                United States Court of Appeals
                              For the Eighth Circuit

                       ___________________________

                               No. 13-3586
                       ___________________________

                Hamid Yazdianpour; Faisal Ali Mousa al Naqbi

                     lllllllllllllllllllll Plaintiffs - Appellants

                                          v.

Safeblood Technologies, Inc.; Jim Limbird; Charles Worden, Jr.; Charles Worden,
                                      Sr.

                     lllllllllllllllllllll Defendants - Appellees
                        ___________________________

                               No. 13-3632
                       ___________________________

                Hamid Yazdianpour; Faisal Ali Mousa al Naqbi

                      lllllllllllllllllllll Plaintiffs - Appellees

                                          v.

        Safeblood Technologies, Inc.; Jim Limbird; Charles Worden, Jr.

                           lllllllllllllllllllll Defendants

                               Charles Worden, Sr.

                     lllllllllllllllllllll Defendant - Appellant
                        ___________________________

                                No. 13-3639
                        ___________________________

                 Hamid Yazdianpour; Faisal Ali Mousa al Naqbi

                       lllllllllllllllllllll Plaintiffs - Appellees

                                           v.

         Safeblood Technologies, Inc.; Jim Limbird; Charles Worden, Jr.

                     lllllllllllllllllllll Defendants - Appellants

                                Charles Worden, Sr.

                             lllllllllllllllllllll Defendant
                                     ____________

                   Appeals from United States District Court
                for the Eastern District of Arkansas - Little Rock
                                 ____________

                           Submitted: December 9, 2014
                             Filed: February 27, 2015
                                  ____________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                       ____________

WOLLMAN, Circuit Judge.

       Hamid Yazdianpour and Faisal Ali Mousa al Naqbi (Licensees), along with
their limited liability company (the LLC), entered into a licensing agreement with
Safeblood Technologies, Inc. (Safeblood Tech) for the exclusive rights to market

                                           -2-
patented technology overseas. Licensees later sued Safeblood Tech for breach of
contract. Licensees also brought suit against Safeblood Tech and its officers Charles
Worden, Jr. (Worden Jr.), and Jim Limbird (collectively, Safeblood Group) and
against patent inventor Charles Worden, Sr. (Worden Sr.), for fraud, constructive
fraud, and violations of the Arkansas Deceptive Trade Practices Act (ADTPA), Ark.
Code Ann. §§ 4-88-101 to -115. The district court dismissed the fraud claims at
summary judgment. The remaining claims proceeded to trial and a jury found for
Licensees, awarding them $786,000 in contract damages and no damages for
violations of the ADTPA. The district court awarded Licensees an additional
$144,150.40 in prejudgment interest.

       Licensees appeal, arguing that the district court erred in dismissing their fraud
claims at summary judgment, that a jury instruction on the ADTPA claim was
erroneous, and that the jury returned an inconsistent verdict on the ADTPA claim.
Safeblood Group cross-appeals, arguing that Licensees lack standing, that the district
court should have granted judgment as a matter of law on the ADTPA claim1 and the
entire case, and that prejudgment interest should not have been awarded. Worden Sr.
filed a conditional cross-appeal, arguing that the district court should have granted
his motion for judgment as a matter of law on the ADTPA claim. We reverse the
grant of summary judgment on the common-law fraud claim and the award of
prejudgment interest, and we affirm in all other respects.




      1
       Safeblood Group’s appeal of the district court’s denial of summary judgment
on the ADTPA claim is improperly raised. See Ortiz v. Jordan, 131 S. Ct. 884, 891-92
(2011) (“Ordinarily, orders denying summary judgment do not qualify as ‘final
decisions’ subject to appeal [under 28 U.S.C. § 1291].”); 28 U.S.C. § 2107(a)
(requiring appeal be filed within thirty days after entry of the judgment or order
appealed from).
                                          -3-
                                  I. Background

       In December 2009, Licensees met with Limbird, Worden Jr., and Worden Sr.
to discuss acquiring the exclusive rights to market certain Safeblood Tech products
overseas. During the meeting, Worden Sr. told Licensees that the products used a
patented formula that he had invented. Safeblood Tech and Licensees eventually
entered into a licensing agreement. Although Worden Sr.’s patent was not mentioned
in the original agreement, the parties contemplated that the patent rights would be
assigned to Licensees, and the agreement was later amended to make that explicit.

       After signing the original licensing agreement, Yazdianpour emailed Limbird,
asking about Worden Sr.’s relationship with another company and seeking
clarification whether Licensees would be competing against that other company.
Limbird explained that Worden Sr. had assigned the rights to U.S. Patent 6,303,112
(“the patent”) to another company in the United States, but that Licensees would have
the exclusive rights to market the patented technology in all other countries. Both
Worden Sr. and Limbird sent emails to Yazdianpour advising him that to receive
patent protection, Licensees would need to register the patent in each country in
which they planned to do business. Worden Sr. also sent Yazdianpour an email with
instructions for checking the status of the patent on the United States Patent and
Trademark Office (USPTO) website. Safeblood Group and Worden Sr. assert that,
had Licensees checked the USPTO website, it would have shown that Worden Sr. had
assigned an interest in the patent to the other company in 1999 and that the other
company had given Worden Sr. a security interest in the patent in 2002.

      On February 15, 2010, Worden Sr. learned from his attorney that it was too late
to register the patent in any other country and that the patent would be legally
protected only in the United States. Worden Sr. relayed this information to Limbird,
who then informed Worden Jr. Nevertheless, on February 18, 2010, Worden Sr.
executed an agreement giving Safeblood Tech the exclusive rights to the patent

                                         -4-
outside the United States. On March 2, 2010, Safeblood Tech assigned these patent
rights to Licensees, amending the original agreement to provide Licensees and the
LLC with the exclusive rights to the patent outside the United States.

       Licensees proceeded with plans to distribute and sell the products in the Middle
East until May 2010, when they discovered that they would not be able to register the
patent in any country. Thereafter, Licensees brought suit, alleging the claims set forth
above. The district court granted summary judgment to Safeblood Group and Worden
Sr. on the fraud claims, holding that Licensees could not establish justifiable reliance
because public records available on the USPTO website showed that Safeblood Tech
did not own the exclusive rights to the patented technology. The remaining claims
proceeded to trial, where a jury found that Safeblood Tech had breached its contract
with Licensees and that Safeblood Group and Worden Sr. had violated the ADTPA.
Although Licensees requested $825,169.70 in damages, the jury, as set forth above,
awarded $786,000 for the breach-of-contract claim and no damages for the ADTPA
claim, followed by the district court’s award of $144,150.40 in prejudgment interest.

       A magistrate judge received the jury’s verdict in place of the district judge who
had presided over the case. After reading the verdict into the record, the magistrate
judge dismissed the jury and stated that the district court would enter judgment based
on the jury verdict. Court was then adjourned. More than a month later, Licensees
filed a brief objecting to the ADTPA verdict as inconsistent. Licensees raised the
inconsistent-verdict issue again in their motion to amend the judgment, which the
district court denied. Safeblood Group and Worden Sr. did not file a postverdict
motion for judgment as a matter of law or for a new trial.

                                     II. Standing

      As an initial matter, we hold that Licensees have standing to bring suit.
Licensees were parties to the contract that Safeblood Tech breached and were the

                                          -5-
parties allegedly harmed by the violation of the ADTPA and the defendants’ fraud.
Despite Safeblood Group’s argument to the contrary, Licensees’ decision not to
include the LLC as a plaintiff did not deprive them of Article III standing. See ABF
Freight Sys., Inc. v. Int’l Bhd. of Teamsters, 645 F.3d 954, 959-61 (8th Cir. 2011)
(holding that a plaintiff who was a party to a breached contract had standing).

                                        III. Fraud

      Licensees argue that the district court erred in granting the defendants’ motions
for summary judgment on the common-law fraud claim (having abandoned their
constructive fraud claim). We review de novo a district court’s grant of summary
judgment and its interpretation of state law, viewing the facts in the light most
favorable to the nonmovant. Davidson & Schaaff, Inc. v. Liberty Nat’l Fire Ins. Co.,
69 F.3d 868, 870 (8th Cir. 1995).

       Under Arkansas law, the elements of fraud are:

       (1) a false representation of a material fact; (2) knowledge that the
       representation is false or that there is insufficient evidence upon which
       to make the representation; (3) intent to induce action or inaction in
       reliance upon the representation; (4) justifiable reliance on the
       representation; and (5) damage suffered as a result of the reliance.

Tyson Foods, Inc. v. Davis, 66 S.W.3d 568, 577 (Ark. 2002). Because the very
representations relied on can be what cause forbearance from further inquiry into a
statement’s falsity, justifiable reliance ordinarily “does not require the party to test the
truth of such representations where they are within the knowledge of the party making
them or where they are made to induce the other party to refrain from seeking further
information.” Lancaster v. Schilling Motors, Inc., 772 S.W.2d 349, 351 (Ark. 1989)
(quoting Clay v. Brand, 365 S.W.2d 256, 260 (Ark. 1963)). A party to a business
transaction is justified in relying on a misrepresentation of fact without investigation

                                            -6-
“not only where an investigation would involve an expenditure of effort and money
out of proportion to the magnitude of the transaction but also where it could be made
without any considerable trouble or expense.” Fausett & Co. v. Bullard, 229 S.W.2d
490, 491-92 (Ark. 1950) (quoting Restatement of Torts § 540 (1938)). A party must
investigate an affirmative misrepresentation—as opposed to an undisclosed
fact—only when “the facts should be apparent to one of his knowledge and
intelligence from a cursory glance, or he has discovered something which should
serve as a warning that he is being deceived.” Lancaster, 772 S.W.2d at 351 (quoting
Prosser & Keeton on the Law of Torts § 108 (5th ed. 1984)); see, e.g., Burgess v.
French, 263 S.W.3d 578, 581-82 (Ark. Ct. App. 2007) (holding that a buyer was not
justified in relying on a homeowner’s disclosure form stating that there had never
been any problems with the roof or wiring when the buyer saw exposed electrical
wiring throughout the house and was told by his real estate agent that she had seen
a puddle of water in the living room); see also Restatement (Second) of Torts § 541
cmt. a (1977) (“[T]he [duty-to-investigate] rule . . . applies only when the recipient
of the misrepresentation is capable of appreciating its falsity at the time by the use of
his senses.”).

       Safeblood Group and Worden Sr. argue that Licensees cannot prove justifiable
reliance because the status of the patent was publicly available on the USPTO
website.2 Even if Licensees could easily have checked the status of the patent on the
USPTO website, they were not required to investigate unless it was apparent that they
were being deceived. Worden Sr. and Safeblood Group argue that
Licensees—sophisticated businessmen—had a duty to investigate further when they


      2
      Safeblood Group and Worden Sr. rely on Wanlass v. General Electric Co., 148
F.3d 1334 (Fed. Cir. 1998). In Wanlass, the issue was when the plaintiff knew or
should have known of the defendant’s patent infringement. Id. at 1337-39. As
Wanlass dealt with constructive knowledge for purposes of a laches defense, it is
inapposite to the issue whether Licensees can establish justifiable reliance for
purposes of a fraud claim under Arkansas law.
                                          -7-
learned that Worden Sr. had had previous dealings with another company with respect
to the patent. Rumors, however, do not necessarily make it apparent “from a cursory
glance” that one is being deceived. Moreover, when Licensees learned of Worden
Sr.’s previous dealings with the other company, Yazdianpour investigated further by
questioning Limbird, who assured him that the other company owned the rights to the
patented technology only in the United States and that Licensees would be able to
register the patent in other countries. A reasonable jury could find that Licensees
were not required to “test the truth” of facts within Limbird’s knowledge by further
investigation of these representations. Thus, viewed in the light most favorable to
Licensees, there is a disputed issue of material fact whether they justifiably relied on
the representations made by the defendants.

       Worden Sr. argues additionally that Licensees cannot prove that he personally
made a false statement of fact. The facts viewed in the light most favorable to
Licensees establish that Worden Sr. told Licensees that he owned the rights to the
patented technology outside the United States, when in fact it was too late to register
the patent overseas. Furthermore, there is evidence that after Worden Sr. learned
from his attorney that the patent could not be registered overseas, he nevertheless
executed an agreement assigning Safeblood Tech the exclusive rights to the patent
outside the United States. A jury could infer that Worden Sr. knew that this
assignment would be shown to Licensees to convince them that Safeblood Tech
owned the rights to the patent outside the United States. Accordingly, because
Licensees produced sufficient evidence that Worden Sr. made a false statement of
fact, the district court erred in granting summary judgment to Worden Sr. and
Safeblood Group on Licensees’ fraud claim.

                            IV. ADTPA Jury Instruction

       Licensees argue that the district court erred in instructing the jury that
“[p]laintiffs may not recover [under the ADTPA] if the only injury they suffered is

                                          -8-
the diminution in value of the product.” We review a district court’s jury instructions
for abuse of discretion. Brown v. Sandals Resorts Int’l, 284 F.3d 949, 953 (8th Cir.
2002). “Our review is limited to whether the jury instructions, taken as a whole,
‘fairly and adequately represent the evidence and applicable law in light of the issues
presented to the jury in a particular case.’” Id. (quoting Ford v. GACS, Inc., 265 F.3d
670, 679 (8th Cir. 2001)). “The jury should receive instructions on issues supported
by competent evidence in the record.” Id.

        Under Arkansas law, a plaintiff bringing a private cause of action under the
ADTPA must prove both a violation of the ADTPA and actual damage or injury.
Skalla v. Canepari, 430 S.W.3d 72, 82 (Ark. 2013). Actual damage or injury is not
satisfied by mere diminution in value of a product. Wallis v. Ford Motor Co., 208
S.W.3d 153, 161 (Ark. 2005) (“Where the only alleged injury is the diminution in
value of the product, a private cause of action is not cognizable under the ADTPA.”).
Wallis involved a plaintiff who claimed that the manufacturer of his car had
concealed design problems that could cause the car to roll over. Id. at 154. The sole
injury the plaintiff claimed was that the design defect “substantially diminished” the
value of his car; he did not allege that he had been physically injured, that he had
sustained property damage, or that his car had malfunctioned in any way. Id. at 154-
55. The Supreme Court of Arkansas held that the plaintiff had not suffered “actual
damage or injury” as required to bring a private cause of action under the ADTPA.
Id. at 161-62; see also Ark. Code Ann. § 4-88-113(f).

      Licensees argue that because they provided sufficient evidence that they had
received a product that was completely different from the product for which they had
bargained, the district court should not have given the diminution instruction. We
disagree. The jury could have reasonably found that Licensees’ injuries amounted to
no more than a diminution in value of the Safeblood Tech products they contracted
to market. Licensees could have proceeded with plans to market the Safeblood Tech
products in the Middle East, albeit without patent protection. And although the

                                         -9-
products would have been more valuable with patent protection, the jury could have
found that the products still had value even without patent protection and that
Licensees thus suffered only a diminution in value of the products. Accordingly, the
district court did not abuse its discretion when it gave the jury the diminution
instruction.3

                          V. Inconsistency of the Verdict

       Licensees waived their inconsistent-verdict argument by failing to raise this
objection before the jury was discharged, see Parrish v. Luckie, 963 F.2d 201, 207
(8th Cir. 1992), and they have not convinced us that we should excuse that failure in
this case. First, despite Licensees’ argument to the contrary, it is irrelevant that a
magistrate judge received the jury’s verdict instead of the district judge who
otherwise presided over the case. Licensees could have raised their objection to the
magistrate judge, and they had been instructed that the district judge was available by
telephone if necessary. Moreover, even if, as Licensees argue, there was no time to
object to the verdict before the magistrate judge released the jury, Licensees waited
more than a month to raise their objection.4 To hold that Licensees’ inconsistent-
verdict objection was not waived would conflict with the purpose of the waiver
rule—namely, “to allow the original jury to eliminate any inconsistencies without the
need to present the evidence to a new jury” and to “prevent[] a dissatisfied party from


      3
       Licensees also argue that the instruction was inappropriate because the
Arkansas Model Jury Instructions for ADTPA claims do not include a diminution
instruction, but the district court is not bound to follow the model instructions. See
Bady v. Murphy-Kjos, 628 F.3d 1000, 1004 (8th Cir. 2011).
      4
        The facts of this case are readily distinguishable from Hundley v. D.C., 494
F.3d 1097, 1103 (D.C. Cir. 2007), which held that the waiver rule did not apply when
a party objected to a written interrogatory as likely to cause an inconsistency before
the case was submitted to the jury, but failed to object after the jury returned an
inconsistent verdict as predicted.
                                         -10-
misusing procedural rules and obtaining a new trial for an asserted inconsistent
verdict.” Lockard v. Mo. Pac. R.R. Co., 894 F.2d 299, 304 (8th Cir. 1990).
Accordingly, we decline to reach the merits of Licensees’ inconsistent-verdict
argument.

                   VI. Motion for Judgment as a Matter of Law

       Worden Sr. and Safeblood Group cross-appeal from the district court’s denial
of their motions for judgment as a matter of law, arguing that the conveyance of
patented technology is not a “consumer-oriented act or practice” for purposes of the
ADTPA. Safeblood Group argues additionally that all claims against it should have
been dismissed as a matter of law because the case was brought in the names of
Yazdianpour and al Naqbi, and not the LLC. The legal basis for this argument is not
entirely clear, but it seems to be a sufficiency-of-the-evidence argument: because
Licensees offered only evidence of damages suffered by the LLC, which is not a party
to the lawsuit, Licensees did not offer sufficient proof of injury. Safeblood Group
and Worden Sr. raised these arguments when they moved for judgment as a matter of
law under Federal Rule of Civil Procedure 50(a), but did not renew their motions after
judgment under Rule 50(b). “[T]he precise subject matter of a party’s Rule 50(a)
motion—namely, its entitlement to judgment as a matter of law—cannot be appealed
unless that motion is renewed pursuant to Rule 50(b).” Unitherm Food Sys., Inc. v.
Swift-Eckrich, Inc., 546 U.S. 394, 404 (2006). Because Safeblood Group and
Worden Sr. failed to renew their motions for judgment as a matter of law under Rule
50(b), there is no basis for us to review their sufficiency-of-the-evidence arguments.
See id. at 407; see also Linden v. CNH Am., LLC, 673 F.3d 829, 832-33 (8th Cir.
2012).

                             VII. Prejudgment Interest

      Safeblood Group argues that the district court erred when it awarded Licensees
$144,150.40 in prejudgment interest. “We review the award of prejudgment interest
                                        -11-
for abuse of discretion, applying Arkansas law.” Ferrell v. W. Bend Mut. Ins. Co.,
393 F.3d 786, 797 (8th Cir. 2005).

      Under Arkansas law, “[p]rejudgment interest is allowable where the amount
of damages is definitely ascertainable by mathematical computation, or if the
evidence furnishes data that make it possible to compute the amount without reliance
on opinion or discretion.” Woodline Motor Freight, Inc. v. Troutman Oil Co., 938
S.W.2d 565, 568 (Ark. 1997). “[I]f the damages are not by their nature capable of
exact determination, both in time and amount, prejudgment interest is not an item of
recovery.” Mitcham v. First State Bank of Crossett, Ark., 970 S.W.2d 267, 269 (Ark.
1998). Prejudgment interest is appropriate “if a method exists for fixing the exact
value of a cause of action at the time of the occurrence of the event that gives rise to
the cause of action.” Sims v. Moser, 284 S.W.3d 505, 519 (Ark. 2008).

       Licensees did not claim damages that were calculated by a mathematical
formula set forth in the contract. Instead, they sought to recover business expenses
incurred in reliance on the contract, as well as the money paid to Safeblood Tech
under the contract. Licensees requested $825,169.70 in damages, offering as
evidence a spreadsheet prepared by their accountant that listed business expenses
such as “Business trip to USA,” “Office Furniture,” and “Payroll for May 10.” As set
forth earlier, the jury awarded Licensees $786,000 in damages for breach of contract.

       Safeblood Group argues that because the jury had to rely on opinion or
discretion to determine the amount of damages, prejudgment interest was
inappropriate. We agree. In Sims, the Arkansas Supreme Court affirmed the trial
court’s denial of prejudgment interest when the plaintiff and defendant had agreed to
share business expenses and “settle up” at the end of the year, and the plaintiff
requested and was awarded $49,095.15. Id. at 519-20. The Arkansas Supreme Court
held that the trial court, after a bench trial, “had to use its discretion in determining
which expenses [the defendant] was responsible in reimbursing [the plaintiff] for, and
whether [the plaintiff’s] documents and testimony reflected reliable and fair dollar
                                          -12-
amounts.” Id. Similarly here, the jury had to use its discretion to determine which
expenses to reimburse Licensees for—and indeed, the jury did not award Licensees
all of the expenses that they requested as damages. The fact that the jury awarded a
lesser amount than requested is not necessarily dispositive, but it is unclear here how
the jury determined which expenses should be awarded as damages and how the jury
arrived at the total damages amount. See Aceva Tech., LLC v. Tyson Foods, Inc.,
429 S.W.3d 355, 366 (Ark. Ct. App. 2013) (holding that awarding prejudgment
interest was appropriate when it was clear that the jury awarded damages for three out
of five of the requested expenses).

        It is also unclear when the breach of contract occurred. In Sims, the Arkansas
Supreme Court reasoned that denying prejudgment interest was appropriate because
“there was not a specific occurrence or date of an occurrence that gave rise to this
cause of action.” 284 S.W.3d at 520. The plaintiff in Sims pointed to the date that
the contract was formed, but the Arkansas Supreme Court held that the agreement
itself was not what led to the claim. Id. Here, Licensees argue that it was the last day
on which they incurred expenses in reliance on the contract that gave rise to the cause
of action. This is not sufficiently definite in time, however, because Licensees could
have essentially chosen any day over the course of their dealings with defendants as
the date that gave rise to the cause of action. Indeed, although Licensees discovered
in May 2010 that they would not be able to register the patent, they claimed damages
from as late as May 2011. Because the facts here are indistinguishable from Sims,
we conclude that the district court abused its discretion when it awarded Licensees
prejudgment interest on their breach-of-contract claim.

                                  VIII. Conclusion

      We affirm the jury’s verdict on the ADTPA and breach-of-contract claims,
reverse the dismissal of Licensees’ fraud claim and the district court’s award of
prejudgment interest, and remand the fraud claim to the district court for trial.
                       ______________________________

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