Opinion
Case No. 01-4138-JAR
May 16, 2003
ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW
This matter is before the Court on Defendants' Motion for Judgment as a Matter of Law (Doc. 74). This case was tried to a jury, who on February 18, 2003 entered verdicts in favor of Plaintiffs David Hollond and DryCreek Wilderness Outfitters, L.L.C. and against Defendants Fred Mau and Fred Mau Outdoor Adventures, Inc., awarding damages in the amount of $5000 against each defendant. Defendants moved for judgment as a matter of law at the close of Plaintiffs' evidence, and renewed their motion at the close of Defendants' evidence. The Court took under advisements the Defendants' motion. Having given due consideration to Defendants' post trial motion for judgment, as well as the parties' memoranda of law, the Court denies the motion for judgment.
Defendants move for judgment as a matter of law pursuant to Fed.R.Civ.P. 50, on the basis that Plaintiffs failed to present substantial evidence of fraud to support the jury's verdict for Plaintiffs on their claims of fraud by silence and fraudulent promise of future events. Defendants argue that the jury's verdicts for Defendants on Plaintiffs' claims of breach of contract, misappropriation of trade secrets, and tortious interference with business relationships demonstrate that there was insufficient evidence on Plaintiff's claims of fraud by silence and fraudulent promise of future events.
Judgment as a matter of law "should be cautiously and sparingly granted," and is appropriate "only if the evidence, viewed in the light most favorable to the nonmoving party, `points but one way and is susceptible to no reasonable inferences supporting' the nonmoving party." On the other hand, the court must enter judgment as a matter of law in favor of the moving party if "there is no legally sufficient evidentiary basis . . . with respect to a claim or defense . . . under the controlling law."
Zuchel v. City and County of Denver, 997 F.2d 730, 734 (10th Cir. 1993).
Riggs v. Scrivner, Inc., 927 F.2d 1146, 1149 (10th Cir. 1991), cert. denied 502 U.S. 867 (1991) (citation omitted).
Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1546-47 (10th Cir. 1996), cert. denied 519 U.S. 928 (1996) (citations omitted).
Judgment as a matter of law is proper only when "the evidence so strongly supports an issue that reasonable minds could not differ." A jury's verdict is entitled to great deference. The court may not weigh the evidence or assess the credibility of witnesses, which is the province of the jury. Conflicting evidence does not justify setting aside a jury's verdict. The court may not retry the issues, second guess the jury's decision, nor substitute its judgment for that of the jury. The court must determine "only whether the jury verdict is supported by substantial evidence when the record is viewed most favorably to the prevailing party." Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if different conclusions also might be supported by the evidence."
Ryder v. City of Topeka, 814 F.2d 1412, 1418 (10th Cir. 1987) (citations omitted).
Beck v. Northern Natural Gas Co., 170 F.3d 1018, 1022 (10th Cir. 1999).
See Dugan v. EMS Helicopters, Inc., 915 F.2d 1428, 1430 (10th Cir. 1990).
Webco Indus., Inc. v. Thermatool Corp., 278 F.3d 1120, 1128 (10th Cir. 2002); Lucas v. Dover Corp., 857 F.2d 1397, 1400 (10th Cir. 1988).
Webco, 278 F.3d at 1128.
Id. (internal quotations omitted).
Viewing the evidence in the light most favorable to Plaintiffs, the Court concludes that there was substantial evidence supporting the jury's verdict for Plaintiffs on their claims of fraud by silence and fraudulent promise of future events. Defendants argue that essential to a finding of fraud by silence is an underlying promise or obligation that was breached by Defendants; yet the jury found for Defendants on Plaintiffs' breach of contract claim. Defendants further argue that essential to a finding of fraud by silence or fraudulent promise of future events is proof of an intentional act by Defendants; yet the jury found for Defendants on Plaintiffs' claims for breach of contract, tortious interference and misappropriation of trade secrets.
But, the Court is not to engage in a comparative analysis of the jury's various verdicts on the Plaintiffs' claims. Rather, the Court must determine whether there was substantial evidence supporting the jury's verdicts on the two claims at issue. There was substantial evidence.
For the claim of fraud by silence, the jury was instructed that Plaintiffs must prove by clear and convincing evidence, that: Defendants had knowledge of material facts which Plaintiffs did not have and which the Plaintiffs could not have discovered by the exercise of reasonable diligence; Defendants were under an obligation to communicate the material facts to the Plaintiffs; Defendants intentionally failed to communicate to Plaintiffs the material facts; Plaintiffs justifiably relied upon the Defendants to communicate the material facts to the Plaintiffs; and Plaintiffs sustained damages as a result of the Defendants' failure to communicate this to the Plaintiffs.
For the claim of fraudulent promise of future events, the jury was instructed that Plaintiffs must prove by clear and convincing evidence that: the promisor had no intention of performing his promise at the time he made it; the promisor did not perform his promise as he represented that he would; the promisor made the promise with the intent to deceive and for the purpose of inducing Plaintiffs to act upon the promise; Plaintiffs reasonably relied and acted upon the promises; and Plaintiffs sustained damages relying upon the promise of the promisor.
The evidence, viewed in the light most favorable to Plaintiffs was that in 1999, the parties entered into a business arrangement, with Plaintiffs providing hunting and outfitting services to clients booked and referred to them by Defendants. Plaintiffs were to pay Defendants a 15% commission for all clients directly or indirectly referred to them by Defendants. Relying on promises and assurances by Defendants that this business arrangement would continue in future hunting seasons, Plaintiffs incurred substantial start up expenses for hunting blinds, land leases, lodging, game feeders, and in hiring hunting guides. In further reliance, Plaintiffs accommodated Defendants' requests that Plaintiffs provide free hunts to certain preferred clients. Plaintiffs also incurred substantial expenses associated with Defendants filming a promotional video on Plaintiffs' land, with Defendants' assurances that this would inure to Plaintiffs' benefit in the future. Defendants did not tell Plaintiffs that Defendants intended to use other outfitters in Kansas, despite the "exclusive" language in the marketing brochure. Defendants did not tell Plaintiffs that they would send clients to other outfitters in Kansas who would undercut Plaintiffs' prices in future hunting seasons. Plaintiffs also relied on Defendants' assurances that they would help Plaintiffs run the business during the initial hunting season, since Plaintiffs had no experience with running an outfitting service. But Defendants did not help Plaintiffs, even after Defendants referred approximately 60 hunters to Plaintiffs that first season, well more than the 15 to 20 hunters that Plaintiffs expected based on Defendants assurances and estimations of the volume of business that first year.
A reasonable jury could find that Plaintiffs incurred damages flowing from their reliance on a number of promises and assurances from Defendants about the volume of business the first year, the anticipated increased income in future years, and the level of support that Defendants would provide to Plaintiffs in their first year of this new venture. The jury's verdict was not necessarily inconsistent. For example, a breach of contract claim requires a showing that there was a contract. But the claims at issue require a showing of a promise or an assurance, not an agreement supported by consideration. And, there was substantial evidence supporting the jury's verdict on Plaintiffs' claims of fraud by silence and fraudulent promise of future events.
IT IS THEREFORE ORDERED that Defendants' Motion for Judgment as a Matter of Law (Doc. 74) is DENIED.
IT IS SO ORDERED.