                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  October 30, 2018
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 DOUGLAS BRUCE,

              Plaintiff - Appellant,

 v.                                                      No. 17-1426
                                             (D.C. No. 1:15-CV-01323-RM-STV)
 PACIFIC SPECIALTY INSURANCE                              (D. Colo.)
 COMPANY, and Does I through V,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

resolution of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This case is therefore ordered submitted without oral argument.

      This case involves an insurance dispute involving rental property owned by

Plaintiff Douglas Bruce and insured by Defendant Pacific Specialty Insurance

Company. The property includes a house—built in 1905—that is split into three


      *
        This order and judgment is not binding precedent, except under the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.
rental units. On July 7, 2014, a fire occurred on the property, rendering two of

the units uninhabitable. Shortly thereafter, Plaintiff filed a claim with the insurer.

The adjuster who was hired by the insurer estimated a replacement cost of

$42,502.99 for the fire damage to the house. The insurer subtracted Plaintiff’s

$2,500.00 deductible and $11,455.36 in depreciation from this amount and paid

Plaintiff $28,547.63 for the covered loss to the house. The insurer made this

payment on August 28, 2014. At that time, the insurer also paid Plaintiff $225.21

for damage to a fence on the property and $9,133.74 for the fair rental value of

the two units that were rendered uninhabitable by the fire.

      In December 2014, Plaintiff wrote to the insurer disputing the amount he

had been paid. Specifically, he demanded payment of the entire amount withheld

as depreciation on the house, as well as payment for additional lost rents and for

the $11,770 he paid to house his tenants in a hotel while the house was being

repaired. The insurer refused to pay these additional demanded amounts.

      Plaintiff then filed a complaint in state court, seeking $37,254.11 for breach

of contract, plus $74,508.22 as a statutory remedy for bad faith. The insurer

removed the action to the federal district court based on diversity of citizenship.

      In the federal court, the insurer filed a motion for summary judgment on all

claims. The magistrate judge concluded that Plaintiff had shown a material

dispute of fact as to his claim of additional lost rents while the house was being

repaired, his related claim of bad faith based on these lost rents, and his claim of

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bad faith delay based on the fifty-one days that elapsed between the fire and the

insurance payment. The magistrate judge recommended the entry of summary

judgment in favor of the insurer on all of Plaintiff’s other claims. Following de

novo review, 1 the district court agreed with the magistrate judge’s

recommendation and thus granted in part and denied in part the insurer’s motion

for summary judgment. The parties then entered into a settlement agreement that

disposed of the lost-rent and bad faith claims and reserved Plaintiff’s right to

appeal from the district court’s entry of summary judgment on his other claims.

After the district court approved the settlement agreement, Plaintiff filed this

appeal.

      We review the district court’s summary judgment decision de novo,

viewing the facts in the light most favorable to Plaintiff. See Johnson v. Weld

Cty., 594 F.3d 1202, 1207 (10th Cir. 2010). “At the same time, we review

challenges to the district court’s determinations regarding what is and is not

competent evidence for our consideration at the summary judgment stage for

abuse of discretion.” Id. “Under this standard, a trial court’s decision will not be



      1
        The district court initially reviewed the magistrate judge’s
recommendation only for clear error. However, after Plaintiff argued that the
court should have considered his “motion for continuance to file objections” as
raising timely objections to the magistrate judge’s report and recommendation,
the district court issued a new order in which it reviewed the magistrate judge’s
recommendation de novo. Thus, any alleged error in the court’s initial review of
this case is moot.

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reversed unless ‘the appellate court has a definite and firm conviction that the

lower court made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances.’” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122

(10th Cir. 2005) (quoting Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994)).

      We first consider the district court’s grant of summary judgment in favor of

the insurer on Plaintiff’s breach of contract claim regarding the depreciation of

the house. The insurance policy provides that “[c]overed property losses are

settled at actual cash value at the time of loss but not more than the amount

required to repair or replace the damaged property.” (R. at 77.) “Actual Cash

Value” is defined as “the replacement cost, less depreciation assessed at the time

of loss.” (R. at 74.) Plaintiff does not dispute these contractual terms, nor does

he dispute the adjuster’s calculation of a replacement cost of $42,502.99. He

simply argues that the “actual cash value” of the property should have been the

full replacement cost, with no depreciation deducted, because his 109-year-old

rental property was in good condition at the time of the loss. At most, he argues,

the depreciation for the house should have been limited to the two percent

depreciation that was applied to the damaged fence on the property.

      The district court held that the question of depreciation must be based on

expert testimony. The court then concluded that, because Plaintiff had not

presented any expert testimony, the insurer’s expert evidence of depreciation

stood undisputed by any competent summary judgment evidence. The court

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determined that Plaintiff could not rely on his own opinions regarding the

property’s condition to establish a dispute of fact on this issue because

depreciation is a matter of expert opinion, not lay testimony, and Plaintiff had not

disclosed himself (or anyone else) as an expert.

      We are not persuaded the district court committed reversible error in so

ruling. The court correctly held that the question of depreciation could only be

established by expert testimony based on our reasoning in James River Insurance

Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1214–15 (10th Cir. 2011), and we

cannot say that the district court “made a clear error of judgment,” Moothart, 21

F.3d at 1504, in holding that Plaintiff could not rely on his own opinions to

establish the amount of depreciation because he had not properly disclosed

himself as an expert. Thus, the only admissible evidence on the question of

depreciation was the insurer’s, and “‘[i]t is well settled in this circuit that we can

consider only admissible evidence in reviewing an order granting summary

judgment,’” Johnson, 594 F.3d at 1209 (quoting Wright-Simmons v. City of Okla.

City, 155 F.3d 1264, 1268 (10th Cir. 1998)) (alteration in original). We therefore

affirm the district court’s entry of summary judgment on this claim.

      Plaintiff also briefly argues that the insurer committed fraud and/or bad

faith by issuing a policy that would never pay the full amount of coverage due to

the extent of depreciation. Plaintiff has not supported this argument with

citations to the record or to any supporting authorities. This argument relies

                                          -5-
solely on “speculation, conjecture, or surmise,” which is insufficient to defeat

summary judgment. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir.

2004).

         Plaintiff further contends that the district court erred in granting summary

judgment on his claims for the expenses he incurred in renting hotel rooms for his

tenants while their rental units were being repaired. The district court rejected

these claims because the insurance policy contains no contractual requirement for

the insurer to cover such expenses. On appeal, Plaintiff does not point to any

contractual language that would contradict the district court’s ruling; he simply

argues that these expenses should have been covered by the insurer because

Plaintiff was trying to preserve his leases with the tenants and one of his tenants

had a young child. This argument fails to establish a valid claim of breach of

contract or bad faith.

         Plaintiff also makes the overarching argument that the district court’s

summary judgment decision violated his Seventh Amendment and due process

rights by denying him the jury trial he had paid for in the state court prior to

removal. However, “[t]he Seventh Amendment is not violated by proper entry of

summary judgment, because such a ruling means that no triable issue exists to be

submitted to a jury.” Shannon v. Graves, 257 F.3d 1164, 1167 (10th Cir. 2001).

Nor does due process require a jury trial where no triable issue exists. See Burks

v. Wis. Dep’t of Transp., 464 F.3d 744, 759 (7th Cir. 2006) (“[T]he Supreme

                                           -6-
Court has made it abundantly clear that summary judgment has a proper role to

play in civil cases, and thus granting summary judgment does not violate a

plaintiff’s right to due process.” (internal quotation marks omitted)). Because

Plaintiff has not shown the entry of summary judgment was improper, he has not

established a violation of his constitutional rights based on the entry of summary

judgment.

      Finally, Plaintiff contends that the district court should have dismissed the

case for lack of jurisdiction after rejecting the bulk of his claims, because this

reduced the amount of damages he could recover to less than the $75,000.00 level

required for diversity jurisdiction. However, as the district court correctly

explained, the amount in controversy for a diversity case is determined based on

the circumstances when the complaint was filed. “Once jurisdiction has attached,

events subsequently defeating it by reducing the amount in controversy are

unavailing.” Miera v. Dairyland Ins. Co., 143 F.3d 1337, 1340 (10th Cir. 1998).

      For these reasons, and for substantially the same reasons given by the

district court and magistrate judge, we AFFIRM the district court’s summary

judgment ruling. We DENY Plaintiff’s request for reimbursement of his filing

fee and postage.

                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge

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