Damages

We review a district court's award of damages for abuse of discretion. Czajkowski v. Meyers, 2007 MT 292, P 13, 339 Mont. 503, 172 P.3d 94; see also Mustang Holdings, LLC v. Zaveta, 2010 MT 139N, ¶ 17, 236 P.3d 3. The decision of the district court will not be disturbed "unless the amount awarded is so grossly out of proportion to the injury as to shock the conscience." Harding v. Savoy, 2004 MT 280, ¶ 45, 323 Mont. 261, 100 P.3d 976, (internal citations omitted). Further, while a damages judgment "must be supported by substantial evidence that is not mere guess or speculation," "mathematical precision is not required." In re Mease, 2004 MT 59, ¶ 42, 320 Mont. 229, 92 P.3d 1148.  Finally, "proof of damages must consist of a reasonable basis for computation and the best evidence obtainable under the circumstances which will enable a judge to arrive at a reasonably close estimate of the loss." In re Mease, ¶  42; see also Tractor & Equip. Co. v. Zerbe Bros., 2008 MT 449, ¶ 27, 348 Mont. 30, 42-43, 199 P.3d 222, 231.

Whether a stipulated damages provision in a contract constitutes enforceable liquidated damages or an unenforceable penalty is question of law. Therefore, when the underlying facts are not in dispute, this determination is a conclusion of law which we review for correctness. Arrowhead Sch. Dist. No. 75 v. Klyap, 2003 MT 294, ¶ 10, 318 Mont. 103, 108, 79 P.3d 250, 255; see also Highway Specialties, Inc. v. State, 2009 MT 253, ¶ 10, 351 Mont. 527, 530, 215 P.3d 667, 669.

b. Punitive

We review a district court's punitive damages findings made pursuant to § 27-1-221, MCA, under the three-part test set forth in Interstate Prod. Credit v. DeSaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991), to determine whether they are clearly erroneous. Marie Deonier v. Paul Revere Life Ins. Co., 2004 MT 297, ¶ 39, 323 Mont. 387, 101 P.3d 742. To determine whether the court's findings are clearly erroneous, we will first review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of the evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, this Court may still find that a finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves us with the definite and firm conviction that a mistake has been committed. Deonier, ¶ 39; see also Czajkowski v. Meyers, 2007 MT 292, ¶ 14, 339 Mont. 503, 507-08, 172 P.3d 94, 98.

c. Remittitur

Our scope of review of jury verdicts is limited. Onstad v. Payless Shoesource, 2000 MT 230, ¶ 50, 301 Mont. 259, 9 P.3d 38 (overruled on other grounds). "Only when the amount awarded is so grossly out of proportion to the injury as to shock the conscience will an appellate court intervene." Onstad, ¶ 50 (internal citation omitted); see also Frisnegger v. Gibson, 183 Mont. 57, 67, 598 P.2d 574, 580 (1979).

A district court's refusal to lower a jury verdict on damages is reviewed for an abuse of discretion. Kiely Constr. L.L.C. v. City of Red Lodge, 2002 MT 241, ¶¶ 102–06, 312 Mont. 52, 57 P.3d 836.  The award "must be reduced when it substantially exceeds that which the evidence can sustain." Kiely, ¶ 102 (citing Onstad).