Simek v. J.P. King Auction Co. , 160 F. App'x 675 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 8, 2005
TENTH CIRCUIT
Clerk of Court
RONALD L. SIMEK,
Plaintiff - Appellant, No. 04-8109
v. (D. Wyoming)
J.P. KING AUCTION COMPANY, (D.C. No. 03-CV-198-CAB)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, ANDERSON and KELLY , Circuit Judges.
Mr. Simek appeals the district court’s denial of his motion for a new trial
after a jury held that when J.P. King Auction Co. auctioned off Mr. Simek’s
Wyoming property for less than Mr. Simek thought it was worth, it did so in
violation of Wyoming real estate statutes and in breach of its fiduciary duty to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Mr. Simek, but that Mr. Simek incurred zero damages. Mr. Simek asserts five 1
grounds for error, each of which we address below. For the reasons stated, we
affirm.
BACKGROUND
Mr. Simek, a successful businessman and original cofounder of Tombstone
Pizza, first came into contact with J.P. King’s Executive Vice-President, Scott
King, in October 2000 when Mr. Simek inquired about auctioning a property he
owns in Nevada. At that time, Mr. Simek decided not to go forward with the
auction. He contacted Scott King again in July 2002, this time concerning the
auction of Mr. Simek’s custom-built log residence located on twenty acres of
riverfront property in the vicinity of Cody, Wyoming. In August 2002, Mr. Simek
and J.P. King entered into an Auction Marketing Agreement in regard to the
Wyoming property.
Under the terms of the Agreement, the auction of Mr. Simek’s property
would be conducted as an absolute auction, which requires the sale of the
property “to the highest bidder(s) . . . regardless of price,” rather than a reserve
auction, which allows a seller to reserve the right not to sell if the final bid does
Mr. Simek also alleged breach of contract, negligence, and negligent
1
misrepresentation in his complaint but abandoned these claims before trial.
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not exceed a certain amount. Agreement, Appellant’s App. Vol. III at 467. Scott
King and J.P. King’s marketing materials had strongly recommended the absolute
form of auction as the best method of obtaining the highest possible price for the
property. After reviewing the Agreement, Mr. Simek’s attorney had questioned
the use of the absolute auction method, but Mr. Simek agreed to proceed with that
method.
The Agreement also provided that Mr. Simek would pay J.P. King
$108,396.43 in advance for promotional and administrative expenses, and that,
“[s]hould any items ultimately be more or less than the budget agreed upon,
neither [Mr. Simek] nor [J.P.] K[ing] shall be entitled to a reimbursement.” Id. at
466-67. At the close of the sale of the property, Mr. Simek would also pay J.P.
King ten percent of the total purchase price.
At the time this Agreement was negotiated and signed, a number of
individuals at J.P. King had obtained Wyoming real estate licenses. However,
Scott King, the person at J.P. King with whom Mr. Simek had the most extensive
contact, did not have a Wyoming license, in violation of Wyo. Stat. Ann.
§ 33-28-101, although he obtained a license on October 1, 2002. In addition, J.P.
King failed to obtain Mr. Simek’s signature on a written disclosure of applicable
brokerage relationships that J.P. King was required to prepare under Wyo. Stat.
Ann. § 33-28-306.
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The auction of Mr. Simek’s property took place on October 26, 2002. J.P.
King had imposed a $50,000 bid deposit requirement on qualified bidders. Six
qualified bidders were present at the auction. One of the six, Phil Spano, was
previously known to J.P. King, and J.P. King had waived the $50,000 bid deposit
for him and also arranged for him to bid by telephone. Another of the bidders,
Northeastern LLC, was an entity that Mr. Simek’s attorneys had created
specifically to protect Mr. Simek’s interests at the auction.
Northeastern submitted an opening bid of $800,000. After the bidding went
back and forth twice between Northeastern and Mr. Spano, Mr. Spano bought the
property with a winning bid of $1,050,000. Including a buyer’s premium, the sale
price for the property was $1,155,000. This amount was less than Mr. Simek’s
mortgage on the property of $1,256,027.27, and was a disappointment to Mr.
Simek, who believed the property was worth at least $3 million.
On September 26, 2003, approximately a year after the auction, Mr. Simek
filed this diversity suit against J.P. King in Wyoming federal court. The
complaint alleged, in relevant part, that, by failing to apprise Mr. Simek of the
risks of absolute auction and failing to promote the auction of Mr. Simek’s
property appropriately, among other things, J.P. King had breached the covenant
of good faith and fair dealing as well as its fiduciary duty as Mr. Simek’s real
estate broker. As a result of these alleged violations, Mr. Simek sought
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compensatory, consequential, and punitive damages. The complaint also alleged
that J.P. King had acted in violation of the Wyoming Real Estate License Act,
Wyo. Stat. Ann. §§ 33-28-101 to -401. 2
In regard to this claim, the complaint
indicated that, “[a]s a result of [J.P. King]’s actions . . . , [Mr. Simek] ha[d]
sustained significant losses and will continue to incur additional damages until
this matter is resolved.” Complaint, Appellant’s App. Vol. I at 24.
The case was tried to a jury over nine days. Mr. Simek testified to his
belief that his property was worth $3 million. He also presented an expert
witness’s appraisal of the property at $2.2 million. He further introduced witness
testimony indicating that the absolute auction process had come under increasing
scrutiny and that it was important for an auctioneer to make clients aware of the
risks. Mr. Simek also presented an expert witness at trial to assess the “total
amount received by J.P. King” as a result of its entering into the Auction
Marketing Agreement with Mr. Simek. Trial Tr., Appellee’s Supp. App. Vol. I at
333. The expert testified that this amount was approximately $135,712, in
addition to the $108,396.43 promotional fee.
2
The complaint referred specifically to Wyo. Stat. Ann. § 33-28-303, which
lists the duties and obligations of a seller’s agent to a seller. Among other things,
the provision obligates an agent “[t]o comply with all requirements of th[e Real
Estate License Act].” Wyo. Stat. Ann. § 33-28-303(a)(iv).
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Over Mr. Simek’s objection, J.P. King introduced into evidence the 2002
county tax assessment of Mr. Simek’s property which indicated its value was
approximately $1.5 million. J.P. King also elicited testimony from Scott King
and another individual engaged in auctions, again over Mr. Simek’s objection, in
regard to the relationship between appraisers’ and tax assessors’ property
valuations and the price that one might expect a property to be sold for at auction.
Following the close of evidence, Mr. Simek raised a number of objections
in regard to the court’s proposed jury instructions, primarily arguing that the court
was improperly including negligence principles—such as proximate causation and
the duty to mitigate—in its instructions on damages for breach of fiduciary duty.
The district court overruled these objections, holding that the concepts of
causation and mitigation were common to all damages claims.
On August 27, 2004, the jury returned a verdict finding that J.P. King had
breached its fiduciary duty to Mr. Simek and had violated Wyoming real estate
laws but had not breached the implied covenant of good faith and fair dealing.
The jury further found that the fair market value of Mr. Simek’s Cody property on
the date of the auction was $1,050,000. The jury concluded that Mr. Simek had
not sustained any damages as a result of J.P. King’s illegal conduct and that there
were no damages that Mr. Simek could have “avoided or reduced by reasonable
care and diligence without exposing him to undue risk, burden, or humiliation.”
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Verdict, Appellant’s App. Vol. II at 196. In addition, it found that J.P. King did
not “receive any money either as a fee, commission, compensation or profit by or
in consequence of” its violation of Wyoming real estate laws. Id. at 197.
Following the verdict, Mr. Simek moved the trial court to award him the
statutory penalty available pursuant to Wyo. Stat. Ann. § 33-28-114, based on the
jury’s finding that J.P. King had violated Wyoming real estate laws. The court
denied this motion. Mr. Simek further moved the court for a new trial on the
issue of damages, or alternatively, for an additur. In support of this motion,
Mr. Simek argued that the jury’s finding regarding his property’s fair market
value was unsupported by the evidence because J.P. King “did not call any expert
witnesses on the question of value,” and thus the only evidence of value was that
provided by Mr. Simek. Plaintiff’s Mot. for New Trial, Appellant’s App. Vol. II
at 261. The district court denied this motion as well, reasoning that “there was
sufficient evidence for the jury to determine that the market value of [Mr.
Simek]’s home was the price obtained through the auction process.” Order of
Sept. 28, 2004, Appellant’s App. Vol. II at 281. Mr. Simek appealed the jury’s
verdict and the district court’s orders denying his motions for award of statutory
fees and for a new trial or additur.
DISCUSSION
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On appeal, Mr. Simek argues that the district court erred by (1) refusing to
award Mr. Simek a statutory penalty pursuant to Wyo. Stat. Ann. § 33-28-114; (2)
instructing the jury on issues of causation and mitigation; (3) allowing J.P. King
to present evidence of Mr. Simek’s net worth; (4) allowing J.P. King to introduce
the county assessor’s valuation of Mr. Simek’s property into evidence and to elicit
nonexpert witnesses’ opinions on valuation; and (5) denying Mr. Simek’s motion
for a new trial on damages. 3
We consider each issue in turn.
I. STATUTORY PENALTY UNDER WYO. STAT. ANN. § 33-28-114
Mr. Simek first argues that he was entitled to receive an amount three times
the sum of money that J.P. King received as a result of their Agreement as a
statutory penalty pursuant to Wyo. Stat. Ann. § 33-28-114. According to Mr.
Simek, the district court, in denying his motion for an award of this amount,
“incorrectly treated the statutory penalty as a measure of damages to be awarded
by the jury rather than a statutory penalty to be awarded by the Court.”
Appellant’s Opening Br. at 26. Mr. Simek further contends that the district court
erred in “requiring proof of causation” as a prerequisite to awarding the statutory
penalty. Id. In Mr. Simek’s view, the award of treble damages pursuant to Wyo.
3
Mr. Simek raised two additional arguments in his brief regarding the
district court’s refusal to give a constructive fraud instruction and its failure to
excuse jurors. Both of these arguments were abandoned at oral argument.
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Stat. Ann. § 33-28-114 is mandatory once a violation of Wyoming real estate law
has been established.
The appropriate interpretation and application of § 33-28-114(b) are issues
of Wyoming law. We review de novo the district court’s evaluation of these
questions. Burton v. R.J. Reynolds Tobacco Co. , 397 F.3d 906, 910 (10th Cir.
2005) (“We review a district court’s interpretation of state law de novo.”). The
provision states, in relevant part:
If any person receives any money or the equivalent thereof as a fee,
commission, compensation or profit by or in consequence of a
violation of any provision of [the Wyoming Real Estate License Act],
he shall . . . be liable to a penalty of not less than the amount of the
sum of money so received and not more than three (3) times the sum
so received as may be determined by the court, which penalty may be
recovered in a court of competent jurisdiction by any person
aggrieved.
Wyo. Stat. Ann. § 33-28-114(b).
Under Wyoming law, the award of a statutory penalty pursuant to
§ 33-28-114(b) is equivalent to an award of punitive damages and is therefore a
matter within the discretion of the trial court. Cates v. Daniels , 628 P.2d 862,
867-68 (Wyo. 1981) (“The award of . . . punitive damages [pursuant to Wyo. Stat.
Ann. § 33-28-114(b)] is solely in the discretion of the trial court.”). In Cates , the
Wyoming Supreme Court thus held that the district court did not abuse its
discretion when it refused to award treble damages under § 33-28-114(b) even
though the defendants had violated Wyoming real estate laws. Id. at 868. The
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Wyoming Supreme Court has further held that such an award does require a
“causal connection between” a defendant’s violation and “the profit [or other
gain] realized by” the defendant. McCoy v. Thompson , 677 P.2d 839, 843 (Wyo.
1984). Moreover, it appears that it is not error for the jury, rather than the court,
to make at least a preliminary determination regarding the statutory penalty as
long as this determination is supported by the evidence. See Erickson v. Magill ,
713 P.2d 1182, 1187 (Wyo. 1986) (upholding a district court’s reversal of a jury’s
award of a penalty under § 33-28-114(b) to the plaintiff where the court
determined there was no violation of Wyoming real estate laws).
Here, as indicated above, the jury found that J.P. King did not “receive any
money either as a fee, commission, compensation or profit by or in consequence
of” its violation of Wyoming real estate laws and did not award Mr. Simek any
damages. Verdict, Appellant’s App. Vol. II at 197. In denying Mr. Simek’s
subsequent motion for an award of the statutory penalty, the court reasoned that
“the jury considered the statutory penalty” but had “appropriately” assessed the
amount of damages at zero based on its determination that J.P. King’s statutory
violations “were not the proximate cause of any damages.” Order of Sept. 21,
2004, Appellant’s App. Vol. II at 280.
Mr. Simek appears to contend that the district court, in reaching this
conclusion, misunderstood the penalty determination under § 33-28-114(b) as
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connected to the amount of damages Mr. Simek sustained that were
“proximate[ly] cause[d]” by J.P. King’s violations. It is true that the “causal
connection” required under Wyoming law appears more like “but for” causation
than “proximate” causation, 4
see McCoy , 677 P.2d at 843, and the statute requires
the connection to be between the violation and the money received by the
defendant, not between the violation and the damages sustained by the plaintiff.
However, even if the district court’s order appeared to rely on an incorrect
interpretation of Wyoming law in regard to these matters, the jury instructions and
verdict form do not reflect the same error. In answering the question on the
verdict form regarding whether J.P. King “receive[d] any money . . . by or in
consequence of” its real estate law violations, the jury had before it the very
language of the statute. The applicable jury instruction indicated that “if you find
that J.P. King received money . . . as a consequence of a violation of any
provision of the Wyoming Real Estate License Law, J.P. King may be liable for
not less than the amount of money so received and not more than three times the
amount of money so received.” Instr. No. 34, Appellant’s App. Vol. II at 241.
The jury found that J.P. King received no money as a consequence of its statutory
violations. Given that finding, there was no basis upon which the court could
4
See Restatement (Third) of Torts § 26 (proposed final draft)
(distinguishing “but for” or “factual” causation from “proximate” causation for
purposes of negligence liability).
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have awarded Mr. Simek a statutory penalty of “not less than the amount of the
sum of money so received and not more than three (3) times the sum so received,”
as allowed under § 33-28-114(b).
On appeal, Mr. Simek does not argue that there is no basis in the record for
the jury to find no causal connection, nor does he attempt to explain the causal
connection between specific statutory violations committed by J.P. King and its
receipt of money. Essentially, Mr. Simek argues that, as a matter of law, all
money received by J.P. King as a result of the auction of Mr. Simek’s property
was received “by or in consequence” of J.P. King’s statutory violations. We see
no basis for such a conclusion unless the Agreement between Mr. Simek and J.P.
King was itself rendered invalid by these violations. Having carefully reviewed
the record, we are unpersuaded that any of the violations alleged by Mr. Simek
were sufficient to render the Agreement invalid. The only alleged violation that
might have invalidated the Agreement at the outset was Scott King’s failure to
have a Wyoming real estate license during his negotiations with Mr. Simek.
However, although Scott King did not have a license at that time, other
individuals at J.P. King did have licenses. Moreover, Scott King did have a valid
license as of October 1, 2002, before the auction date of October 26. While the
Real Estate License Act states that an unlicensed broker may not bring suit to
recover a commission, Wyo. Stat. Ann. § 33-28-115, the Wyoming Supreme Court
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has observed that generally, in the absence of some further violation, “one who
has paid money to an unlicensed person for performance of a contract is not
entitled to recover the money back,” in part because “there is no equitable reason
for making restitution to a plaintiff who gets what he expected, and the parties to
an illegal contract which has become executed cannot in equity and principles of
restitution require that money be paid back.” Bowlerama, Inc. v. Woodside
Realty Co. , 752 P.2d 1377, 1383-84 (Wyo. 1988). We therefore affirm the district
court’s order denying the statutory penalty.
II. JURY INSTRUCTIONS
Mr. Simek next argues that the district court gave erroneous jury
instructions in regard to the standard for awarding damages based on a breach of
fiduciary duty. “We review de novo whether, as a whole, the district court’s jury
instructions correctly stated the governing law and provided the jury with an
ample understanding of the issues and applicable standards.” Grace United
Methodist Church v. City of Cheyenne , 427 F.3d 775, 793 (10th Cir. 2005). Even
if, after reviewing the instructions in isolation from the rest of the trial, we are
left with a substantial doubt in regard to whether the jury received proper
guidance, we may reverse a jury’s verdict in a civil trial only if we conclude the
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erroneous instructions prejudiced the losing party. Id. (citing Morrison Knudsen
Corp. v. Fireman’s Fund Ins. Co. , 175 F.3d 1221, 1236 (10th Cir. 1999)).
Mr. Simek contends that, although his damages claims were based on
breach of fiduciary duty rather than negligence, “the District Court repeatedly
included ordinary negligence concepts in the jury instructions and verdict form”
and that, “[a]s a result, the jury was misled on the law applicable to the breach of
fiduciary duty claims against J.P. King.” Appellant’s Opening Br. at 31. Mr.
Simek further claims that the district court erroneously instructed the jury to apply
the affirmative defense of mitigation even though, he alleges, that defense is not
available for a breach of fiduciary duty, as opposed to negligence, claim. The
result of these errors, according to Mr. Simek, is that the jury focused on the
question of “actual damages and did not properly address the equitable relief of
forfeiture,” which would have required disgorgement by J.P. King of all sums
paid to it by Mr. Simek. Id. at 35.
In regard to the causation issue, Mr. Simek objected at trial to Instruction
No. 14, which stated:
An injury or damage is caused by an act, or a failure to act,
whenever it appears from a preponderance of the evidence that the
act or omission played a substantial part in bringing about the injury
or damage.
Conduct which plays a substantial part in bringing about the
injury or damage is that conduct which directly brings about the
injury either immediately or through happenings which follow one
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after another. If, however, the conduct created only a condition or
occasion for the harm to occur then it would not be a substantial
factor in bringing about the harm.
Jury Instr. No. 14, Appellant’s App. Vol. II at 216. The district court denied this
objection, indicating its belief that general damages law applied, and that
damages require causation.
Mr. Simek also objected to the court’s proposed instruction on mitigation
of damages, which stated:
If you find that [Mr. Simek] is entitled to recover damages,
then you should reduce the amount of damages that you award to
[Mr. Simek] by the amount of damages that [he] could have avoided
or reduced by reasonable care and diligence without exposing him to
undue risk, burden, or humiliation.
Instr. No. 35, Appellant’s App. Vol. II at 242. Mr. Simek objected to this
instruction on the basis that J.P. King had failed to demonstrate mitigation was an
affirmative defense for breach of fiduciary duty claims in Wyoming law. The
district court responded that, in its view, as a general tort principle, Mr. Simek
“had a duty to mitigate, if he could.” Jury Instr. Conf., Appellant’s App. Vol. III
at 430. Both of these instructions were given to the jury.
Under the circumstances here, we are unpersuaded that the district court’s
instructions constituted reversible error. For one thing, it is undisputed that Mr.
Simek did seek damages on his claim of breach of fiduciary duty. The Wyoming
Supreme Court has recognized that such claims “‘sound[] in tort,’” and that
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“‘[t]he measure of damages [in an action for breach of fiduciary duty] is the
amount which will compensate for all the detriment proximately caused by the
breach of duty.’” Hulse v. First Am. Title Co. , 33 P.3d 122, 140 (Wyo. 2001)
(quoting Hagar v. Mobley , 638 P.2d 127, 139 (Wyo. 1981)). We therefore see no
error in the district court’s conclusion that the general tort concept of proximate
causation was applicable to Mr. Simek’s claim for damages, and with its inclusion
of this concept in its jury instructions.
In regard to the mitigation instruction, it appears unsettled in Wyoming law
whether the duty to mitigate applies to offset a damages award in a breach of
fiduciary duty claim. But see Wachovia Bank of Ga., N.A. v. Namik , 620 S.E.2d
470, 473 (Ga. App. 2005) (holding duty to mitigate applied where breach of
fiduciary duty was not intentional or fraudulent). However, assuming the court’s
mitigation instruction was in error, we hold that no prejudice resulted. As
indicated above, the jury found that there were no damages that Mr. Simek could
have avoided or reduced by reasonable care. Thus, the mitigation instruction
could not have affected the outcome of the case.
Aside from the damages issue, Mr. Simek appears to argue that the district
court’s jury instructions were erroneous because they failed to inform the jury of
the availability of a forfeiture remedy, which, unlike damages, does not require
proof of causation or mitigation. See, e.g. , Arst v. Stifel, Nicolaus & Co. , 954 F.
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Supp. 1483, 1492-93 (D. Kan. 1997). However, as J.P. King points out, Mr.
Simek did not indicate in his complaint, in his proposed jury instructions, in his
proposed verdict form, or at trial that he was seeking forfeiture or disgorgement
as a remedy for J.P. King’s breach of fiduciary duty. Mr. Simek first claimed
entitlement to disgorgement of all money J.P. King had received in his motion for
a new trial.
We recognize that at least one court has held that, where a plaintiff has
limited his complaint to certain forms of relief, a district court may nevertheless
be obligated under Federal Rule of Civil Procedure 54(c) 5
to instruct the jury on
all remedies to which the plaintiff is entitled in light of the evidence presented at
trial. See Scutieri v. Paige , 808 F.2d 785, 792 (11th Cir. 1987) (holding that a
district court “commits reversible error in not instructing the jury” on punitive
damages “[i]f the complaint alleges conduct that would support a claim for
punitive damages, and if evidence is presented creating a jury question on such
relief” (citing Guillen v. Kuykendall , 470 F.2d 745, 748 (5th Cir. 1972))). We do
not consider the district court’s lack of a forfeiture instruction error here,
however, as Mr. Simek has not cited any conclusive authority for the proposition
5
Rule 54(c) states that “every final judgment shall grant the relief to which
the party in whose favor it is rendered is entitled, even if the party has not
demanded such relief in the party’s pleadings.” Fed. R. Civ. P. 54(c).
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that the forfeiture remedy is available for breach of fiduciary duty under
Wyoming law. 6
We therefore affirm the district court on this issue.
III. EVIDENCE OF MR. SIMEK’S NET WORTH
Mr. Simek next argues that the district court erred in allowing J.P. King to
present evidence indicating Mr. Simek’s net worth. We review the district court’s
decision to allow the admission of evidence for an abuse of discretion. Grace
6
We note that the Restatement and some jurisdictions have indicated that a
plaintiff claiming a breach of fiduciary duty by an agent may seek both damages
and forfeiture of “commissions and other compensation paid or payable to the
agent during the period of the agent’s disloyalty.” Restatement (Third) of Agency
§ 8.01 cmt. d(1)-(2) (T.D. No. 6, 2005); see, e.g., Mabry v. Tom Stanger & Co.,
33 P.3d 1206, 1209 (Colo. Ct. App. 2001) (recognizing that under Colorado law,
“a real estate broker's breach of a fiduciary duty to a seller results in a forfeiture
of the broker's entitlement to a commission, even if the seller has not suffered any
demonstrable harm as a result of the breach and even if the breach does not
amount to fraud or self-dealing or result in a profit to the broker”). However, we
do not believe Rule 54(c) imposes a duty on the district court to recognize this
principle as part of Wyoming law at a point where no Wyoming court has done so
and neither of the parties had urged it to do so. In addition, although Mr. Simek
has not challenged the district court’s entry of judgment under Rule 54(c), either
here or in his motion for a new trial, we note that any such challenge would not
prevail under the circumstances here because the court’s post-trial imposition of a
forfeiture remedy would have unfairly prejudiced J.P. King. See Minyard Enters.,
Inc. v. Se. Chem. & Solvent Co., 184 F.3d 373, 386 (4th Cir. 1999) (holding that
Rule 54(c) does not allow a plaintiff to seek a certain form of relief for the first
time after trial where its failure to do so before trial was “unfairly prejudicial” to
the defendant).
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United Methodist Church , 427 F.3d at 802-03. Here, we hold there was no abuse
of discretion. Mr. Simek’s objection relates to J.P. King’s questioning of Mr.
Simek on cross-examination. The questioning, relating to Scott King’s initial
visit to Mr. Simek regarding his Nevada property, proceeded as follows:
Q: And what did you think all of that property was worth when you
invited Mr. King out to talk to you about it?
....
A. It is anybody’s guess.
Q. You actually had a draft document where you projected that it
could be sold for 40 million if everything was developed, didn’t you?
A. If everything was developed and the lots were sold individually,
approximately.
Trial Tr., Appellant’s App. Vol. III at 331. Mr. Simek objected to this line of
questioning on the grounds of relevance and now further asserts that allowing the
introduction of the value of Mr. Simek’s Nevada property was prejudicial to Mr.
Simek. However, as J.P. King indicates, Mr. Simek’s experience with valuable
real estate was relevant to J.P. King for the purpose of refuting Mr. Simek’s claim
that he was taken advantage of through the absolute auction of his Cody property.
Moreover, as J.P. King further points out, Mr. Simek had already introduced
evidence that in general related to his highly successful business career,
beginning with his cofounding of Tombstone Pizza, and specifically related to his
purchase of the Nevada property and his plans to develop it into a golf course and
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residential lots. Because this evidence already tended to show Mr. Simek’s
wealth, we do not believe J.P. King’s elicitation of the projected value of the
Nevada property was unfairly prejudicial. We therefore uphold the district
court’s ruling on this issue.
IV. ADMISSION OF COUNTY ASSESSOR’S PROPERTY ASSESSMENT
AND WITNESSES’ VALUATION TESTIMONY
Mr. Simek also challenges the district court’s refusal to exclude J.P. King’s
introduction of or reference to the county assessor’s assessment of Mr. Simek’s
property, and its refusal to prevent J.P. King from asking witnesses about that
document and other appraisals. According to Mr. Simek, the district court should
have evaluated the reliability of the assessment and of the witnesses’ testimony as
expert evidence of the fair market value of Mr. Simek’s property pursuant to
Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579 (1993). We review de novo
“whether the district court properly performed its role as ‘gatekeeper’ pursuant to
Federal Rule of Evidence 702 and Daubert .” Norris v. Baxter Healthcare Corp. ,
397 F.3d 878, 883 (10th Cir. 2005).
Here, we believe the district court had no obligation to analyze the
reliability of the assessment under Daubert . J.P. King originally referred to the
assessment in order to refresh Mr. Simek’s memory regarding the amount of the
assessment, for the purpose of asking Mr. Simek whether it was true that “the
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purchase price that was obtained at the auction was . . . very close to what the
county assessor appraised [Mr. Simek’s] house and the secondary building in
connection with the house in their 2002 appraisal.” Trial Tr., Appellant’s App.
Vol. III at 326. J.P. King later introduced a certified copy of the assessment into
the evidence. As J.P. King points out, that copy was admissible under Federal
Rule of Evidence 902(4) as a certified copy of a public record. See Rossi v.
United States , 755 F. Supp. 314, 316 (D. Or. 1990) (holding IRS Certificates of
Assessments and Payments admissible under Rule 902(4)).
Mr. Simek argues that because J.P. King used the assessment as evidence of
the value of Mr. Simek’s property, the assessment must be characterized as a
“back door” expert opinion. Appellant’s Opening Br. at 43. This argument
presumes that only expert opinions have possible relevance to the question of a
property’s value. However, tax records such as the assessment at issue are
certainly relevant to the question of value, even if they are not dispositive. See
Wyo. Stat. Ann. § 39-13-103(b)(ii) (requiring that “[a]ll taxable property shall be
annually valued at its fair market value”); BP Am. Prod. Co. v. Dep’t of Revenue ,
112 P.3d 596, 608 (Wyo. 2005) (holding that the Wyoming “Department [of
Revenue]’s valuations for state-assessed property are presumed valid, accurate,
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and correct”). 7
The fact that such a tax record is relevant for this purpose does
not automatically subject the record to Daubert analysis where the record is
admissible on other grounds and there is no attempt to characterize the tax record
as anything other than what it is. In this sense, a certified tax record is
distinguishable from factual findings from an investigation that are contained in a
government report admissible under Rule 803(8)(C), which courts have held
remain subject to Daubert . Cf. Desrosiers v. Flight Int’l of Florida, Inc. , 156 F.3d
952, 962 (9th Cir. 1998) (observing that Rule 803(8)(C)’s exclusion of a report’s
factual findings where “the sources of information or other circumstances indicate
lack of trustworthiness,” Fed. R. Evid. 803(8)(C), indicates that Daubert remains
applicable in that context); Heary Bros. Lightning Prot. Co. v. Lightning Prot.
Inst. , 287 F. Supp. 2d 1038, 1076 (D. Ariz. 2003) (holding that party could not
circumvent Daubert by submitting scientific or technical findings contained in a
government report). We therefore affirm the district court’s admission of the
assessment into evidence.
We note that the Wyoming Supreme Court has held that other “relevant
7
evidence of market value” includes the resale price of a property as well as “other
sales of the same or similar property, which were transacted reasonably close in
time and distance and under comparable market conditions.” Piroschak v.
Whelan, 106 P.3d 887, 893 (Wyo. 2005) (internal quotation omitted); see also Ely
v. Kirk, 707 P.2d 706, 712 (Wyo. 1985) (listing “purchase price of [property] or
similar property, attributes good and bad of the particular property, or
circumstances in the neighborhood or area having an effect on its value” as
relevant factors).
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Mr. Simek further claims that J.P. King’s questioning of Mr. Hugh Miller,
an experienced auctioneer, regarding an appraiser’s valuation of Mr. Simek’s
property was contrary to J.P. King’s representation that Mr. Miller would not
present expert testimony on valuation. That representation had led the district
court to hold that Mr. Simek’s prior objection to Mr. Miller’s testimony on
Daubert grounds was moot. Mr. Simek also protests J.P. King’s questioning of
Scott King on the appraisal and the assessment. We disagree with Mr. Simek’s
contention that either Mr. Miller’s or Scott King’s testimony was subject to
Daubert . J.P. King questioned Mr. Miller as follows:
Q. What if I told you there was an appraisal on the property for
either 2 or 2.5 million?
....
A. I never cease to be amazed at how people – how high a regard
people hold appraisals. I can sit here and cite you examples of where
we have sold properties – well, one that comes to mind immediately
is we sold a little farm up in northern Indiana . . . . He appraised this
farm for 360,000. We sold the farm and it brought 798,000. I can
also sit here and quote you properties that we’ve sold for
substantially less than appraised values. An appraisal is nothing
more than one person’s opinion of value based on historical
information that they gather from the market. And that’s all it is.
The validity of that number that they come up with at the
bottom of that appraisal report is in direct proportion to the skill of
the person that has compiled the information that went in to making
that decision.
Trial Tr., Appellee’s Supp. App. Vol. II at 538-40. J.P. King also referenced
appraisals and the assessment when questioning Scott King:
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Q. I want to ask you a little bit about value and what we know. In
this case, the testimony has been that there was an appraisal of 2.2
million, county assessor’s assessment of 1 point something million.
Tell us, first of all, in your experience, how reliable are either one of
those documents in terms of predicting what a property will sell for
at an auction?
....
A. An appraisal is an opinion is what it is. You know, granted, it is
a professional that’s tabulated it, but it is using historic comparables,
comps that are in the past. If it is a market that’s sliding in value,
then those comps will prove a wrong conclusion. On the other hand,
if those values are appreciating, obviously, those comps are going to
have a lower value than what it actually should be.
We’ve had sales higher and lower than appraisals. So to me an appraisal is
an opinion is what it is.
The tax records is for purposes of determining tax amounts and
it is a form of appraisal.
Trial Tr., Appellant’s App. Vol. III at 408. It is clear that J.P. King’s questioning
of Mr. Miller and Scott King on these points related to their experience in the
auction business, as regards the relationship between appraisals and tax
assessments and the actual price a property will sell for at an auction. Neither
Mr. Miller nor Scott King claimed to present their own appraisals of the fair
market value of the property. Their qualifications to perform such an appraisal
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were thus irrelevant. 8
We therefore conclude that the district court did not err in
failing to analyze these witnesses’ testimony under Daubert .
V. DENIAL OF A NEW TRIAL ON DAMAGES
Finally, Mr. Simek asks us to reverse the district court’s denial of his
motion for a new trial, or in the alternative additur, based on the inadequacy of
the jury’s damages award in light of the evidence. We review the district court’s
denial of a new trial on these grounds for an abuse of discretion. Bainbrich v.
Hammon Iron Works , 249 F.2d 348, 349 (10th Cir. 1957). Moreover, “[w]e will
not disturb a jury’s finding on damages [in a civil trial] unless it is so
unreasonable as to shock the judicial conscience and to raise an irresistible
inference that passion, prejudice, corruption, or other improper cause invaded the
trial.” Bennett v. Longacre , 774 F.2d 1024, 1028 (10th Cir. 1985) (internal
quotation omitted).
8
We note that at oral argument, Mr. Simek asserted that under Wyoming
law, only licensed appraisers are considered qualified to testify regarding a
property’s evaluation. However, the Wyoming Supreme Court has stated that
“‘[w]hether or not a witness has sufficient knowledge or special experience to
testify as to his opinion on valuation is within the discretion of the trial court and
will be disturbed on appeal only if clearly and prejudicially erroneous and then
only in extreme cases.’” Connor v. Bd. of County Comm’rs, 54 P.3d 1274, 1284
(Wyo. 2002) (quoting Ely, 707 P.2d at 712).
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In his opening brief, Mr. Simek argued that his own evidence on damages
“was uncontroverted and undisputed” because “J.P. King did not call any expert
witnesses on the question of value” of Mr. Simek’s property, and concluded that
the jury’s zero damages award was therefore necessarily contrary to the evidence.
Appellant’s Opening Br. at 46. In response, J.P. King pointed to the testimony of
Mr. Miller and Scott King, discussed above, regarding how value is determined
through the auction process, as well as to the 2002 certified tax assessment
introduced as evidence at trial. In his reply brief, Mr. Simek then appeared to
merge his argument on this issue with his attack on the admissibility of the
assessment and Mr. Miller’s and Scott King’s testimony, which we have already
discussed above. In light of our resolution of the admissibility issues in J.P.
King’s favor, we take into account that evidence and conclude that the jury’s
finding that Mr. Simek did not sustain any damages was not so unreasonable as to
warrant a new trial.
Mr. Simek criticizes J.P. King as representing the absolute auction as “the
best evidence of fair market value” when “the absolute auction concept is under
attack throughout the country and is the subject of numerous lawsuits and claims
against auction companies like J.P. King who utilize the absolute auction device.”
Appellant’s Reply Br. at 29. However, the jury heard testimony regarding the
“enormous amount of discussion and articles written [and] litigation revolving
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around” the absolute auction method, Trial Tr., Appellant’s App. Vol. III at 353,
and was entitled to conduct its own evaluation of J.P. King’s and Mr. Simek’s
conflicting evidence. The jury’s verdict form indicates its determination that Mr.
Simek received the fair market value of his property at the auction and that Mr.
Simek sustained no damages. There is evidence in the record to support these
conclusions. We therefore uphold the district court’s ruling on this issue.
CONCLUSION
For the foregoing reasons, the district court’s denial of Mr. Simek’s motion
for a new trial or for additur is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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