                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 31, 2013
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT


 TONY BETTIS; ERIC COMEAU;
 STEPHEN SEAT; NATIONAL
 REALTY CAPITAL, LLC, a Kansas
 limited liability company,

           Plaintiffs-Counter-Defendants -
           Appellees/Cross-Appellants,

 v.                                               Nos. 12-3198 & 12-3200
                                               (D.C. No. 2:10-CV-02457-JAR)
 GARY L. HALL,                                            (D. Kan.)

           Defendant-Counter-Claimant -
           Appellant/Cross-Appellee,

 and

 BENTLEY INVESTMENTS OF
 NEVADA, LLC, a Nevada limited
 liability company; GARY L. HALL
 REVOCABLE TRUST U/T/A DATED
 11/16/89,

           Defendants.


                             ORDER AND JUDGMENT *


Before GORSUCH, HOLLOWAY, and HOLMES, Circuit Judges.




       *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      During the last real estate boom, Gary Hall wanted in. He hired Tony

Bettis, Stephen Seat, and Eric Comeau to find him good investment opportunities.

In return, Mr. Hall agreed to cover their overhead costs and to give them an

equity stake in the deals they spotted. Eventually, though, the real estate boom

faded and the parties’ relationship soured. As these things go, the disagreement

found its way to court.

      At trial, Mr. Bettis and his colleagues, as plaintiffs, sought over $1 million

from Mr. Hall. They argued this amount represented a combination of unpaid

overhead costs and their share of profits derived from several real estate

investments. The court, however, refused to admit the plaintiffs’ damages

calculations, ultimately permitting them to put before the jury a claim for only

approximately $600,000. In the end the jury did find for the plaintiffs, but

awarded them less still, $302,000.

      Neither side is happy with the result.

      For his part, Mr. Hall takes issue with the idea that the plaintiffs could

recoup anything for two particular investments — the so-called Grand Lodge and

SWAT 15 projects. Mr. Hall claims that the Grand Lodge project resulted in no

profit for anyone, and that the SWAT 15 project was not a development project

subject to the parties’ agreement. On appeal, however, Mr. Hall doesn’t contest

the district court’s decision to admit evidence about these two projects. Instead,

he argues only that he is entitled to judgment or a new trial because the evidence


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in the record as a whole is insufficient as a matter of law to support the jury’s

verdict of $302,000.

      When a jury’s verdict is challenged on appeal for its legal sufficiency, “our

review is limited to determining whether the record — viewed in the light most

favorable to the prevailing party — contains substantial evidence to support the

jury’s decision.” Bangert Bros. Constr. Co., Inc. v. Kietwit W. Co., 310 F.3d

1278, 1292 (10th Cir. 2002). For purposes of this analysis, moreover,

“[s]ubstantial evidence is something less than the weight of the evidence, and is

defined as 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.” Id.

      This standard poses a problem for Mr. Hall. As the district court explained,

even if we assume (without deciding) that Mr. Hall is right and no jury could

have lawfully awarded damages on the Grand Lodge and SWAT 15 projects, the

record still contains enough other, unchallenged (substantial) evidence to support

an award of $302,000. See D.Ct. Mem. and Order at 6-8 (June 28, 2012). Put

differently, the jury in this case issued a general verdict and even putting aside

the damages the plaintiffs sought for the two challenged projects enough

undisputed evidence remains in the record to support the verdict. Neither are we

at liberty to overturn a general verdict supported by substantial evidence based on

speculation that it might include amounts for the two projects still in dispute. It is


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long-settled law that “a general verdict [must be] upheld where there is

substantial evidence supporting any ground of recovery in favor of an appellee.”

Union P. R.R. Co. v. Lumbert, 401 F.2d 699, 701 (10th Cir. 1968) (emphasis

added).

      Perhaps if Mr. Hall had sought and received special interrogatories asking

the jury to assign damages to specific projects, we could weed out the damages

attributable to the two projects he still contests. Perhaps if Mr. Hall had

attempted and succeeded in showing that the jury could not have arrived at its

general verdict without relying on amounts attributable to the Grand Lodge and

SWAT 15 projects we could grant him relief even from this general verdict. But

neither of these possibilities is present in this case.

      For their part, Mr. Bettis and his colleagues challenge the district court’s in

limine rulings forbidding them from presenting evidence at trial in support of

their preferred (higher) damages calculations. But we review a district court’s

evidentiary rulings only for abuse of discretion. “[W]e will not disturb the

[district court’s] determination absent a distinct showing it was based on a clearly

erroneous finding of fact or an erroneous conclusion of law or manifests a clear

error of judgment.” Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir. 1995).

      We cannot say nearly so much here. At summary judgment, the district

court explained its interpretation of the parties’ contracts and how it expected any

damages claim would be calculated and presented at trial — all based in large


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measure on the plaintiffs’ own representations about the contracts and their own

numerical calculations. A month later, when presenting their exhibit list,

plaintiffs sought to present new and higher damages calculations without an

explanation why these new calculations were correct in light of the district court’s

summary judgment order. Mr. Hall sought to exclude the new damage figures;

plaintiffs responded, but still failed to explain the rationale behind their new

calculations. The district court ruled in favor of Mr. Hall. Plaintiffs then sought

reconsideration of the district court’s order, just weeks before trial. It was at this

point when plaintiffs explained how their new figures were based on a new theory

about how the parties’ course of dealing deviated from the contracts the court

interpreted at summary judgment. The district court found as a matter of fact that

the plaintiffs could have presented their new, alternative course-of-dealing theory

much earlier in the proceedings — and that allowing the plaintiffs to introduce

that new theory and those new numbers at trial after disclosing them so late in the

day would prejudice Mr. Hall’s ability to defend himself. In these circumstances,

the court then decided to hold the plaintiffs at trial to their own prior

representations and calculations.

      We are given no persuasive reason to think the facts undergirding the

district court’s assessment are clearly erroneous, or that its ultimate decision

otherwise amounts to a clear error of judgment. To the contrary, “[i]t is generally

not an abuse of discretion for a court to exclude evidence based upon failure to


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timely” present it. Santana v. City & Cnty. of Denver, 488 F.3d 860, 867 (10th

Cir. 2007) (citing authorities); Fed. R. Evid. 403 (relevant evidence may be

excluded “if its probative value is substantially outweighed by a danger of . . .

unfair prejudice”).

      The judgment of the district court is affirmed.


                                       ENTERED FOR THE COURT


                                       Neil M. Gorsuch
                                       Circuit Judge




                                         -6-
12-3198 & 12-3200, Bettis v. Hall

HOLMES, Circuit Judge, concurring.

      I fully join the portion of the principal opinion that resolves Mr. Hall’s

appeal (No. 12-3198). I concur in the judgment regarding its resolution of the

cross-appeal (No. 12-3200) of Mr. Bettis and his colleagues (“Appellees”). The

parties are familiar with the relevant facts; so, I will not pause to recite them here.

In my view, the principal problem for Appellees is not that they presented a new

damages theory to the district court weeks before trial. I respectfully disagree

with the principal opinion’s reading of the record on this point. In particular, as I

read the record, from at least as early as the summary-judgment phase of the

litigation, Appellees expressly endorsed a theory that later formed the basis for

the imbroglio close to the time of trial—the so-called allocation theory. And they

presented figures to the district court in the summary-judgment phase predicated

on this theory.

      These figures are referred to in this litigation as the Bentley Books

calculations. Appellees expressly represented to the district court in their briefing

at the summary-judgment phase that those calculations were the correct ones,

without clearly indicating their view that those calculations were tied to the

allocation theory. In its summary-judgment order, however, the district court

rejected Appellees’ allocation theory and opted for the so-called aggregation

theory. Proceeding on Appellees’ general representation that the Bentley Books
calculations were the correct ones, the district court ordered Appellees to

calculate damages using those figures, but applying the aggregation theory.

      Seemingly recognizing that they were stuck with the aggregation theory,

about a month before trial, Appellees submitted new, higher damages figures to

the district court that reflected a deviation from the Bentley Books calculations

that Appellees previously had endorsed. Mr. Hall successfully moved to exclude

these new figures. Appellees had responded to his motion, but they had not

explained to the district court their apparent rationale for abandoning the Bentley

Books calculations. That is, they had not explained that, in their view, those

calculations were predicated on the allocation theory and the district court had

rejected that theory at the summary-judgment phase. The first time that they

offered such an explanation to the district court was in a motion to reconsider the

district court’s ruling on Mr. Hall’s motion to exclude; this reconsideration

motion was filed a mere two weeks prior to trial.

      In my view, even if Appellees were correct in objecting to the district

court’s requirement that they employ the Bentley Books calculations under an

aggregation theory, this objection came way too late in the game, and through an

inappropriate procedural vehicle—a motion to reconsider, see, e.g., In re Motor

Fuel Temperature Sales Practices Litig., 707 F. Supp. 2d 1145, 1166 (D. Kan.

2010) (noting that motions for reconsideration are not appropriate if movant only

wants the court “to hear new arguments or supporting facts that could have been


                                        -2-
presented originally”). To the extent that the district court erred in requiring

Appellees to adhere to the Bentley Books calculations under an aggregation

theory, as I see it, that error was invited, and thus Appellees’ challenge is waived,

see Eateries, Inc. v. J.R. Simplot Co., 346 F.3d 1225, 1229 (10th Cir. 2003)

(noting that the “invited error doctrine” is an equitable doctrine that “prevents a

party from inducing action by a court and later seeking reversal on the ground

that the requested action was in error” (citations omitted) (internal quotation

marks omitted)); see also ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735, 771

(10th Cir. 2011) (noting that “[t]he invited-error doctrine precludes a party from

arguing that the district court erred in adopting a proposition that the party had

urged the district court to adopt” (quoting FTC v. Accusearch Inc., 570 F.3d 1187,

1204 (10th Cir. 2009)) (internal quotation marks omitted)). This possible

outcome is one that the district court apparently anticipated. See Aplt. App. at

207 (“Now, I understand that plaintiff says the calculations . . . are wrong because

plaintiff says the examples in the summary judgment order . . . are wrong. But I

want the record to be clear that if they’re wrong, it’s not because the Court made

an error, it’s because that was the record that was provided to the Court.”).

      In sum, I fully join the portion of the principal opinion that resolves Mr.

Hall’s appeal, but am constrained to only concur in the judgment regarding its

resolution of Appellees’ cross-appeal.




                                         -3-
