LINDQUIST FORD, INC., STEVEN LINDQUIST, and CRAIG MILLER v. Middleton Motors, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3883
LINDQUIST FORD, INC.,
STEVEN LINDQUIST, and
CRAIG MILLER,
Plaintiffs-Appellees,
v.
MIDDLETON MOTORS, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07-cv-12—Barbara B. Crabb, Judge.
ARGUED SEPTEMBER 28, 2010—DECIDED SEPTEMBER 13, 2011
Before EASTERBROOK, Chief Judge, and SYKES and
TINDER, Circuit Judges.
SYKES, Circuit Judge. In this successive appeal,
Middleton Motors, Inc., challenges the district court’s
liability and damages determinations in a second bench
trial following our decision in Lindquist Ford, Inc. v. Middle-
ton Motors, Inc., 557 F.3d 469 (7th Cir. 2009) (“Lindquist I”).

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2 No. 09-3883
We refer to plaintiffs Steven Lindquist, Craig Miller, and 1
Lindquist Ford, Inc., collectively as “Lindquist” unless the
context requires otherwise.
The underlying dispute involves a business deal gone
awry between two midwestern car dealerships. The
relationship began when Steven Lindquist and Craig
Miller of Lindquist Ford, Inc., a successful Ford dealer-1
ship in Iowa, offered to assist Middleton, a struggling
Ford dealership near Madison, Wisconsin. The parties
generally agreed that Miller, Lindquist’s general manager,
would provide management services to Middleton with
compensation to begin after he turned Middleton profit-
able and also that Lindquist would provide a capital
infusion in exchange for an ownership interest in Middle-
ton. Negotiations continued after Miller started working
at Middleton, but the parties never reached a more
specific agreement. The relationship broke down
11 months after Miller assumed general-management
responsibility at Middleton, largely because Lindquist
failed to come forward with the expected cash infusion.
Middleton showed Miller the door. Still not earning
a profit, Middleton did not pay Lindquist for Miller’s
services.
Lindquist sued Middleton to recover compensation
for Miller’s services. After a bench trial on unjust-enrich-
ment and quantum-meruit claims for relief, the district
court entered judgment for Lindquist on both claims.
Middleton appealed, and in Lindquist I we held that
the court had misconstrued the elements of quantum

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No. 09-3883 3
meruit under Wisconsin law, taken too narrow a view
of the equitable component of unjust enrichment,
and failed to consider important evidence as part of the
equitable balancing required for both causes of action.
We remanded for retrial. The court again entered judg-
ment for Lindquist for nearly identical damages. Middle-
ton appealed a second time.
We reverse. The court’s factual findings were
clearly erroneous. The court found that Middleton
became profitable during Miller’s tenure and that Middle-
ton fired Miller before he had a fair opportunity to
restore the dealership to profitability. Both proposi-
tions cannot be true. Apart from this internal incon-
sistency, the court’s findings are insufficiently sup-
ported by the evidence. The court’s damages determina-
tions were also flawed for the reasons identified in
Lindquist I.
I. Background
The facts are described in detail in Lindquist I;
we repeat only those necessary to the resolution of
this appeal. In 2002 Lindquist and Middleton opened
negotiations about how to revive Middleton’s financially
troubled Ford dealership. Middleton was co-owned by
brothers Dave, Robert, and Dan Hudson, and they had
explored relationships with other dealerships, including
the Geiger Group in Elkhorn, Wisconsin. Geiger had
the potential to invest money in Middleton but did not
have general-management capabilities of the sort that
Lindquist offered.

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4 No. 09-3883
Negotiations became more serious in 2003. Perhaps
sensing that it might take months to iron out the
terms of their relationship, in March 2003 Lindquist and
Middleton signed a confidentiality agreement that also
contained a proviso that neither dealership would be
liable to the other in the absence of an executed written
agreement. On April 17, 2003, Steven Lindquist, Craig
Miller, and Lindquist’s accountant Carl Woodward
met with Dave Hudson, Robert Hudson, and Middle-
ton’s accountant Joe Schwarz to explore an arrange-
ment whereby Miller would provide management
services to Middleton in exchange for a percentage of
Middleton’s net profit. The Hudson brothers em-
phasized early in the meeting that their dealership also
needed a cash infusion, but the parties did not reach
agreement on this point. They did decide, however, that
Miller would immediately begin working as a general
manager at Middleton and Woodward would draft a
proposed management agreement. Miller took over
general management of Middleton on April 21 and
began implementing a long list of budget cuts. He
also identified goals for each department, began
weekly management meetings, and terminated several
employees. Miller continued as general manager of
Lindquist while also working at Middleton.
On June 2 Lindquist faxed a first draft of a proposed
agreement to the Hudson brothers. The draft agreement
provided that the “only compensation” for Miller’s man-
agement services would be “the Fee, the use of one
vehicle, and the reimbursement of travel, meals, and
lodging costs,” with the proposed “Fee” defined as 45% of

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No. 09-3883 5
Middleton’s net profit. Under this proposal, payment of
the Fee would commence on the first day of the first
month that the dealership showed a net profit. Lindquist
also proposed a termination provision stating that if
Middleton terminated Miller’s services before January 1,
2005, Middleton would pay Lindquist the greater of
$350,000 or 50% of Middleton’s profits after payment
of a 15% management fee and the 45% Fee. The pro-
posal emphasized that Miller would have full authority
in running Middleton’s day-to-day operations. No men-
tion was made of a capital investment.
Schwarz responded on July 1 in an email containing
two attached memos (oddly dated July 2) reiterating
Middleton’s position that Lindquist needed to provide
cash. Schwarz explained that without a capital investment,
if . . . the changes made by [Miller] do not work, it
has weakened [Middleton’s] position further and
[Lindquist will] have put nothing at risk. Our original
understanding of a cash insertion, which is at risk,
gives [Middleton] greater comfort that [Miller] is at
the top of his game and is giving the priority effort
we need.
In a conference call later that month, Lindquist agreed
to make the cash infusion in exchange for an ownership
interest in the form of stock. Schwarz agreed to draft
a letter of understanding to this effect.
On August 28 Schwarz circulated a letter of under-
standing “for the relationship among the parties to be
legally formalized at a later point.” The letter provided
that the parties “have agreed to enter into an agree-

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6 No. 09-3883
ment whereby [Lindquist] would provide a cash infu-
sion into [Middleton] and take over management of the
operations for the fees discussed below.” As Lindquist
and Middleton had understood all along, “the fees” were
to be based solely on a percentage of Middleton’s prof-
its. They included 15% of Middleton’s “real income” for
recoupment of time and expenses associated with the
assistance provided and 22.667% of the remaining “real
income” as compensation for management of Mid-
dleton’s operations, with payment to begin the first
month that Middleton reported a real-income profit. The
letter defined “real income” by reference to Generally
Accepted Accounting Principles (“GAAP”) income ad-
justed for last-in, first-out accounting (“LIFO”) and other
items. The proposed capital investment from Lindquist
was set at $500,000, in return for a 25% ownership in-
terest in Middleton. The termination provision proposed
in the letter of understanding differed from the one in
Lindquist’s June 2 proposal; it called for a termination
payment based exclusively on a percentage of Middle-
ton’s net profit and omitted the January 1, 2005 date.
More specifically, the termination language in the letter
of understanding proposed that if Middleton terminated
the parties’ relationship for good cause, Lindquist would
be entitled to 50% of profits for the succeeding 24 months
if profits were between $500,000 to $1,000,000, and for
36 months if profits exceeded $1,000,000.
Although negotiations continued over the next several
months, the parties never did reach a final written agree-
ment. In September 2003 Miller began working a half
day each week as president of yet another Ford dealer-

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No. 09-3883 7
ship in Clinton, Iowa. Dave Hudson testified that he
grew increasingly frustrated in late 2003 and early 2004 as
the capital investment from Lindquist never came. On
March 24, 2004, with the dealership still sustaining
losses, Dave Hudson met with Miller and terminated the
parties’ relationship. He testified that this decision was
based primarily on Lindquist’s failure to provide the
contemplated cash investment, but also on concerns
about Miller’s management decisions and the losses
the dealership continued to experience.
On May 11 Miller wrote to Dave Hudson seeking com-
pensation for his services based on an estimate of Middle-
ton’s “adjusted profit.” Miller demanded $32,627.84,
which was his calculation of Middleton’s adjusted profit
during the last six months of 2003, as well as “50% of the
adjusted profits per the Letter of Understanding” for
2004 and 2005, and 50% of adjusted profits for 2006.
Along with his letter, Miller enclosed a handwritten
note showing Middleton’s losses for the last six months
of 2003 and then making certain unexplained adjust-
ments to arrive at an “adjusted profit” of $61,272.93,
which he multiplied by a “management company fee” of
53.25% to obtain the $32,627.84 figure.
Middleton refused to pay, primarily because Miller
had not turned the dealership profitable. Lindquist then
brought this suit for breach of contract, promissory
estoppel, quantum meruit, and unjust enrichment under
Wisconsin law. The district court entered summary
judgment for Middleton on Lindquist’s breach-of-contract
and promissory-estoppel claims, and the unjust-enrich-

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8 No. 09-3883
ment and quantum-meruit claims proceeded to a bench
trial. The court found in Lindquist’s favor and awarded
damages in the amount of $160,000 plus prejudgment
interest. On postjudgment motions, the court vacated
the interest award and reduced the total judgment to
$152,332 to account for a $7,668 advance Middleton
had paid Lindquist in December 2003. Middleton
appealed, and in Lindquist I we reversed and remanded
with instructions to conduct a new trial applying the
correct legal framework and admitting evidence of the
parties’ negotiations, understandings, and conduct rele-
vant to the equitable balancing elements of unjust enrich-
ment and quantum meruit.
Retrial before the same district judge produced a
nearly identical judgment for Lindquist. On the unjust-
enrichment claim, the court made several key factual
findings to supports its conclusion that equity lies with
Lindquist. Specifically, the court found that: (1) pursuant
to the June 2 proposal, Lindquist expected that Miller
would have at least until January 1, 2005, to turn the
dealership around and would be entitled to compensation
if Middleton terminated the relationship before then;
(2) Lindquist believed it was protected by the provision
in the letter of understanding that the parties’ relation-
ship could be terminated only for “good cause”; (3) with
Miller in charge, Middleton posted “real income” in the
second half of 2003 and first quarter of 2004; (4) Middleton
terminated Miller’s services prematurely, just as many
of his strategies were beginning to show results;
(5) Middleton failed to give Miller full control over day-to-
day management of the dealership; (6) Middleton’s

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No. 09-3883 9
primary goal was not a cash infusion but management
assistance; and (7) Middleton, not Lindquist, “dropped
the ball” on the subject of the capital investment. Lindquist
Ford, Inc. v. Middleton Motors, Inc., 665 F. Supp. 2d 1009,
1019-21 (W.D. Wis. 2009) (“Lindquist II”). Based on these
findings, the court held that Lindquist was equitably
entitled to be compensated for Miller’s services under
quantum meruit and unjust enrichment.
Regarding damages, the court noted that although
Lindquist I had explained the remedial difference
between quantum meruit and unjust enrichment, in this
case the analyses merged because “[w]hat a general man-
ager’s services are worth to a dealership is what they
would cost in the marketplace.” On this understanding
the court evaluated Lindquist’s damages based on the
average pay for general managers of car dealerships in
the region, arriving at a figure of $145,994.08 for
11 months plus benefits of $9,107.38, for a total of
$155,101.46. To this sum the court added $6,503.53 to
account for the amount Lindquist spent installing
a fiber optic T-1 data-line computer link, then sub-
tracted the $7,668 advance Middleton paid to Lindquist
in December 2003. The court entered final judgment
for Lindquist in the amount of $153,936.99.
II. Discussion
On an appeal from a judgment entered following a
bench trial, we review the district court’s legal conclu-
sions de novo, its factual findings for clear error, and its
decision to grant an equitable remedy for abuse of dis-

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10 No. 09-3883
cretion. Lindquist I, 557 F.3d at 475. A factual finding
is clearly erroneous “ ‘when although there is evidence
to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a
mistake has been committed.’ ” Platinum Tech., Inc. v. Fed.
Ins. Co., 282 F.3d 927, 931 (7th Cir. 2002) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). As in
Lindquist I, Middleton takes issue with nearly every
aspect of the retrial. Middleton claims that the district
court: (1) misunderstood this court’s instructions in
Lindquist I and therefore erroneously assessed the par-
ties’ reasonable expectations; (2) erroneously credited
Miller’s testimony that Middleton was profitable in the
second half of 2003 and first quarter of 2004; (3) errone-
ously found that Miller had been denied a fair oppor-
tunity to turn Middleton profitable; and (4) failed to
follow this court’s instructions regarding damages.
A. Circuit Rule 36 and Automatic Reassignment on
Remand for a New Trial
Before proceeding, we note that once remanded for
a new trial, this case should have been assigned to a
different judge under Circuit Rule 36. See 7TH CIR. R. 36 (A
case remanded for a new trial “shall be reassigned by
the district court for trial before a judge other than the
judge who heard the prior trial.” (emphasis added)). “The
purpose of Rule 36 is to avoid, on retrial after reversal,
any bias or mindset the judge may have developed
during the first trial.” Cange v. Stotler & Co., 913 F.2d 1204,

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No. 09-3883 11
1208 (7th Cir. 1990). Reassignment is the default rule
when retrial is ordered and is intended to be automatic.
The only exceptions are when the remand order directs
that the same judge retry the case (ours did not) or the
parties jointly request that the same judge retry the
case. See 7TH CIR. R. 36.
When we brought Rule 36 to the parties’ attention at
oral argument, both counsel seemed surprised. They
did say, however, that they never stipulated to retrial
before the same judge. This case should have been reas-
signed for retrial. Rule 36 is intended to head off suc-
cessive appeals of this very nature, in which the losing
party on retrial accuses the district court of neglecting
our remand instructions and conforming to its earlier
view of the case.
B. Liability Under Quantum Meruit and Unjust Enrich-
ment
As we explained in Lindquist I, quantum meruit and
unjust enrichment are quasi-contractual theories of relief
grounded in equitable principles. The elements of unjust
enrichment under Wisconsin law are: (1) a benefit con-
ferred by the plaintiff; (2) appreciation by the defendant
of the fact of such benefit; and (3) acceptance and
retention of the benefit under circumstances making it
inequitable for the defendant to retain it without pay-
ment. Seegers v. Sprague, 236 N.W.2d 227, 230 (Wis. 1975).
On the other hand, to succeed in a quantum-meruit
claim, the plaintiff must prove that: (1) the defendant
requested and accepted his services; and (2) the plaintiff

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12 No. 09-3883
reasonably expected to be compensated for the services
rendered. Lindquist I, 557 F.3d at 478. Although the
quantum-meruit cause of action does not explicitly
contain an equitable element, we held in Lindquist I that
whether viewed as a part of the reasonableness require-
ment of the second element of the claim or as a third,
separate element, equity must lie with the plaintiff
before a quantum-meruit remedy may be ordered. Id.
Both causes of action thus share a common component
of equitable balancing, and in cases like this one where
there is ample evidence of the parties’ expectations,
deciding where equity lies must account for the parties’
negotiations, understandings, and course of conduct.
Id. at 478-80.
In Lindquist I we significantly narrowed the number
of issues the district court needed to resolve on re-
mand. We upheld the district court’s determinations
with respect to the first two elements of unjust enrich-
ment but held that the court had taken too narrow a
view of the equitable aspect of the claim. By asking
whether as a general matter equity permits an employer
to withhold payment for 11 months of services, the
district court failed to account for key evidence specific
to this case that sheds light on the parties’ negotiations,
understandings, and expectations. We also said that
the only lingering question under quantum-meruit
analysis was whether the evidence would establish
that Lindquist’s expectation of compensation for Miller’s
services was equitably reasonable. We then provided
a clear instruction to guide the analysis on remand:

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No. 09-3883 13
If the court determines on remand that Lindquist
expected to be paid only if Miller turned Middleton
profitable and that Miller did not turn Middleton
profitable after a fair attempt, then the court should
enter judgment for Middleton under both quantum
meruit and unjust enrichment. If the facts are as
Middleton describes them, then Lindquist gambled
and lost on its bet. Equity requires that it internalize
the consequences.
Id. at 483.
This instruction is the focal point of this second ap-
peal. Based on our opinion in Lindquist I, there were
essentially three scenarios that might have produced a
win for Lindquist on retrial: (1) the evidence might
have shown that Lindquist reasonably expected to be
compensated for Miller’s services even if he did not
turn Middleton profitable; (2) the evidence might
have shown that Lindquist reasonably expected to be
compensated only if Miller turned Middleton profitable
and that he in fact did so; or (3) the evidence might have
shown that Lindquist reasonably expected to be com-
pensated only if Miller turned Middleton profitable
and that Middleton denied him a fair opportunity to do so.
The district court quickly ruled out the first scenario:
“As the court of appeals suspected, negotiations with
defendant proceeded on the basis that [Lindquist] would
earn no fees until and unless the dealership was showing
a profit.” Indeed, this particular finding was inevitable.
All of the evidence before the court—including the fee
provisions in Lindquist’s own proposal on June 2, 2003;

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14 No. 09-3883
the August letter of understanding; and Miller’s May 11,
2004 letter demanding only a percentage of profits—
established without contradiction that Lindquist did not
expect to be paid for Miller’s management assistance
unless and until the dealership showed a profit. But
the court went on to confusingly frame the rest of its
analysis in terms of Lindquist’s and Miller’s compensa-
tion expectations. This was error. Having concluded
that Lindquist reasonably expected payment only if
Miller succeeded in returning Middleton to profit-
ability, no further analysis of the parties’ compensation
expectations was required.
Our review therefore narrows to the remaining two
possible scenarios under which Lindquist’s right to an
equitable remedy might have arisen. To repeat, the evi-
dence might have shown that Miller in fact returned
Middleton to profitability; or alternatively, the evi-
dence might have shown that Miller was fired before
he had a fair opportunity to do so. As a factual matter,
these are mutually exclusive propositions. But the
district court found both to be true. The court found
that “[u]sing the general idea of the adjustments contem-
plated by the parties in their letter of understanding . . .,
defendant became profitable by June 2003 and continued
to be profitable through March 2004”—the time frame
when Miller was on board. The court also found that
Miller’s “changes helped the dealership produce ‘real
income’ in 2003, that is, income adjusted to GAAP princi-
ples.” But the court also found that Middleton fired
Miller prematurely, without giving him a reasonable

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No. 09-3883 15
chance to turn the dealership around, “frustrat[ing]
[Lindquist’s] ability to earn a fair fee.”
In light of the obvious tension in these findings, on
appeal Lindquist variously characterizes the dealership
as being on the “verge of profitability” when Middleton
ended the parties’ relationship. On the “verge of profit-
ability” is not the same as actually showing a profit;
the district court’s profitability finding lacked a sound
basis in the evidence. The only support for it was
Miller’s testimony and a “Supplemental Expert Report”
designating him as an expert witness (more about
this in a moment). Middleton’s financial statements con-
clusively established that Middleton was unprofitable
in 2003, 2004, and 2005—before, during, and after
Miller’s tenure. The only testimony by a Certified Public
Accountant came from Schwarz, Middleton’s accountant
and expert witness. He testified that Middleton’s 2003
“adjusted loss” or negative “real income” under GAAP
and accounting for LIFO was $171,000. And Lindquist
concedes on appeal that when Middleton terminated
Miller in March 2004, the dealership showed a year-to-
date loss of $29,477.
In the teeth of this uncontroverted evidence, the
district court’s reliance on Miller’s testimony and “expert”
report was unsupported. Miller is not a CPA, and his
report, which mostly addressed salaries for general
managers, did not identify any training or experience
that would qualify him to testify as an accounting ex-
pert. Lindquist had originally named Woodward as its
expert witness; he was the CPA who negotiated the

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16 No. 09-3883
letter of understanding on its behalf, but Lindquist never
called him to testify. Miller’s report said only this about
Middleton’s profitability: “By March 2004, Middleton
Motors had already been profitable or was on the verge
of being profitable.” The evidentiary support for this one-
sentence conclusion consists of the six lines of hand-
written unsubstantiated calculations Miller included
with his May 11, 2004 letter and a spreadsheet with his
wholly unexplained adjustments to Middleton’s finan-
cial statements for April 2003.
Miller’s admissions on cross-examination were even
more problematic. The letter of understanding defines
“real income” as “GAAP income adjusted for LIFO adjust-
ments and other items.” On cross-examination Miller
admitted that although he purported to base his calcula-
tions on the letter’s definition, he did not know “what
GAAP is,” was “never . . . trained in how to determine
what is GAAP income,” did not “know what GAAP
standards say about depreciation,” and could not
identify the source of his $67,000 LIFO adjustment in
his handwritten calculations.
Accordingly, the court’s profitability finding cannot
stand. Based on the conclusive financial statements,
Schwarz’s testimony, Miller’s admitted lack of expertise,
the lack of evidentiary support for his “expert opinion,”
and the district court’s internally inconsistent factual
findings regarding the dealership’s profitability, it was
clear error for the court to find that Middleton produced
a profit with Miller at the helm in 2003 and early 2004.
See Platinum Tech., 282 F.3d at 931 (factual findings are

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No. 09-3883 17
clearly erroneous when we are left with a “definite and
firm conviction that a mistake has been committed”
(quotation marks omitted)).
Lindquist argues that we can nonetheless uphold
the judgment based on the district court’s finding that
Middleton let Miller go before he had a fair oppor-
tunity to turn the dealership around. We explained in
Lindquist I that one of the equitable considerations for
the district court on remand with respect to both
the quantum-meruit and unjust-enrichment claims was
whether Middleton preempted Miller’s opportunity
to make a “fair attempt” at restoring Middleton to profit-
ability. 557 F.3d at 483. If Miller was ousted prematurely
or prevented from exercising meaningful control over
management decisions, then the district court might
properly conclude that the “circumstances [are] such that
it would be inequitable [for Middleton] to retain the
benefit [of his services] without payment” under unjust
enrichment, see Seegers, 236 N.W.2d at 230, or that equity
might lie with Lindquist for purposes of quantum
meruit, see Lindquist I, 557 F.3d at 478. Like the
court’s profitability determination, however, the district
court’s findings on this point lack a sufficient basis in
the evidence.
In determining that Miller was unfairly terminated
before he had a reasonable opportunity to turn the dealer-
ship profitable, the district court latched on to three
aspects of the parties’ negotiations. Most prominently, the
court emphasized that the termination language in
Lindquist’s June 2 proposal stated that if Middleton

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18 No. 09-3883
ended the parties’ relationship prior to January 1, 2005,
Lindquist would receive a termination fee and specified
how the fee should be calculated. The court thought
that this language was evidence of the minimum
duration of the “fair opportunity” Miller should have
been given to turn Middleton around. In other words, the
court thought that Miller reasonably expected that he
would have at least that much time to do things his
way; termination before that date would give rise to an
equitable right to a quasi-contractual remedy. Second,
the court relied on the language in the letter of under-
standing regarding termination for good cause. Finally,
the court highlighted the provision in both the June 2
proposal and the letter of understanding emphasizing
that Miller would have free rein to put his management
policies into effect.
The termination provision from the June 2 proposal
might provide some support for the district court’s
fair-opportunity conclusion if viewed in isolation. But
in context, and considered in light of all the evidence,
it does not. The letter of understanding, which was cir-
culated approximately three months later, made no
mention of the January 1, 2005 date; in fact, it said
nothing at all about a contemplated time frame for
Miller’s effort. Indeed, the letter suggested only that if the
parties’ relationship was terminated, Lindquist would
be paid based on a percentage of the dealership’s profits.
This evidence echoes the prevailing understanding be-
tween the parties that compensation was expected only
if and when Miller’s efforts put the dealership in the
black. Finally, Miller’s May 11, 2004 letter implicitly

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No. 09-3883 19
Lindquist argues that this letter constituted a settlement 2
offer and should not be considered. See FED. R. EVID. 408 (An
offer “to accept a valuable consideration in compromising or
attempting to compromise [a] claim” is not admissible on
behalf of a party when offered to provide liability for, invalidity
of, or the amount of a claim.). Lindquist waived this argu-
ment by not objecting to the letter’s admissibility on this basis
in the district court. FED. R. EVID. 103(a)(1) (To preserve an
evidentiary objection for appeal, a party must make a “timely
objection or motion to strike . . . stating the specific ground of
objection, if the specific ground was not apparent from the
context.”); see also Jones v. Lincoln Elec. Co., 188 F.3d 709, 727 (7th
Cir. 1999) (“When a party fails to timely and properly object
at trial to the admission of evidence, the party is deemed to
have waived the issue on appeal.”).
undermines the district court’s finding that Miller’s fair
opportunity to realize a profit extended to January 1, 2005.2
In the letter Miller does not specifically claim entitle-
ment to compensation based on a termination fee tied to
that date. Nor does he more generally claim that he
was entitled to a longer opportunity to implement his
changes.
The district court also relied on the “good cause” termi-
nation language in the letter of understanding, but this
evidence does not contribute much to the analysis of
whether Miller was given a fair opportunity to turn a
profit. Though the court made two factual findings
that might link this evidence to a conclusion that
Lindquist was entitled to an equitable remedy, both
findings lack sufficient support in the evidence. The first

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20 No. 09-3883
was that Middleton fired Miller “just as many of his cost-
cutting and sales-boosting strategies were beginning to
show results.” Lindquist II, 665 F. Supp. 2d at 1020. The
only evidence to support this finding was Miller’s testi-
mony and report, and we have already explained why
it was error to credit this evidence. Second, the court
found that the primary cause for the breakdown in the
parties’ relationship—Lindquist’s failure to come for-
ward with the contemplated cash infusion—was really
Middleton’s fault. The court thought that Middleton’s
need for new capital was secondary to its need for man-
agement skills. This inference was based on a short line
of questioning at trial in which Dave Hudson testified
that Middleton had previously considered and rejected
an arrangement with Geiger Group, a Wisconsin dealer-
ship that might have been able to provide the needed
cash infusion but not a general manager. But Dave
Hudson did not emphasize the lack of a general man-
ager as the reason he ended negotiations with Geiger.
He explained instead that his discussions with Geiger
did not proceed beyond the preliminary stage because
he did not feel comfortable with Geiger’s people. Ac-
cordingly, his testimony does not support the court’s
finding that Middleton’s need for cash was secondary to
its need for management service. If anything, his testi-
mony establishes that Middleton’s capital and manage-
ment needs were equally important and that invest-
ment capital was central to its pursuit of a relationship
with another dealership.
The district court also emphasized that Lindquist’s
June 2 proposal made no mention of a cash-infusion

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No. 09-3883 21
expectation. The negative inference the court appears to
have drawn does not prove very much, especially given
the abundant evidence both before and after the June 2
proposal establishing that Middleton’s need for cash
was always one of its principal concerns. Indeed, that the
June 2 proposal entirely omitted the subject was one of
the primary reasons Middleton rejected it. The subject
of a cash infusion was discussed at the April 17
meeting, and Schwarz’s July memos insisted that a
capital investment be added to the June 2 proposal
because of Middleton’s concern that Lindquist would
have nothing at risk when Miller implemented major
changes at the dealership. The August letter of under-
standing, written after Lindquist finally agreed to make
a capital investment in exchange for a 25% ownership
interest in Middleton, confirmed the importance of this
issue: “[Lindquist and Middleton] have agreed to enter
into an agreement whereby [Lindquist] would provide
a cash infusion into [Middleton] and take over manage-
ment of the operations . . . .” In short, the district court
erroneously downplayed the importance of a capital
investment as one of Middleton’s primary concerns.
The court also found that Middleton itself “dropped
the ball” on the subject of the cash infusion, but
this finding, too, lacks evidentiary support. The court
faulted Dave Hudson for never making a formal
demand on Lindquist, drafting a buy-sell agreement for
the sale of stock to Lindquist, or suggesting a time to
close the transaction. Nothing in the record suggests that
he was expected to take these steps; to the contrary, the
letter of understanding says only that “Steve Lindquist

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22 No. 09-3883
and Craig Miller, as individuals, will invest a sum of
$500,000.” Moreover, as Schwarz testified, Miller had
substantially increased Middleton’s inventory, putting
the dealership at greater financial risk and substantially
increasing its cash shortage. This made the con-
templated capital investment even more important to
the success of the venture and validated that
Lindquist’s failure to come forward with the cash gave
Middleton cause to terminate the relationship. In the
end, the good-cause termination language in the
August letter of understanding simply cannot bear the
weight the district court gave it.
Finally, the district court found that Middleton did
not give Miller sufficient autonomy to run the dealership
and therefore deprived him of a fair opportunity to
restore it to profitability. This finding is in considerable
conflict with significant record evidence—much of it
cited in the court’s opinion—detailing the many changes
Miller implemented at the dealership. See Lindquist II,
665 F. Supp. 2d at 1014-16. To name a few: Miller negoti-
ated new insurance contracts, eliminated high bonus
plans for employees, implemented a new management
strategy, changed advertising agencies, increased the
amount of advertising, initiated weekly manager
meetings to discuss problems and sales goals, and hired
and fired employees. All this suggests ample control and
autonomy. In comparison, the areas on which Miller
complained that Middleton would not compromise—e.g.,
his suggestion that the dealership eliminate gourmet
cookies, hire an employee to clean the aquarium, handle
landscaping in-house, and spend less on an accoun-

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No. 09-3883 23
The measure of damages for unjust enrichment is limited to 3
the value of the benefit conferred on the defendant. Mgmt.
Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 557 N.W.2d 67,
79-80 (Wis. 1996). Quantum-meruit damages, on the other
(continued...)
tant—seem trivial. To the extent that Middleton refused
to implement these modest proposals, this evidence
is too insignificant to support the court’s finding that
Middleton denied Miller the authority he needed to
turn the dealership around.
In sum, the factual findings underlying the court’s
decision to impose a quasi-contractual remedy are insuf-
ficiently supported by the evidence. Because the judg-
ment is premised on clearly erroneous factual findings,
it must be reversed.
C. Damages
Because we are reversing the liability determination
based on clear error, we need not address the court’s
treatment of the question of damages. We note for com-
pleteness, however, that the court did not comply with
our remand instructions in Lindquist I. We explained
that if a quasi-contractual remedy was appropriate at all,
quantum-meruit recovery should be based on what
Miller’s services were worth in the marketplace, and
recovery for unjust-enrichment should be based on what
Middleton would have paid for a general manager in
Miller’s absence. Lindquist I, 557 F.3d at 477-78. Because3

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24 No. 09-3883
(...continued) 3
hand, are “measured by the reasonable value of the plaintiff’s
services.” Ramsey v. Ellis, 484 N.W.2d 331, 334 (Wis. 1992).
it was undisputed that Miller managed more than one
dealership when he took over as general manager
at Middleton, we said that the damages inquiry on
remand should focus on how general managers are com-
pensated when they work for several dealerships at
once. Id. at 483. We also noted an open question about
whether general managers in the area are compensated
based in part on the dealership’s performance; we said
that the damages inquiry, if one was necessary, ought
to take this question into account. Id.
Yet the district court based its damages calculations
exclusively on “the average pay . . . for general managers
of dealerships in the region including Wisconsin,” plus
benefits. The court did not directly address how
managers are compensated when they work for several
dealerships at once—a potentially significant factor in
light of Miller’s testimony that because he was working
for other dealerships, he spent only 50% of his time on
matters relating to Middleton during the months
between September 2003 and March 2004. The court
also did not account for Middleton’s expert, who testified
that it is not uncommon for managers of multiple dealer-
ships to be compensated in part on a percent of profits.
The court did address compensation for managers in
failing dealerships, concluding, however, that Middle-
ton could not have attracted an experienced general

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No. 09-3883 25
manager by offering a percentage of profits until the
dealership was successfully rehabilitated. This conclu-
sion is hard to reconcile with the fact that Miller him-
self—who had a salary from Lindquist—was willing to
assume the risk of no additional salary for the potential
reward of a large percentage of any net profit the dealer-
ship produced under his management.
III. Conclusion
For the foregoing reasons, we REVERSE the judgment
below and REMAND with instructions to enter judgment
for Middleton. There is one remaining loose end to tie
up. It is undisputed that Middleton advanced $7,668
to Lindquist and Lindquist paid $6,503.53 to install a
T-1 data line. These amounts nearly offset each other,
and Middleton asks that our remand include instruc-
tions to enter judgment in its favor for the difference.
Because Lindquist is not entitled to quasi-contractual
compensation for Miller’s services under either quantum
meruit or unjust enrichment, Middleton is correct that
it should recoup the $7,668 it advanced to Lindquist.
Middleton has conceded, however, that it must
repay the $6,503.53 expense Lindquist incurred to
install the T-1 line. This leaves a net recovery for
Middleton of $1,164.74. Judgment should be entered
accordingly.
9-13-11

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