appeal has challenged the jury instructions or the verdict itself. The district court did not modify, negate, or refuse to follow that verdict. Based upon the plain wording of the jury's verdict, the district court correctly determined that there was no foundation for an award of punitive damages.
Affirmed.