                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 26, 2011
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT


 FARM BUREAU LIFE INSURANCE
 CO.; FARM BUREAU MUTUAL
 INSURANCE CO.,

          Plaintiffs-Appellees/Cross-
          Appellants,

 v.                                           Nos. 09-4041, 09-4043, 09-4044,
                                                          09-4045
 AMERICAN NATIONAL                             (D.C. No. 2:03-CV-00646-TC)
 INSURANCE CO.; AMERICAN                                 (D. Utah)
 NATIONAL PROPERTY &
 CASUALTY CO.; AMERICAN
 NATIONAL GENERAL
 INSURANCE; DARRIN IVIE;
 KENNETH GALLACHER,

          Defendants-Appellants/Cross-
          Appellees.


                            ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and HOLMES, Circuit Judges.


      Defendants-Appellants American National Insurance Company, American



      *
             This Order and Judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
National General Insurance, American National Property & Casualty Company,

Darrin Ivie, and Kenneth Gallacher (collectively, “American National”) 1 appeal

from the district court’s order denying their motions for judgment as a matter of

law and a new trial, arguing that the court’s compensatory damages award was

excessive and that the evidence adduced at trial cannot support a punitive

damages award. American National also contends that the district court erred in

partially denying its motion for remittitur and in refusing to reduce the jury’s

compensatory damages award. Plaintiffs-Appellees Farm Bureau Life Insurance

Company and Farm Bureau Mutual Insurance Company (collectively, “Farm

Bureau”) have filed a cross-appeal, arguing that the district court erred in

remitting the jury’s punitive damages award. For the reasons set forth below, we

reverse the district court’s order as to punitive damages, vacate its punitive

damages award, and affirm the district court’s order as to compensatory damages.

                                 BACKGROUND

      Defendant-Appellant Darrin Ivie worked for Farm Bureau from 1987

through February 2003. Beginning in July 1988, Mr. Ivie served as an Agency

District Manager for Farm Bureau’s Zion Cove office in southern Utah, where he


      1
             Although Mr. Ivie and Mr. Gallacher are individual defendants, we
refer to them as part of the “American National” collective. Both Mr. Ivie and
Mr. Gallacher served as agents of American National, and they have briefed their
arguments jointly with defendant companies American National Insurance
Company, American National General Insurance, and American National Property
& Casualty Company.

                                         -2-
was responsible for recruiting, hiring, training, and supervising insurance agents.

In 2001, Mr. Ivie began investigating career opportunities with a rival insurance

company, American National, primarily through his communications with Ken

Gallacher, a regional director for American National. From October 2002 through

his resignation from Farm Bureau on February 28, 2003, Mr. Ivie conspired with

Mr. Gallacher to persuade six Farm Bureau agents and three Farm Bureau recruits

to leave Farm Bureau for American National. Invoking diversity jurisdiction

under 28 U.S.C. § 1332, Farm Bureau then sued Mr. Ivie, Mr. Gallacher, and

American National in the United States District Court for the District of Utah,

seeking compensatory and punitive damages for alleged violations of Utah state

law—specifically, for breach of fiduciary duty and breach of the duty of loyalty,

the inducement of those breaches, civil conspiracy, and tortious interference with

prospective economic relations. 2

      At trial, in support of its claims, Farm Bureau presented the depositions of

American National principals and Farm Bureau agents, as well as abundant

evidence of Mr. Ivie’s correspondence with Mr. Gallacher. Farm Bureau also

offered evidence demonstrating that American National’s executive vice president

and CEO, Greg Ostergren, aided the implementation of Mr. Ivie’s recruiting

      2
            Farm Bureau’s amended complaint asserted numerous claims against
Mr. Ivie, Mr. Gallacher, and American National. The district court dismissed
many of these claims in its Order and Memorandum Decision partially granting
American National’s motion for summary judgment; thus, only six causes of
action remained at the time of trial.

                                         -3-
scheme, along with the testimony of damages expert Richard Hoffman, who

estimated that Farm Bureau had suffered approximately $3,793,876 in financial

damages due to the loss of these agents and recruits. At the close of Farm

Bureau’s case, American National moved for judgment as a matter of law on the

ground that Farm Bureau had failed to present evidence that could support an

award of punitive damages. The district court denied American National’s

motion, and the jury found all of the defendants liable on Farm Bureau’s claims,

awarding Farm Bureau $3,606,214 in compensatory damages and $62,722,000 in

punitive damages.

      American National subsequently filed a renewed motion for judgment as a

matter of law or, in the alternative, a new trial, along with a motion for remittitur.

The district court disposed of these motions simultaneously in an order filed on

February 11, 2009, in which it partially granted American National’s motion for

remittitur, but denied its motions for judgment as a matter of law and a new trial.

Pursuant to that order, the district court reduced the jury’s punitive damages

award to an amount equal to the compensatory damages—that is, $3,606,214.

This appeal followed.

                                   DISCUSSION

I.    Punitive Damages

      On appeal, American National does not contest the jury’s finding of

liability. Rather, American National challenges what it deems the court’s

                                          -4-
“grossly excessive awards of punitive and compensatory damages.” Aplt.

Opening Br. at 7. First, American National argues that Farm Bureau failed to

present evidence that could support any award of punitive damages, and asks us

to reverse the district court’s denial of its motion for judgment as a matter of law

and vacate the jury’s punitive damages award. Farm Bureau counters on cross-

appeal that the district court erred in reducing the jury’s punitive damages award

below what was constitutionally required and in considering all of the defendants

together when it assessed the constitutionality of that award. We conclude that

the district court erred in determining that sufficient evidence existed to support

the award of punitive damages and vacate the award on that ground; thus, we

need not examine the constitutionality of that award.

      A.     Standard of Review

      Whether a punitive damages award is supported by sufficient evidence

presents a question of law, which we review de novo. Hardeman v. City of

Albuquerque, 377 F.3d 1106, 1112 (10th Cir. 2004). Though the jury has

discretion to determine the amount of this award, its punitive damages award

“must be set aside if the court determines that the issue should not have been

submitted to the jury in the first place.” Jackson v. Pool Mortg. Co., 868 F.2d

1178, 1182 (10th Cir. 1989), superseded by statute on other grounds, Civil Rights

Act of 1991, Pub. L. No. 102–166, 105 Stat. 1072–73; see also Gleave v. Denver

& Rio Grand W. R.R. Co., 749 P.2d 660, 670 (Utah Ct. App. 1988) (“If there is no

                                         -5-
evidence to justify punitive damages, the issue was properly withheld from the

jury.”). American National raised this argument in its motion for judgment as a

matter of law, which we also review de novo, applying the same standard as the

district court. Wagner v. Live Nation Motor Sports, Inc., 586 F.3d 1237, 1243–44

(10th Cir. 2009). Thus, we view the evidence in the light most favorable to the

prevailing party, applying Utah’s substantive law and drawing all reasonable

inferences in favor of Farm Bureau. See id. at 1244; see also Nieto v. Kapoor,

268 F.3d 1208, 1221 (10th Cir. 2001). However, we do not weigh the evidence,

judge the credibility of witnesses, or challenge the jury’s factual conclusions.

Wagner, 586 F.3d at 1244. “[W]e thus will reverse the district court’s denial of

the motion for [judgment as a matter of law] ‘if the evidence points but one way

and is susceptible to no reasonable inferences supporting the party opposing the

motion.’” Id. (quoting Hardeman, 377 F.3d at 1112).

      B.     Sufficiency of the Evidence

      Under Utah law,

             “punitive damages may be awarded only if . . . it is established
             by clear and convincing evidence that the acts or omissions of the
             tortfeasor are the result of willful and malicious or intentionally
             fraudulent conduct, or conduct that manifests a knowing and
             reckless indifference toward, and a disregard of, the rights of
             others.”

Utah Code Ann. § 78B-8-201(1)(a) (2008); see Daniels v. Gamma W.

Brachytherapy, LLC, 221 P.3d 256, 268–69 (Utah 2009) (stating that “[w]hether a


                                         -6-
claim may be the basis for punitive damages is governed by Utah Code section

78B-8-201”). In applying this statutory standard, Utah courts require plaintiffs to

provide evidence that a defendant’s conduct went beyond the level of scienter that

supports a finding of liability—i.e., there must be some “additional aggravating

circumstances” that warrant the award of punitive, as opposed to merely

compensatory, damages. Trugreen Cos., L.L.C. v. Scotts Lawn Serv., 508 F.

Supp. 2d 937, 962 (D. Utah 2007) (refusing to award punitive damages where

plaintiff “ha[d] failed to demonstrate additional aggravating circumstances, and

the facts of [the] case [were] not so unusual or outrageous as to justify punitive

damages”); see also Nelson v. Jacobsen, 669 P.2d 1207, 1219 (Utah 1983) (“To

avoid a circumstance in which punitive damages are automatically available in

every such cause of action, . . . in order to recover punitive damages for the tort

of alienation of affections the plaintiff must show ‘circumstances of aggravation

in addition to the malice implied by law from the conduct of [the] defendant . . .

.’” (quoting Heist v. Heist, 265 S.E.2d 434, 438 (N.C. Ct. App. 1980))); Promax

Dev. Corp. v. Mattson, 943 P.2d 247, 259–60 (Utah Ct. App. 1997) (same); Mark

VII Fin. Consultants Corp. v. Smedley, 792 P.2d 130, 134 n.4 (Utah Ct. App.

1990) (“A wrongful act is not in and of itself a sufficient basis to award punitive

damages.” (alteration omitted) (quoting Amoss v. Broadbent, 514 P.2d 1284, 1287

(Utah 1973)) (internal quotation marks omitted)). To properly prevail on its

punitive damages claim, therefore, Farm Bureau needed to provide “clear and

                                         -7-
convincing evidence” that American National’s conduct went beyond the level of

culpability sufficient to sustain a finding of liability on Farm Bureau’s breach of

fiduciary duty, breach of the duty of loyalty, inducement of the breach of those

duties, civil conspiracy, and interference with economic relations claims. In

determining whether Farm Bureau has met this burden, we remain mindful that

“[p]unitive damages constitute an extraordinary remedy” that “should be applied

with caution,” First Sec. Bank of Utah, N.A. v. J.B.J. Feedyards, Inc., 653 P.2d

591, 598 (Utah 1982) (quoting Kesler v. Rogers, 542 P.2d 354, 359 (Utah 1975))

(internal quotation marks omitted), and are therefore “only appropriate in

exceptional cases,” Synergetics v. Marathon Ranching Co., 701 P.2d 1106, 1112

(Utah 1985).

               1.   Additional Aggravating Circumstances

      Farm Bureau failed to present any evidence at trial of “additional

aggravating circumstances” that entitled it to punitive damages. When American

National first moved for judgment as a matter of law at the close of Farm

Bureau’s case, Farm Bureau insisted that American National’s “reckless

disregard” for the rights of Farm Bureau was evinced by its “scorched earth

takeover” of the company that “le[ft] no remains behind.” R., Vol. 10, Tr. at

2620 (Jury Trial, dated Aug. 4, 2008). Despite the district court’s skepticism that

punitive damages could be awarded where the court was “truly . . . not seeing”

evidence of American National’s “willful and malicious” conduct, the court

                                         -8-
summarily denied American National’s motion. Id. at 2618–23. Nowhere in the

record, however, did the court consider whether this alleged “scorched earth

takeover” constituted an “additional aggravating circumstance.” Even if the court

had, as we see it, the evidence produced at trial reveals that Farm Bureau’s

statement was an exaggeration. Of the twelve agents employed at Farm Bureau’s

Zion Cove office at the time that Mr. Ivie initiated his recruiting scheme, only six

left the agency for American National. Although this is certainly a significant

percentage, the recruiting scheme hardly qualifies as a “scorched earth takeover”

that “le[ft] no remains behind”; in fact, Farm Bureau replaced these agents within

two years, and the agency continued to earn profits from 2003 up through the date

of trial.

       Moreover, when American National renewed its motion for judgment as a

matter of law post-trial, Farm Bureau insisted that the conduct that resulted in

liability “in and of itself [was] sufficient to support a punitive damages award

against each of the [d]efendants.” R., Vol. 4, at 896 (Pls.’ Mem. in Opp’n to

Defs.’ Mot. for New Trial or J. as a Matter of Law, filed Nov. 10, 2008). This

demonstrates not only that Farm Bureau failed to articulate “circumstances of

aggravation” beyond the facts that support a finding of liability, but that it

fundamentally misunderstood its obligation to do so under Utah law. 3 See Nelson,

       3
            Farm Bureau cites Burton Lumber & Hardware Co. v. Graham, 186
P.3d 1012 (Utah Ct. App. 2008), for the proposition that “[t]he breach of
                                                                     (continued...)

                                         -9-
669 P.2d at 1219; Promax, 943 P.2d at 259–60.

      In response to American National’s renewed motion, and at oral argument

before this court, Farm Bureau made a futile attempt to meet its burden by

arguing that American National’s conduct was particularly egregious because it

involved high-ranking members of the company. The record does indicate that

members at the top of the American National hierarchy were involved in Mr.

Ivie’s scheme to lure agents away from Farm Bureau. Greg Ostergren, executive

vice president of American National Insurance Company, and chairman,

president, and CEO of American National Property & Casualty Insurance


      3
        (...continued)
fiduciary duties and the aiding thereof justifies a punitive damages award.”
Aplee. Br. at 21. Burton, however, in no way indicates that the breach of a
defendant’s fiduciary duty, without more, can support an award of punitive
damages. In Burton, the Utah Court of Appeals upheld the trial court’s punitive
damages award in part because the defendant owed a fiduciary duty to plaintiff
Burton Lumber & Hardware Company as the general manager of one of the
company’s plants. Burton, 186 P.3d at 1021. Burton Lumber’s claim, however,
was for conversion, not for breach of fiduciary duty; thus, the fact that the
defendant owed a fiduciary duty to Burton Lumber served as additional evidence
of the defendant’s egregious conduct and weighed in favor of awarding punitive
damages. See id. Here, in contrast, the fact that Mr. Ivie breached his fiduciary
duty to Farm Bureau cannot constitute an additional aggravating circumstance
where the claim itself is that Mr. Ivie breached that fiduciary duty. Furthermore,
Burton considered the amount of the trial court’s punitive damages award, not
whether punitive damages could be awarded in the first place. See Crookston v.
Fire Ins. Exch., 817 P.2d 789, 807 (Utah 1991) (“[T]he question of punitive
damages requires that the trial court engage in a two-part inquiry: (i) whether
punitives are appropriate at all, i.e., whether the evidence is sufficient to support
a lawful jury finding of defendant’s requisite mental state, and (ii) whether the
amount of punitives is excessive or inadequate . . . .” (footnote omitted) (citations
omitted)).

                                         -10-
Company, approved the appointment of Robert and Don Wells, two of the Farm

Bureau agents, and granted Don Wells certain exceptions to expedite his

background check prior to his employment at American National. At least one

American National manager expressed his concern to Mr. Ostergren that the

recruitment of such a large volume of Farm Bureau agents might “trigger[] an

alarm and invite a lawsuit,” but Mr. Ostergren offered his assurances that he

“[should not] worry” because “[t]here [would] be plenty for everybody.” R., Vol.

9, at 2412 (Dep. of Byron Howard). However, Farm Bureau cites no cases, and

we have found none, in which a plaintiff satisfied his burden of presenting

evidence of a defendant company’s “willful and malicious,” “intentionally

fraudulent,” or “knowing and reckless[ly] indifferen[t]” conduct, Utah Code Ann.

§ 78B-8-201(1)(a), solely by demonstrating that high-ranking members of that

company were involved in that conduct. 4 Furthermore, even if the actions of

company executives can support a punitive damages award, they cannot do so in

      4
              Farm Bureau points out that this court upheld the district court’s
punitive damages award in Capstick v. Allstate Ins. Co., 998 F.2d 810 (10th Cir.
1993), where “[t]he highest ranking company representative in the courtroom”
testified that the company had not engaged in wrongdoing, and would continue to
operate in a similar manner. Id. at 823. Capstick, however, considered whether
the amount of the punitive damages award was reasonable, not whether the
plaintiff had presented sufficient evidence that he was entitled to punitive
damages in the first place. See id. As these are distinct inquiries, Capstick is
largely inapplicable and, even if it applied, the fact that the highest-ranking
company representative’s conduct supported the amount of the punitive damages
award in that case does not mean that the involvement of high-ranking company
officials universally constitutes an “additional aggravating circumstance.” See
Crookston, 817 P.2d at 807; Promax, 943 P.2d at 259–60.

                                       -11-
this case. Mr. Ostergren’s conduct, while reprehensible, was the very same

conduct that supported the jury’s finding of liability, and the very same conduct

that the district court relied upon in upholding the jury’s compensatory damages

award. Farm Bureau itself relied heavily upon Mr. Ostergren’s involvement in

the plan as evidence that American National was liable for the loss of Farm

Bureau agents. See R., Vol. 4, at 873 (“One of the most telling pieces of evidence

showing the plan and how it was effectuated by the [d]efendants is the January

22, 2003, e[-]mail[,] wherein Mr. Ostergren approved an exception for Don

Wells . . . .”). Mr. Ostergren’s complicity with Mr. Ivie’s recruitment scheme,

therefore, does not constitute an “aggravating” circumstance in addition to the

conduct necessary to sustain recovery of compensatory damages. See Nelson, 669

P.2d at 1219; Promax, 943 P.2d at 259–60.

      Farm Bureau’s argument that punitive damages are warranted because

American National attempted to cover up its misconduct after it recruited the

Farm Bureau agents is equally unpersuasive. The evidence produced at trial did

indicate that three Farm Bureau Agents—Mr. Ivie, Robert Wells, and Don

Wells—completed applications to work at American National in 2002, then

completed a second set of applications a few days after they left Farm Bureau in

February 2003. Farm Bureau’s theory that American National completed this

second set of applications to create the appearance that the agents only applied to

work at American National after they had left Farm Bureau is certainly plausible.

                                        -12-
Under Utah law, however, while a defendant’s after-the-fact conduct may be

probative of his state of mind at the time of the underlying misconduct, it cannot

itself support a punitive damages award. See DeBry v. Cascade Enters., 879 P.2d

1353, 1359 (Utah 1994) (“A punitive damage award is an additional remedy for

the violation of a legal duty giving rise to a cause of action based on that

violation.” (emphasis added)); see also Juarez v. ACS Gov’t Solutions Grp., 314

F.3d 1243, 1247 (10th Cir. 2003) (Noting that a “cover-up after the fact does not

necessarily import previous evil intent”); cf. Smith v. Fairfax Realty, Inc., 82 P.3d

1064, 1074 (Utah 2003) (finding that a defendant corporation’s “self-interested

actions, made in the face of known fiduciary obligations, support[ed] a substantial

punitive damage award” where it commingled funds, paid inflated management

fees to its subsidiary, and committed other egregious acts at the time that it

breached partnership agreements, breached its fiduciary duty, and converted

partnership assets).

      Mr. Ivie breached his fiduciary duty to Farm Bureau when he recruited

agents for American National while he was still employed by Farm Bureau; thus,

the only relevant inquiry is whether Mr. Ivie’s actions were “the result of willful

and malicious or intentionally fraudulent conduct, or conduct that manifest[ed] a

knowing and reckless indifference toward, and a disregard of, the rights of [Farm

Bureau]” at that time. See Utah Code Ann. § 78B-8-201(1)(a). Had Farm Bureau

presented clear and convincing evidence that Mr. Ivie planned a cover-up at the

                                         -13-
same time that he breached his fiduciary duty to Farm Bureau by recruiting for

American National, this might have constituted an “additional aggravating

circumstance.” Cf. Juarez, 314 F.3d at 1247 (upholding the jury’s award of

punitive damages where the plaintiff presented sufficient evidence from which

“the jury could infer that the cover-up was planned prior to the discriminatory

discharge” upon which the defendant’s liability was premised (emphasis added));

Leavey v. UNUM/Provident Corp., No. CV-02-2281-PHX-SMM, 2006 U.S. Dist.

LEXIS 34810, at *21 n.1 (D. Ariz. May 26, 2006) (concluding that evidence of

defendants’ “cover-up” could support a punitive damages award where

defendants’ “efforts to conceal their actions occurred in tandem with the

[underlying] conduct” for which defendants were liable (emphasis added)).

Instead, Farm Bureau itself asserts that, as early as October 28, 2002, Mr. Ivie

boasted in an e-mail about his “ability to hire all the possible [Farm Bureau

agents] without having to worry about boundaries.” Aplee. Br. at 6 (emphasis

omitted) (quoting R., Vol. 15, at 3880 (Pls.’ Ex. 44)). However, the second set of

applications were not completed until after February 14, 2003. It appears,

therefore, that American National’s “cover-up” was just that; an attempt by Mr.

Ivie to cover his tracks after he had initiated his recruiting scheme, and the jury

had no reason to infer otherwise. 5 See Juarez, 314 F.3d at 1247. As such, the

      5
           Farm Bureau also argued in its response to American National’s
renewed motion for judgment as a matter of law that “[a] very clear example of
                                                                     (continued...)

                                        -14-
alleged cover-up does not amount to an “additional aggravating circumstance”

that can support a punitive damages award.

             2.    Litigation-Related Conduct

      Additionally, Farm Bureau argues that an award of punitive damages is

“certainly proper given the conduct, the testimony[,] and the attitude of the

[d]efendants throughout [the] litigation.” R., Vol. 4, at 899. The district court

appears to have endorsed this view in its Order and Memorandum Decision

denying American National’s motion, in which it noted that the jury could have

awarded punitive damages because “Mr. Ivie and Mr. Gallacher were not telling

the truth on the stand,” and the jurors were “offended by the attempts of Mr. Ivie

and Mr. Gallacher to explain the stark differences between their testimony and the

documents” that Farm Bureau produced at trial. Id. at 1072.

      A defendant’s conduct at trial may be considered in assessing the amount of

a punitive damages award under Utah law. See Diversified Holdings, L.C. v.

      5
        (...continued)
the cover-up can be seen in Mr. Gallacher’s November 15, 2002 e-mail response
to Mr. Whisenant.” R., Vol. 4, at 898. On November 15, Kevin Whisenant, a
Farm Bureau agent, sent an e-mail to Mr. Gallacher in which he congratulated
him on his recruitment of other Farm Bureau agents and added: “[i]n talking with
Darrin Ivie, it sounds like you want to talk with the rest of us.” R., Vol. 15, at
3882. Mr. Gallacher responded that he “ha[d] no reason to believe that [Mr.
Whisenant was] looking to change insurance carriers,” but that American National
was indeed seeking to expand. Id. at 3883. Mr. Gallacher’s response can hardly
be construed as a “clear example” of a cover-up. And, even if it could be, it is
not probative of Mr. Ivie’s state of mind at the time that he breached his fiduciary
duty to Farm Bureau, nor does it evince a plan between Mr. Gallacher and Mr.
Ivie to conceal their actions.

                                        -15-
Turner, 63 P.3d 686, 695–96 (Utah 2002); Campbell v. State Farm Mut. Auto. Ins.

Co., 65 P.3d 1134, 1148 (Utah 2001), overruled on other grounds by 538 U.S.

408 (2003). However, a defendant’s subsequent conduct at trial cannot serve as

the basis for the award of punitive damages in the first place. See State Farm

Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 422–23 (2003) (“[D]issimilar acts,

independent from the acts upon which liability was premised, may not serve as

the basis for punitive damages. A defendant should be punished for the conduct

that harmed the plaintiff, not for being an unsavory individual or business.”);

DeBry, 879 P.2d at 1359 (noting that punitive damages are an “additional

remedy” for the underlying violation of a legal duty); supra Part I.B.1 (discussing

the premise that a defendant’s after-the-fact conduct cannot support a punitive

damages award); accord De Anza Santa Cruz Mobile Estates Homeowners Ass’n

v. De Anza Santa Cruz Mobile Estates, 114 Cal. Rptr. 2d 708, 730 (Cal. Ct. App.

2001) (“[A] defendant’s trial tactics and litigation conduct may not be used to

impose punitive damages in a tort action.”); Chavarria v. Fleetwood Retail Corp.,

115 P.3d 799, 812 (N.M. Ct. App. 2005) (reversing the trial court’s award of

punitive damages based on insufficiency of the evidence where “the trial court

[erroneously] relied on Defendant’s litigation conduct or defense of [the]

lawsuit”); cf. Bosack v. Soward, Nos. C07-574Z & C07-16637, 2008 U.S. Dist.

LEXIS 30532, at *32 (W.D. Wash. Feb. 25, 2008) (upholding an arbitration




                                        -16-
panel’s punitive damages award where that award was not “improperly [imposed]

. . . to punish litigation conduct”).

       Unlike a court’s determination regarding the proper amount of punitive

damages, in which a defendant’s actions at trial may call for a high punitive

damages award in order to deter future misconduct, litigation-related conduct is

irrelevant to the threshold determination of whether any punitive damages are

appropriate—at least absent some showing that the defendant’s conduct at trial is

probative of his state of mind at the time that the previous tortious act was

committed. See O’Gilvie v. Int’l Playtex, Inc., 821 F.2d 1438, 1449 (10th Cir.

1987) (“Evidence of the parties’ conduct subsequent to the event, which produces

plaintiff’s claim for punitive damages, whether aggravating or mitigating, must be

probative of the defendant’s state of mind at the time of the transaction.”

(emphasis omitted) (quoting Ettus v. Orkin Exterminating Co., 665 P.2d 730, 741

(Kan. 1983)) (internal quotation marks omitted)); cf. Diversified Holdings, 63

P.3d at 696 (concluding that defendant’s “incredibly arrogant and uncaring

attitude on the stand,” and failure to attend the trial during presentation of

evidence or argument related to the amount of punitive damages, warranted

“concern[] that a smaller [punitive damages] award would not penalize [the

defendant] sufficiently to deter him from repetition of his conduct”). Having

reviewed the record, it is clear that Farm Bureau made no such showing, and we

therefore conclude that the district court erred in suggesting that American

                                          -17-
National’s conduct at trial could serve as the basis for the jury’s punitive damages

award. In sum, for all of the foregoing reasons, the district court’s punitive

damages award cannot stand.

II.   Compensatory Damages

      American National challenged the jury’s compensatory damages award in

its post-trial motions for judgment as a matter of law, for remittitur, and for a new

trial. On appeal, American National argues that “[t]here are two basic flaws in

Farm Bureau’s calculation of compensatory damages”: (1) “Farm Bureau replaced

all the lost agents within two years, but was awarded lost profits for many years

longer,” and (2) the award was based on “the assumption that, but for American

National’s conduct, Farm Bureau would have continued to earn profits

attributable to all six agents and all three recruits until each one had worked for

11.7 years—the average length of service of a Farm Bureau agent.” 6 Aplt.

Opening Br. at 35–36. American National contends that any damages with regard

to these employees are “simply too speculative because at-will employees are free

to leave at any time.” Id. at 37. It asserts that both of these arguments are “based

on rules of law” and present “purely legal arguments” that warrant de novo

review. Aplt. Reply Br. at 11–13. Farm Bureau counters that American National

has waived these arguments because (1) it failed to move for judgment as a matter

      6
            American National’s argument is somewhat misleading, as Mr.
Hoffman’s testimony was based upon an average length of service of 11.5 years,
not 11.7 years. See R., Vol. 9, at 2332.

                                         -18-
of law under Federal Rule of Civil Procedure 50(a) on the compensatory damages

issue at trial, and (2) American National failed to seek jury instructions advancing

these legal theories.

      A.     Waiver of Farm Bureau’s Rule 50(a) Waiver Argument

      The plain language of Federal Rule of Civil Procedure 50(b) provides that a

court may order a new trial only where it has declined to “grant a [previously

filed] motion for judgment as a matter of law made under Rule 50(a),” and Farm

Bureau correctly recites this court’s holding that “[a] party may not circumvent

Rule 50(a) by raising for the first time in a post-trial motion issues not raised in

an earlier motion” for judgment as a matter of law. United Int’l Holdings, Inc. v.

Wharf (Holdings) Ltd., 210 F.3d 1207, 1228 (10th Cir. 2000); see Fed. R. Civ. P.

50(a)–(b). We have also held, however, that “where a party did not object to a

movant’s Rule 50(b) motion specifically on the grounds that the issue was waived

by an inadequate Rule 50(a) motion, the party’s right to object on that basis is

itself waived.” Elliot v. Turner Constr. Co., 381 F.3d 995, 1006 (10th Cir. 2004)

(alteration omitted) (quoting Williams v. Runyon, 130 F.3d 568, 572 (3d Cir.

1997)) (internal quotation marks omitted); see also Marshall v. Columbia Lea

Reg’l Hosp., 474 F.3d 733, 739 (10th Cir. 2007) (“[Plaintiff’s] failure to

challenge the Rule 50(b) motion in his brief specifically on the grounds that the

issue was waived by an inadequate Rule 50(a) motion results in a waiver of the

issue.”). Thus, a party waives its Rule 50(a) waiver argument where it fails to

                                         -19-
preserve that argument by objecting to his opponent’s Rule 50(b) motion on that

basis.

         Farm Bureau opposed American National’s post-trial Rule 50(b) motion in

its Memorandum in Opposition to Defendants’ Motion for New Trial or Judgment

as a Matter of Law, in which it argued generally that the evidence produced at

trial was sufficient to support the jury’s compensatory damages award and

sufficient to establish that “the agent recruits becoming affiliated with American

National was part of the Defendants’ plan and was the direct result of Defendants’

actions.” R., Vol. 4, at 888. Nowhere in that memorandum, however, did Farm

Bureau object to American National’s motion for judgment as a matter of law on

the ground that American National neglected to file the prerequisite motion under

Rule 50(a). Having failed to do so, Farm Bureau has waived its right to present

this argument on appeal. See Elliot, 381 F.3d at 1006.

         B.    Failure to Object to Jury Instructions

         “In a civil case[,] each party must live with the legal theory reflected in

[the jury] instructions to which it does not object.” Black v. M & W Gear Co.,

269 F.3d 1220, 1232 (10th Cir. 2001) (quoting Zimmerman v. First Fed. Sav. &

Loan Ass’n, 848 F.2d 1047, 1054 (10th Cir. 1988)) (internal quotation marks

omitted). Thus, a party waives its right to present a legal argument on appeal “by

failing to object to [the] jury instruction[s] which authorized the verdict.” Bogan

v. Stroud, 958 F.2d 180, 182 (7th Cir. 1992) (“Defendants’ arguments that the

                                           -20-
verdict was inconsistent or that an award of zero compensatory damages required

a finding of no liability are indirect attacks on the punitive damages instructions

given to the jury. These arguments have been waived.” (citation omitted)); see

also Malandris v. Merrill Lynch, Pierce, Fenner & Smith Inc., 703 F.2d 1152,

1176 (10th Cir. 1981) (concluding that the defendant waived its objection to jury

instructions on appeal where it failed to object to those instructions at trial).

      At no point did American National object when the district court instructed

the jury on the issue of lost profits. 7 Thus, having not objected to the district

court’s compensatory damages instructions, American National has waived its

right to raise these legal challenges to the jury’s compensatory damages award on

appeal. See Bogan, 958 F.2d at 182; Malandris, 703 F.2d at 1176.

      Furthermore, American National’s legal challenges are barred by the

invited-error doctrine, which “precludes a party from arguing that the district

      7
         American National did object to Farm Bureau’s proposed jury
instructions. At no point in its memorandum in objection, however, did American
National raise the challenges to the lost-profits calculation that it now presents on
appeal. Rather, American National objected on the grounds that their own
“introductory damages instruction [was] more thorough,” that “there [was] no
reason to split . . . the damages instruction for the breach of duty claims and the
tortious interference claims,” that “the jury should not be instructed on general
damages . . . where such damages are not recoverable,” and that damages related
to reductions in salary were not recoverable under Utah law. Dist. Ct. Doc. 453
at 24–26 (Defs.’ Objections to Pls.’ Proposed Jury Instructions, filed July 2,
2008). Although American National appears to have objected to Farm Bureau’s
proposed instruction on damages for “interference,” which included a discussion
of lost-profit calculation, it did not object to the lost-profit calculation language
in that instruction, and its proposed alternative instructions contained no
discussion of lost profits.

                                          -21-
court erred in adopting a proposition that the party had urged the district court to

adopt.” United States v. Fields, 516 F.3d 923, 939 (10th Cir. 2008) (quoting

United States v. DeBerry, 430 F.3d 1294, 1302 (10th Cir. 2005)) (internal

quotation marks omitted). Nowhere in its own proposed jury instructions did

American National purport to assert either that (1) damages for lost profits

beyond the two-year period between the time that the agents left Farm Bureau and

the time that Farm Bureau hired an equal number of new agents were speculative

and therefore unwarranted; or (2) damages based upon an average length of

service for at-will Farm Bureau employees were inherently speculative. Instead,

American National requested a general instruction as to compensatory damages,

which directed the jury that

             [d]amages, if any, should be restricted to such losses, if any, as
             are proved by facts . . . . The general rule on the subject of
             damages is that all damages resulting necessarily, immediately,
             and directly from the precise wrong are recoverable, and not
             those that are contingent and uncertain or mere speculation.

Dist. Ct. Doc. 384 at 48 (Defs.’ Proposed Jury Instructions, filed Oct. 15, 2007).

The district court adopted that instruction verbatim, and the jury was instructed

accordingly. Thus, American National cannot now argue that the jury’s

compensatory damages award was erroneous as a matter of law, where that award

was based entirely on American National’s own jury instruction. See Fields, 516

F.3d at 939; see also United States v. Visinaiz, 428 F.3d 1300, 1311 (10th Cir.

2005) (holding that defense counsel’s challenge to the district court’s jury

                                         -22-
instructions on appeal “is precluded as invited error” where counsel approved the

instruction at trial).

       C.     Alternative Sufficiency-of-the-Evidence Review of American
              National’s Waived Legal Claims

       Because American National has waived its legal challenges to the jury’s

compensatory damages award, we may set aside the jury’s compensatory damages

award “only if no reasonable juror could have found the evidence sufficient under

the instructions it heard.” Will v. Comprehensive Accounting Corp., 776 F.2d

665, 675 (7th Cir. 1985) (“Although part of [the defendant’s] argument now may

be construed as a claim that the jury could not award . . . [arbitration] costs as

elements of damages,” the defendant “did not propose an instruction excluding

these costs from consideration. [Federal Rule of Civil Procedure 51] requires us

to assume that the instructions given were correct.”); see also United States v.

Atkinson, 297 U.S. 157, 159 (1936) (“The government failed to question the

correctness of [the] instructions either by exception or request to charge . . . .

The verdict of a jury will not ordinarily be set aside for error not brought to the

attention of the trial court.”); Malandris, 703 F.2d at 1176 n.20 (finding that any

error in submitting a negligent hiring theory to the jury “should not . . . be

considered on appeal” where the defendant failed to object to the jury instruction

at trial or on appeal, and the instruction given at trial was similar to one of

defendant’s proposed instructions). In other words, we will sustain the jury’s


                                         -23-
damages award where it is supported by “sufficient evidence.” Anixter v. Home-

Stake Prod. Co., 77 F.3d 1215, 1231 (10th Cir. 1996) (“In the ordinary case,

pursuant to Fed. R. Civ. P. 51, when a party fails to object to a jury instruction,” a

general jury verdict is upheld “where there is substantial evidence supporting any

ground of recovery in favor of an appellee.” (quoting Union Pac. R.R. Co. v.

Lumbert, 410 F.2d 669, 701 (10th Cir. 1968)) (internal quotation marks omitted)).

We therefore view American National’s legal challenges as an attack on the

sufficiency of the evidence. Such challenges are “normally one[s] of fact and not

of law,” Campbell v. Bartlett, 975 F.2d 1569, 1577 (10th Cir. 1992) (quoting

Locke v. Atchison, Topeka & Santa Fe Ry., 309 F.2d 811, 817 (10th Cir. 1962))

(internal quotation marks omitted); therefore, we review the district court’s

refusal to set aside a jury verdict for “a manifest abuse of discretion,” id. (quoting

Richardson v. City of Albuquerque, 857 F.2d 727, 730 (10th Cir. 1988)) (internal

quotation marks omitted).

      Under this deferential standard, American National “carries the heavy

burden of demonstrating that the [jury’s] verdict was ‘clearly, decidedly, or

overwhelmingly against the weight of the evidence.’” Id. (quoting Locke, 309

F.2d at 817). “Under this standard, the jury’s award is inviolate unless we find it

‘so excessive that it shocks the judicial conscience and raises an irresistible

inference that passion, prejudice, corruption, or other improper cause invaded the

trial.’” M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 766 (10th Cir.

                                         -24-
2009) (quoting Vining v. Enter. Fin. Grp., Inc., 148 F.3d 1206, 1216 (10th Cir.

1998)). American National cannot meet this burden.

      First, although American National argues that the jury erred in awarding

Farm Bureau lost profits beyond the point in time that it mitigated its losses by

hiring an equal number of new agents, the jury’s award was far from “excessive”

in light of the testimony elicited at trial. Cyrus Winters, vice president of Agency

and Administration at Farm Bureau, testified that the Zion Cove office had

“unlimited” growth potential and could “easily support more than 20 agents.” R.,

Vol. 9, Tr. at 2306 (Jury Trial, dated Aug. 1, 2008). Therefore, according to Mr.

Winters, “in a perfect world,” Farm Bureau would have retained the six agents

and three recruits that it lost to American National in addition to other newly

hired agents. Id. at 2249. Richard Hoffman, a forensic accountant who

specializes in damage calculations and business valuations, then based his

compensatory damages estimate on this principle. This testimony provided

evidence upon which it was entirely reasonable for the jury to award

compensatory damages for lost profits both before and after the new agent hires

began their work at Farm Bureau.

      Second, American National’s contention that the jury’s compensatory

damages award was excessive because it was based upon an average length of




                                         -25-
service for at-will employees is equally unpersuasive. 8 American National takes

particular issue with the award of damages as to the three agent recruits, which it

argues was based on the “inherently speculative” assumptions that the recruits

“(1) would have become Farm Bureau agents,” and “(2) would have worked for

Farm Bureau for 11.7 years.” Aplt. Opening Br. at 42–43. The evidence

produced at trial, however, suggested that these three agents would have remained

with Farm Bureau but for American National’s actions. Mr. Ivie testified that

these agents had undergone an extensive interview process over a three-to-six

month period, that he had agreed to hire these agents and established their

recommended start dates, and that Farm Bureau approved his decision. Mr. Ivie

also admitted that he had listed one of the agents as a Farm Bureau agent in an e-


      8
         We need not examine American National’s contention that Farm Bureau
cannot recover lost profits because the nine agents were at-will employees who
could have left Farm Bureau at any time, as this is a legal argument that
American National waived by failing to pursue district court jury instructions that
reflected this legal theory. See Bogan, 958 F.2d at 182; supra Part II.B. We note,
however, the unlikelihood that American National could prevail on this theory,
even if it had adequately preserved the issue by seeking appropriate jury
instructions. First, as American National openly acknowledges, it failed to assert
that this argument applies to the six agents who left Farm Bureau, and not merely
to the three agent recruits, in its proceedings before the district court. Thus, to
the extent that American National could raise this argument on appeal, it could do
so only with regard to the three agent recruits. See Aplt. Opening Br. at 50; see
also, e.g., United States v. Jarvis, 499 F.3d 1196, 1201 (10th Cir. 2007) (“[A]
litigant’s failure to raise an argument before the district court generally results in
forfeiture on appeal.”). Second, even assuming that we allowed American
National to proceed with this argument as it relates to the three recruits, American
National concedes that neither Utah courts nor Utah law prohibit compensatory
damages for future earnings for at-will employees. See Aplt. Opening Br. at 43.

                                         -26-
mail to Ken Gallacher, that all three agents subsequently became licensed and

later began work at American National, and that two were still employed as

agents working under him at the time of trial. The jury’s award of compensatory

damages, therefore, was not based upon the “assumption” that these agents would

ultimately work for Farm Bureau, but clear evidence that Farm Bureau would

have retained these agents but for American National’s conduct.

      The evidence produced at trial also allowed the jury to reasonably conclude

that these three recruits, as well as the six agents already employed at Farm

Bureau, would have remained with Farm Bureau for over eleven years. Mr.

Hoffman based his estimate on statistical data demonstrating that agents remain

employed at Farm Bureau, on average, for a total of approximately “11 and a half

years.” R., Vol. 9, at 2332. Mr. Hoffman then deducted the actual number of

years that each of the six agents had already worked at Farm Bureau as of 2002;

this yielded an average of 8.95 remaining years for these agents. Id. at 2329–30,

2336–37. The jury’s compensatory damages award was based on Mr. Hoffman’s

statistically supported averages.

      Moreover, the fact that the jury relied upon this average even where one

agent’s illness shortened his term of service does not render its verdict

unreasonable. As Mr. Hoffman explained at trial, his calculations were based

upon “average profitability”; thus, those calculations explicitly accounted for the

fact that “some [agents] are going to leave early, some are going to leave late.”

                                        -27-
Id. at 2328. One agent’s need to “leave early” on account of illness, therefore,

would be counterbalanced by the potential that another agent would “leave

late”—i.e., remain employed at Farm Bureau longer than the approximate 11.5-

year average. Because Mr. Hoffman’s averages already reflected this likelihood,

the jury did not need to reduce its compensatory damages award on account of

one agent’s illness. 9 The district court did not abuse its discretion in upholding

that award.

      In sum, we conclude that the jury’s compensatory damages award was not

“clearly, decidedly, or overwhelmingly against the weight of the evidence”—in

fact, its award closely reflected the evidence adduced at trial. On the basis of Mr.

Hoffman’s testimony, the jury could have reasonably concluded that Farm Bureau

was entitled to recover lost profits for the years before and after it replaced its

agents, and that those agents and the three recruits would have remained at Farm

Bureau for a total of over eleven years but for American National’s actions. The

jury’s decision to award Farm Bureau a total of $3,606,214 in compensatory

      9
          Although the jury need not have reduced its damages award to account
for the one Farm Bureau agent’s illness, it actually may have done so. As the
district court noted in its Order and Memorandum Decision denying American
National’s motion for judgment as a matter of law or, in the alternative, a new
trial, “the jury did not award Farm Bureau the entire amount Mr. Hoffman had
testified represented the damages suffered by Farm Bureau.” R., Vol. 4, at 1069.
American National itself acknowledges that the jury awarded $111,299 less than
the amount of lost profits calculated by Hoffman. See Aplt. Opening Br. at 49.
This further demonstrates that the jury reasonably considered Mr. Hoffman’s
expert testimony while accounting for the circumstances surrounding each agent’s
departure from Farm Bureau.

                                         -28-
damages, which was substantially similar to and premised upon Mr. Hoffman’s

$3,793,876 estimate, was therefore supported by sufficient evidence.

                                 CONCLUSION

      For the foregoing reasons, we REVERSE the district court’s order as to

punitive damages, VACATE the remitted punitive damages award, and AFFIRM

the district court’s order as to compensatory damages.



                                      ENTERED FOR THE COURT



                                      Jerome A. Holmes
                                      Circuit Judge




                                       -29-
