           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2     Karam et al. v. Sagemark                     No. 03-1763
        ELECTRONIC CITATION: 2004 FED App. 0309P (6th Cir.)                      Consulting et al.
                    File Name: 04a0309p.06
                                                                                               _________________
UNITED STATES COURT OF APPEALS                                                                      COUNSEL
                  FOR THE SIXTH CIRCUIT                                    ARGUED:         Jamal J. Hamood, HAMOOD &
                    _________________                                      FERGESTROM, Troy, Michigan, for Appellants. Ted T.
                                                                           Amsden, DYKEMA GOSSETT, Detroit, Michigan, for
 CAROLE M. KARAM et al.,            X                                      Appellees. ON BRIEF: Jamal J. Hamood, Richard E. Shaw,
           Plaintiffs-Appellants, -                                        HAMOOD & FERGESTROM, Troy, Michigan, for
                                     -                                     Appellants. Ted T. Amsden, Thomas S. Bishoff, Kathleen
                                     -  No. 03-1763                        McCree Lewis, DYKEMA GOSSETT, Detroit, Michigan, for
             v.                      -                                     Appellees.
                                      >
                                     ,
 SAGEMARK CONSULTING ,                                                                         _________________
                                     -
 INC., f/k/a CIGNA FINANCIAL         -                                                             OPINION
 ADVISORS, INC. et al.,              -                                                         _________________
          Defendants-Appellees. -
                                     -                                        RONALD LEE GILMAN, Circuit Judge. The decedent,
                                    N                                      Abraham Karam, executed a trust agreement in 1987 that
        Appeal from the United States District Court                       divided his assets equally between a marital trust and a
       for the Eastern District of Michigan at Detroit.                    residual family trust. In 1994, the decedent entered into a
No. 00-74743—Bernard A. Friedman, Chief District Judge.                    contract with Sagemark Consulting, Inc. (then known as
                                                                           Cigna Financial Advisors, Inc.) to review his personal
                     Argued: August 4, 2004                                finances for a $2,500 fee. The contract provided that
                                                                           Sagemark would prepare a personal financial plan based upon
            Decided and Filed: September 10, 2004                          its evaluation of relevant documents to be furnished by
                                                                           Karam. Despite Sagemark’s awareness of the trust agreement
  Before: CLAY and GILMAN, Circuit Judges; MATIA,                          and its repeated requests to be sent a copy, Sagemark never
                Chief District Judge.*                                     received the document. Sagemark’s report nevertheless stated
                                                                           that, under the decedent’s “current situation,” no federal estate
                                                                           tax would be due upon the death of the first spouse (either the
                                                                           decedent or his wife, Carole M. Karam), and that any federal
                                                                           estate tax would not be due until the death of the surviving
                                                                           spouse. When the decedent died in September of 1997, his
                                                                           estate was worth approximately $10 million. Contrary to
    *                                                                      Sagemark’s report, roughly $1.9 million in federal estate
     The Honorable Paul R. Matia, Chief United States District Judge for   taxes was due as a result of Karam’s death.
the Northern District of Ohio, sitting by designation.

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  The plaintiffs, who are Karam’s wife and children,                  the surviving spouse are immediately subject to the estate tax,
subsequently filed suit against Sagemark, alleging both a             less a $600,000 general exemption that was in effect at the
breach of contract and violation of the Michigan Consumer             time of Karam’s death.
Protection Act (MCPA). After a jury verdict for the plaintiffs
in the amount of approximately $3 million, the district court            In July of 1994, after responding to a direct-mail
granted Sagemark’s motion for judgment as a matter of law.            solicitation from Sagemark, Karam entered into a contract
On appeal, the plaintiffs argue that Sagemark was untimely in         with the company pursuant to which Sagemark was to
seeking judgment as a matter of law and, in any event, that           provide a financial plan regarding estate planning, investment
the district court erred in granting Sagemark the requested           planning, retirement planning, and business succession
relief. Sagemark, on the other hand, contends that the district       planning in exchange for a $2,500 fee. Sagemark employees
court’s judgment should be affirmed both on the merits and            Catherine Imerman and David Moss were involved in the
because the plaintiffs filed their complaint after Michigan’s         process of providing the financial plan. Imerman testified
six-year statute of limitations had run. For the reasons set          that Sagemark’s true purpose for providing Karam with the
forth below, we REVERSE the district court’s grant of                 financial plan, unbeknownst to Karam, was to convince him
judgment as a matter of law, REINSTATE the jury’s verdict,            that he needed life insurance that Sagemark was prepared to
and REMAND the case for further proceedings consistent                sell him.
with this opinion.
                                                                        The contract between Sagemark and Karam provided that
                     I. BACKGROUND                                    Karam would “provide Advisor with financial and personal
                                                                      data necessary to prepare your plan,” and that “on the basis of
A. Factual background                                                 the documents you provide . . . Advisor will prepare and
                                                                      present a personal financial plan summarized in written
  Karam’s trust agreement contained what is known as a tax            form.” Sagemark, however, never received a copy of
equalization clause, which required that the assets subject to        Karam’s trust agreement, despite requesting it from both
the trust be divided equally between the marital trust and the        Karam and his attorney.
residual family trust. The theoretical advantage of an
equalization clause is that, because of progressive estate tax          Without reviewing the trust agreement that he knew
rates, two smaller distributions on the deaths of each spouse         existed, Moss proceeded to prepare an estate planning report
will result in less total estate tax liability than would one large   that was delivered to Karam on August 18, 1994. (Moss had
distribution on the death of the survivor. Equalization               previously informed Karam that the plan would not address
clauses, however, are relatively uncommon in estate planning.         investment planning, retirement planning, or business
More prevalent is the “normal” estate distribution, where the         succession planning because these types of advice were not
bulk of the decedent’s assets pass to the surviving spouse in         relevant to Karam’s situation.) The report stated that, under
a form that qualifies for the unlimited “marital deduction”           Karam’s “current situation,” no federal estate tax would be
under federal law. Because the distribution to the surviving          due upon the first spouse’s death, and that any federal estate
spouse is not taxed, the imposition of the estate tax is deferred     tax would be deferred until the surviving spouse died. Moss
until that spouse dies. With an equalization clause, in               made this statement in the report because he assumed that
contrast, the half of the decedent’s assets that do not pass to       Karam’s trust agreement provided for a normal distribution.
No. 03-1763                    Karam et al. v. Sagemark        5    6        Karam et al. v. Sagemark                  No. 03-1763
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Although Karam subsequently modified his trust agreement            Court of Appeals, which held that, under Michigan law,
three times, none of the amendments affected the equalization       extrinsic evidence is inadmissible to show that the decedent
clause.                                                             intended an outcome different from that set forth by the
                                                                    language of the estate documents. Id. at 622-25. Because
  Karam died on September 28, 1997, leaving an estate worth         Karam’s trust agreement contained an unambiguous
approximately $10 million. The plaintiffs subsequently              equalization clause and because there were no disputes about
learned that roughly $1.9 million was owed in federal estate        which documents constituted the estate plan, the court
taxes. Their claim for damages flows from the federal and           concluded that extrinsic evidence was inadmissible to show
state tax liabilities and their loss of use of the money that was   a variance. Id. at 625.
needed to pay the taxes.
                                                                        2.    The present lawsuit
B. Procedural background
                                                                      The plaintiffs filed the present lawsuit on September 27,
  1.   Karam v. Law Offices of Ralph J. Kliber                      2000, naming Sagemark and three other entities as
                                                                    defendants. Sagemark removed the case to federal court on
   In October of 1998, the plaintiffs brought a state-court         the basis of diversity of citizenship. The district court granted
malpractice action against Karam’s former lawyer and the            partial summary judgment in August of 2002, dismissing
lawyer’s law firm. They also sued the bank that served as           several of the plaintiffs’ claims and all of the defendants other
cotrustee of the trust agreement for negligence, breach of          than Sagemark.
fiduciary duty, and a violation of the MCPA. Karam v. Law
Offices of Ralph J. Kliber, 655 N.W.2d 614, 618 (Mich. Ct.             When the jury trial began the following month, Sagemark
App. 2002). The plaintiffs contended that Karam’s intent at         filed a motion in limine to exclude any extrinsic evidence of
the time he signed the trust agreement differed from what           Karam’s intent that conflicted with the provisions of the trust
actually appeared in the text of the document. Id. at 617-19.       agreement. The district court granted Sagemark’s motion.
Although the Michigan Court of Appeals’s opinion does not           During the trial, however, at least two of Karam’s family
state this directly, the plaintiffs apparently argued that Karam    members testified that they had understood that no federal
intended to have a normal estate plan that would have               estate taxes would be due as a result of Karam’s death. The
distributed the bulk of his assets to his wife. See id. at 617      family members did not explain the basis for their
(discussing a letter written by a vice president of the             understanding. Sagemark nevertheless failed to object.
defendant bank, which incorrectly stated that Karam’s trust
provided for a normal distribution scheme); see also                   The jury returned a verdict for the plaintiffs, specifically
Sorkowitz v. Lakritz, Wissbrun & Associates, P.C., 683              finding that (1) Sagemark breached the contract with Karam;
N.W.2d 210, 213 (Mich. Ct. App. 2004) (“Karam . . . was a           (2) Karam did not commit the first substantial breach of the
dispute concerning the decedent’s intent regarding alternative      contract by failing to provide Sagemark with the trust
estate planning approaches.”).                                      agreement; (3) the breach-of-contract claim did not accrue
                                                                    before September 27, 1994; (4) the breach caused the
  The trial court granted summary judgment in favor of the          plaintiffs $761,927.90 in damages; (5) the plaintiffs in their
defendants. This decision was affirmed by the Michigan              individual capacities are third-party beneficiaries to the
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contract between Sagemark and Karam; (6) Sagemark                      The district court next stated that the Supreme Court’s
violated the MCPA by engaging in one or more unfair,                 decision in Weisgram v. Marley Co., 528 U.S. 440 (2000),
unconscionable, or deceptive methods, acts, or practices;            required the district court to disregard evidence that was
(7) the MCPA violation did not occur before September 27,            improperly admitted when ruling on the motion for judgment
1994; and (8) the violation of the MCPA caused the plaintiffs        as a matter of law. Finally, the district court concluded that,
$2,285,781 in damage.                                                under Michigan law,
   Sagemark attempted to move for judgment as a matter of                all extrinsic evidence that was admitted regarding the
law twice during the trial. The first time was at the close of           plaintiffs’ belief of what the decedent had told them the
the plaintiffs’ proof, but the district court directed Sagemark          tax consequences of his trust would be [was in fact]
to wait until after closing arguments. Sagemark attempted to             inadmissible, and [was] erroneously permitted. Such
make the motion again at the close of all of the evidence, but           testimony only serves to create the impression that the
the district court stated that it would hear arguments on all            decedent’s trust did not comport with his intentions. It
motions during the jury’s deliberations. The motion was not              must be assumed that the decedent intended the writing
in fact argued at that time. After the jury delivered its verdict,       of his trust and the resulting tax consequences to be just
however, the district court stated that “I know you have                 as they were, and contrary evidence may not be admitted.
reserved your right to make a Motion as a Matter of Law,”
and directed Sagemark to make the motion along with any                After disregarding the allegedly inadmissible evidence, the
other post-trial motions that it intended to file.                   district court concluded that no legally sufficient evidentiary
                                                                     basis existed to support the jury’s verdict in favor of the
   Sagemark filed a motion for judgment as a matter of law or,       plaintiffs on either of their claims. The district court thus
in the alternative, for a new trial in October of 2002,              declined to discuss Sagemark’s affirmative defense that the
approximately one month after the jury’s verdict. The district       lawsuit was filed after Michigan’s applicable six-year statute
court granted judgment for Sagemark as a matter of law in            of limitations had run. This timely appeal followed.
May of 2003. In its decision, the court rejected the plaintiffs’
first argument that Sagemark had waived its right to file a                                  II. ANALYSIS
motion for judgment as a matter of law:
                                                                     A. The district court did not err in deciding that
  At the close of the plaintiffs’ proofs the Court ordered              Sagemark had preserved its right to file a motion for
  the defendant to defer making its directed verdict motion,            judgment as a matter of law
  and reserved all potential arguments as if the motion had
  been made. The Court then repeated this order at the                  The plaintiffs first argue that Sagemark waived its right to
  close of all proofs. After the jury verdict, the Court told        file a motion for judgment as a matter of law by failing to
  the defendant, “I know you have reserved your right to             make the motion before the case was submitted to the jury.
  make a motion as a matter of law,” and stated that this            See Fed. R. Civ. P. 50(a)(2) (“Motions for judgment as a
  motion should be presented with other post-trial motions.          matter of law may be made at any time before submission of
  Accordingly, the defendant has fully preserved its right           the case to the jury.”). “The question of waiver is a mixed
  to bring the present motion.                                       question of law and fact. We review any determination of
No. 03-1763                   Karam et al. v. Sagemark        9    10   Karam et al. v. Sagemark                     No. 03-1763
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underlying facts under the clearly erroneous standard of           “District courts should grant judgment as a matter of law only
review, and make a de novo determination of whether those          if a complete absence of proof exists on a material issue in the
facts constitute legal waiver.” Nationwide Mut. Ins. Co. v.        action, or if no disputed issue of fact exists on which
Home Ins. Co., 330 F.3d 843, 846 n.3 (6th Cir. 2003).              reasonable minds could differ.” LaPerriere v. Int’l Union
                                                                   UAW, 348 F.3d 127, 132 (6th Cir. 2003).
   The record supports the district court’s factual finding that
Sagemark attempted to bring its motion for judgment as a             The district court in the present case granted Sagemark’s
matter of law both at the close of the plaintiffs’ proof and at    motion for judgment as a matter of law based upon the court’s
the close of all of the evidence. Each time, the district court    conclusion that it had erroneously admitted the family
ordered the defendant to defer making its motion and reserved      members’ testimony regarding their understanding that no
all potential arguments as if the motion had been made.            estate tax would be due at Karam’s death. See Weisgram v.
Because Sagemark twice attempted to bring its motion before        Marley Co., 528 U.S. 440, 457 (2000) (holding that a district
the close of all of the evidence, the district court correctly     court, when considering post-trial motions for judgment as a
concluded that Sagemark had preserved its right to make the        matter of law, may disregard “testimony erroneously
motion after the entry of the jury’s verdict.                      admitted”). According to the district court,
  Our disposition of this matter, however, should not be             [s]uch testimony only serves to create the impression that
construed as an endorsement of how the district court handled        the decedent’s trust did not comport with his intentions.
this procedural issue. To the contrary, the proper practice is       It must be assumed that the decedent intended the writing
to allow the moving party to make its Rule 50(a) motion              of his trust and the resulting tax consequences to be just
before the jury retires to deliberate.          See Advisory         as they were, and contrary evidence may not be admitted.
Committee’s Notes on 1991 Amendments to Fed. Rule Civ.               ...
P. 50(a)(2) (“Paragraph (a)(2) retains the requirement that a
motion for judgment be made prior to the close of the trial,         [T]he legal cause of the tax consequences was the
subject to renewal after a jury verdict has been rendered. The       decedent’s intent to have an equalization clause in his
purpose of this requirement is to assure the responding party        trust. The damages—the tax consequences—resulted
an opportunity to cure any deficiency in that party’s proof that     from the fulfillment of that intent by the operation of the
may have been overlooked until called to the party’s attention       federal estate tax law. There was no evidence presented
by a late motion for judgment.”).                                    by which the jury could conclude that the equalization
                                                                     clause was caused by CIGNA. The evidence shown at
B. The district court erred in granting Sagemark’s                   trial indicated that the trust agreement containing this
   motion for judgment as a matter of law with regard                clause was drafted and executed years before the
   to the plaintiffs’ breach-of-contract claim                       decedent’s dealings with CIGNA. However, even if it
                                                                     could be shown that CIGNA advised the decedent to
  “This Court reviews de novo a district court’s decision to         have such a clause, there would still not be any basis for
grant judgment as a matter of law pursuant to Rule 50(a) of          finding that CIGNA caused the plaintiffs’ damages,
the Federal Rules of Civil Procedure.” Hall v. Consolidated          because the decedent’s intent to have such a clause, as
Freightways Corp., 337 F.3d 669, 672 (6th Cir. 2003).
No. 03-1763                    Karam et al. v. Sagemark        11    12   Karam et al. v. Sagemark                     No. 03-1763
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  expressed in the clause, would have been fulfilled, and            had relied to his detriment on Sagemark’s erroneous tax
  evidence of a contrary intent would be inadmissible.               advice.
   There are two problems with the district court’s analysis.           Our conclusion that the family members’ testimony was
The first is that Weisgram is probably not controlling on this       admissible is consistent with the recent Michigan Court of
issue because the defendant in Weisgram objected to the              Appeals decision in Sorkowitz v. Lakritz, Wissbrun &
admission of the evidence in question. 528 U.S. at 445 (“The         Associates, P.C., 683 N.W.2d 210 (Mich. Ct. App. 2004). In
District Court ov er ru le d d ef en da nt Ma rl ey’ s               Sorkowitz, the plaintiffs contended that the defendant
objections . . . .”). Sagemark, in contrast, allowed the family      attorneys had negligently provided advice regarding the tax
members’ testimony to be admitted without objection. In the          consequences of an estate plan. The court held that
absence of a timely objection, such testimony is generally not       Michigan’s prohibition against the introduction of extrinsic
considered to be “erroneously admitted.” See Fed. R. Evid.           evidence was not applicable, and distinguished Karam as
103(a)(1) (“Error may not be predicated upon a ruling which          follows:
admits or excludes evidence unless a substantial right of the
party is affected, and . . . [i]n case the ruling is one admitting     Assuming that Karam correctly applied [Michigan’s rule
evidence, a timely objection or motion to strike appears of            against the admission of extrinsic evidence] to the
record, stating the specific ground of objection, if the specific      negligent drafting claim of the personal representative of
ground was not apparent from the context . . . .”).                    the actual client, rather than the beneficiary, the instant
                                                                       case is distinguishable to the extent it involves a claim of
   We need not decide, however, whether the district court             negligence in advising the client regarding tax
correctly applied Weisgram because of a second and                     consequences and in formulating the estate plan without
independent problem with the court’s analysis that the                 due regard for tax consequences, rather than negligence
plaintiffs’ purpose in introducing the questioned testimony            in failing to draft the document in accordance with the
was not to negate Karam’s original intent to have an                   client’s expressed intent.
equalization clause in the trust agreement. Instead, the
purpose was to prove that Karam and his family members had           683 N.W.2d 214 n.5. Analogous to Sorkowitz, the plaintiffs’
detrimentally relied on Sagemark’s incorrect advice that no          claim in the present case is that Sagemark provided erroneous
federal estate tax would be due when Karam died. In other            advice regarding the tax consequences of Karam’s estate plan.
words, the district court believed that the plaintiffs had           Sorkowitz therefore supports our conclusion that the district
introduced the evidence in order to answer the question: “Did        court erred in its post-trial ruling that the family members’
Karam originally intend to have an equalization clause in his        testimony should have been excluded.
trust agreement?” But that issue was not in dispute. The
plaintiffs in fact introduced the testimony in order to answer          We also note that the district court never discussed whether
the question: “Why did Karam not substitute a “normal”               Sagemark would have been entitled to judgment as a matter
distribution clause for the equalization clause that was in the      of law if the court had fully credited the family members’
trust agreement?” Testimony by the family members                    testimony. Morever, Sagemark does not argue on appeal that
suggested that Karam did not change the clause because he            the evidence as actually admitted was insufficient to support
                                                                     the jury’s verdict. We therefore reverse the district court’s
No. 03-1763                    Karam et al. v. Sagemark       13    14   Karam et al. v. Sagemark                    No. 03-1763
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decision to grant judgment as a matter of law with respect to         Sagemark argues, however, that the alleged violation of the
the plaintiffs’ breach-of-contract claim.                           MCPA did not cause the plaintiffs’ damages because Karam’s
                                                                    decision not to alter the equalization clause in the trust
C. The district court erred in granting Sagemark’s                  agreement was not influenced by the failure of Sagemark to
   motion for judgment as a matter of law with regard               disclose its true motivation for preparing the financial plan.
   to the plaintiffs’ MCPA claim                                    The contrary argument is that Karam would not have relied
                                                                    on Sagemark’s advice if he had known that the financial plan
  The district court granted Sagemark’s motion without              was simply a sales tool to market life insurance. Both of
differentiating between the claim for breach of contract and        these arguments are plausible, but the jury resolved this
the claim under the MCPA. Presumably the court assumed              debate when it found in favor of the plaintiffs on their claim
that the family members’ testimony was necessary to                 under the MCPA.
establish causation as to either claim, so that, if the testimony
was in fact inadmissible, judgment for Sagemark was                    In the absence of direct evidence of what Karam would
appropriate as to both claims. But as discussed in Part II.B.       have done if Sagemark had made the required disclosure, both
above, we have concluded that the district court erred in           parties were forced to argue reasonable inferences from the
granting judgment as a matter of law based upon the court’s         evidence on hand. The jury was then left to decide the
incorrect belief that the evidence of detrimental reliance          following factual question: “What would Karam have done if
should not have been admitted. With regard to the MCPA              Sagemark had disclosed its true motivation for creating the
claim, however, Sagemark offers the additional argument that        financial plan?” This disputed question of fact was
the evidence was legally insufficient to support the jury’s         reasonably resolved by the jury in the plaintiffs’ favor. We
verdict because it failed to demonstrate that the alleged           therefore reverse the district court’s decision to grant
violation of the MCPA was the cause of the plaintiffs’              judgment as a matter of law with respect to the MCPA claim.
damages.
                                                                    D. Judgment as a matter of law would not have been
  The plaintiffs’ MCPA claim was based upon Sagemark’s                 appropriate based upon the statute of limitations
failure to disclose that the financial plan it prepared for
Karam was actually a sales tool used to persuade Karam to             Michigan law provides for a six-year statute of limitations
purchase life insurance from the company. See Mich. Comp.           on claims for both breach of contract and for violations of the
Laws §§ 445.903 (“Unfair, unconscionable, or deceptive              MCPA. Mich. Comp. Laws §§ 600.5807(8) (breach of
methods, acts, or practices in the conduct of trade or              contract); 445.911(7) (MCPA). Although the district court
commerce are unlawful . . . .”); 500.2005a(c) (“An unfair           did not address the statute of limitations in ruling on
method of competition and an unfair or deceptive act or             Sagemark’s motion, this court “may affirm a decision of the
practice in the business of insurance includes all of the           district court if correct for any reason, including one not
following: . . . (c) Making use directly or indirectly of any       considered below.” United States Postal Serv. v. Nat’l Ass’n
method of marketing that fails to disclose in a conspicuous         of Letter Carriers, 330 F.3d 747, 750 (6th Cir. 2003).
manner that a purpose of the method of marketing is
solicitation of insurance and that contact will be made by an        Sagemark contends that the plaintiffs’ claims accrued on
insurance agent or insurance company.”).                            August 18, 1994, when the financial plan was delivered to
No. 03-1763                    Karam et al. v. Sagemark        15
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Karam, and that this lawsuit, filed on September 27, 2000,
should therefore have been barred by the statute of
limitations. The plaintiffs, on the other hand, respond by
pointing out that Karam met with Sagemark employee Moss
to discuss the financial plan several times in August,
September, and perhaps October of 1994, and that the
plaintiffs’ claims did not accrue until at least the last of these
meetings. Alternatively, the plaintiffs argue that their claims
did not accrue until Karam’s death because, until that point,
an essential element of their claims had not yet been
established; i.e., that plaintiffs suffered no damages until
Karam’s estate became liable for the death taxes.
  We need not resolve which of the parties’ alternative
contentions is legally correct, because even if we assume for
the sake of argument that the plaintiffs’ claims accrued at the
time Karam received the erroneous advice from Moss, rather
than at Karam’s death when the damage element of the claims
was established, a factual dispute still remains as to the date
of the advice. Sagemark contends that it occurred when the
plan was delivered, while the plaintiffs argue that the
meetings between Moss and Karam continued for as long as
two months thereafter. This created a factual dispute for the
jury to decide, which it did by specifically finding that the
claims did not accrue before September 27, 1994. Because
the jury’s resolution of this disputed issue of fact finds
support in the record, judgment as a matter of law would not
be appropriate based upon the statute of limitations.
                    III. CONCLUSION
  For all of the reasons set forth above, we REVERSE the
district court’s grant of judgment as a matter of law,
REINSTATE the jury’s verdict, and REMAND the case for
further proceedings consistent with this opinion.
