Buck's, Inc. v. QuikTrip Corporation

Filing 75

ORDER granting in part and denying in part 38 Motion in Limine; denying 57 Motion in Limine; granting in part and denying in part 60 Motion in Limine. Ordered by Judge John M. Gerrard. (DCD)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BUCK'S, INC., A NEBRASKA
CORPORATION,
8:15-CV-340
Plaintiff and
Counterclaim
Defendant,
vs.

ORDER

QUIKTRIP CORPORATION, AN
OKLAHOMA CORPORATION,
Defendant and
Counterclaimant.
This matter is before the Court on QuikTrip's Motion in Limine (filing
38), QuikTrip's Second Motion in Limine (filing 57), and Buck's Motion in
Limine (filing 60). QuikTrip's first motion and Buck's motion will be granted
in part and denied in part, and QuikTrip's second motion will be denied.
QUIKTRIP'S MOTION IN LIMINE
QuikTrip's first motion in limine (filing 38) raises several issues. The
Court will address them separately.
1. COMMUNICATIONS BETWEEN TRIAL COUNSEL AND QUIKTRIP
QuikTrip's first argument is that communications between itself and
its trial counsel should be excluded. Filing 39 at 2. QuikTrip concedes that in
proffering an advice of counsel defense, it has waived attorney-client privilege
with respect to communications between itself and the outside counsel from
whom it sought an opinion regarding sale of the property and the filing of its
notice of equitable interest. See filing 38 at 2. The Court understands Buck's
to agree that communications with respect to this lawsuit between QuikTrip
and its trial counsel, Kutak Rock, are privileged. Filing 50 at 1. Accordingly,
the Court will sustain QuikTrip's motion in limine with respect to
communication between QuikTrip and Kutak Rock.1
The Court notes that Buck's response brief does conclude that "to the extent the instant
motion seeks to prevent inquiry into discussions between Kutak Rock and QuikTrip prior to
1

2. COMMUNICATIONS BETWEEN COUNSEL FOR QUIKTRIP AND FOR SELLER
Next, QuikTrip asserts that any communications between Kutak Rock
and counsel for the seller sent after the filing of QuikTrip's notice of equitable
interest should be excluded. Filing 39 at 4-6. QuikTrip argues that the
evidence is irrelevant, unduly prejudicial, and an offer of compromise that
should be excluded under Fed. R. Evid. 408.
The evidence at issue is a sequence of emails between QuikTrip's
counsel at Kutak Rock and counsel representing the seller. Filing 40-5; filing
40-6. Counsel for the seller represented the seller's position that the parties
did not, at that time, have a contract for sale of the property, and that the
seller would file suit based on slander of title if QuikTrip did not withdraw its
notice of equitable interest. Filing 40-5 at 1. The next day, counsel for
QuikTrip emailed counsel for the seller providing counsel for the seller with
contact information if counsel for the seller was "able to give [counsel for
QuikTrip] the number today[.]" Filing 40-6 at 2. The Court infers that this
email was a follow-up to some other communication, and that "the number"
would be the price at which the seller was willing to sell the property to
QuikTrip. Counsel for the seller replied with a price of $2.6 million for the
entire 4-acre property. Filing 40-6 at 1-2. Counsel for QuikTrip replied back
with QuikTrip's acceptance, adding, "[o]f course this makes the suit for
slander of title moot, but we will need to formalize the release of that claim
and dismissal if suit was indeed filed." Filing 40-6 at 1. Counsel for the seller
replied and, in part, agreed that the slander of title suit was moot and that
its "release/dismissal" could be handled as part of the deal. Filing 40-6 at 1.
QuikTrip's first argument is that the communications are irrelevant,
because they took place well after QuikTrip filed its notice of equitable
interest. "Buck's has based its entire claim around QuikTrip filing a Notice of
Equitable Interest on December 30, 2014[,]" QuikTrip contends, "and this
date should accordingly serve as a clear line for excluding irrelevant
evidence." Filing 39 at 4. The Court disagrees. While the notice of equitable
interest is certainly a linchpin of Buck's theory of the case, it was QuikTrip's
eventual purchase of the property that served to finally frustrate Buck's
ambition to acquire the property for itself. The negotiations leading to that
purchase are clearly relevant to Buck's case.

the filing of the lawsuit it should be denied." Filing 50 at 2. Based on the context of that
statement, the Court suspects it may have been a scrivener's error. But regardless, based
on the arguments presented at the hearing on the parties' motions in limine, the Court does
not understand Buck's to be pressing that position. Nor is the Court aware of any authority
for the proposition that attorney-client communications are unprivileged because they
occurred before litigation had commenced.

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Next, QuikTrip argues that even if relevant, the evidence should be
excluded pursuant to Fed. R. Evid. 403. But before discussing Rule 403, the
Court will turn to Rule 408, because the arguments are related. Rule 408
provides that
Evidence of the following is not admissible—on behalf of any
party—either to prove or disprove the validity or amount of a
disputed claim or to impeach by a prior inconsistent statement or
a contradiction:
(1) furnishing, promising, or offering—or
accepting, promising to accept, or offering to
accept—a valuable consideration in compromising
or attempting to compromise the claim; and
(2) conduct or a statement made during
compromise negotiations about the claim—except
when offered in a criminal case and when the
negotiations related to a claim by a public office in
the exercise of its regulatory, investigative, or
enforcement authority.
Rule 408(a). But, such evidence may be admitted "for another purpose, such
as proving a witness's bias or prejudice, negating a contention of undue delay,
or proving an effort to obstruct a criminal investigation or prosecution." Rule
408(b). QuikTrip contends that the communications at issue were aimed at
settling litigation over the contested property, and would be offered to show
QuikTrip's liability. Filing 39 at 6.
But the Eighth Circuit has taken a narrow view of Rule 408, finding it
inapplicable to evidence of compromises or offers to compromise claims by
third parties. Dahlgren v. First Nat. Bank of Holdrege, 533 F.3d 681, 699-700
(8th Cir. 2008) (citing Vulcan Hart Corp. v. NLRB, 718 F.2d 269, 276-77 (8th
Cir. 1983)). In other words, "Rule 408 does not require the exclusion of
evidence regarding the settlement of a claim different from the one
litigated[.]" Id. (quoting Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 770
(10th Cir. 1997)). And here, the "claim" that QuikTrip says was being
compromised was the seller's claim, not Buck's.2

For that matter, it is not at all clear to the Court that the statements at issue were offers
to compromise even the underlying notice of equitable interest/slander of title dispute.
QuikTrip and the seller were negotiating before the notice of equitable interest was filed.
The filing of the notice of equitable interest, and the slander of title suit, are really
subordinate to the preexisting negotiation for sale of the property, not the other way
2

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The Eighth Circuit also said, however, that "[a]s Judge Learned Hand
explained years ago, the admission of evidence that a defendant settled a
claim with a third party arising out of the same set of operative facts carries
the inherent risk that 'such a concession of liability is almost sure to be taken
as an admission of fault.'" Id. at 699 (quoting Paster v. Pennsylvania R.R., 43
F.2d 908, 911 (2d Cir. 1930)). "For that reason," the Court of Appeals
explained, "even the circuits that construe Rule 408 narrowly view evidence
of third party settlements skeptically." Id. Accordingly, even if evidence of a
third-party settlement is not barred by Rule 408, "admission of such evidence
may nonetheless implicate the same concerns of prejudice and deterrence of
settlements which underlie Rule 408." Id. at 700 (quotation omitted).
It is with those concerns in mind that the Court turns to Rule 403,
under which the Court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence. QuikTrip argues that
The emails reference a lawsuit filed by the [seller] which has no
bearing on the ultimate issues in this case. This creates a
substantial likelihood that the jury will confuse the pending
action with the lawsuit referenced in the emails or assign some
unfair prejudice to QuikTrip. Moreover, the content of the emails
themselves are needlessly cumulative as they repeat positions of
QuikTrip’s opinion counsel, Michael White, embodied in other
documents.
Filing 39 at 5. The Court disagrees. While the Court recognizes some
possibility of confusion, the Court finds it to be remote and, for that matter,
unavoidable: the legal wrangling between QuikTrip and the seller is integral
to Buck's case, and Buck's has a right to present that case. Because the
communications took place during QuikTrip's allegedly tortious course of
conduct, they are not cumulative. And the seller's lawsuit, in fact, has
substantial bearing on the ultimate issues in this case, because it cuts
against QuikTrip's contention that both QuikTrip and the seller believed the
November 26, 2014, contract was enforceable.
QuikTrip argues strenuously that the November 26, 2014 contract was
enforceable because the parties to that contract—that is, QuikTrip and the
seller—now apparently agree (and will testify) that they believed it was. But
the jury is free to accept or reject that testimony. There is also evidence that
around. In other words, the primary objective of the negotiations was always sale of the
property, not settlement of any other legal claims.

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at the time—as reflected in the disputed evidence—both QuikTrip and the
seller were acting in a way that was inconsistent with belief in an alreadybinding agreement. Perhaps the jury will believe QuikTrip's argument that
QuikTrip and the seller were simply engaged in hard bargaining. But that is
a credibility determination for the jury to make. And they will make it with
the benefit of Buck's evidence of their negotiations. QuikTrip's motion in
limine will be denied on this point.
3. COMMUNICATIONS BETWEEN STEVE BUCHANAN AND ROBERT MURRAY
QuikTrip seeks to exclude evidence of a conversation involving
Buchanan, James Murphy, and Robert Murphy "wherein Robert Murray is
alleged to have told Steve Buchanan that Murray Fields Sapp would have
sold the property in question to Buck’s but for QuikTrip’s equitable interest
in the property." Filing 39 at 6. QuikTrip argues that Robert Murray's out-ofcourt statement is excluded by the rule against hearsay. The Court agrees.
Buck's offers several arguments in response. First, Buck's contends,
"[t]he underlying truth of the matter asserted—that the Seller would have
sold the Property to Buck's but for the Lien—is a fact proven by Jim Murray."
Filing 50 at 6. Perhaps so, but the way to prove it is for Jim Murray—or
Robert Murray, for that matter—to testify to that fact at trial. Nothing
precludes Buck's from calling them as witnesses and asking whether the
property would have been sold to Buck's absent QuikTrip's notice of equitable
interest. But those would be in-court statements, not out-of-court hearsay.
Buck's also contends that the statements "are not hearsay because they
are not being offered to prove the truth of the matter asserted . . . but to show
the impact of such statements on both Jim Murray and Steve Buchanan."
Filing 50 at 6. But it is not at all clear how the effect of the statements on Jim
Murray and Steve Buchanan is relevant. Why Jim Murray and Steve
Buchanan continued to negotiate for sale of the property is not at issue.
Simply put, the only relevant purpose for introducing evidence of Bob
Murray's alleged statement is for the truth of the matter asserted. 3
Accordingly, QuikTrip's motion in limine will be granted on this point.
4. EVIDENCE OF LOST PROFITS
Next, QuikTrip contends that Buck's should be precluded from
presenting evidence of lost profits, for two reasons: first, Steve Buchanan

At this point. The use of such remarks for impeachment purposes, if the testimony at trial
is contrary to them, is a matter the Court cannot address at this time.
3

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lacks foundation to testify on that issue, and second, such damages would be
speculative or conjectural.4 Filing 39 at 7-14.
But the parties have presented the Court with drastically different
descriptions of what they expect Steve Buchanan to testify at trial. Compare
filing 39 at 7-10 with filing 50 at 7-9. Accordingly, the Court will deny
QuikTrip's motion in limine, without prejudice to an appropriate
foundational objection at trial.
The Court is also well aware that under Nebraska law, a plaintiff's
evidence of damages may not be speculative or conjectural and must provide
a reasonably certain basis for calculating damages: the general rule is that
uncertainty as to the fact of whether damages were sustained at all is fatal to
recovery, but uncertainty as to the amount is not if the evidence furnishes a
reasonably certain factual basis for computation of the probable loss. Pribil v.
Koinzan, 665 N.W.2d 567, 572 (Neb. 2003). The initial question of law for the
Court is whether the evidence of damages provides a basis for determining
damages with reasonable certainty, i.e., the evidence of damages is not
speculative or conjectural. Id. at 573. If the evidence does provide such a
basis, the issue of damages can be submitted to the jury. Id.
The Court will determine at trial whether there is enough evidence of
damages to warrant submission to the jury. How to instruct the jury on
damages—specifically, what measure of damages will be warranted by the
evidence presented at trial—is a matter for later determination.
5. TESTIMONY REGARDING QUIKTRIP'S MOTIVES
QuikTrip asks the Court to exclude "any testimony, evidence,
documents, records or argument related to QuikTrip’s state of mind or intent
in filing a Notice of Equitable Interest which does not come from an agent or
employee of QuikTrip." Filing 39 at 14. The Court will deny that request.
Whether any particular witness has sufficient foundation to testify as to what
QuikTrip may have intended is a separate question, which can only be
answered based on the evidence at trial. The motion in limine will be denied
on this matter.
QUIKTRIP'S SECOND MOTION IN LIMINE
QuikTrip's second motion in limine (filing 57) seeks to preclude any
evidence or argument from Buck's that the December 1, 2014 proposal was a
"counteroffer." In a similar vein, Buck's motion in limine (filing 60) asks the

At the hearing on its motion, QuikTrip withdrew its Rule 403 argument with respect to
this evidence. See filing 39 at 11-12.
4

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Court to preclude QuikTrip from referring to any document before February
17, 2015 as a "contract." Filing 61 at 1.
The Court will deny both requests, for two reasons. One is pragmatic: it
is hard to imagine what words the witnesses would be expected to use to
describe the documents at issue, if not words like "offer," "counteroffer," and
"contract." The circumlocutions that would be required, and the witnesses'
inevitable slip-ups, would cause more confusion and prejudice than simply
allowing each witness to say what they mean, and letting the parties argue
about what conclusions are properly drawn from the evidence. The parties'
underlying disagreement about the validity of the November 26, 2014
contract is obviously a key point they are disputing, and it is better for them
to dispute it clearly, in the open.
The second reason for denying both parties' requests is legal: in the
Court's view, the validity or invalidity of the November 26, 2014 contract is
relevant to, but not dispositive of, the plaintiff's claim. Whether QuikTrip
could reasonably have believed in the enforceability of the contract—and,
therefore, whether its notice of equitable interest was legitimate—is relevant
to whether filing of the notice of equitable interest was justified. Whether the
contract was actually enforceable may be relevant to that determination, but
the actual, legal enforceability of the contract is not before the Court.
In other words, QuikTrip is free to argue that the contract was valid, or
that its belief that the contract was valid was reasonable. Buck's can argue
that it was not. And the Court will provide the jury with instructions to help
it consider those issues. But no one is seeking to enforce or escape the
November 26, 2014 agreement, so the Court has no reason to make a legal
determination about its enforceability. The Court will not preclude either
side's witnesses from testifying about their view of the legal rights and
obligations of the parties during their negotiations with the seller, or from
using the vocabulary they believe is appropriate to describe the source of
those rights and obligations. If an appropriate limiting instruction is
proposed, or requested, the Court will consider that matter at trial.
QuikTrip's second motion in limine (filing 57) will be denied.
BUCK'S MOTION IN LIMINE
Finally, Buck's motion in limine (filing 60) raises two issues. The first—
use of the word "contract" and other such terms—has been addressed above,
and Buck's motion in that regard will be denied. The second is that Buck's
seeks to preclude evidence relating to QuikTrip's attorney fees. The Court
will grant Buck's motion in that regard: there is no argument that QuikTrip's
attorney fees are somehow relevant to an issue to be determined by the jury.

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Any claim for attorney fees, and supporting evidence, can be presented to the
Court in an appropriate post-trial motion.
IT IS ORDERED:
1.

QuikTrip's Motion in Limine (filing 38) is granted in part
and denied in part, as set forth above.

2.

QuikTrip's Second Motion in Limine (filing 57) is denied.

3.

Buck's Motion in Limine (filing 60) is granted in part and
denied in part, as set forth above.

Dated this 19th day of January, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge

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