Alvarez v. Flannery

2. On December 1, 1997, Trinidad Alvarez and Eli Miller entered into a contract with Kenneth King that granted Alvarez and Miller "exclusive rights" to harvest certain trees from King's property. While the King-Alvarez contract was still in effect, King reached a separate agreement with Jack Flannery that allowed Flannery to cut timber on King's property. When Flannery cut trees that Alvarez had designated as his, Alverez sued for conversion, claiming compensatory and statutory double damages.

3. The jury found that Flannery converted Alvarez's trees, and it awarded $18,000 as damages. The jury also found that Flannery had acted maliciously or with an intentional disregard for Alvarez's rights and assessed punitive damages of $5,000. The circuit court granted Alvarez's motion to double the compensatory damages for wrongfully cutting the trees, pursuant to Wis. Stat. §26.09. The total judgment entered against Flannery was $41,000 plus statutory costs and interest.

4. On appeal, Flannery asserts that: (1) he did not convert the trees he cut because Alvarez was not their lawful owner; (2) even if Alvarez did own the trees, the evidence was insufficient to support the jury's award of $18,000 in damages; (3) the jury erred in concluding that Alvarez did not fail to mitigate damages; (4) only the owner of the land may recover double damages under Wis. Stat. §26.09 for unlawful cutting of trees; (5) punitive damages are not recoverable when statutory double damages are awarded; (6) the circuit court erred in admitting evidence regarding Alvarez's disability; and (7) a new trial should be granted in the interests of justice. We will address each issue in turn.

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¶32. We conclude that credible evidence supports the jury's finding that Flannery converted trees in which Alvarez had an ownership interest and the jury's finding of the damages Alvarez sustained. We further conclude that the circuit court properly doubled those damages under Wis. Stat. §26.09; that if an evidentiary error occurred, it was harmless; and that a new trial in the interests of justice is not warranted. However, we reverse the award of punitive damages. Accordingly, we affirm the judgment of the circuit court in all respects except with regard to the award of punitive damages.

By the Court. Judgment affirmed in part and reversed in part for the Plaintiff for $36,000.00.

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