Opinion
23CA1022
05-23-2024
JEM Communications Incorporated and Estate of John Roger Vergo, Plaintiffs-Appellees and Cross-Appellants, v. John Rusher, Defendant-Appellant and Cross-Appellee.
Kent L. Freudenberg, Colorado Springs, Colorado, for Plaintiffs-Appellees and Cross-Appellants Rufus Wilderson LLC, Rufus O. Wilderson, Powderhorn, Colorado, for Defendant-Appellant and Cross-Appellee
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Custer County District Court No. 18CV30020 Honorable Lynette M. Wenner, Judge
Kent L. Freudenberg, Colorado Springs, Colorado, for Plaintiffs-Appellees and Cross-Appellants
Rufus Wilderson LLC, Rufus O. Wilderson, Powderhorn, Colorado, for Defendant-Appellant and Cross-Appellee
Lipinsky and Schutz, JJ., concur
OPINION
FREYRE JUDGE
¶ 1 In this breach of contract case involving the sale of cattle and a personal loan, defendant, John Rusher, appeals the portions of the jury's verdict awarding prejudgment interest in favor of plaintiffs, JEM Communications Incorporated (JEM) and the estate of the late John Roger Vergo (the Vergo estate), and reducing his award of prejudgment interest against the Vergo estate. JEM and the Vergo estate cross-appeal the portion of the jury's verdict awarding prejudgment interest in favor of Rusher. We affirm in part, reverse in part, and remand with directions.
I. Factual Background
¶ 2 Rusher and John Roger Vergo owned adjoining ranch properties near Westcliff. Vergo, a businessman, had no experience in the cattle industry, but he aspired to be a rancher. Rusher had been involved in the cattle industry his entire adult life.
¶ 3 In November 2014, Vergo and Rusher signed a one-page contract (the Cattle Agreement). The Cattle Agreement stated that Vergo and Rusher "are working together to build a cow herd for Roger and Ann Vergo" and that the cow herd would be the property of Roger and Ann Vergo.
Vergo's wife, Ann Vergo, was a party to the Cattle Agreement, but she did not participate in the business and was not a named party in the underlying action.
¶ 4 Under the Cattle Agreement, Vergo and Rusher agreed that Vergo would purchase cattle and pay the expenses incurred in taking care of the cattle, while Rusher would manage the cattle. The Cattle Agreement provided that Rusher would lease his Lazy J. Bar brand to Vergo and that the herd would bear the Lazy J. Bar brand. The Cattle Agreement further provided, "Profits realized from this arrangement to be split evenly, 50/50, upon sale of any of the cows &/or calves." It did not contain a definition of "profits."
¶ 5 Vergo, the sole owner of JEM, advanced funds from the company to fund his obligations under the Cattle Agreement. Rusher then selected cattle for the herd and Vergo paid for the cattle. Vergo relied on Rusher's experience to select cattle to purchase.
¶ 6 In 2015, Rusher became involved in a dispute related to his father's estate. To settle that dispute, Rusher borrowed money from JEM (the JEM Loan) that enabled Rusher to pay JEM's attorneys to represent him in the probate proceedings. Ultimately, the dispute was resolved via stipulation and Rusher became the trustee and owner of the Lee Roy Family Trust (the Rusher family trust), which included the Rusher family ranch property.
¶ 7 The terms of the JEM Loan were never reduced to writing. JEM and Rusher orally agreed that the JEM Loan would be interest free for ten years. The JEM Loan was unsecured and there was no date certain for Rusher to repay it. Moreover, other than the checks that JEM wrote for Rusher, no documentation established the total amount that JEM loaned to Rusher. In February 2016, JEM loaned Rusher $338,655.10 ($88,655.10 for attorney fees and costs and $250,000.00 toward settlement of the probate proceedings).
¶ 8 Between September 2015 and December 2017, Vergo and Rusher sold the majority of the Lazy J. Bar brand cattle through the La Junta Livestock Commission in a series of thirty-three transactions. The net proceeds of the sales were $1,112,808.45. The sale proceeds were delivered directly to Vergo because Rusher had leased the Lazy J. Bar brand to Vergo.
¶ 9 By 2017, Vergo and Rusher's relationship had soured. In either October or November 2017, Vergo told Rusher that he was going to terminate the Cattle Agreement and sell the remainder of the cattle that had not been sold at the La Junta Livestock Commission. Thereafter, Vergo stopped paying invoices for pasture for the remaining cattle. Most of the remaining cattle were sold in December 2017. However, 112 head of cattle were not sold, and they were returned to Vergo.
II. Procedural Background
¶ 10 In November 2018, Vergo and JEM sued Rusher and the Rusher family trust, alleging three claims: (1) breach of contract for Rusher's failure to repay the JEM Loan; (2) unjust enrichment under the theory that the JEM Loan allowed Rusher to preserve his family's ranch; and (3) civil theft under the theory that Rusher stole 158 of the subject cattle.
¶ 11 In his answer, Rusher admitted that he owed $338,655.10 for the JEM Loan, but he asserted that he and JEM had agreed that the JEM Loan would be repaid within ten years and would be interest free. Rusher denied the claims for unjust enrichment and civil theft. He also counterclaimed that Vergo breached the Cattle Agreement by not paying monies owed to him for managing the cattle. Rusher also counterclaimed that a notice of lis pendens that Vergo and JEM had recorded in Custer County constituted a spurious lien.
¶ 12 Vergo died before trial, so the Vergo estate was substituted as a party. Before trial, the parties agreed to dismiss the Vergo estate and JEM's unjust enrichment claim and Rusher's spurious lien counterclaim. They also agreed to dismiss the Rusher family trust as a party.
¶ 13 The court held a jury trial in February 2023. At the close of the evidence, the court granted Rusher's motion for a directed verdict in his favor on the Vergo estate's civil theft claim. The jury found in favor of JEM on its claim for breach of the JEM Loan and against Rusher in the amount of $338,655.10. The jury found in favor of Rusher on his claim for breach of the Cattle Agreement and against JEM, and it awarded Rusher $698,231.27. Notably, the jury awarded $100,000 more than the claimed losses for breach of the Cattle Agreement.
¶ 14 The parties filed motions for prejudgment interest on their respective verdicts. The Vergo estate and JEM also filed a motion requesting judgment notwithstanding the verdict (JNOV), or alternatively, requesting remittitur or a new trial pursuant to C.R.C.P. 59.
¶ 15 In their motion for prejudgment interest, the Vergo estate and JEM argued that they were entitled to $241,985.04 in statutory interest pursuant to section 5-12-102, C.R.S. 2023, calculated from February 29, 2016, the date JEM loaned Rusher the money.
¶ 16 In their C.R.C.P. 59 motion, the Vergo estate and JEM argued that (1) the evidence at trial did not support that the term "profits realized" used in the Cattle Agreement meant anything other than anticipated profits; (2) the jury did not apply the plain meaning of the term "profit" when applying the instructions; and (3) Rusher did not submit any evidence to support his argument that his and Vergo's relationship generated sufficient profits to justify the additional $100,000 awarded in the verdict.
¶ 17 In his response to the C.R.C.P. 59 motion, Rusher argued that the record contains substantial evidence of the profits realized from the arrangement between himself and Vergo. He further argued that there was record support from which a jury could award the additional $100,000 in breach of contract damages - namely, two exhibits that identified how cattle flowed through Vergo's ranch and invoices from the cattle sales showing that Vergo retained 112 head of cattle at the end of the business relationship.
¶ 18 In his motion for prejudgment interest, Rusher argued that he was entitled to $1,099,943.11 (plus $241.08 per day from March 1, 2023, until the date judgment was entered) in statutory interest under section 5-12-102(1)(b). He said that statutory interest began to accrue no later than January 1, 2018 - immediately following the final cattle sale and the end of the business relationship, and thus, the date the cattle sales proceeds were wrongfully withheld from Rusher. Rusher asserted that prejudgment interest on his share of the cattle sales proceeds should be calculated based on the date of each sale. Specifically, Rusher highlighted trial exhibit 4, containing sales dates and net sales receipts of the cattle; exhibit 5, containing a tabulation of amounts and dates of outstanding feed bills; and exhibit 7, containing a flow chart of cattle movement. Rusher asserted that these documents supported the dates and amounts of the monies owed to him from the cattle sales.
¶ 19 The court granted, in part, the Vergo estate and JEM's motion for prejudgment interest and awarded them interest on the $338,655.10 jury award at the statutory rate of 8% from June 28, 2017. In its order, the court found the trial evidence established that (1) JEM agreed that the JEM Loan would be interest free for ten years "and during this time the parties were engaged in the contract to build a cattle herd for John Vergo"; and (2) JEM waived interest on the JEM Loan until June 28, 2017, the date on which both parties stopped performing under the JEM Loan and the Cattle Agreement. The court also observed that the complaint did not allege a date when Rusher breached the JEM Loan.
¶ 20 Based on this evidence, the court found that interest did not begin to accrue (and section 5-12-102(1) did not apply) until June 28, 2017.
¶ 21 The court also granted, in part, Rusher's motion for prejudgment interest, awarding him interest on the $598,231.27 judgment at the statutory rate of 8% beginning on June 28, 2017. In its order, the court noted that, although the complaint did not allege a date on which Vergo and JEM breached the Cattle Agreement, the trial evidence showed that "the parties agreed that during the time the parties were engaged in fulfilling the contract to build a cattle herd and while defendant still owed repayment on a loan from plaintiffs that no payments from the sale of cattle were due to defendants." Thus, the court found that interest did not begin to accrue (and section 5-12-102(1) did not apply) until June 28, 2017, the date "when [Vergo and JEM] were notified that [Rusher] would no longer perform under the [JEM Loan]."
¶ 22 The court denied the Vergo estate and JEM's motion for JNOV but granted their motion for remittitur and reduced by $100,000 the verdict on Rusher's claim for breach of the Cattle Agreement.
¶ 23 This appeal and cross-appeal followed.
III. JEM Loan
¶ 24 Rusher contends that the trial court erred by awarding JEM prejudgment interest for monies owed under the JEM Loan because the parties agreed that the JEM Loan would be interest free and, therefore, section 5-12-102(1) does not apply. Moreover, he contends that the court's finding that interest on the JEM Loan began accruing on June 28, 2017, has no record support. He reasons that the court wrongly conflated the parties' obligations under the Cattle Agreement and the JEM Loan, which documented independent transactions, and that nothing in the record supports the court's conversion of an interest-free loan to an interest-bearing obligation upon termination of the Cattle Agreement. We disagree.
A. Additional Facts
¶ 25 JEM's Chief Financial Officer (CFO) and Vergo's daughter, Tami Nielson, testified that, as CFO of JEM, she began bookkeeping for the Lazy J. Bar brand when her father and Rusher began purchasing cattle under the Cattle Agreement in 2014. She said that, in her capacity as JEM's bookkeeper, she never wrote checks to Rusher for half of the sales proceeds following any of the cattle sales. She further testified that Rusher never asked her to write any checks for half of the sales proceeds following any cattle sales, and that no one ever asked her to do so.
¶ 26 Rusher testified that he "thought [Vergo] was calculating half of [his] proceeds to go against the $250,000 and the attorney fees" and that "when that was paid, [Vergo] would give [him] a summation or - how, how much was left. I would start receiving the monies." Rusher further testified that he "was trusting that [his] half of those sales would be going against what [he] owe[d] [JEM]." He also testified that he never asked Vergo for reimbursements for his time or the out-of-pocket expenses he incurred in operating the herd because he believed Vergo was offsetting what he owed under the JEM Loan with his half of the sales proceeds.
¶ 27 Rusher also explained that, based on his conversations with Vergo, he understood that Vergo knew Rusher would repay the JEM Loan from the cattle sale proceeds to which Rusher was entitled under the Cattle Agreement.
[DEFENSE COUNSEL]: From your conversations with Mr. Vergo . . . was it your understanding that he knew that that's the way he was going to get paid?
[RUSHER]: Well, yes, because the - when we got back from the Attorney's office and was -he had wrote the check for the $250,000. And we had the - some Attorney fees. I told him that the pro - the - my half, these cows as -when they were sold, he would write me a check and I'd write him right - one right back to pay for what I owed him. And that was what was said in his office, and [Nielson] was sitting there. And there was no interest, and I had 10 years to get this done.
¶ 28 Rusher said that he did not have the ability to repay the JEM Loan on any type of payment schedule at the time Vergo provided the JEM Loan and that "[Vergo] surely knew that." He also testified that he believed Vergo understood his expectation that repayment would need to come from their arrangement under the Cattle Agreement.
¶ 29 In its order awarding JEM prejudgment interest, the court found that "[p]laintiffs agreed that no interest needed to be paid for 10 years on the loan contract and during the time the parties were engaged in the contract to build a cattle herd for John Vergo." Likewise, the court found that "[t]he evidence at trial shows the parties agreed that during the time the parties were engaged in fulfilling the contract to build a cattle herd and while defendant still owed repayment on a loan from plaintiffs that no payments from the sale of cattle were due to defendants."
B. Standard of Review and Applicable Law
¶ 30 "A trial's court findings of fact are binding on review unless they are clearly erroneous and not supported by the record." Bohrer v. DeHart, 969 P.2d 801, 803 (Colo.App. 1998).
¶ 31 "In the case of a general verdict, the court is required to make findings regarding the basis upon which damages were due." Coleman v. United Fire & Cas. Co., 767 P.2d 761, 764 (Colo.App. 1988). A trial court's findings should be clearly ascertainable from uncontroverted facts. Id.; Wood v. Hazelet, 77 Colo. 442, 444, 237 P. 151, 152 (1925).
¶ 32 The interpretation of a contract is a matter of law, which we review de novo. Agritrack, Inc. v. DeJohn Housemoving, Inc., 25 P.3d 1187, 1192 (Colo. 2001). We defer to a trial court's factual findings if they are supported by sufficient evidence in the record. Graham v. Jules Inv., Inc., 2014 COA 136, ¶ 31.
¶ 33 Prejudgment interest on damage awards not involving personal injury is governed by section 5-12-102. Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821, 824-25 (Colo. 2008). Section 5-12-102(1) provides, in relevant part:
(1) Except as provided in section 13-21-101, C.R.S., when there is no agreement as to the rate thereof, creditors shall receive interest as follows:
....
(b) Interest shall be at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered, whichever first occurs.
C. Analysis
¶ 34 We reject Rusher's assertion that the JEM Loan and the Cattle Agreement concerned independent transactions, with no relation to one another, and conclude that sufficient record evidence supports the court's award of prejudgment interest from the date the Cattle Agreement ended. We reach this conclusion based on Rusher's trial testimony explaining his belief that Vergo was applying his share of the profits from the cattle sales to pay down the JEM Loan during the time they were in business together. Thus, Rusher linked the JEM Loan and the Cattle Agreement and thereby provided a date (the termination date of the Cattle Agreement) by which the court could find the no-interest period ended and prejudgment interest began to accrue. Notably, Rusher continues to link these agreements by stating in his brief that he expected the JEM Loan would be repaid from the sale proceeds of the Lazy J. Bar brand cattle. The fact that Vergo never used Rusher's portion of the cattle sales to reduce the amount owed on the JEM Loan does not affect our conclusion, because Rusher countersued for those sales proceeds and prevailed.
¶ 35 In its order awarding JEM prejudgment interest, the court noted that it was interpreting the two agreements as being conditioned upon one another, as evidenced by its use of this language: "and during the time the parties were engaged in the contract to build a cattle herd for John Vergo." (Emphasis added.) Likewise, in its order awarding Rusher prejudgment interest, the court indicated that it was interpreting the two agreements as being conditioned on one another, as evidenced by its use of this language: "the parties agreed that during the time the parties were engaged in fulfilling the contract to build a cattle herd and while defendant still owed repayment on a loan from plaintiffs that no payments from the sale of cattle were due to defendants." (Emphasis added.)
¶ 36 Rusher's trial testimony supports the court's interpretation and establishes the necessary nexus between the obligations due under the JEM Loan and the Cattle Agreement. He said that Vergo "surely knew" that he did not have the ability to pay back the JEM Loan without some kind of assistance and that he believed that Vergo understood his expectation of payment for the JEM Loan would come from their arrangement under the Cattle Agreement. Further, Nielson confirmed that Rusher had never requested his half of the sales proceeds following each cattle sale and that no one directed her to pay Rusher following a sale.
¶ 37 Based on Rusher's and Nielson's testimony, we conclude that the record supports the trial court's finding that interest began to accrue when Vergo and JEM breached the Cattle Agreement. Coleman, 767 P.2d at 764. And we note that Rusher's and Nielson's testimony linking the two agreements was not disputed by any other trial evidence. Id.
¶ 38 Accordingly, we discern no clear error in the trial court's ruling that prejudgment interest began accruing on the JEM Loan on June 28, 2017, the undisputed date on which the parties ceased performing under the Cattle Agreement. See Bohrer, 969 P.2d at 803.
IV. Cattle Agreement
¶ 39 Rusher contends that the trial court erred by not awarding him prejudgment interest on his share of the cattle sale proceeds commencing on the date of each sale. He reasons that, because the parties did not have an agreement regarding interest on the cattle sale proceeds, he was entitled to prejudgment interest under section 5-12-102(1) and that interest began to accrue on each date the monies were owed to him - the date of each cattle sale. We disagree.
A. Additional Facts
¶ 40 The Cattle Agreement constituted the "arrangement" between Vergo and Rusher. Its stated purpose was to allow Vergo and Rusher to "work[] together to build a cow herd for Roger and Ann Vergo, size yet to be determined." Per the Cattle Agreement, Vergo agreed "to purchase cattle, pay pasture rent for this cow herd and pay expenses incurred taking care of the cows." Rusher agreed to "manage the herd, watch over the herd, mov[e] the herd around when needed, fee[d] when needed, branding, shots and etc." Pertinent here, the Cattle Agreement indicated that "[p]rofits realized from this arrangement to be split evenly, 50/50, upon sale of any of the cows &/or calves."
¶ 41 At trial, Nielson said she understood that "[JEM] was going to purchase the cattle, pay for the expenses for the cattle, and that [Rusher] would then help run the cattle and take care of them." Once the cattle were sold, Nielson said "we would calculate profit. And if there was any profit, it would be split." Nielson also testified that Vergo terminated the Cattle Agreement primarily because he felt cattle were going missing and that the expenses of the arrangement outweighed the income.
¶ 42 Rusher testified that he was entitled to one-half of the net revenue from the cattle sales. He also testified that the expenses Vergo incurred to take care of the cattle, such as pasture rent and employee payroll, did not affect the amount of money he should be paid as "[t]hat wasn't the deal here." Rusher's understanding of what he was owed and the meaning of the term "profit" were explained in the following colloquy:
[DEFENSE COUNSEL]: And that goes back to the belief that you have that when we use the term profits in [the Cattle Agreement], it's not the net profits from the entire Lazy J Bar Cattle Agreement. But just the net revenue that came from the sales barn?
[RUSHER]: It's from the net revenue that come from the sale barn. I would receive one-half.
[DEFENSE COUNSEL]: Is there any piece of writing that you have that Mr. Vergo signed - that you signed that says you get half the revenue?
[RUSHER]: That document.
[DEFENSE COUNSEL]: So, you're saying that's what [the Cattle Agreement] says?
[RUSHER]: I'll look at [the Cattle Agreement]. Yes, sir.
[DEFENSE COUNSEL]: Okay.
[RUSHER]: That was the intent.
....
[DEFENSE COUNSEL]: Are you familiar with what, what profit is? The term profit?
[RUSHER]: Well, there's many different ways to use profit.
[DEFENSE COUNSEL]: Well, let's just use the accounting way to use profit.
[RUSHER]: I know what it meant in this document.
[DEFENSE COUNSEL]: So, it's your belief today that if $1,000,001 in revenue came in, and there's $400,000 for pasture rent, and there's cost of inventory that was lost, and there's transportation expense of $200,000, and advances to you, and payroll expenses to you and your family and other people to make sure that this operations [sic] run, none of that gets deducted before we come up with profit? For the meaning of this Agreement.
[RUSHER]: I get half of the sale of the cattle.
B. Standard of Review
¶ 43 We defer to the trial court's findings of fact unless they are clearly erroneous and not supported by the record. Bohrer, 969 P.2d at 803; Graham, ¶ 31.
¶ 44 When acting as a finder of fact, the trial court can believe all, part, or none of a witness's testimony, even if uncontroverted. In re Marriage of Bowles, 916 P.2d 615, 617 (Colo.App. 1995). Although a contrary finding might be plausible, if there is record support for the trial court's findings, its resolution of conflicting evidence is binding on review by an appellate court. Id.
¶ 45 It is the sole province of the jury to determine the weight of the evidence and the credibility of witnesses, and to draw all reasonable inferences of fact therefrom. Accordingly, a jury's verdict will not be disturbed if there is any support for it in the record. Morales v. Golston, 141 P.3d 901, 906 (Colo.App. 2005).
¶ 46 We review questions of contract interpretation de novo. Fed. Deposit Ins. Corp. v. Fisher, 2013 CO 5, ¶ 9; Gagne v. Gagne, 2014 COA 127, ¶ 50. "The primary goal of contract interpretation is to determine and give effect to the intention of the parties." USI Props. E., Inc. v. Simpson, 938 P.2d 168, 173 (Colo. 1997). And the parties' intent is determined "primarily from the language of the instrument itself." Id. For this reason, "courts should not rewrite the provisions of an unambiguous document, but must enforce an unambiguous contract in accordance with the plain and ordinary meaning of its terms." Id. This requires us to examine the document's language and construe it "in harmony with the plain and generally accepted meaning of the words employed." Id. Thus, contracts "that are complete and free from ambiguity will be found to express the intention of the parties and will be enforced according to their plain language." Id.
¶ 47 And "[m]erely because the parties have different opinions regarding the interpretation of the contract does not itself create an ambiguity in the contract." Id.
C. Analysis
¶ 48 We discern no clear error in the court's ruling rejecting Rusher's claim that he was owed interest from each cattle sale date. The record shows that the court credited Rusher's testimony that he believed JEM was applying his half of the sales proceeds to pay down the JEM Loan. This belief is further supported by Rusher's testimony that he never asked for his half of the sales proceeds after each cattle sale despite knowing JEM received money from each sale. And nothing in the record shows that Rusher expected anything other than that his half of the sales proceeds was being applied to pay down the JEM Loan. Relatedly, Nielson also testified that Rusher never asked her for his half of the sales proceeds.
¶ 49 The trial court credited Rusher's testimony, finding that Rusher would not receive payments for the sale of the cattle while the JEM Loan remained unpaid. Accordingly, the court concluded that the date on which Rusher would be entitled to prejudgment interest was June 28, 2017, the date both parties stopped performing under the Cattle Agreement, consistent with Rusher's testimony.
¶ 50 Rusher now contends that the court ignored the plain language of the Cattle Agreement, which states, "Profits realized from this arrangement to be split evenly, 50/50, upon sale of any of the cows &/or calves." However, this assertion is belied by the parties' course of conduct during their business relationship and by Rusher's testimony. As we concluded in Part III.C above, the record shows that the parties conditioned repayment of the JEM Loan on performance under the Cattle Agreement and that Rusher never expected to receive his half of the sales proceeds because he believed it was being applied to pay down the JEM Loan.
¶ 51 He also contends that nothing in the record supports the court's finding that the parties agreed that payments to Rusher from the cattle sales would be withheld while the parties were trying to build a cattle herd. We disagree because Rusher testified that he never asked for his half of the sales proceeds while the parties were in business and that he believed the sales proceeds were being applied to pay down the JEM Loan. The fact that Vergo never reduced the JEM Loan according to Rusher's expectation is irrelevant because Rusher prevailed on his counterclaim for breach of the Cattle Agreement.
¶ 52 Because the trial court's findings are supported by the uncontroverted facts in the record, we discern no clear error in the court's ruling awarding Rusher prejudgment interest commencing on June 28, 2017. Coleman, 767 P.2d at 764.
V. Remittitur
¶ 53 Rusher last contends that the trial court erred by granting the Vergo estate and JEM's motion for remittitur and thereby reducing the judgment on their breach of contract claim because the jury's verdict, which was approximately $100,000 higher than the amount reflected in the sales and expense records admitted at trial, was amply supported by evidence of the value of the 112 head of cattle he returned to Vergo following the termination of the Cattle Agreement, for which he was not paid. We agree.
A. Additional Facts
¶ 54 In the remittitur portion of their C.R.C.P. 59 motion, the Vergo estate and JEM argued that Rusher did not submit any evidence to support his argument that the business relationship generated sufficient profit to justify the additional $100,000 awarded in the verdict.
¶ 55 In response, Rusher argued that trial exhibit 7, a flow chart of cattle movement, and trial exhibit 100, a compilation of invoices and remittance advices from the La Junta Livestock Commission sales, provided a basis from which the jury could infer that he had some interest in the remaining cattle that were not sold at the La Junta Livestock Commission and were returned to Vergo.
¶ 56 In its order granting the Vergo estate and JEM's motion for remittitur, the court first noted that record evidence supported the jury's finding that Rusher's interpretation of the Cattle Agreement entitling him to one-half of the sales proceeds was reasonable. The court noted that the parties stipulated to the cattle sale net proceeds in trial exhibit 4, which showed a total amount of $1,112,808.45. Rounding up, the court noted that one-half of the total was $556,404.23, and that, when added to $41,827.07 in unreimbursed expenses set forth in exhibit 5, the final sum supported by the record was $598,231.30.
¶ 57 Next, the court noted that the jury awarded Rusher $698,231.27 - within three cents of $100,000 over one-half of the sales proceeds plus unreimbursed costs. The court then concluded that no record evidence supported the additional $100,000 that the jury awarded. The court reasoned that Rusher was not entitled to anything beyond the $598,231.30 because, at trial, he did not raise an argument regarding the additional $100,000. Further, the court was unpersuaded by exhibits 7 and 100, stating "[t]here was no evidence or argument that those exhibits proved up the additional $100,000 that the jury awarded."
B. Standard of Review and Applicable Law
¶ 58 We review a trial court's order of remittitur for an abuse of discretion. Belfor USA Grp., Inc. v. Rocky Mountain Caulking &Waterproofing, LLC, 159 P.3d 672, 676 (Colo.App. 2006). "A court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law." People v. Grant, 2021 COA 53, ¶ 12.
¶ 59 It is the sole province of the fact finder to determine the amount of damages to which an injured party is entitled, Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456, 462 (Colo. 2011); Belfor, 159 P.3d at 676, and to determine the sufficiency, weight, and credibility of evidence, and we may not reweigh evidence or substitute our own judgment for that of the fact finder, see Owners Ins. Co. v. Dakota Station II Condo. Ass'n, 2021 COA 114, ¶ 50.
¶ 60 We will not disturb a jury's award of damages, or affirm a trial court's subsequent grant of remittitur, unless the jury's award is completely unsupported by the record. See Averyt, 265 P.3d at 462; Ochoa v. Vered, 212 P.3d 963, 973 (Colo.App. 2009).
¶ 61 The amount of damages may be an approximation if the fact of damages is certain and the plaintiff introduces some evidence sufficient to permit a reasonable estimation of damages. Hauser v. Rose Health Care Sys., 857 P.2d 524, 531 (Colo.App. 1993).
C. Analysis
¶ 62 Based on our review of the record, we conclude that it supports the jury's award of an additional $100,000 in damages and that the court's order of remittitur was therefore an abuse of discretion.
¶ 63 We conclude that trial exhibits 7 and 100 provide a sufficient evidentiary basis for the jury to have found $100,000 in additional damages related to the 112 head of cattle that Vergo retained. In particular, trial exhibit 7 documents the movement of the cattle as they were raised and sold, and page five of the exhibit shows that, after the sales in June and July 2017, the herd consisted of 267 calves and 262 cows. Trial exhibit 100 is a compilation of invoices and remittance advices from the La Junta Livestock Commission for the sales of the cattle. It shows that, after the sales in November and December 2017, 112 cows remained unsold and were retained by Vergo. Because Rusher would have been entitled to half of the proceeds from the sale of these 112 cows had they been sold, we conclude the jury could have considered the transfer of the remaining cows to Vergo as an implicit sale and calculated the market price amount due to Rusher for his time and effort in managing them.
¶ 64 We are not persuaded otherwise by the court's finding that Rusher did not argue at trial that he was entitled to more than one- half of the sales proceeds plus the unreimbursed feed costs. The jury is free to find damages that are not argued by the parties if the award is supported by the evidence. See People v. Yost, 729 P.2d 348, 352 (Colo. 1986) ("A jury may discount or disregard testimony which runs counter to normal experience.") (citation omitted); Peterson v. Tadolini, 97 P.3d 359, 363 (Colo.App. 2004) (a jury is free to diminish or disregard entirely the testimony of plaintiff and his lay witnesses concerning pain and limitation on his activities); Muhe v. Mitchell, 166 Colo. 108, 112, 442 P.2d 418, 420 (1968) (jury is free to disregard the opinion of experts, even when unanimous and uncontroverted, because they are not necessarily conclusive on the jury); Destination Travel, Inc. v. McElhanon, 799 P.2d 454, 457 (Colo.App. 1990) ("[T]he amount of damages is often imprecise and jurors are expected to make their best estimation of the appropriate amount.").
¶ 65 And it was the sole province of the jury as fact finder to determine the weight and credibility of the evidence, including exhibits 7 and 100. See Owners Ins. Co., ¶ 50. Thus, the jury was free to determine that this evidence was sufficient to prove that Rusher was entitled to an additional amount for the value of the 112 cows returned to Vergo. See id.
¶ 66 Accordingly, we conclude that the trial court abused its discretion by granting the motion for remittitur because evidence in the record supports the jury's award and, thus, the award was not manifestly excessive.
VI. Cross-Appeal
A. Profits Definition
¶ 67 For the first time on cross-appeal, the Vergo estate and JEM contend that the trial court erred by not granting their C.R.C.P. 59 motion to set aside the verdict because there was no evidence that any "profits" realized from the Cattle Agreement would be subject to division. Specifically, they contend that Rusher improperly substituted the term "revenue" for "profits realized," thereby creating a definition for "profits" that is inconsistent with the generally accepted definition of "profit" used in the accounting industry, to argue he was entitled to receive half of the sales proceeds under the Cattle Agreement.
¶ 68 We construe this as a challenge to the Rule 59 motion and conclude that this issue is not preserved for our review because the Vergo estate and JEM did not raise this argument below.
¶ 69 At the jury instruction conference, the Vergo estate and JEM's counsel argued the following: [THE VERGO ESTATE &JEM's COUNSEL]:
Then I think there's just one - well, at least one other thing that the Court probably needs to think about tonight, and that's goes to the Contract Interpretation issue.
The, the instruction concerning a Contract interpretation that relates to whether or not a term is ambiguous, the Court needs to make a determination. I believe whether or not that there's an ambiguous term or whether it means what the plain meaning is.
And the Court, from reviewing the, the instructions in the caselaw with [Rusher's counsel], suggests that the, the Court, as a trial they know - de novo, so to speak to make that determination.
Obviously, the Court has heard all the evidence, and if the Court makes a determination that there is an ambiguity, then there's the instructions to give about ambiguity.
If the Court says that the term - and just give the, the [sic] term the plain meaning, then there's not an ambiguity.
¶ 70 Other than to ask the court to consider whether to give a contract interpretation/ambiguity instruction, the Vergo estate and JEM never challenged the definitions of "profit" or "profits realized" used in the Cattle Agreement. Because they did not fairly place the court on notice of this issue, it is not preserved for our review. See Berra v. Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo.App. 2010) (to preserve an issue for appeal, the issue must be brought to the district court's attention so the court has an opportunity to rule on it); see also People v. Smalley, 2015 COA 140, ¶ 81 (To preserve an issue for appeal, the trial court must have a "meaningful chance to prevent or correct the error." (quoting Martinez v. People, 2015 CO 16, ¶ 14))
¶ 71 Moreover, the Vergo estate and JEM could have, but did not, tender a definition for "profits" or "profits realized." See First Interstate Bank of Denver, N.A. v. Cent. Bank &Tr. Co. of Denver, 937 P.2d 855, 858 (Colo.App. 1996) ("Arguments not presented to, considered, or ruled upon by a trial court may not be raised for the first time on appeal."); Barrett v. Inv. Mgmt. Consultants, Ltd., 190 P.3d 800, 805 (Colo.App. 2008) ("Because this issue was raised for the first time in respondents' reply brief, we need not address it.").
¶ 72 Even if we were to construe this argument as a challenge to the sufficiency of the evidence, we conclude that the jury had sufficient evidence of the profits because the plain terms of the Cattle Agreement defined the meaning of "profits." The Cattle Agreement provided that Vergo would pay the expenses of the cattle business, that Rusher would manage the business, and that the parties would then split the profits from the sale of the cattle. Thus, the plain language of the Cattle Agreement provided sufficient evidence for the jury's determination of profits.
B. Business Record
¶ 73 The Vergo estate and JEM also contend that the trial court erroneously precluded the admission of exhibit 3 - a profit and loss statement and balance sheet statement for the Lazy J. Bar cattle - which they argue constitutes a business record admissible under CRE 803(6) (business records exception). We disagree.
1. Standard of Review and Applicable Law
¶ 74 We review evidentiary rulings for abuse of discretion. Bernache v. Brown, 2020 COA 106, ¶ 19. A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair, or if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Id.
¶ 75 CRE 803(6) sets out five requirements for a business record to be admissible over a hearsay objection:
(1) the document must have been made "at or near" the time of the matters recorded in it; (2) the document must have been prepared by, or from information transmitted by, a person "with knowledge" of the matters recorded; (3) the person or persons who prepared the document must have done so as part of a "regularly conducted business activity"; (4) it must have been the "regular practice" of that business activity to make such documents; and (5) the document must have been retained and kept "in the course of" that, or some other, "regularly conducted business activity."Schmutz v. Bolles, 800 P.2d 1307, 1312 (Colo. 1990) (quoting CRE 803(6)). These requirements can be shown at trial either by the testimony of a custodian or other qualified witness, by a court taking judicial notice of the adjudicative facts, or by a certification that complies with CRE 902(11) or a statute permitting certification. CRE 803(6).
2. Analysis
¶ 76 Based on the record, including Nielson's testimony, we conclude that exhibit 3 does not qualify for admission under the hearsay exception in CRE 803(6) because it is not a document that was made "at or near" the time of the matters recorded in it. Therefore, it fails to satisfy the first prong of the business records exception.
¶ 77 Nielson testified that exhibit 3 was prepared in the normal course of business and in a "timely manner." She said the exhibit was "created from the income received from the sales of livestock, and then all the expenses that were paid out of JEM Communications." However, she also admitted that she created the document in preparation for trial, approximately five days before the trial began.
¶ 78 Because exhibit 3 was not created at or near the time of the matters recorded in it, the court did not abuse its discretion by refusing to admit it under the business records exception.
VII. Disposition
¶ 79 The judgment is affirmed in part and reversed in part, and the case is remanded for the court to reinstate the full amount of the jury's damage award, without remittitur, and to recompute prejudgment interest based on the jury's damage award in Rusher's favor, commencing on June 28, 2017.
JUDGE LIPINSKY and JUDGE SCHUTZ concur.