                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit

                                                                                June 20, 2005
                      UNITED STATES COURT OF APPEALS
                               TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                       Clerk

 GRANT R. ELLSWORTH AND FERN
 S. ELLSWORTH,

               Plaintiffs- Appellees,

 v.                                                         No. 03-4253
                                                      (D.C. No. 2:01-CV-907-K)
 WILLIAM J. TUTTLE, CHARLENE W.                             (D. Utah)
 TUTTLE, J. KENTON TUTTLE, AND
 LORI M. TUTTLE,

               Defendants-Appellants.


                              ORDER AND JUDGMENT*


Before EBEL and McWILLIAMS, Circuit Judges, and FRIOT, District Judge.**


       In this diversity action, Arizona citizens Grant and Fern Ellsworth sued Utah

citizens1 William and Charlene Tuttle, and Kenton and Lori Tuttle, alleging fraudulent

       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
          The Honorable Stephen P. Friot, United States District Judge for the Western
District of Oklahoma, sitting by designation.
       1
         At argument, the court, sua sponte, noted the possibility of a jurisdictional
question unresolved in the record and therefore called for supplemental briefs on the
issues of standing and diversity of citizenship. After the supplemental briefs were filed,
the court’s analysis of the jurisdictional issue led to the conclusion that plaintiffs had
misrepresentation, breach of warranty, breach of contract, and conversion. Prior to trial,

the breach of contract and conversion claims against Kenton and Lori Tuttle were

dismissed. The matter was tried to a jury which returned verdicts against William and

Charlene Tuttle on all four causes of action, and against Kenton and Lori Tuttle on the

fraudulent misrepresentation claim. The jury awarded the Ellsworths $71,680 in

compensatory and $10,000 in punitive damages against Kenton and Lori Tuttle for

fraudulent misrepresentation. The jury awarded the Ellsworths $805,840 in compensatory

damages and $150,000 in punitive damages against William and Charlene Tuttle on the

fraud claims, as well as $125,000 for breach of warranty, separate awards of $14,500 and

$7,500 for breach of contract, and $11,000 for conversion. The district court awarded the

Ellsworths $212,578.75 in attorney fees. The Tuttles collectively appeal the fraud awards,

arguing that (1) the fraud claims were not ripe; and that the district court erred when it (2)

concluded that issues of fact concerning the Ellsworths’ reasonable reliance precluded

summary judgment, (3) permitted the Ellsworths’ expert witnesses to testify regarding

information contained in the water rights certificates, (4) permitted the Ellsworths’ expert

witness to testify regarding the value of “sole supply”and “supplemental supply” acreage,

(5) prohibited the Tuttles from offering evidence of the Ellsworths’ farming practices and



standing to assert their claims, but that the record should be supplemented, as authorized
by 28 U.S.C. § 1653, with respect to certain jurisdictional facts which should have been
established in the district court. The court entered an order requiring supplementation of
the record. The record has been supplemented as required. Now that the record has been
supplemented, diversity jurisdiction affirmatively appears from the record.

                                             -2-
failure to mitigate, and (6) failed to remit the punitive damage awards. William and

Charlene Tuttle separately appeal the breach of warranty, breach of contract, and

conversion awards on the grounds that the district court erroneously (1) denied their

motion for summary judgment with respect to the contract and conversion claims; (2)

entered judgment awarding the Ellsworths a double recovery; and (3) awarded the

Ellsworths attorneys’ fees relating to non-compensable claims. We affirm.

I. Factual Background.

       Because the jury found in their favor, we review the evidence in the light most

favorable to the Ellsworths. Woodworker’s Supply, Inc., v. Principal Mut. Life Ins. Co.,

170 F.3d 985, 988 (10th Cir. 1999). “[W]e accept the jury’s factual determinations as long

as they are reasonably based on some evidence or the inferences that may reasonably be

drawn from such evidence.” Webb v. ABF Freight Sys. Inc., 155 F.3d 1230, 1234 n. 1

(10th Cir. 1998). Under this standard of review, the record establishes the following facts.

       In 1998, Appellants William and Charlene Tuttle, and their son and daughter-in-

law, Appellants Kenton and Lori Tuttle, decided to sell their farms in Millard County,

Utah. William and Charlene Tuttle’s farm consisted of twenty separate tracts of land

totaling approximately 1,100 acres. Kenton and Lori Tuttle’s farm comprised

approximately 640 acres. In preparing to sell the properties, William Tuttle represented

to his real estate listing agents that his farm included 1,057 acres of legally irrigated land.

Its purchase price was set on that basis. Kenton Tuttle signed a listing agreement


                                              -3-
representing that his farm included 502 acres of legally irrigated ground, and its purchase

price was set accordingly.

       Appellees, Arizona farmers Grant and Fern Ellsworth, learned of William and

Charlene Tuttle’s farm through Mr. Ellsworth’s brother-in-law, Blaine Hunter, who

happened to be one of the Tuttles’ listing agents. The Ellsworths were interested in

exchanging their Arizona property for other farmland as part of a tax-free, like-kind

exchange, and arranged to view William and Charlene Tuttle’s farm.

       In August of 1998, Mr. Ellsworth traveled to Utah with his son David, and met for

the first time with William Tuttle. In response to Mr. Ellsworth’s questions as to the

amount of water to which the farm was entitled and how water rights were determined,

William Tuttle stated that the farm was entitled to four acre feet of water and had the

capacity to produce that amount. He also stated that in the twenty-three years he had

watered the farm, Utah’s State Engineer had neither raised concerns with respect to the

farm’s irrigation, nor issued any notice that the farm was not in compliance with the

watering restrictions.

       Mr. Ellsworth was given a tour of the farm which at that time had approximately

1,057 acres under irrigation. To Mr. Ellsworth, the farm appeared to be well watered. He

was also shown a large diesel-powered irrigation well on one of the parcels making up the

farm. Just days prior to Mr. Ellsworth’s visit, William and Charlene Tuttle had received a

letter from the Utah State Engineer questioning the development and use of the diesel


                                            -4-
well; the Tuttles never disclosed to the Ellsworths that there might be problems with the

well. In fact, in the real estate purchase contract pertaining to their farm, William and

Charlene Tuttle warranted that each well serving the property had the applicable permits,

was in working order, and was fit for its intended purpose.

       In October of 1998, Grant Ellsworth viewed Kenton and Lori Tuttle’s farm.

Irrigation pivots covered 502 acres of the farm and all 502 acres appeared to be watered.

The Ellsworths offered to purchase the farms and shortly thereafter William Tuttle

provided the Ellsworths with a computer printout of three, of what turned out to be a total

of ten, state-issued certificates of appropriation pertaining to the irrigation of the two

Tuttle farms. When Grant Ellsworth could not reconcile the certificates with the irrigated

acreage, he asked William Tuttle for additional information. William Tuttle produced

additional printouts and assured him that the farm had “plenty of water.” William Tuttle

also furnished a copy of a letter he had received in March of 1996 from the State

Engineer. He explained that the letter, addressed “Dear Water User,” provided

verification of the farms’ water rights.

       On November 30, 1998, the parties entered into real estate purchase contracts

pursuant to which the Ellsworths would pay $2,014,250 for William and Charlene

Tuttle’s farm and $850,000 for Kenton and Lori Tuttle’s farm. The Ellsworths

understood that they would receive the right to water the 1,057 irrigated acres of William

and Charlene Tuttle’s farm and the 502.4 irrigated acres of Kenton and Lori Tuttle’s


                                              -5-
farm. Shortly before the purchase of the farms was closed, the Tuttles demanded that the

Ellsworths pay them seven percent interest on the difference between the farms’ total

purchase price and the approximately $750,000 in non-refundable payments the

Ellsworths had already made. Although the real estate purchase contracts made no

provision for such interest payments, on June 29, 1999, Grant Ellsworth and William and

Kenton Tuttle signed a document providing that the Ellsworths would pay the Tuttles

seven percent interest on the outstanding balance of the purchase price for the period of

April 1, 1999 through June 29, 1999. That interest was to be paid from the proceeds of

hay sales made before January 1, 2000.

       The parties closed on the real estate purchase contracts on July 9, 1999. By letter

dated December 6, 2000, Assistant State Engineer Terry Monroe informed the Ellsworths

that the ten certificates of appropriation conveyed pursuant to the real estate purchase

contracts provided for the irrigation of only 481.4 acres of William and Charlene Tuttle’s

farm and only 451.2 acres of Kenton and Lori Tuttle’s farm. The letter further explained

that the diesel irrigation well was not a legal point of diversion. These post-closing

events precipitated some pre-suit correspondence between the parties. Unable to resolve

the matter by agreement, the Ellsworths brought suit in the United States District Court

for the Central Division of Utah. The Tuttles now seek review of the judgment on the

jury verdicts in favor of the Ellsworths and of the related pretrial and post-judgment

orders entered by the district court.



                                             -6-
II. The Tuttles’ assertions of error.

       A. Ripeness

       The Tuttles assert that the Ellsworths’ fraudulent misrepresentation and breach of

warranty claims were not ripe for adjudication in the district court. The ripeness doctrine

requires the courts to decide only real and substantial controversies, rather than mere

hypothetical questions. See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289,

297 (1979). The doctrine is drawn not only from Article III limitations on judicial power,

but also from the courts’ prudential reasons for declining to exercise jurisdiction. Reno v.

Catholic Social Services, Inc., 509 U.S. 43, 57, n. 18 (1993). In the administrative law

context, the doctrine prevents courts from entangling themselves in abstract

disagreements over administrative policies and protects agencies from judicial

interference until an administrative decision has been formalized and its effects felt in a

concrete way by the challenging parties. Sierra Club v. U.S. Dept. Of Energy, 287 F.3d

1256, 1267 (10th Cir. 2002).

       In evaluating whether a claim is ripe for adjudication, the courts employ a

threefold inquiry: “(1) whether delayed review would cause hardship to the plaintiffs; (2)

whether judicial intervention would inappropriately interfere with further administrative

action; and (3) whether the courts would benefit from further factual development of the

issues presented.” Roe No. 2 v. Ogden, 253 F.3d 1225, 1231 (10th Cir. 2001) (quoting

Qwest Communications Int’l. Inc. v. F.C.C., 240 F.3d 886, 893-94 (10th Cir. 2001)). The



                                             -7-
Tuttles assert that application of this test establishes that the Ellsworths’ fraud claims are

unripe. They assert that because neither the State Engineer nor any court had finally

determined the water rights they conveyed to the Ellsworths to be less extensive than

represented, the fraud and breach of warranty claims circumvented the administrative

process, forcing the jury to speculate as to whether the Tuttles misrepresented those water

rights.

          At the heart of the Tuttles’ argument is their contention that at the time they sold

their farms to the Ellsworths, the water rights appurtenant to the farms were not

conclusively established and that it was therefore impossible to determine whether

representations made by the Tuttles regarding those rights were true. Thus, according to

the Tuttles, before bringing their fraud and breach of warranty claims, the Ellsworths

should have been required to have their newly purchased water rights adjudged invalid or

insufficient either by initiation of an administrative action pursuant to Utah Admin. Code

R 655-6-5, or by filing a declaratory judgment action against the State Engineer pursuant

to Utah Code Ann. § 78-33-2. The Tuttles have offered no authority for this proposition,

but reason that absent some sort of administrative or judicial pronouncement on the

validity and scope of the certificates of appropriation, the certificates are of insufficient

legal consequence to define the water rights conveyed by the Tuttles to the Ellsworths.

          The Tuttles presented their ripeness argument to the district court first in the form

of a motion in limine, and later in a motion for new trial. In both instances, the court



                                                -8-
rejected the argument as being without merit. It observed that the Ellsworths’ fraud

claims do not turn on the validity of the certificates of appropriation, which is undisputed,

but rather upon the Tuttles’ alleged misrepresentations with regard to the number of acres

permissibly watered under those certificates. The court found that the certificates

definitively established the parameters of the water rights, and that experts for all parties

agreed as to the water rights reflected in the certificates. The court further found that the

State Engineer, by issuing the certificates, had done all that was required of him to

establish the water rights appurtenant to the lands at issue, and that no further

administrative action was required. Consequently, the court concluded that the Tuttles’

alleged misrepresentations presented justiciable issues ripe for trial. We review the

district court’s finding of ripeness de novo. Sierra Club, 287 F.3d at 1263.

       We agree with the district court that the certificates of appropriation established

the extent of the water rights at issue with sufficient certainty to render the Ellsworths’

fraud and breach of warranty claims ripe for trial. Certificates of appropriation are a

critical component of Utah’s complex water rights scheme and reflect the culmination of

a lengthy, statutorily prescribed process. See Little v. Greene & Weed Investment, 839

P.2d 791, 794 (Utah 1992). Before the State Engineer issues a certificate of

appropriation, a potential water user must file a detailed application containing

information about the quantity of water to be used, the nature of the proposed use, and the

source of the water. Utah Code Ann. §§ 73-3-1, 73-3-2. The State Engineer is required



                                              -9-
to publish notice of the application, and interested parties may protest the application and

appeal for review of its approval or denial. Utah Code Ann. §§ 73-3-6, 73-3-7, 73-3-14.

If the State Engineer approves the application, the applicant is then authorized to attempt

to divert the water and apply it to the approved beneficial use. Utah Code Ann. § 73-3-10.

Only after the applicant has perfected his right by diversion and application of water to a

beneficial use and submitted the required proofs does the State Engineer issue a

certificate of appropriation. Little, 839 P.2d at 794; Utah Code Ann. 73-3-17. A

certificate issued in accordance with this statutory scheme “shall be prima facie evidence

of the owner’s right to the use of the water in the quantity, for the purpose, at the place,

and during the time specified therein, subject to prior rights.” Utah Code Ann. § 73-3-17.

Such a certificate constitutes the water user’s deed of title, good against the state and

anyone else who cannot show a superior right. R.L. Knuth, Conveyancing and

Collateralizing Utah Water Rights, 12-DEC Utah B.J. 12 (1999); Lake Shore Duck Club

v. Lake View Duck Club, 166 P. 309, 311 (Utah 1917). It is intended to be a final

certificate of ownership, evidencing a vested right. See Warren Irr. Co. v. Charlton, 197

P. 1030 (Utah 1921). It is immune from collateral attack by one not a party to or

interested in the proceeding which finally culminated in the issuance of the certificate. Id.

at 1033.

       Because the certificates of appropriation define the water rights conveyed, the

Tuttles’ alleged misrepresentation of those rights presented a ripe and justiciable issue.



                                             -10-
Our conclusion is borne out by the fact that the Utah Supreme Court, in similar cases

involving the conveyance of real property, has permitted the prosecution of fraud and

mistake actions without requiring any separate preliminary proceeding to establish that

the plaintiff received less acreage than that for which he bargained. See, e.g., Dugan v.

Jones, 615 P.2d 1239, 12 45-46 (Utah 1980), superseded by statute on procedural

grounds, Arnold v. Curtis, 846 P.2d 1307, 1309-10 (Utah 1993); see also, Jensen v.

Manila Corp., 565 P.2d 63 (Utah 1977) (awarding reformation of contract based on

mutual mistake without requiring action to quiet title). The Tuttles seek to distinguish

these cases on the basis that they involved disputes over land as opposed to water. In such

cases, the Tuttles say, fraud claims became “ripe upon the sale of the land, which

belonged to those involved in the purchase and sale, and the acreage of which was easily

determined.” (Reply Brief of Appellants, p. 3.) Water, they contend, must be treated

differently because it is, by law, the property of the citizens of Utah. This argument

misses the point. The Tuttles did not sell water to the Ellsworths, but water rights. Those

rights, defined and regulated by the State of Utah under a comprehensive statutory

scheme, are considered real property. Utah Code Ann. § 57-1-1(3); In re Bear River

Drainage Area, 271 P.2d 846, 848 (Utah 1954). A duly issued certificate of

appropriation constitutes a deed of title, Lake Shore Duck Club at 311, and land sale cases

such as Dugan and Jensen are clearly relevant.

       The Ellsworths’ fraudulent misrepresentation claims did not present an abstract or



                                            -11-
hypothetical disagreement. They became ripe when the Ellsworths paid in excess of

$2.86 million for what the Tuttles falsely represented to be over 1,559 acres of irrigated

farmland. The resultant injury to the Ellsworths could not have been addressed in any

administrative proceeding, and the facts on which the fraudulent misrepresentation claims

were based were fully developed at trial in the district court. We hold that the Ellsworths’

fraud claims were ripe for adjudication in the district court.

       B. Denial of Summary Judgment on Reasonable Reliance

       The Tuttles next argue that the jury’s fraud verdicts must be reversed because the

district court erred when it denied the Tuttles’ motion for summary judgment, holding that

there were disputed issues of material fact with regard to the Ellsworths’ fraud claim.

They maintain the facts were not in dispute, and that the Ellsworths’ reliance upon their

representations as to the farms’ irrigable acreage was unreasonable as a matter of law. As

the Ellsworths properly note, we are precluded from reviewing this alleged point of error.

       It is well established that “the denial of a motion for summary judgment is not

reviewable on an appeal following the entry of final judgment after trial where the district

court’s decision on the motion was based on its determination that there were genuine

issues of material fact in dispute.” Stump v. Gates, 211 F.3d 527, 532, (10th Cir. 2000)

(citing Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1521). “[E]ven if

summary judgment was erroneously denied, the proper redress would not be through

appeal of that denial but through subsequent motions for judgment as a matter of law . . .



                                             -12-
and appellate review if they were denied.” Wolfgang, 111 F.3d at 1521 (quoting Whalen

v. Unit Rig, Inc., 974 F.2d 1248, 1251 (10th Cir. 1992), cert. denied, 507 U.S. 973 (1993)).

The Tuttles suggest that they should be relieved from the operation of this rule because

the record establishes that no facts were actually in dispute and the issue of reasonable

reliance was a pure question of law. Once a trial court determines that genuine issues of

fact are in dispute, however, we do not scrutinize the merits of that determination. Stump,

211 F.3d at 534.

       Despite the Tuttles’ attempt to define the question of reasonable reliance as an

issue of law in this case, it is clear from the record that the district court denied their

motion for summary judgment based on its determination that there were genuine issues

of fact to be resolved at trial. To properly preserve the issue for appeal, the Tuttles were

required to renew it at the close of all the evidence in a motion for judgment as a matter

of law under Rule 50 (a)(1) of the Federal Rules of Civil Procedure. Having failed to so

move, the Tuttles have waived the issue on appeal.

       C. Expert Testimony Regarding Water Rights

       The Tuttles assert that the district court erred in admitting expert testimony as to

the “sufficiency and validity” of the water rights at issue in the case. Although framed in

this instance as an evidentiary issue, this argument largely reprises their ripeness

argument.

       In their motion in limine to exclude testimony amounting to opinion testimony on


                                              -13-
conclusions of law, the Tuttles argued that absent some preliminary adjudication of the

subject water rights, expert witnesses could not properly testify as to the nature of the

water rights sold by the Tuttles to the Ellsworths. As we have already determined, no

prior adjudication of the subject water rights was required. The certificates of

appropriation were the final statement of the Utah State Engineer. They constituted a

deed of title and were immune from collateral attack. See Warren Irr. Co., 197 P. at

1033; Utah Code Ann. § 73-3-17. The district court properly instructed the jury as to the

legal status of the certificates. It found, however, that the language of the certificates was

specialized, technical and unfamiliar to the ordinary juror. The court concluded that the

testimony of experts having specialized training, experience and knowledge in the field of

Utah water rights would help the jury understand the factual data contained in the

certificates – a matter distinct from their legal import.

       At trial, the Ellsworths introduced testimony from Utah Assistant State Engineer

Terry Monroe and expert witness Michael Quealy identifying the parcels of land to which

each certificate of appropriation was appurtenant, and specifying the number of acres to

which water could be applied pursuant to each certificate. The Tuttles contend that

admission of such testimony was an abuse of the district court’s discretion as it

encompassed legal determinations outside the scope of permissible expert testimony.

       We review a trial court’s decision to admit or exclude expert testimony for abuse

of discretion. Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1243 (10th Cir. 2000). We


                                             -14-
will reverse only when that decision is “manifestly erroneous.” United States v. Simpson,

7 F.3d 186, 188-89 (10th Cir. 1993). Moreover, erroneous admission of expert testimony

that does not affect substantial rights and result in actual prejudice is deemed harmless

and does not warrant reversal. A.E. By and Through Evans v. Independent School District

No. 25, 936 F.2d 472, 476 (10th Cir. 1991). Applying this standard of review, we reject

the Tuttles’ assertions. A review of the record shows that neither the Ellsworths’ expert

witness Michael Quealy, nor State Engineer Terry Monroe simply told the jury “to reach

a particular verdict based on his own say-so.” See United States v. Dazey, 403 F.3d 1147,

1171 (10th Cir. 2005). Rather, both witnesses carefully explained the sources of their

knowledge regarding the certificates of appropriation and summarized the factual

information apparent to persons of their experience from the face of the certificates and

the accompanying files. While both witnesses opined as to the amount of acreage that

could be irrigated under each certificate, neither directly testified that the Tuttles’

watering practices ran afoul of the irrigation limits, or that the Tuttles actually violated

the law. Moreover, even testimony which “embraces an ultimate issue to be decided by

the trier of fact” is allowed under the Federal Rules of Evidence, so long as the expert’s

testimony assists, rather than supplants, the jury’s judgment. Id. at 1172; see also Fed. R.

Evid. 704(a).

       We find no abuse of discretion in the district court’s determination that the jury

would be assisted by expert testimony summarizing the certificates of appropriation. That


                                              -15-
said, we also conclude that any error in admitting the testimony was harmless. The record

shows that in the pretrial order, the parties stipulated to the facts relating to all certificates

except the two numbered 67-137 and 67-286. Furthermore, in its order entered pursuant

to Rule 56(d) of the Federal Rules of Civil Procedure, the court found that the experts for

all parties agreed as to the number of acres irrigable under those two disputed certificates.

Finally, the Tuttles themselves elicited testimony from their expert as to the number of

acres irrigable under certificates 67-137 and 67-286. His testimony was in accord with

that given by the Ellsworths’ witnesses.

       The Tuttles complain that the district court’s entry of the Rule 56(d) order was

itself erroneous. That order, entered in conjunction with the court’s denial of the Tuttles’

motion for summary judgment, found that there was “no substantial controversy as to the

fact that the experts in this litigation agree that water rights 67-137 and 67-286 provide

for irrigation of the Tuttles’ main farm in the amount of 309.9 acres in any given year.”

(Add. F to Brief of Appellants Kenton and Lori Tuttle). Under Rule 56(d), if a court finds

that a motion for summary judgment should not be granted because genuine issues of

material fact remain for trial, it may nonetheless enter an order that specifies those facts

which appear to be without substantial controversy. See Hampton v. Dillard Dept. Stores,

Inc., 18 F.Supp.2d 1256, 1265-66 (D.Kan. 1998), aff’d, 247 F.3d 1091 (10th Cir. 2001).

The primary purpose of Rule 56(d) is to salvage some result from the effort expended in

the denial of a motion for summary judgment. See City of Wichita v. U.S. Gypsum, 828


                                               -16-
F.Supp. 851, 869 (D.Kan. 1993) (citing 10A C. Wright, A. Miller, & M. Kane, Federal

Practice and Procedure § 2737 at 458-59 (2d ed. 1983)), aff’d in part, rev’d in part on

other grounds, 72 F.3d 1491 (10th Cir 1996). As with any grant of summary judgment,

we review a grant of partial summary judgment under Rule 56(d) de novo, applying the

same legal standard employed by the district court. See Timmons v. White, 314 F.3d

1229, 1232 (10th Cir. 2003). Thus we must determine whether the pleadings and

evidence before the court, viewed in the light most favorable to the Tuttles, established

that there were facts genuinely in dispute as to whether the parties’ experts agreed on the

number of acres that could be watered under certificates 67-137 and 67-286. We find

nothing in the record before the district court when it entered its Rule 56(d) order which

would suggest the presence of a substantial controversy as to the expert’s conclusions on

this point. In fact, the Tuttles do not deny that their own expert, like the Ellsworths’

expert and the State Engineer, concluded that the certificates provided for the irrigation of

309.9 acres in any given year. They merely argue that their expert’s report also contained

caveats indicating that the certificates and files pertaining to these water rights were

confusing and might therefore, be susceptible to some other interpretation. However, in

its order, the district court explicitly ruled that the Tuttles were free to present evidence

that they were unaware of the irrigation limitations, or that the irrigation limitations were

difficult to ascertain. The Tuttles did, in fact, introduce testimony to that effect at trial.

       While apparently conceding that their expert agreed that the certificates restricted


                                               -17-
irrigation to 309.9 acres, the Tuttles challenge the procedural propriety of the district

court’s entry of a Rule 56(d) order. They argue that such orders are appropriate only

where the summary judgment movant has been granted some portion of his requested

relief and that here, the Tuttles’ motion was denied. They further argue that the court

was precluded from entering an order finding facts favorable to the Ellsworths because

they did not move for summary judgment themselves. While it is true that a Rule 56(d)

motion will not be entertained independent of a motion for summary judgment, City of

Wichita Kansas, 828 F.Supp. at 869, nothing in Rule 56 makes the propriety of a Rule

56(d) order contingent upon granting the movant all or part of his requested relief. Nor

do we find any support for the Tuttles’ contention that a Rule 56(d) order may only

function to establish those uncontroverted facts which favor the summary judgment

movant. The district court’s Rule 56(d) order provides no basis for reversal.

       D. “Sole Supply Acreage” versus “Irrigated Acreage”

       The Tuttles next argue that the district court erred when it permitted the

Ellsworths’ appraisal expert Duane Price to testify, over their objection, on matters

outside his expert witness report. Mr. Price was retained by the Ellsworths to establish

the difference in value between acreage possessed of a valid and useable water right and

acreage lacking such a valid and useable water right. In his report, Mr. Price noted that

the farms at issue included at least three types of land: irrigated cropland, unirrigated

cropable and pasture land, and a small amount of native dry grazing land. His report


                                             -18-
focused on the difference between the value of the first type of land, which he

characterized as “irrigated land,” and the second type, which he characterized as “dry

pastureland” or “land on which water may be removed.” He concluded that as to the

acreage sold by Kenton and Lori Tuttle, the difference in value between the two types of

land was $1200 per acre. With regard to the property sold by William and Charlene

Tuttle, the difference in value between the two types of land was $1400 per acre. The

Tuttles collectively stipulated to $1400 per acre as the difference in value between an

irrigated acre of land and a dry acre of land.

       When called to testify at trial, Mr. Price embraced certain water law terminology

that he had not employed in his report. In his trial testimony he used the term “sole-

supply acreage” interchangeably with the term “irrigated land,” and the term

“supplemental supply acreage” interchangeably with the terms “dry pastureland” and

“land on which water may be removed.” The Tuttles assert that this expanded

vocabulary amounted to a “radical” and undisclosed alteration of his expert opinion in

violation of Rule 26(a) of the Federal Rules of Civil Procedure.

       Where a party seeks to have evidence excluded on the basis of alleged discovery

misconduct, “the challenged behavior must substantially have interfered with the

aggrieved party’s ability fully and fairly to prepare for and proceed at trial.”

Woodworker’s Supply, Inc., 170 F.3d at 993 (emphasis in the original). The district

court’s ruling is reviewable only for abuse of discretion and will not be reversed unless


                                             -19-
the court has made” an arbitrary, capricious, whimsical, or manifestly unreasonable

judgment.” Id. at 992 (quotation omitted). Even where the trial court finds a violation of

Rule 26(a), the evidence is properly admitted if the violation was harmless or justified and

the court “need not make explicit findings concerning the existence of a substantial

justification or the harmlessness.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th

Cir. 2002).

       The Tuttles complain that Duane Price’s employment of the “sole supply” and

“supplemental supply” terminology substantially interfered with their ability to prepare

for trial because it falsely implied to the jury that Mr. Price was an expert in water law

having particular knowledge of the water rights pertaining to the Tuttles’ farms or the

comparable farms he used to establish his valuations. They further argue that they were

prejudiced by Mr. Price’s altered terminology because his report comparing “irrigated

cropland” with “unirrigated cropable land” or “dry pastureland” had led them to believe

the Ellsworths’ suffered no injury.

       The Tuttles’ argument is premised upon their contention that all of the land they

sold to the Ellsworths was irrigated acreage because all the land had either an appurtenant

water right or the potential to have water moved to it by way of a change application.

This contention relies on the fact that under Utah’s water rights scheme, certificates of

appropriation frequently describe tracts of land containing considerably more acreage

than can actually be watered under the certificates’ irrigation restrictions. For example, a


                                             -20-
certificate may describe, and thus become “appurtenant” to a 100 acre tract, while

restrictions set forth in the certificate limit the amount of water that can be used in a given

year to the irrigation requirements of only 60 acres of that tract. The parties agree that the

60 acres constitute “sole-supply acreage” and the remaining 40 acres constitute

“supplemental supply acreage.” According to the Tuttles’ theory, however, the 40

supplemental supply acres, while not irrigable under the certificates in any given year,

must nonetheless be considered “irrigated acreage” because they are described in a valid

certificate. Therefore, the Tuttles conclude, the 40 “supplemental supply” acres are of

equal value to the 60 “sole-supply” acres.

       The Tuttles assert that they were unfairly surprised to learn that Mr. Price did not

subscribe to their theory. The record does not support their suggestion that they were

unaware that he distinguished the value of acreage readily irrigable under a useable water

right from the value of acreage merely described in a water right but restricted from

irrigation. Numerous pretrial documents showed clearly that the Ellsworths claimed that

Kenton and Lori Tuttle sold them what was represented to be 502.4 acres of irrigated land

when in fact, only 451.2 acres were irrigable under the certificates of appropriation

transferred to them. The Ellsworths claimed that William and Charlene Tuttle sold them

what was represented to be 1,057 acres of irrigated land when only 481.4 acres of were

irrigable under the water rights transferred to them. It was on this basis that the

Ellsworths claimed damages in the amount of $71,680 with respect to their purchase from


                                             -21-
Kenton and Lori Tuttle, and $805,840 with respect to their purchase from William and

Charlene Tuttle. These amounts represent the number of “unirrigated,” or “dry,” or

“supplemental” acres multiplied by the $1,400 stipulated by the Tuttles to be the

difference in value between an irrigated and a dry acre.

       Any confusion the Tuttles entertained regarding Mr. Price’s land valuations

appears to be confusion they themselves manufactured. Moreover, the Tuttles were

permitted to present to the jury their position supplemental water rights are “useable and

valid water rights” and that they sold only irrigated acreage to the Ellsworths. They were

permitted to challenge Mr. Price’s conclusions and valuation methodologies, and to

introduce the jury to their theory that sole supply acreage and supplemental supply

acreage are of equal value. Indeed, they argued to the jury that Mr. Price’s testimony

proved that there should be no difference in value between sole supply and supplemental

supply acreage. The jury’s rejection of the Tuttles’ argument does not suggest that the

Tuttles were prejudiced by the terminology Mr. Price used in his trial testimony; it

suggests rather that the jury believed that “land on which water may be removed,”

regardless whether it is called “cropable land,” “dry pasture,” or “supplemental supply

acreage,” was worth $1400 less per acre than land readily irrigable under the subject

certificates of appropriation.

       The district court did not abuse its discretion when it allowed Mr. Price to testify to

the value of sole supply and supplemental supply acreage. The altered terminology did


                                            -22-
not amount to a violation of Rule 26(a) because it did not affect in any material respect

the information or conclusions contained in Mr. Price’s report. Even if we were to

assume that Mr. Price’s testimony technically violated Rule 26(a), the district court acted

well within its broad discretion in allowing it, as the violation was harmless. See

Jacobsen, 287 F.3d at 953. In evaluating whether a Rule 26 (a) violation is harmless, the

court considers: “(1) the prejudice or surprise to the party against whom the testimony is

offered; (2) the ability of the party to cure the prejudice; (3) the extent to which

introducing such testimony would disrupt the trial; and (4) the moving party’s bad faith

or willfulness.” Woodworker’s Supply, Inc., 170 F.3d at 993. As discussed above, the

Tuttles cannot plausibly claim to have been surprised by Mr. Price’s testimony. The

Ellsworth’s position as to the number of acres lacking useable water rights and as to the

difference in value between those acres and the acres having a useable water right was

firmly established before trial. The Tuttles had ample opportunity to meet testimony

supporting that position. Additionally, the Tuttles had the opportunity to cure any

prejudice caused by Mr. Price’s altered terminology by cross-examining him as to his

understanding of the terms and the basis for their usage. It is also probable that the

Tuttles would have learned that Mr. Price considered “irrigated acreage” to be

synonymous with “sole supply acreage” had they chosen to depose him during the

discovery process. The testimony caused no disruption of the trial because it was entirely

consistent with the Ellsworths’ pretrial declarations and the parties’ stipulations. Finally,


                                             -23-
the testimony will not support any suggestion of bad faith or willfulness on the part of the

Ellsworths, who merely elicited testimony which conformed with the water law

vocabulary to which the jurors were exposed throughout the trial.

         E. Preclusion of Evidence

               1. The Ellsworths’ farming practices

         The Tuttles appeal the district court’s ruling on two motions in limine. They argue

that the district court erred by excluding evidence relating to the Ellsworths’ farming

practices and non-mitigable damages and that they are consequently entitled to a new

trial.

         We review evidentiary exclusions for abuse of discretion, giving deference to the

district court’s rulings. Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir. 1995). A

court’s evidentiary rulings will be reversed only where they “resulted in manifest

injustice” to the parties. Thompson v. State Farm Fire & Cas. Co, 34 F.3d 932, 939 (10th

Cir. 1994). The burden of demonstrating manifest injustice rests with the party asserting

error. United States v. Mitchell, 113 F.3d 1528, 1532 (10th Cir. 1997). Furthermore,

where the verdict “more probably than not was untainted by the error, the error is

harmless and a new trial is not required.” U.S. Industries v. Touche, Ross & Co., 854

F.2d 1223, 1259 n. 53 (10th Cir. 1988) overruled on other grounds as recognized by

Anixter v. Home-Stake Prod. Co., 77 F.3d 1215 (10th Cir. 1996).

         The Tuttles argue that they should have been permitted to introduce evidence


                                             -24-
showing that the Ellsworths have consistently watered parcels alleged to be without

useable water rights, as well as evidence that they have replaced fields of alfalfa with

other crops and have failed to properly care for crops. They claim that such evidence was

relevant to the amount of damages their misrepresentations caused the Ellsworths to

suffer. In support of this argument the Tuttles argue, as they have argued throughout this

appeal, that the Ellsworths’ “entire case was premised on their claim that a letter from an

assistant regional state engineer precluded them from irrigating the property they

purchased from [the] Tuttles.” (Reply Brief of Appellants at 13). This is a fundamental

mischaracterization of the nature of the Ellsworths’ claims. The Ellsworth’s claims for

fraud and misrepresentation are based upon the Tuttles’ overstatement of their farms’

water rights. In granting the Ellsworths’ motion in limine, the district court stated:

       The evidence serves no relevant purpose and has no probative value with
       respect to [the Ellsworths’] damages claim for misrepresentation and/or
       fraud regarding the alleged shortfall of water rights in the purchase of the
       farm. Plaintiffs are seeking only the difference in land price associated with
       an irrigated acre versus a dry acre.
                                             ...

       Moreover, evidence that [the Ellsworths are] watering a different parcel
       without a change application is more prejudicial than probative. This
       evidence has no relation in time to the purchase of the farm or the
       difference in value between an irrigated acre and a dry acre of property.
       Even if [the Ellsworths] had been watering parcels of land that have no
       water rights, it has no bearing on the value of the land. The parcels have no
       water rights. Therefore, the only purpose of he evidence would be to paint
       [the Ellsworths] in an unfavorable light. The evidence would confuse and
       prejudice the jury and is, therefore, inadmissible.

       Aplt. App. 1555.

                                            -25-
       The district court’s exclusion of evidence relating to the Ellsworths’ farming

practices after purchase of the farms was well within the court’s discretion and will not be

disturbed.

              2. Mitigation of damages

                     a. Equitable estoppel

       The Tuttles also claim that the district court erroneously granted the Ellsworths’

Motion in Limine to Exclude Evidence of Non-Mitigable Damages. They contend that

the district court’s order prevented them from showing that the Ellsworths could have

mitigated their damages had they appealed the state engineer’s determinations regarding

their certificated water rights, filed a change application, or pursued an equitable estoppel

claim against the State. A review of the court’s order, however, reveals that it excluded

only evidence relating to the Tuttles’ equitable estoppel argument and to any argument

that Ellsworths might, by filing a due diligence claim, acquire rights to water possibly put

to use on the farms before1935 when the current appropriation scheme was enacted. The

court explicitly denied the Ellsworths’ motion to the extent it sought exclusion of

evidence pertaining to change applications, and although the Ellsworths motion did not

even address the subject, the court nonetheless assured the Tuttles that it did not intend to

preclude evidence as to whether the Ellsworths should have appealed the State Engineer’s

determinations.

       The Tuttles insist that the court erroneously excluded evidence suggesting that the


                                            -26-
Ellsworths could have successfully challenged the State Engineer on equitable estoppel

grounds. They allege that they and the Ellsworths relied upon a 1996 form letter sent by

the State Engineer to area water users, including the Tuttles. That letter stated: “[d]uring

the spring of 1994, the acreage survey was completed and all water users who were

irrigating land without a water right were notified. As a result of this effort and with the

cooperation of water users, all irrigated lands are now covered by valid water rights.”

The Tuttles maintain that this letter, addressed “Dear Water User,” constitutes a “solemn

written commitment” which estops the State Engineer from interfering with water usage

established at that time. They further contend that the Ellsworths had a legal duty to

pursue an estoppel claim in order to mitigate any damage caused by the Tuttles’ transfer

of insufficient certificated water rights.

       The Ellsworths respond that the potential for success of an estoppel claim against

the State Engineer was so unlikely as to make such a suit an unfit basis for the mitigation

of their damages. They contend that any estoppel claim was doomed because they could

not responsibly allege that the Tuttles reasonably relied upon the “Dear Water User”

letter. Under Utah law, a claim for equitable estoppel requires proof of: (1) a statement,

admission, act, or failure to act by one party inconsistent with a claim later asserted; (2)

Reasonable action or inaction by the other party taken or not taken on the basis of the first

party’s statement, admission, act, or failure to act; and (3) Injury to the second party that

would result from allowing the first party to contradict or repudiate such statement,


                                             -27-
admission, act, or failure to act. Nunley v. Westates Casing Services, Inc., 989 P.2d 1077,

1088 (Utah 1999). The Ellsworths allege that the Tuttles never acted in reliance upon the

form letter, but merely continued the improper irrigation practices they had engaged in for

years. They maintain that any potential claim for estoppel belonged only to the Tuttles,

and they should not be required to engage in quixotic litigation after having paid in excess

of $2.85 million for what was represented to be well over 1500 acres of irrigated farm

land.

        After careful consideration of the parties’ arguments, the district court found that

the Tuttles had failed to meet their burden of establishing a mitigation defense grounded

on an equitable estoppel theory. Mitigation is an affirmative defense that requires the

Tuttles to prove with reasonable certainty the amounts by which the Ellsworths’ damages

could have been mitigated. Pratt v. Board of Education of Vintah Co. School Dist., 564

P.2d 294, 297-98 (Utah 1977). Just as speculative damages may not be awarded, the duty

to mitigate does not apply when the proposed mitigation is too speculative. Double D.

Amusement Co. v. Hawkins, 438 P.2d 811-12 (Utah 1968). Furthermore, there is no duty

to mitigate when it would require “time, energy and expense to do a possibly useless

thing.” Id. at 812. The district court determined that the Tuttles’ proposed mitigation

requiring the Ellsworths to successfully prosecute an equitable estoppel claim against the

state, was too speculative to be presented to the jury. The Tuttles have failed to show that

this amounted to an abuse of discretion resulting in manifest injustice.


                                             -28-
                     b. Diligence claims

       It is not clear whether the Tuttles also appeal the district court’s exclusion of

evidence related to their theory that the Ellsworths had a duty to pursue a claim for

appropriation of water that may have been claimed or put to use prior to the enactment of

Utah’s modern water legislation in 1935. The court noted that the Tuttles, during their

long tenure of ownership of the farms, had never pursued such a claim, and that there was

consequently no diligence claim appurtenant to the property when the sale of the farms

took place. The court further found that the Tuttles had introduced no evidence that could

support such a theory. In granting the Ellsworths’ motion in limine the court stated:

“Because Defendants have not provided some evidence that would support a diligence

claim, they should not be allowed to give an inference to the jury that [such a claim]

should have been pursued as mitigation.” Aplt. App. 2092). The Tuttles have pointed to

nothing in the record to suggest the district court overlooked evidence which would have

supported a mitigation defense based upon the pursuit of a due diligence claim.

Therefore, the district court did not abuse its discretion by precluding the Tuttles from

presenting to the jury an unfounded inference.

                     c. Change applications

       Contrary to the Tuttles’ contentions, the record shows that they were indeed

permitted to introduce evidence that the Ellsworths could have filed change applications

in an effort to transfer water rights to the farms. In the course of presenting that evidence,


                                             -29-
however, they attempted to elicit expert testimony as to the likelihood that such

applications would be granted. The Ellsworths objected to the question on the ground

that it called for speculation. The Ellsworths also drew the court’s attention to the fact

that it had previously sustained the Tuttles’ objection that the Ellsworths’ questioning of

Assistant State Engineer Terry Monroe called for him to speculate as to whether a change

application would likely be rejected. The court likewise sustained the Ellsworths’

objection on the ground that testimony as to whether a particular application would be

rejected was impermissibly speculative. The court allowed evidence and arguments that a

change application could easily be filed, that the State Engineer had recommended that

the Ellsworths file a particular change application, and that “most” change applications

are approved. Moreover, the Tuttles’ expert was permitted to testify as to what lands

would be irrigable if a change application were to be successfully prosecuted.

       The district court did not abuse its discretion by consistently excluding speculative

testimony as to whether a particular application would be granted or denied. The district

court’s rulings on both motions in limine are affirmed.

       F. Punitive damages

       The jury awarded $805,840 in compensatory damages for fraud and $150,000 in

punitive damages against William and Charlene Tuttle and $71,680 in compensatory

damages for fraud and $10,000 in punitive damages against Kenton and Lori Tuttle. As

the Ellsworths point out, this amounts to a punitive versus compensatory damages ratio of


                                            -30-
approximately .18:1 in the case of William and Charlene Tuttle, and a punitive versus

compensatory damages ratio of approximately .13:1 in the case of Kenton and Lori Tuttle.

       The Tuttles filed a motion for new trial or, in the alternative for complete remittitur

of the punitive damage awards on the ground that the punitive damage awards were

excessive and not supported by Utah law. The Tuttles point out that under Utah law,

when deciding upon or reviewing an award of punitive damages, a jury or court is to

consider: (1) the relative wealth of the defendant; (2) the nature of the alleged

misconduct; (3) the facts and circumstances surrounding such conduct; (4) the effect

thereof on the lives of the plaintiff and others; (5) the probability of future recurrence of

the misconduct; (6) the relationship of the parties; and (7) the amount of actual damages

awarded. Diversified Holdings, L.C. v. Turner, 63 P.3d 686, 694 (Utah 2002) (citing

Crookston v. Fire Ins. Exchange., 817 P.2d 789 (Utah 1991)). While the Tuttles argued

that none of these factors support the punitive damage awards in this case, they

particularly complained that no evidence was introduced at trial as to the Tuttles’ relative

wealth. The Tuttles argued that all seven factors must be considered and that absence of

evidence relating to even a single factor was fatal.

       The district court denied the Tuttles’ motion on four grounds: (1) the Tuttles

waived arguments relating to the jury’s alleged failure to consider the Crookston factors

because they neither proposed a jury instruction setting forth the factors, nor objected to

the instruction given on those grounds; (2) failure to instruct the jury with regard to the


                                             -31-
Crookston factors was not error; (3) the punitive damage awards were not excessive; and

(4) there was sufficient evidence of the parties’ relative wealth to support the verdicts.

The Tuttles contend that the district court’s denial of their motion on these grounds was

error.

         The Tuttles have advanced no federal constitutional challenge to the punitive

damage awards, and perhaps understandably so, in light of the very substantial

differences between the ratios in the case at bar and the ratios which have been involved

in the Supreme Court’s recent cases addressing the constitutional limitations on punitive

damage awards, prominent among which is State Farm Mut. Auto Ins. Co. v. Campbell,

538 U.S. 408 (2003), also a Utah case. Consequently, in this diversity case, our scrutiny

of the punitive damage awards is based – as are the Tuttles’ arguments – entirely on state

law. Mason v. Oklahoma Turnpike Authority, 182 F.2d 1212,1214 (10th Cir. 1999). We

review the district court’s determinations as to excessiveness for abuse of discretion.

United Intern. Holdings, Inc. v. Wharf (Holdings) Limited, 210 F.3d 1207, 1232 (10th Cir.

2000); Mason, 182 F.3d at 1214. Where a motion for new trial asserts that the jury’s

verdict is not supported by the evidence, the court considers the evidence in the light most

favorable to the prevailing party and allows the verdict to stand unless it is clearly against

the weight of evidence. See Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir.

1999).

         We note at the outset the Tuttles’ apparent misapprehension of the district court’s


                                             -32-
rulings with regard to jury instructions. Contrary to the Tuttles’ assertions, the district

court did not conclude “that the Tuttles could not bring a post-trial motion for new trial

when they did not request an instruction that included the Crookston factors.” (Brief of

Appellants Kenton and Lori Tuttle, p. 55.) Rather, the court concluded that the Tuttles

were not entitled to prevail upon such a motion on the basis that the jury did not consider

those factors. The record shows that the Tuttles did not properly preserve for appeal

issues relating to how the jury was instructed regarding punitive damages. The court’s

denial of the motion on those grounds was consistent with Rule 51 of the Federal Rules of

Civil Procedure and was not error.

       The Tuttles also contend that the court erred when it found, without having first

applied the Crookston factors, that the jury’s punitive damage awards were not excessive.

The Tuttles insist that Utah law mandates application of all seven factors each and every

time a court reviews an award of punitive damages. However, the very Utah Supreme

Court case on which they base their argument undermines this contention. In Diversified

Holdings, the Utah Supreme Court reiterated that where an award of punitive damages

falls within accepted ratios, the trial court may assume that the award is not excessive and

allow it to stand without offering any detailed explanation for its decision. Diversified

Holdings, at 700. In Utah jurisprudence, accepted ratios for punitive damage awards

under $100,000 are 3:1 or less. Accepted ratios for punitive damage awards in excess of

$100,000, the accepted ratios are 2:1 or less. Id. at 697; Crookston, 817 P.2d at 810. The


                                             -33-
punitive damages awarded in this case easily fall within the ratios accepted in Utah as

presumptively reasonable.

       Because the punitive damage awards were presumptively reasonable, the court

could have, consistent with Utah law, sustained the them without any reference to the

Crookston factors. Instead, it noted the applicability of the factors and proceeded to

determine that there was sufficient evidence presented at trial to sustain the verdicts in

light of all seven factors, including the relative wealth of the Tuttles. Thus, we cannot

conclude that the court did not consider each of the Crookston factors when it determined

that the awards were “clearly not excessive.” The district court did not abuse its discretion

in determining that the jury’s awards of punitive damages were reasonable under Utah

law.

       Finally, the Tuttles assertion that under Utah law a plaintiff’s failure to provide

evidence of relative wealth “requires” the court to reverse or remit a punitive damage

award is simply incorrect. Although the Tuttles attempt to distinguish the case as

applying only to motions for judgment notwithstanding the verdict based on insufficient

evidence, Hall v. Wal-Mart Stores, Inc., 959 P.2d 109 (Utah 1998) speaks for itself. In

that case the court plainly states: “While evidence of the defendant’s wealth is a relevant

factor in the award of punitive damages, it is not a necessary factor. The plaintiff is not

required to introduce evidence of a defendant’s relative wealth, but would be wise to do

so, as under Crookston I, an award which is presumptively excessive and might otherwise


                                             -34-
be struck down, can be justified by the defendant’s relative wealth.” Id. at 113. The

district court did not abuse its discretion when it upheld the jury’s award of punitive

damages.

       G. Denial of Summary Judgment on Contract and Conversion Claims

       In addition to their claims for fraud and misrepresentation, the Ellsworths brought

claims against William and Charlene Tuttle for breach of contract and conversion. The

Ellsworths claimed that William and Charlene Tuttle improperly collected over $18,000

under the real estate purchase contract for their farm by mischaracterizing mortgage

interest payments as contractually reimbursable expenses incurred in connection with the

1999 crop. They further claimed that William and Charlene Tuttle improperly collected

approximately $14,000 in interest on the outstanding balance of the purchase price of the

farm pursuant to a separate agreement dated June 29, 1999. According to the Ellsworths,

that agreement, if valid, provided that interest would be payable only from the proceeds

of the 1999 hay crop. The Ellsworths contend that the word “proceeds” was understood

to mean “profits” and because there was no profit, no interest payment was due.

       Prior to trial, William and Charlene Tuttle moved for summary judgment on the

contract and conversion claims, asserting that the plain language of both agreements

showed they were entitled to the payment they received. The court denied the motion,

finding that there were genuine issues of material fact concerning both the real estate

purchase contract and the June 29, 1999 agreement. William and Charlene Tuttle appeal


                                            -35-
the denial of their motion, asserting that the facts were not in dispute and that they were

entitled to judgment as a matter of law. As discussed in section B, above, however, “the

denial of a motion for summary judgment is not reviewable on an appeal following the

entry of final judgement after trial where the district court’s decision on the motion was

based on its determination that there were genuine issues of material fact in dispute.”

Stump, 211 F.3d at 532. Having failed to preserve these issues by filing a motion for

judgment as a matter of law pursuant to Rule 50(a)(1), the Tuttles have waived this

ground for appeal.2

       H. Double Recovery

       Over their objection, the district court entered judgment against William and

Charlene Tuttle in the amount of $1,113,840. This total includes four separate damage

awards found in the special verdict form: (1) $805,840 for fraud; (2) $125,000 for

breach of warranty; (3) $11,000 for wrongful conversion; and (4) $14,500 for breach of

contract damages attributable to removal of funds from the 1999 farm operating account

for payment of the additional seven percent interest. Although the Tuttles did not object



       2
        In addition to finding that there were genuinely disputed issues of material fact
regarding the June 29, 1999 agreement, the court further found that the term “proceeds,”
as used in the agreement, was ambiguous and called for the consideration of parol
evidence at trial. The Tuttles are correct that the court’s finding of ambiguity constitutes a
legal conclusion and that they were not required to move for a judgment as a matter of
law to preserve the issue for appeal. However, in light of the jury’s determination that the
June 29, 1999 agreement lacked consideration and was not a valid contract, any question
of ambiguity has been rendered moot.

                                             -36-
to the verdict prior to dismissal of the jury, they later brought a Rule 49 (b) motion for

new trial alleging that the awards were inconsistent. The district court denied the motion,

finding that the jury verdict did not demonstrate any confusion or inconsistency. The

court also found that the Tuttles had waived any claim of inconsistency by failing to

timely object. (Add. G to Brief of Appellants William and Charlene Tuttle.) The Tuttles

subsequently filed a motion for new trial pursuant to Rule 59(e), or in the alternative, to

alter or amend the judgment, arguing that the fraud and breach of warranty awards were

duplicative, as were the conversion and breach of contract awards. The court denied the

motion, noting the great deference due a jury verdict and finding that the jury’s awards

were not outside the range of evidence so as to exceed a reasonable effort to compensate

the Ellsworths for their injury. It determined the Tuttles had not met their heavy burden

of demonstrating that the verdicts were overwhelmingly against the weight of evidence.

(Add. H to Brief of William and Charlene Tuttle, citing Blanke v. Alexander, 152 F.3d

1224, 1236 (10th Cir. 1998).)

       On appeal, the Tuttles argue that the denial of their motion was erroneous. They

request that the judgment be reversed and remanded with instructions to the district court

to reduce the judgment so as to eliminate any double recovery. In reviewing a district

court’s ruling on a motion for new trial, we do not make a determination of the

sufficiency or weight of evidence, rather our review is limited to whether the district

court’s refusal to set aside the verdict was a manifest abuse of discretion. Id. at 1235.


                                             -37-
Thus, the denial of a motion for new trial or remittitur on grounds of excessiveness will

not be disturbed on appeal absent a gross abuse of discretion. United Intern. Holdings,

Inc., 210 F.3d at 1229. Because the question of whether awards are duplicative is one of

fact, we will uphold a trial court’s conclusion that there has been no duplication of

damages unless it has no rational basis in the evidence. See, U.S. Industries, 854 F.2d at

1259 n. 53; see also, Mann v. Reynolds, 46 F.3d 1055, 1062 (10th Cir. 1995).

       As to the alleged duplication of fraud and breach of warranty awards, William and

Charlene Tuttle argue principally that the awards are inconsistent with the Ellsworths’

established theory of damages. Throughout the litigation, the Ellsworths asserted their

measure of damages on both claims to be the difference between the value of the land

with a valid and useable water right, and the value of the land without such a valid and

useable water right. The jury determined that the Ellsworths had bargained for 575.6

more acres of irrigable land than they received. Applying the $1,400 per acre that the

parties stipulated to be the difference in value between land with and without a useable

water right, the jury awarded $805,840 in fraud damages against William and Charlene

Tuttle. Because the jury’s fraud award fully compensated the Ellsworths for the

diminished value of the land, the Tuttles contend that the $125,000 awarded for breach of

warranty must be duplicative of the fraud award. However, the court will not undermine

a jury verdict by speculating as to how an award must have been reached. Mid-West

Underground Storage, Inc. v. Porter, 717 F.2d 493, 501-02 (10th Cir. 1983). Moreover,


                                            -38-
the jury was not constrained to accept the Ellsworths’ theory of damages on the breach of

warranty claim. See, Shugart v. Central Rural Elec. Co-op, 110 F.3d 1501, 1506 (10th

Cir. 1997). As the district court observed in its order denying the motion, “[t]he jury was

instructed to award damages for any injury proximately caused by Defendants’ breach of

warranty and the jury was not limited to the same measure of damages for the fraud and

breach of warranty claims.” (Add. H to Brief of Appellants William and Charlene

Tuttle.)

       On the breach of warranty claim, the jury determined that the diesel irrigation well

could not be used for its intended purpose as warranted. It heard evidence that the well,

with its new motor, cost $100,000 to develop. It also heard evidence that obtaining the

necessary permits to operate the well would entail an expensive contested process that

could cost tens of thousands of dollars. The Ellsworths suggest such evidence could

support the jury’s conclusion that the well itself, apart from the parcel on which it was

drilled, was worth $125,000 as warranted and that the Tuttles’ breach of warranty

therefore damaged the Ellsworths in that amount. It was the Tuttles’ burden to

demonstrate that the value of the diesel well was subsumed in the diminished value of the

land they sold to the Ellsworths. The trial court necessarily determined that burden was

not met, and we cannot conclude that finding was without a rational basis in the evidence

the court considered.




                                            -39-
       As to the asserted duplication of conversion and breach of contract awards, the

Tuttles argue that the jury found they removed only $14,000 from the 1999 farm account

as payment of the seven percent interest purportedly due on the balance of their farm’s

purchase price. It nonetheless awarded $14,500 on the breach of contract claim and

$11,000 for conversion of those same funds. The Tuttles contend this is clear evidence

that the jury’s breach of contract and conversion awards are duplicative. The Ellsworths

maintain there was evidence in the record to support conversion damages relating to

moneys withdrawn by the Tuttles for payment of separate mortgage interest under the real

estate purchase contract. They suggest that the jury’s combined awards for breach of

contract and conversion damages, amounting to $33,000, are consistent with the evidence

establishing that the Tuttles improperly deducted a total of approximately $32,000 from

the 1999 farm account. They also point out that the Tuttles failed to object to the verdict

forms on the basis that they could lead to a double recovery. Furthermore, the Tuttles

stipulated to the conversion instruction given the jury, and they actually proposed the

breach of contract instruction that was used. Neither instruction advised the jury that an

award on one cause of action precluded recovery on the other, and neither instruction

cautioned the jury against duplicative awards. Thus, by way of instructions which the

Tuttles are precluded from challenging on appeal, the jury was thus given broad

discretion in fashioning a remedy.




                                            -40-
       The district court found that, considering all the evidence adduced at trial, the

awards did not exceed a reasonable attempt by the jury to compensate the Ellsworths for

the full extent of their loss. Because there was some reasonable basis in the evidence to

support the jury’s award, we are unwilling to find the district court’s denial of the Tuttles’

motion to alter or amend the judgment to constitutes a gross abuse of its discretion.3 The

court’s denial of the motion was not erroneous.

       I. Attorney Fees

       At the conclusion of the trial, the Ellsworths applied for attorneys’ fees on the

basis that their real estate purchase contract with William and Charlene Tuttle provided

“[i]n the event of litigation . . . to enforce this Contract, the prevailing party shall be

entitled to costs and reasonable attorney fees.” William and Charlene Tuttle objected on

several grounds including the one which underlies this appeal: that the Ellsworths failed

to properly distinguish the fees incurred in proving the contract claims from those

incurred in proving the fraud claims. The district court rejected the Tuttles’ argument. It

found that the Ellsworths, whose counsel had divided contemporaneous billings into

twenty-two separate categories, had indeed “provided sufficient detail of the nature of the

work for the court to conclude that the requested amount of time was expended in an

efficient manner and on the claims related to the [real estate purchase contract].” Aplt.


       3
        While the brief submitted by William and Charlene Tuttle is ambiguous at best
with regard to whether they seek a new trial, we take at face value the representation in
their Reply Brief that they seek only amendment of the judgment.

                                              -41-
App. 3299). The court, therefore, awarded the Ellsworths attorneys’ fees in the amount of

$212,578.75. William and Charlene Tuttle contend the award constitutes an abuse of the

court’s discretion.

       We review an award of attorneys’ fees for abuse of discretion and “will hold the

underlying findings of fact reversible only if they are clearly erroneous.” Mann v.

Reynolds, 46 F.3d at 1062. The district court is in the best position to evaluate the facts at

issue, and its findings will be upheld unless “there is no rational basis in evidence for the

ruling.” Id. at 1062-63. “Where the contracting parties have agreed that a breaching

party will be liable for attorneys’ fees, the purpose of the award is to give the parties the

benefit of that bargain, and the court’s responsibility is to enforce that bargain.” United

States v. Western States Mechanical Contractors, Inc., 834 F.2d 1533, 1548 (10th Cir.

1987). Courts do not possess the same degree of discretion to deny contractual attorneys’

fees as they have when applying a statute providing for a discretionary award. Id. at

1549. Rather, the role of the trial court is to “determine if the claimed fees are inequitable

or unreasonable.” Id.

       In this case, the Ellsworths pursued three causes of action arising out of the real

estate purchase contract: a breach of warranty claim related to the diesel well, and two

breach of contract claims related to expenses and interest improperly paid from the 1999

farm operating account. They were successful on all three claims. The Ellsworths also




                                             -42-
successfully pursued a fraud claim based upon the Tuttles’ misrepresentation of their

farms’ water rights.

       A review of the record shows that the Ellsworths did not seek to recover fees

incurred exclusively in the pursuit of their fraud claim. Their counsel eliminated from the

attorneys’ fee application 481.5 hours of attorney time and 15.25 hours of paralegal/clerk

time because it was primarily attributable to the fraud claim. Although many of the hours

set forth in the application were spent developing facts and evidence which related to

both the fraud and contract claims, the district court found that the claims shared

essentially the same set of core facts. Where fee-bearing and non-fee bearing claims are

based on essentially the same core set of facts, the fact that one of the theories will not

support fee shifting (or is not successfully prosecuted) does not defeat recovery of fees

where the party seeking recovery of fees prevails on the fee-bearing theory. Ramos v.

Lamm, 713 F.2d 546, 556 (10th Cir. 1983). Plaintiffs’ action should not be viewed as a

series of discrete claims. Sinajini v. United States, 233 F.3d 1236, 1243 (10th Cir. 2000).

The court’s focus is on the significance of the overall relief obtained in relation to the

hours reasonably expended on the litigation. Id. (citing Hensley v. Eckerhart, 461 U.S.

424, 435 (1983)).

       William and Charlene Tuttle argue that in this case, the breach of warranty and

fraud claims are substantially distinguishable. They note that the elements of the two

claims differ appreciably, and contend that to recover attorneys’ fees, the Ellsworths were


                                             -43-
required to distinguish between work done that was subject to a fee award and work that

was not. They claim that the only overlapping facts and evidence related specifically to

the diesel irrigation well and the parcels it watered. The Tuttles’ strategy throughout the

trial and appeal of this matter, however, has been to argue that the water rights, including

those appurtenant to the parcels watered by the diesel well, were so ill-defined as to defy

ascertainment short of a separate preliminary administrative or judicial action. Absent

some administrative or judicial declaration of the scope of each certificate of

appropriation, they argued, it was impossible to determine the amount of water to which

any particular parcel was entitled, or the amount of water any particular well was

authorized to produce. This position forced the Ellsworths to develop a detailed analysis

of the historical development of all the water rights pertaining to the farms. Because they

shared a common core of facts, that analysis related to both the breach of warranty and

fraud claims.

       We do not agree with William and Charlene’s assertion that recovery of fees with

respect to overlapping contract and tort claims is permissible only when the underlying

facts are “identical.” Where the facts underlying the fee-bearing claim are essentially

indistinguishable from the facts underlying the non-fee bearing claim, neither allocation

nor denial of a fee recovery is required (although, as we have noted, the Ellsworths’

counsel did eliminate several hundred hours of services which were identifiable as being

primarily attributable to the fraud claim). The district court, having become intimately


                                            -44-
familiar with the facts of this case, determined that the “fraud claim [was] based on

essentially the same set of core facts as the breach of warranty claim,” Aplt. App. 3298,

and was well-satisfied with both the allocation and the billing judgment which was

applied by the Ellsworths’ counsel. Id. Having no basis upon which to conclude that

those determinations were clearly erroneous, we affirm the district court’s award of

attorneys’ fees.

       The judgment of the district court is affirmed.


                                                   Entered for the Court


                                                   Stephen P. Friot
                                                   District Judge




                                            -45-
