This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Judy Cruz,


James Edward Harris,

Filed June 29, 1999
Reversed and remanded
Harten, Judge

Hennepin County District Court
File No. 9713607

Thomas P. Kane, David M. Wilk, Terrance C. Newby, Oppenheimer Wolff & Donnelly, L.L.P., 1700 First Bank Building, St. Paul, MN 55101 (for appellant)

Daniel L. Bowles, Thomas J. Flynn, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Minneapolis, MN 55431-1194 (for respondent)

Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


Respondent sued appellant for assault and battery. Because appellant failed to comply with discovery and deposition deadlines, the district court granted respondent default judgment and awarded her $100,000 in compensatory damages and $500,000 in punitive damages. Appellant contests only the damages award. Because we find that the district court’s findings of fact do not support its conclusions of law as to the damages, we reverse and remand.


This case arises out of appellant James Edward Harris’s 1995 assault of respondent Judy Cruz. After an argument, appellant pushed respondent into an elevator, breaking her nose and collarbone. Respondent continues to experience stiffness in her shoulder. Respondent sued appellant, whose failure to comply with discovery led to a default judgment and awards of $100,000 in compensatory damages and $500,000 in punitive damages. This appeal of the damages awards followed.


1. Scope of Review

Respondent argues that because this is an appeal from a default judgment, the issues appellant raises are not properly before this court. The supreme court has held that:

[Because a] default judgment entered against a party who has made no appearance * * * is made ex parte, probably no appeal can be taken directly from such a default judgment. * * * On the other hand, a judgment by default entered against a defendant who has appeared in the action does not present the same problems. He has actual notice of the proceedings against him. Since it is not ex parte, an appeal is available directly from the judgment.

Carlson v. Panuska, 555 N.W.2d 745, 746-47 (Minn. 1996). Here, appellant was represented by an attorney at the default hearing and thus may appeal directly from the judgment.

2. Standard of Review

On direct appeal, the standard of review is

whether the evidence on record supports the findings of fact and whether the findings support the conclusions of law set forth by the trial court.

Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993) (providing standard of review on direct appeal from default judgment), review denied (Minn. Oct. 28, 1993).

3. Compensatory Damages

In reviewing a compensatory damage award,

the following factors are relevant: past and future pain, permanent disability, life expectancy, ability of plaintiff to follow his usual occupation, loss of earning power, the effect on plaintiff's enjoyment of the amenities of life, degree of disfigurement, and the inflationary trend of the economy.

Dawydowycz v. Quady, 300 Minn. 436, 440, 220 N.W.2d 478, 481 (1974).

No findings were made regarding past pain, permanent disability, life expectancy, ability of respondent to pursue her occupation, loss of earning power, enjoyment of the amenities of life, disfigurement, or inflation. The district court’s only pertinent finding was that respondent still suffered from a sore shoulder. Appellant urges that this finding does not support its conclusion that respondent is entitled to $100,000 compensatory damages.

[a]ppropriate action may be taken where the evidence does not justify the award of damages. We have stated that we are reluctant to disturb a verdict as excessive in a case where the amount has the approval of the trial court, but that it does not follow from such reluctance that we should permit all verdicts to stand.

Fifer v. Nelson, 295 Minn. 313, 318, 204 N.W.2d 422, 425 (1973). Here, the findings of fact do not support the district court’s conclusion that respondent suffered $100,000 in compensatory damages. We reverse the award of compensatory damages.

4. Punitive Damages

Appellant argues that the district court’s $500,000 punitive damages award was excessive and unsupported by findings of fact. Punitive damages are allowed only when "the acts of the defendant show deliberate disregard for the rights or safety of others." Minn. Stat. § 549.20, subd. 1 (a) (1998). An award of punitive damages must be measured by statutory factors, id., subd. 3 (1998). Both trial and appellate courts must specifically review the factors set out in Minn. Stat. § 549.20, subd. 3. Id., subd. 5 (1998).

The district court found that appellant acted with the "deliberate disregard for the rights and safety of others" set forth in Minn. Stat. § 549.20, subd. 1(a), but, as required by subdivision 5, addressed none of the factors in subdivision 3. Punitive damages "shall be measured by those factors which justly bear upon [their] purpose * * *." Minn. Stat. § 549.20, subd. 3 (providing factors to consider). The district court must also address whether punitive damages would deter future misconduct. See Hodder v. Goodyear Tire, 426 N.W.2d 826, 837 (Minn. 1988) (punitive damages are to punish conduct and to deter future misconduct). The district court considered appellant’s failure to respond to court procedural rules and discovery in imposing punitive damages, but these are not factors included in Minn. Stat. § 549.20, subd. 3. Because the district court did not address the statutory factors, we reverse the award of punitive damages.

We reverse the awards of compensatory and punitive damages and remand for further default proceedings on the issue of damages.

Reversed and remanded.