ROBERT F. ROSSITER, JR., District Judge.
This matter is before the Court on (1) plaintiff Estate of Joyce Rosamond Petersen's ("estate") Motion to Alter and Obtain Relief from Aspects of Judgment and for New Trial on Certain Issues (Filing No. 291) and (2) defendant William E. Bitters's ("Bitters") Motion for Judgment as a Matter of Law, or in the Alternative, Motion for New Trial (Filing No. 289). The deadline for briefing on these matters has passed and the motions are now ripe for decision. For the reasons stated on the record at trial as supplemented below, the parties' post-trial motions are denied.
In 2006, Joyce Rosamond Petersen ("Petersen"), then a resident of Omaha, Nebraska,
On December 1, 2014, the estate, alleging diversity jurisdiction, filed suit in the United States District Court for the Eastern District of Texas against Bitters, Henry, and Robert W. Boland ("Boland"),
On June 22, 2018, the Court granted in part Bitters's Motion for Summary Judgment (Filing No. 184). Even though the Court had made it clear that the matter was proceeding to trial, the parties were not prepared for the final pretrial conference. Again, the magistrate judge spent days trying to put together an Order on Final Pretrial Conference (Filing No. 234). This Court entered a Supplemental Order on Final Pretrial Conference (Filing No. 243) setting forth the issues to be tried.
At trial, the Court instructed the jury on the estate's claim against Henry for breach of contract and the estate's timely claims against Bitters for fraudulent misrepresentation and breach of fiduciary duty.
Significantly, the estate's expert testified at trial that $356,619.30 was the current value of the unpaid loan under the terms of the promissory note. The jury awarded no other damages.
During the trial, it was discovered that the estate had an undisclosed and disconcerting agreement with Henry (Exhibit 216). That agreement provided for the dismissal of the estate's claim against Henry after trial in exchange for Henry's "truthful" testimony on certain specified topics, with such truthfulness to be determined solely by estate's counsel. Consistent with that agreement, after the Court instructed and submitted the matter to the jury, the estate moved to dismiss the case against Henry. See Fed. R. Civ. P. 41(a)(2). The Court took that motion under advisement, stated its concern about the estate's gamesmanship, and denied the motion after the jury reached its verdict (Filing No. 281).
The estate seeks relief pursuant to Federal Rule of Civil Procedure 59(e), Federal Rule of Civil Procedure 60(a)-(b) and (d), and, alternatively, Rule 59(a). Bitters renews his motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), Nassar v. Jackson, 779 F.3d 547, 551 (8th Cir. 2015), and seeks other relief under Rule 59(a).
A new trial is required under Rule 59(a) "when a miscarriage of justice occurred in the first trial." Larson v. Farmers Coop. Elevator, 211 F.3d 1089, 1095 (8th Cir. 2000). "[A] movant should not use Rule 59 merely to relitigate previously-decided matters." Am. HealthNet, Inc. v. Westside Cmty. Hosp., Inc., No. 8:04CV9, 2006 WL 3063481, *1 (D. Neb. Oct. 24, 2006) (quotation omitted).
"Rule 59(e) motions serve the limited function of correcting `manifest errors of law or fact or to present newly discovered evidence.'" United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (quoting Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs., 141 F.3d 1284, 1286 (8th Cir. 1998)). Such motions are not devices to "introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment." Id. (quoting Innovation Home Health Care, 141 F.3d at 1286). Rule 60(b) and Rule 59(e) motions are analyzed identically, id. at 933 n.3, and will be considered together for this motion.
Under Rule 60(a), "a court may correct a judgment so as to reflect what was understood, intended and agreed upon by the parties and the court." Kocher v. Dow Chem. Co., 132 F.3d 1225, 1229 (8th Cir. 1997) (quoting United States v. Mansion House Ctr. Redev. Co., 855 F.2d 524, 527 (8th Cir. 1988) (per curiam)). Simply put, Rule 60(a) "allows relief from a judgment based on clerical mistakes in the record." Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1538-39 (8th Cir. 1996).
Rule 60(d) permits the Court to set aside judgments for fraud on the Court but relief "is only available where it would be `manifestly unconscionable' to allow the judgment to stand." Superior Seafoods, Inc. v. Tyson Foods, Inc., 620 F.3d 873, 878 (8th Cir. 2010). Fraud on the Court "is narrowly defined as fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury." United States v. Smiley, 553 F.3d 1137, 1144 (8th Cir. 2009).
"A court reviewing a Rule 50(b) motion is limited to consideration of only those grounds advanced in the original, Rule 50(a) motion." Nassar, 779 F.3d at 551. Judgment as a matter of law is appropriate "only when no reasonable juror, taking all reasonable inferences in the light most favorable to the opposing party, could find against the movant." Estate of Snyder v. Julian, 789 F.3d 883, 887 (8th Cir. 2015).
The estate seeks relief under Rules 59 and 60 on the following issues: (1) general and compensatory damages in the judgment; (2) punitive damages and attorney fees under Texas law; and (3) liability for Bitters for negligence, negligent misrepresentation, and breach of contract, and "co-liability" for Bitters and Henry for civil conspiracy. The estate simply reargues issues that have already been decided in this case and attempts to inject issues in the case following the jury's verdict. All of the estate's objections were carefully considered and resolved in this Court's prior rulings on dismissal (Filing No. 121), summary judgment (Filing No. 221), the Order on Final Pretrial Conference and Supplement thereto (Filing Nos. 234 and 243), Rule 50 motion (Filing No. 286), the Jury Instruction Conference (Filing No. 287), and the Memorandum and Order ("Verdict Order") (Filing No. 281).
The estate has not pointed to any newly discovered evidence or manifest errors, clerical mistakes, fraud on the Court, or miscarriage of justice. Instead, it simply rehashes previous arguments. While there appears little reason to revisit these issues, the Court will nonetheless provide a brief discussion in order to remove any doubt that the estate's motion must fail.
Pursuant to Rule 59(e) and Rule 60(b), the estate seeks to alter the amount of damages in the judgment. The estate also moves under Rule 60(b) for the Court to award it damages for pain and suffering, or, alternatively, for the Court to grant a new trial on that issue under Rule 59(a). The requests are denied on all grounds.
The Court carefully considered and explained the damage award in the Verdict Order. The only damages awarded by the jury were the amount of the original note plus interest set forth in the note and that is the only amount sufficiently supported by the evidence in this case.
The estate's request for a more detailed Judgment and Memorandum and Order under Rule 60(a) is baseless. The Judgment (Filing No. 282) entered in this case was clear and thorough and without clerical mistakes.
The estate seeks relief pursuant to Rule 59(e), asking for punitive damages and attorney fees under Texas law. However, Nebraska law—not Texas law—applies in this case.
The estate urges this Court to hold Bitters liable for negligence, negligent misrepresentation, and breach of contract, and to hold Henry and Bitters liable for civil conspiracy despite the fact that the Court did not instruct the jury on those issues. The estate seeks relief under Rule 59(e) or, alternatively, a new trial pursuant to Rule 59(a) and Rule 60(d).
After due consideration, the negligence and breach-of-contract claims against Bitters were dismissed at the Rule 50 hearing. On the negligence claim, the Court echoed its decision on summary judgment, finding that under the facts alleged the claim was duplicative of the breach-of-fiduciary-duty claim, see Renner v. Wurdeman, 434 N.W.2d 536, 542 (Neb. 1989) (affirming a dismissal of a redundant claim on summary judgment), and barred by the applicable statute of limitations, see Neb. Rev. Stat. § 25-207 (creating a four-year statute of limitations for torts). The breach-of-contract claim fails because there was no evidence of a written contract between Petersen and Bitters and any oral-contract claim is barred by the applicable four-year statute of limitations.
The estate's negligent-misrepresentation and civil-conspiracy claims also fail. As the Court has noted in earlier rulings, neither claim was included as controverted issues for trial in the Court's Supplemental Order on Final Pretrial Conference and the estate did not timely object to the exclusion.
Bitters broadly asserts that he is entitled to judgment as a matter of law because the jury verdict against him on liability and damages is against the weight of the evidence, internally inconsistent, and contrary to Nebraska law. Bitters supports this assertion on three bases: (1) the estate's claims are barred by the applicable statute of limitations, (2) the estate failed to adduce evidence establishing any amount of damages attributable to Bitters, and (3) the estate was not a real party in interest for any devaluation of the annuities resulting from the loan to Henry. Bitters falls short on all three points.
Taking the statute of limitations first, Bitters argues that all claims against him are barred by the statute of limitations for professional negligence and the Court erred in denying his pretrial motion for summary judgment and trial motion for judgment as a matter of law on that point. Under Nebraska law, actions for professional negligence are subject to a two-year statute of limitations, see Neb. Rev. Stat. § 25-222, but neither the Nebraska legislature nor Nebraska Supreme Court have "specifically stated which occupations are governed by § 25-222." Parks v. Merill, Lynch, Pierce, Fenner & Smith, Inc., 684 N.W.2d 543, 549-50 (Neb. 2004) (quoting Lawyers Title Ins. Corp. v. Hoffman, 513 N.W.2d 521, 524 (Neb. 1994)).
The Court already carefully considered and twice rejected Bitters's argument on this point concluding the Nebraska Supreme Court would find § 25-222 does not apply if it was presented with this case. Bitters has not presented any new arguments or reasoning, and the Court finds no reason to further revisit its decision on the matter.
Next, Bitters contends the estate failed to adduce evidence establishing any amount of damages attributable to him. Bitters concedes evidence at trial showed damages in the amount of the note plus interest—$356,619.30. But he asserts that amount is only attributable to Henry and not him.
Specifically, Bitters claims the jury verdict is inconsistent and against the weight of the evidence because the damages are based on a theory affirming the note. That is, the damages reflect the amount the estate would have received if the note was enforced. Bitters insists that because the estate elected to enforce the note, no damages can be attributed to him because any theory of recovery against him in the estate's Amended Complaint is grounded in one allegation: he "improperly `advised' Joyce Petersen to withdraw $150,000 in annuities and make a loan to Defendant Henry." The way Bitters sees it, the theory against him is "but for" his advice—or his "fraudulent inducement" as he referred to it at the Rule 50 hearing—Petersen never would have made the loan.
From this perspective, Bitters asserts the only damages attributable to him are the "loss of the value of the $150,000 had it remained in the annuity" and no evidence was offered to quantify that amount. According to Bitters, because the estate elected to enforce the note and seek monetary damages rather than rescind it and seek restitution, any jury verdict imposing liability and damages on him cannot be affirmed as a matter of law.
Bitters's argument is flawed in many ways. First, the Court ruled at the Rule 50 hearing that any claim of fraud against Bitters based on his conduct at the time the note was made was time barred. Likewise, the Court found that any breach of fiduciary duty claim arising from Bitters persuading Petersen to make the loan was barred by the statute of limitations. In other words, the allegation that Bitters "improperly `advised'" Petersen to make the loan in the first place was no longer an issue when the case was submitted to the jury. Accordingly, the jury's determination of attributable damages was not founded on that conduct. Instead, the jury was instructed on the following claims against Bitters:
(1) breach of fiduciary duty for persuading Henry not to repay the note in February 2009 and for lying to Petersen about following up with Henry and (2) fraudulent misrepresentations made in 2011 through 2013 in which Bitters made false statements to Petersen that he would speak to Henry and ensure she would be repaid.
On these claims, there is sufficient evidence of damages attributable to Bitters. Namely, testimony from multiple witnesses established that (1) Henry informed Bitters in February of 2009, when the note was due, he could repay Petersen but would have to cancel his life insurance policy with Bitters, (2) Bitters, without consulting Petersen, advised Henry to extend his life insurance policy rather than repay Petersen's loan, which Bitters asserted could be extended for another year, (3) Bitters urged Petersen not to try to collect from Henry because Henry could declare bankruptcy, and Bitters told Petersen he was following up with Henry and would ensure she would be repaid, (4) after Bitters told Henry not to repay Petersen, Bitters stopped following up with Henry about repaying her, and (5) Petersen was never repaid. From this, a reasonable jury could conclude damages in the amount of the note plus interest were attributable to Bitters, so this basis for Bitters's motion also fails.
Finally, Bitters argues the estate was not a real party in interest with respect to any devaluation of the annuities. Bitters did not raise this argument in his Rule 50 motion at trial, so the Court may not consider it in now. See Nassar, 779 F.3d at 551 (holding the Rule 50(b) analysis must be limited to consideration of only those grounds advanced in the Rule 50(a) motion). Accordingly, Bitters's motion for judgment as a matter of law is denied.
Bitters seeks a new trial because of the following issues: (1) certain evidence at trial was offered only to inflame the passion of the jury; (2) Gaudet's conduct; (3) the jury instructions and verdict form; (4) an "improper `Mary Carter' agreement"; (5) joint and several liability; and (6) Bitters's Amended Answer and Proposed Supplemental Jury Instruction. The Court will address each issue.
Bitters contends he is entitled to a new trial because evidence on the following issues "served no purpose other than to inflame the passion of the jury": (1) testimony by Clarence and Valora Nelson (the "Nelsons"); (2) the estate's use of the phrase "needlessly endanger"; and (3) the estate's expert's testimony about defects in the note and evidence of noneconomic damages. Bitters's assertion that the evidence only served to impassion the jury is unavailing and a new trial is not warranted.
First, Bitters challenges the Nelsons's testimony. The Nelsons were elderly, longterm clients of Bitters, and Bitters arranged for them to loan $200,000 to Henry at or about the same time Bitters arranged for Petersen's $150,000 loan to Henry. Like Petersen's loan, the Nelsons's loan was high-risk, unsecured, and never repaid. The Nelsons testified about their loan to Henry and similar experience with Bitters, but the Court did not permit them to testify about their lawsuit.
Under Federal Rule of Evidence 404(b), evidence of other wrongs or acts is admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Such evidence of other acts is admissible where it is "(1) relevant to a material issue, (2) established by a preponderance of the evidence, (3) more probative than prejudicial, and (4) similar in kind and close in time to the events at issue." Duckworth v. Ford, 83 F.3d 999, 1001 (8th Cir. 1996) (quoting United States v. Hazelett, 32 F.3d 1313, 1319 (8th Cir. 1994)); see also Austin v. Loftsgaarden, 675 F.2d 168, 180 (8th Cir. 1982) (permitting evidence in a fraud case of a prior state-court judgment that the defendant defrauded a party to show intent).
The Nelsons's testimony was admissible under Rule 404(b). The Court allowed the Nelsons's testimony for the limited purpose of showing that around the same time Bitters persuaded Petersen to loan $150,000 to Henry, Bitters made a similar arrangement with the Nelsons. Because Nelsons's experience with Bitters was close in time and similar in circumstance to Petersen's, their testimony was relevant to the claims against Bitters.
Next, Bitters contends the Court erred in allowing the estate to use the phrase "needlessly endanger." The estate used the phrase "needlessly endanger" throughout trial, but not in a way that improperly impassioned the jury. Rather, the Court merely permitted the estate to use the phrase as part of the theme of its case. The Court made clear through repeated oral instructions that only the Court provides the legal standard and "needlessly endanger" was not part of any standard of care in the case. The Court accurately instructed the jury on the law in the final jury instructions which did not include the phrase "needlessly endanger."
The Court also limited the estate's use of the phrase. The Court sustained Bitters's objection to the estate asking a lay witness, Erik Petersen, whether Bitters needlessly endangered Petersen's right to get a safe and reasonable return on an investment, ruling the question called for a legal conclusion from a lay witness. When the estate used the phrase during its direct examination of Bitters, the Court proffered an additional instruction to the jury that neither questions asked by counsel nor witness responses establish legal issues like standard of care. The Court also barred the estate from using the phrase during its direct examination of its expert to avoid misleading the jury by enlarging the phrase's importance.
Bitters's challenge to the estate's expert's testimony regarding facial and substantive defects of the promissory note also falls short. The typographical errors and Bitters's failure to include provisions favorable to Petersen were relevant to several of the estate's claims, including negligence and breach of fiduciary duty.
Finally, Bitters contends the Court erred in allowing testimony about Petersen's suffering and anxiety from the unpaid debt because noneconomic damages are not available on fraudulent-misrepresentation or breach-of-contract claims under Nebraska law. See Tolliver, 771 N.W.2d at 915-16; Shaw v. W. Sugar Co., 497 N.W.2d 686, 691 (Neb. 1992). Noneconomic damages are available for other claims asserted against Bitters, such as negligence, so Bitters's argument fails. See Neb. Rev. Stat. § 25-21,185.08 (defining noneconomic damages available where contributory negligence is a defense); Hoffart v. Hodge, 567 N.W.2d 600, 607 (Neb. 1997) (finding contributory negligence can apply in professional negligence cases). Moreover, after dismissing the negligence claim at the Rule 50 hearing and finding insufficient evidence of damages for pain and suffering, the Court properly instructed the jury on the type of damages available.
Bitters argues Gaudet deprived him of a fair trial by "repeated and contumacious conduct, necessitating repeated objections from [Bitters's] Counsel." In support, Bitters provides a list from (a) to (n) describing Gaudet's conduct which, when considered in conjunction with the number and length of sidebar conferences requested by the estate, Bitters claims justifies a new trial.
The Court enjoys broad discretion in deciding whether to grant a new trial based on counsel's conduct. Blair v. Wills, 420 F.3d 823, 829 (8th Cir. 2005). A new trial is warranted where it has a prejudicial effect that "cannot be overcome by admonishing the jury or rebuking counsel." Id. To determine whether the conduct was prejudicial, the Court considers the totality of the circumstances, including the nature and frequency of the conduct, the way the parties and Court treated the comments, and the strength of the case and verdict itself. See City of Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749, 756 (6th Cir. 1980).
While many of Bitters's complaints about Gaudet's conduct are well-founded, the trial was not unfair. The Court instructed the jury in Instruction Nos. 1 and 4 and during trial that neither objections nor sidebars should be considered when reaching the verdict. Bitters has not persuaded the Court he was materially prejudiced by his large volume of objections when the majority of those objections were sustained. Though Gaudet was argumentative and at times disrespectful, and Gaudet was not a model of skill and effectiveness, the Court finds Gaudet's conduct did not materially affect the jury's verdict. See Peter Kiewit, 624 F.2d at 756 (finding the nature of counsel's conduct informs whether it was prejudicial).
Bitters asserts a new trial is warranted because of purported errors in the jury instructions and verdict form. The Court has "broad discretion in formulating jury instructions." Vaughn v. Ruoff, 304 F.3d 793, 795 (8th Cir. 2002). The instructions, "viewed in the light of the evidence and applicable law, [should] fairly and adequately submit[] the issues in the case to the jury." White v. Honeywell, Inc., 141 F.3d 1270, 1278 (8th Cir. 1998) (quoting Kim v. Nash Finch Co., 123 F.3d 1046, 1057 (8th Cir. 1997)). A new trial is warranted where the improper instructions cause material prejudice. Gray v. Bicknell, 86 F.3d 1472, 1485 (8th Cir. 1996).
Federal Rule of Civil Procedure 51 "requires a specific objection to a jury instruction before the jury retires, otherwise `a litigant waives the right . . . to object to a jury instruction on those grounds.'" May v. Nationstar Mortg., LLC, 852 F.3d 806, 819 (8th Cir. 2017) (quoting Dupre v. Fru-Con Eng'g Inc., 112 F.3d 329, 333 (8th Cir. 1997)). However, "a litigant may move for a new trial under Rule 59 based on the overwhelming evidence contrary to the verdict without ever previously raising such an objection." Pulla v. Amoco Oil Co., 72 F.3d 648, 656 (8th Cir. 1995).
Bitters claims Instruction No. 16 (fraudulent misrepresentation) and Instruction No. 17 (breach of fiduciary duty) were confusing and misleading. Bitters further asserts the Court erred in instructing the jury that Bitters owed Petersen a fiduciary duty as a matter of law. Bitters waived these challenges by failing to make them distinctly on the record before the matter was submitted to the jury. See May, 852 F.3d at 819. Not only were those objections never raised, but Bitters's counsel clearly stated at the jury instruction conference that both instructions accurately reflected Nebraska law and the state of the case. Accordingly, his present challenge is unavailing.
The Court has already dealt with Bitters's remaining challenges. Bitters maintains the Court erred because Instruction Nos. 16 and 17 and the verdict form are based on claims which are not supported by the pleadings or evidence and for which no damages are attributable to Bitters. At the Rule 50 hearing and in the Verdict Order, the Court carefully considered and explained its reasons for finding that both the pleadings and the evidence at trial supported the claims and damages against Bitters. The Court will not revisit those issues now. Bitters also challenges Instruction Nos. 16 and 17 as being based on claims barred by the statute of limitations. The Court has exhaustively dealt with Bitters's position on the applicable statute of limitations both herein and on the record at trial. For those reasons, Bitters's present challenge fails.
Finally, Bitters's argument that the verdict form allowed a duplicative verdict is moot. At the jury-instruction conference, the Court expressed concern that the jury could potentially hold both Henry and Bitters responsible for the full amount of the note plus interest resulting in a double recovery, but Bitters offered no solution. When the verdict was returned, the Court determined the estate could not recover the full amount of its damages from both Bitters and Henry. See Walker v. Probant, 902 N.W.2d 468, 482 (Neb. Ct. App. 2017) (holding that a party is not allowed double recovery from multiple defendants for the same claim). Accordingly, the Court held Bitters and Henry jointly and severally liable for the estate's losses. In other words, the Court has already remedied the duplicative verdict such that the Court believes no prejudice demands further relief.
Bitters argues the Court erred in denying his motion for mistrial based on an agreement between the estate and Henry. After the jury was empaneled and Henry had exercised his peremptory strikes, the Court and Bitters discovered an undisclosed agreement between the estate and Henry. In the agreement, the estate agreed to dismiss its claims against Henry after trial in exchange for $1.00 and his "truthful" testimony on specified topics with the estate's counsel alone judging the "truthfulness." Bitters moved for a mistrial arguing he was prejudiced by Henry's exercise of peremptory strikes because Henry was a "nominal defendant" rather than a true adversary of the estate. The Court denied Bitters's motion for mistrial but allowed the agreement to be entered into evidence, shown to the jury, and used to cross-examine witnesses.
According to Bitters, the agreement was a "Mary Carter" agreement and a new trial is warranted because Henry's exercise of peremptory strikes irreversibly prejudiced him. "Mary Carter" agreements draw their name from Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla. Dist. Ct. App. 1967), which involved a settlement agreement allying a plaintiff and two defendants against another defendant at trial. Pursuant to the agreement, a ceiling was placed on the settling defendants' maximum liability, contingent on the plaintiff securing a favorable verdict against the non-settling defendant. Id. at 10. The Eighth Circuit has explained,
Robertson v. White, 81 F.3d 752, 754 n.1 (8th Cir. 1996) (internal citations omitted).
Whether the agreement in this case really was a "Mary Carter" agreement, the agreement caused no prejudice. The Court discovered the agreement early in the trial and does not believe Henry's exercise of peremptory strikes demands a new trial. Whether Henry was truly an adversary of the estate, he was still a party and the Court acted in its discretion in allowing him peremptory challenges. See 28 U.S.C. § 1870 ("[E]ach party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.") (Emphasis added).
Even if Henry should not have been allowed to exercise peremptory strikes, Bitters failed to meet his burden of showing he was materially prejudiced. Bitters has not explained how the composition of the jury would have been different if Henry was not allotted peremptory strikes or shown the empaneled jury was prejudicial in any way. See, e.g., Carter v. Tom's Truck Repair, Inc., 857 S.W.2d 172, 177-78 (Mo. 1993) (concluding that allowing the settling defendant of a Mary Carter agreement to exercise peremptory strikes was not shown to have been prejudicial).
The more-plausible risk in this case came not from Henry's exercise of peremptory strikes, but from the agreement's potential to mislead the jury. If the agreement was not disclosed, the Court and the jury would have been left with a false impression about Henry's relationship with the estate and uninformed of his potential bias. The Court addressed the risk of that prejudice by admitting the agreement into evidence and allowing Bitters to cross-examine witnesses about its contents without limitation. The Court finds its precautions guarded against a miscarriage of justice and a new trial is not warranted.
Bitters asserts he is entitled to a new trial because the Court erred in finding him and Henry jointly and severally liable for the estate's damages. Nebraska law is clear "a party may not have double recovery for a single injury," Tolliver, 771 N.W.2d at 917, and that "[w]here two causes produce a single indivisible injury, joint and several liability attaches," Shipler v. Gen. Motors. Corp, 710 N.W.2d 807, 843 (Neb. 2006). The jury found Bitters liable for fraudulent misrepresentation and breach of fiduciary duty and found Henry liable for breach of contract. The jury calculated the estate's damages to be $356.619.30 as to both. The Court held the estate could not receive double the amount of its damages and held Bitters and Henry jointly and severally liable to the estate for $356,619.30.
Bitters argues this "attempt[] to correct" the verdict amount was improper because joint and several liability cannot be imposed with a defendant found liable for breach of contract. Moreover, Bitters contends joint and several liability is improper where the jury was not instructed on and did not find the existence of a joint or common enterprise. Under Nebraska law, joint and several liability may be imposed where "an act [is] wrongfully done . . . contemporaneously by [several persons] without concert." Tadros v. City of Omaha, 735 N.W.2d 377, 380 (Neb. 2007). Here, the jury found both Bitters and Henry were responsible for the estate's losses, and their respective wrongful acts leading to those losses were contemporaneous.
The Court gave Bitters opportunities prior to submitting the case to the jury to present an alternative solution for the possibility of a double recovery verdict. Bitters proposed no alternative either before or after the Court's "attempt[] to correct" the double recovery, and the Court finds its solution is entirely consistent with Nebraska law. See Lindsay Mfg. Co. v. Harford Accident & Indem. Co., 118 F.3d 1263, 1267-68 (8th Cir. 1997). Nebraska law anticipates joint and several liability primarily in tort rather than contract, but in its Verdict Order, the Court already acknowledged and considered the nature of the remaining claim against Henry and predicted that the Nebraska Supreme Court would apply joint and several liability in these circumstances. See id. In this new request for relief, Bitters has not mentioned anything the Court did not already consider in its previous order, so the Court finds no reason to change its decision now.
Bitters seeks a new trial because "the Court erred in denying [his] Motion for Leave to File Amended Answer [(Filing No. 267]) and Proposed [Supplemental] Jury Instruction [(Filing No. 268)] regarding Plaintiff's failure to mitigate." Bitters sought to amend his answer to include a defense for failure to mitigate damages based on the estate's agreement with Henry and to instruct the jury on the same. Both motions were made after the case was submitted to the jury. Bitters is not entitled to relief.
The defense of failure to mitigate damages is an affirmative defense under Nebraska law, see Hammond v. Streeter, 406 N.W.2d 633 (Neb. 1987), and under Federal Rule of Civil Procedure 8(c), the "failure to plead an affirmative defense results in a waiver of that defense," First Union Nat'l Bank v. Pictet Overseas Tr. Corp., 477 F.3d 616, 622 (8th Cir. 2007). Unless the "affirmative defense is raised in the trial court in a manner that does not result in unfair surprise," failure to comply with Rule 8(c) is fatal. Id. Here, Bitters did not raise his affirmative defense until after the case was submitted to the jury, so it was waived. Id.
Bitters also asserts he should have been allowed to amend his pleadings pursuant to Federal Rule of Civil Procedure 15(b)(2). That rule provides, "[w]hen an issue is not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if it is raised in the pleadings." For amendment to be proper under Rule 15(b), the claims must have been validly expressly or impliedly consented to. Where a party objects to the inclusion of the claims, there is no valid consent. Culpepper v. Vilsack, 664 F.3d 252, 259 (8th Cir. 2011). Here, the estate did not consent to the issue of failure to mitigate damages being tried in the case. To the contrary, the estate repeatedly objected to any mention of its agreement with Henry during trial. Accordingly, Bitters was not entitled to amend at the last minute.
Because Bitters's motion for leave to amend his pleadings was denied, it follows that denial of his supplemental jury instruction on the same issue was warranted. See Black, Sivalls & Bryson v. Shondell, 174 F.2d 587, 592 (8th Cir. 1949) (affirming the trial court's refusal to instruct the jury on an issue not tendered by the pleadings). It is within the Court's discretion to deny jury-instruction requests, especially where untimely. See Ivy v. Sec. Barge Lines, 585 F.2d 732, 740 (5th Cir. 1978) (affirming that it was not in error for the trial judge to refuse to deliver an instruction made only after the jury had been instructed). Therefore, Bitters is not entitled to a new trial on these grounds.
For the reasons stated on the record at trial as supplemented above, the parties' posttrial motions are denied. Accordingly,
IT IS ORDERED: