Kaltreider v. Simmons
Filing
217
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 9/15/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
KARL KALTREIDER,
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Plaintiff,
v.
S. GUERRY SIMMONS,
Defendant.
Case No. 3:12-cv-450
Judge Aleta A. Trauger
Magistrate Judge Griffin
MEMORANDUM
On February 12, 2015, following a jury trial, the jury entered a verdict for plaintiff Karl
Kaltreider, finding that he was entitled to payment of $230,666.54 from defendant S. Guerry
Simmons for breach of contract. (Docket No. 189.) The defendant has filed a Motion for
Judgment as a Matter of Law under Rule 50(b) (Docket No. 198) and a Motion for New Trial
(Docket No. 200), to which the plaintiff filed a combined Response in opposition (Docket No.
210), and the defendant filed a combined Reply (Docket No. 214). For the reasons stated herein,
both motions will be denied, although the court will reduce the jury’s award by $2,235 to
account for one disallowed expense item.
BACKGROUND
This case concerns an alleged oral contract between the pro se plaintiff, Karl Kaltreider,
and the defendant, S. Guerry Simmons. In his Amended Complaint, Kaltreider alleged that he
and Simmons entered into an agreement in 1994 for the exploitation of formulas developed by
Kaltreider for picking publicly traded stocks, that Simmons breached the agreement, and that
Simmons owed Kaltreider money as a consequence. Kaltreider claimed damages from March
2008 forward, at which point Simmons ceased paying Kaltreider under the alleged contract.
1
The case was tried to a jury in February 2015. Five witnesses testified at the trial,
including Kaltreider, Simmons, Cindy Johnson, Chuck Webb, and Weaver Barksdale.1 The jury
rendered a verdict for Kaltreider and awarded him $230,666.54. (Docket No. 188 (sealed).)
The defendant has filed two post-trial motions, which collectively ask the court to reverse
the jury’s verdict or, in the alternative, to vacate the verdict and order a new trial. In support of
both motions, the defendant argues that the evidence does not justify a verdict for Kaltreider. In
support of the Motion for New Trial, the defendant additionally argues that the court should
declare a mistrial because the trial court treated the defendant unfairly, abandoned its neutral
judicial role by advocating for the plaintiff, refused to issue a crucial jury instruction, and made
erroneous evidentiary rulings.
LEGAL STANDARDS FOR RULE 50(B) AND RULE 59(A) MOTIONS
Under Rule 50(b), the court may grant judgment notwithstanding the jury’s verdict if,
“viewing the evidence in the light most favorable to the non-moving party, there is no genuine
issue of material fact for the jury, and reasonable minds could come to but one conclusion, in
favor of the moving party.” Gray v. Toshiba Am. Consumer Prods, Inc., 263 F.3d 595, 598 (6th
Cir. 2001). In ruling on the motion, the district court may not reweigh the evidence or assess the
credibility of witnesses. Id. at 600. Under Fed. R. Civ. P. 50(a), a motion for judgment as a
matter of law must “specify the judgment sought and the law and facts on which the moving
party is entitled to the judgment.” See Kusens v. Pascal Co., Inc., 448 F.3d 349, 361 (6th Cir.
2006). A post-trial motion for judgment under Rule 50(b) may not advance additional grounds
1
Kaltreider called Simmons in Kaltreider’s case-in-chief. Simmons also testified as part of his
own case-in-chief. Kaltreider testified in his own case-in-chief and on rebuttal. Simmons’
counsel cross-examined Kaltreider on rebuttal.
2
that were not raised in the pre-verdict motion under Rule 50(a). Id. However, in stating the
grounds in the required pre-verdict motion, technical precision is not necessary. Id.
“Accordingly, where Rule 50(a)’s purpose—i.e., providing notice to the court and opposing
counsel of any deficiencies in the opposing party’s case prior to sending it to the jury—has been
met, courts usually take a liberal view of what constitutes a pre-verdict motion sufficient to
support a post-verdict motion. Id.
Under Rule 59(a)(1), the court “may, on motion, grant a new trial on all or some of the
issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an
action at law or in federal court.” The Sixth Circuit has determined that new trials under this rule
should be granted only when a jury has reached a seriously erroneous result as evidenced by: (1)
the verdict being against the weight of the evidence; (2) the damages being excessive; or (3) the
trial being unfair to the moving party in some fashion, i.e., the proceedings being influenced by
prejudice or bias. Mitchell v. Boeicke, 440 F.3d 300, 303 (6th Cir. 2006) (internal quotation
marks omitted). The burden of demonstrating the necessity of a new trial is on the moving party,
and the ultimate decision whether to grant such relief is a matter vested within the sound
discretion of the district court. When a party requests a new trial on the ground that the verdict is
against the weight of the evidence, the verdict must be upheld “if it is one the jury reasonably
could have reached; [the court] cannot set it aside simply because [the court] think[s] another
result more justified.” E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1066 (6th Cir. 2015)
(internal quotation omitted).2
2
Also, “[a]n erroneous evidentiary ruling amounts to reversible error, justifying a new trial, only
if it was not harmless; that is, only if it affected the outcome of the trial.” Decker v. GE
Healthcare Inc., 770 F.3d 378, 391 (6th Cir. 2014). Similarly, a district court’s refusal to give a
jury instruction constitutes reversible error only if (1) the omitted instruction is a correct
3
ANALYSIS
I. Rule 50(b) Arguments
In his Rule 50(b) motion, Simmons argues that judgment should enter in his favor
because (1) the evidence established lack of mutual assent or established that the contract terms
were indefinite and therefore unenforceable,3 (2) the contract terms are contrary to public policy,
(3) Kaltreider did not present proof adequate to sustain the jury’s award, which therefore must be
have been the result of prejudice, passion, or sympathy for Kaltreider, (4) Kaltreider has unclean
hands, and (5) the Statute of Frauds prevents the contract from being enforced.
A. Weight of the Evidence
Kaltreider testified that he and Simmons entered into an oral agreement in the summer of
1994, while Simmons was visiting Kaltreider’s residence in Tellico Plains, Tennessee.4 In his
version of events, Simmons made an offer to Kaltreider to exploit the formulas and split the
profits “50/50,” but Kaltreider rejected the offer in favor of a deal more favorable to Simmons.
(Docket No. 193, February 11, 2015 Trial Transcript (Day 2) (hereinafter, “Tr. II”), at 188:17189:2.) According to Kaltreider, the parties orally agreed to the following terms: (1) Simmons
statement of the law, (2) the instruction is not substantially covered by other delivered charges,
and (3) the failure to give the instruction impairs the requesting party’s theory of the case.
Taylor v. TECO Barge Line, Inc., 517 F.3d 372, 387 (6th Cir. 2008).
3
Simmons also argues that Kaltreider failed to meet his burden of proof to show that a contract
existed. That argument is largely redundant of the specific arguments relating to liability and
damages.
4
(See February 10, 2015 Trial Transcript (Day 1) (hereinafter “Tr. I”), at 33:18-21; Tr. 34:738:13 (discussing specific terms that “we talked about on my front porch”); 43:8-9 (“We agreed
upon that. We shook hands as honorable men.”); 44:16-17 (“I made the contract, we shook
hands, we agreed to it.”); 124:11-16 (“Mr. Simmons came over to my house outside Tellico
Plains in the woods in late summer, early fall of 1994[.]”).)
4
exclusively would utilize Kaltreider’s formulas for picking stocks and would not disclose them
to anyone else; (2) Simmons would utilize Kaltreider as a reference for the formulas, (3)
Simmons would have unfettered access to Kaltreider’s records concerning the formulas, (4)
Simmons would run the day-to-day business (soliciting clients, setting up the necessary
computer systems, etc.), (5) Kaltreider would retain business from one particular pre-existing
client, (6) Simmons would receive 90% (and Kaltreider 10%) of the first $50,000 of gross
income from exploitation of the formulas, (7) Simmons would receive 75% (and Kaltreider 25%)
of all gross income thereafter, (8) the 90/10 and 75/25 splits would apply to money generated by
either party for asset management or sales of research related to the formulas, and (9) Simmons
could improve the formulas and implement the improved formulas, provided that Simmons
conducted five years of “back testing” and either consulted with Kaltreider before doing so or
consulted with Kaltreider if any problems arose in applying the formulas. (See Tr. I at 34:1-39:8;
40:11-41:22; 43:1-9; Tr. II at 188:17-189:7.) Kaltreider also testified that Simmons was
obligated to keep Kaltreider up to date concerning the state of the formulas and any adjustments
that Simmons had made to them. (Tr. I at 40:11-41:21; 43:1-4.) Through March 2008, Simmons
paid Kaltreider in installments that collectively totaled $662,000.5
In his testimony, Simmons acknowledged that he met with Kaltreider in Tellico Plains in
1994, that they shook hands, and that they entered into some type of agreement. (Tr. II at 109:5110:15.) However, Simmons testified that he rejected an offer to partner with Kaltreider and that
5
(See Tr. I. at 44:16-19 (“I was paid $662,000 over about 10 years.”) and 129:7-9 (“Q: Mr.
Simmons has paid you over $650,000, correct? A: 662,000.”); Tr. II at 193:23-194:1 (“Mr.
Simmons paid me our agreed-upon percentage. I, as a partner, supplied the knowledge and the
ability for us to have a company. He supplied the salesmanship and computer skills.”); see also
Plaintiffs Exhibit (“Pltf. Ex.”) 15 (W-2 Forms from Simmons’ employer, 2003 to Q1 2008).)
5
Simmons only agreed to retain Kaltreider as an occasional consultant and to have access to
Kaltreider’s work in the future, for which Simmons would pay Kaltreider an agreed-upon
percentage based on Simmons’ exploitation of the formulas.6 Kaltreider denied that Simmons
had hired him only as a consultant. (Tr. I at 127:3 (“I was not a consultant.”); 109:8 (“He never
asked me to be a consultant.”).)
“An oral agreement is enforceable, but the party seeking to enforce it must prove (1)
mutual assent to the contract’s terms and (2) that the terms are sufficiently definite to be
enforceable.” Davidson v. Holtzman, 47 S.W.3d 445, 453 (Tenn. Ct. App. 2001). “The terms of
a contract are reasonably certain if they provide a basis for determining the existence of a breach
and for giving an appropriate remedy.” Davidson, 47 S.W. 3d at 453 (quoting Jamestowne on
Signal, Inc. v. First Fed. Sav. & Loan Ass’n, 807 S.W.2d 559, 564 (Tenn. Ct. App. 1990)). “The
6
(Tr. II at 54:6-15 (“I remember what the deal was, and it’s nothing like what you’re – in the
pleading.”); 56:6-12 (“We did make an agreement. I agreed to pay you a part of the income that
I hoped to gain from using the work that you gave me free and clear in 1992. And that the only
reason that I wanted to make an agreement with you at that time was in order to retain your
services a[s] a consultant in case the thing broke.”); 57:8-15 (“And I wanted access to any future
part of it that I could get, in case the car broke down or I needed a new car. So I agreed to pay
him part of my income going forward in order to have access to his future work . . . .”); 64:17-24
(“You said, why don’t you just take all of my stuff and do with it what you can. It was actually
at that point – that would have been in July that I began the conversation that concluded on his
porch . . . . I said, well, . . . [w]hy don’t you work for me as a consultant going forward because I
may run into trouble with this product . . . .”); 69:2-8 (“You wrote down what you thought would
be an appropriate arrangement. You asked me to sign it. I refused. I said, Kurt, I’m not signing
anything. This is the deal. I will hire you as a consultant. Take it or leave it. I had the
formulas. I had clients. I didn’t need you as a consultant. I wanted you as a consultant.”);
110:4-15 (“So I said, I would like to hire you as – keep you on as a – and he needed the money.
So I’d like to keep you – bring you on as a consultant in case something goes wrong, the markets
change, and you create new formulas or you want to improve on this formula, I would like to
have access to them. That was the deal. And the deal was I would pay him 10 percent of the
first 50,000, 25 percent of the next 50,000 and 20 percent over that, which would amount to
about 20 percent of everything, so as I was using his formulas.”).)
6
fact that one or more terms of a proposed bargain are left open or uncertain may show that a
manifestation of intention is not intended to be understood as an offer or as an acceptance.” Id.
(emphasis added). Simmons argues that neither requirement for an oral contract has been met,
essentially repeating arguments that he made to the jury and that the jury rejected.
First, Simmons argues that that there was no mutual assent because he testified that he
did not enter into an oral agreement with Kaltreider, who offered only “self-serving” testimony
to the contrary. This is a meritless argument, because the difference in testimony created a
genuine dispute of material fact for the jury to resolve, and Simmons’ testimony was just as
“self-serving” as Kaltreider’s. The jury was free to disbelieve Simmons and to credit
Kaltreider’s recollection of events, which the jury evidently did. See Davidson, 47 S.W.3d at
454 (upholding jury verdict in dispute concerning oral contracts, on the basis that, “[b]ecause the
parties’ testimony was sharply conflicting, the jury was required to assess the credibility of the
witnesses. It is apparent from the verdict that the jury was not impressed with [the defendant’s]
version of the parties’ dealings or his explanation that his responses to [the plaintiff’s]
correspondence were in regard to compensation owed for consultation.”) Indeed, both Simmons
and Kaltreider acknowledged having a discussion in 1994 at Kaltreider’s residence – they just
gave differing versions of the substance of that discussion. Even though several trial witnesses
were unable to corroborate Kaltreider’s version of events, none of those witnesses was present at
the 1994 meeting between Kaltreider and Simmons. The jury was free to take that consideration
into account in assessing the veracity and accuracy of Kaltreider’s recollection of the 1994
meeting. Furthermore, given that Simmons in fact paid Kaltreider $662,000 through 2008, the
jury could have treated Simmons’ periodic payments as part performance of an oral agreement,
lending credence to Kaltreider’s testimony that the parties had entered into an oral agreement and
7
that Simmons in fact paid Kaltreider under that agreement through March 2008. See Gurley v.
King, 183 S.W.3d 30, 41 (Tenn. Ct. App. 2005) (“Part performance under an agreement may
remove uncertainty and establish that a contract enforceable as a bargain has been formed.”)
(quoting Restatement (Second) of Contracts § 34(2) (1979)). Simmons also contends that the
record does not reflect offer and acceptance, but Kaltreider testified that the parties negotiated on
his porch, that Simmons actually made an offer to Kaltreider of a “50/50 split,” that Kaltreider
rejected that offer in favor of a split more favorable to Simmons, that the parties discussed the
terms noted in the previous paragraph, and that Simmons accepted Kaltreider’s offer on those
terms.7
Second, Simmons argues that the terms of the alleged contract were too indefinite to be
enforceable because Kaltreider was unable to state with clarity whether the contract was for a
definite term or what actions would constitute a breach of the agreement. See Peoples Bank of
Elk Valley v. ConAgra Poultry, 832 S.W.2d 550, 553-54 (Tenn. Ct. App. 1991) (“If the essential
terms of an alleged agreement are so uncertain that there is no basis for deciding whether the
agreement has been kept or broken, there is no contract.”) As to duration, Kaltreider testified
that, as he understood the agreement, Simmons agreed to utilize the formulas for the rest of his
(Simmons’) career (Tr. I at 146:12-147:15), although Kaltreider stated that there may have been
legal grounds on which Simmons could have terminated the contract (id. at 147:22-148:3.) In
7
Moreover, the court (1) specifically instructed the jury that Simmons’ position was that he had
not entered into an oral contract with Kaltreider, (2) instructed the jury about the general
standards for formation of a contract, including the obligations of “mutual assent,” offer,
acceptance, and consideration, and (3) instructed the jury about the standards specific to oral
contracts, including the requirement that there be a “meeting of the minds” on terms that are
“sufficiently definite” to be enforceable and that were “clear enough” for the parties to
understand their mutual obligations. (Tr. II at 236:22-239:7.)
8
her opening statement and in closing argument, Simmons’ counsel maintained that it was
incredible to believe that Simmons had bound himself to use Kaltreider’s formulas indefinitely.
In her opening statement, Simmons’ counsel stated that the type of agreement alleged by
Kaltreider was “not the American way” because “[o]ur country is based upon freedom.” (Id. at
15:23-16:3.) In closing, Simmons’ counsel argued that “simple rationality contradicts what Mr.
Kaltreider says, because no one in their right mind would make a contract like that, where they
have to pay someone for the rest of their lives to do a certain thing.” (Tr. II at 221:7-11.) The
jury may have rejected this argument by finding that, contrary to Simmons’ testimony, he did
agree to utilize Kaltreider’s formulas or their derivatives indefinitely – i.e., that someone “in his
right mind” did agree to that term.
Regardless, Simmons’ argument concerning contract duration may have been a red
herring, because the jury reasonably could have concluded that Simmons had not ceased
exploiting Simmons’ formulas in the first place. Kaltreider’s Exhibit 14 contains a January 2010
marketing printout that touts Simmons’ use of mathematical value formulas to choose stocks,
which Kaltreider claimed were either his (Kaltreider’s) formulas or derivatives thereof.
Kaltreider also testified that Simmons continued to profit from Kaltreider’s formulas after March
2008.8 By contrast, according to Simmons, Simmons created his own mathematical value
8
(See Tr. I at 44:3-7 (“[H]e’s using my formulas. I even have it as long ago as – this started in
around 2012 or something. I even have them in 2011 with him saying that he’s got – he’s using
my formulas.”); 133:10-11 (“There are no new formulas, and his very own brochure from 2010
says that.”), 135:10-15 (“Q: Are you alleging that he changed the formulas or not? A: No. I
think what he did was add trading techniques, technical analysis and economic factors. That’s
what he did. He did not create any new formulas. He uses my one formula[.]”), and 136:5-11
(“A: I do know what Mr. Simmons is doing. . . . Q: [W]hat is it based on? . . . A: His own
brochure.”).)
9
formulas to choose stocks, independent of the formulas created by Kaltreider. (Tr. II at 44:13-14
(“When I terminated [Kaltreider], I terminated him because I had created new formulas that were
completely different than his.”) Simmons acknowledged that he had removed Kaltreider’s name
from the brochure, which nevertheless “continue[d] to say that the portfolio management
strategy that I was now implementing was originally founded on mathematical value theory,
which I got from you [i.e., Kaltreider], which is also in the public domain.” (Tr. II at 40:17-21
(emphasis added).) Based on the evidence in the record, the jury could have disbelieved
Simmons’ explanation as to why he removed Kaltreider’s name from the brochure, found that
Simmons in fact continued to profit from Kaltreider’s formulas (or at least a derivative of
Kaltreider’s formulas) after 2008, and found that Simmons failed to pay Kaltreider under their
oral agreement to pay him for continuing exploitation of those formulas. In other words, the jury
may have found that Simmons stopped paying Kaltreider while retaining the benefit of their
bargain, namely Simmons’ exclusive right to profit from Kaltreider’s formulas. For purposes of
this dispute, the jury reasonably could have believed that a durational term was not essential
because Simmons had never abandoned utilizing Kaltreider’s formulas in the first place. Indeed,
the jury might have concluded that the contract persisted only until Simmons ceased exploiting
the formulas, a condition that had not yet occurred.
On a related point, Simmons also argues that there was insufficient evidence to show
breach. This argument is not well-founded. There was ample evidence of potential breaches in
the record. Kaltreider testified that Simmons was obligated to provide Kaltreider the opportunity
to conduct back-testing before modifying the formulas but that Simmons broke that promise.
(Tr. I at 37:20-38:13; 134:24-135:8 (“I’ve never seen one bit of back testing . . . .”).) Kaltreider
testified that Simmons was obligated to keep Kaltreider apprised of how the formulas were being
10
used but that Simmons kept Kaltreider in the dark for several years, while continuing to exploit
(or tinker with) the formulas. (Id. at 32:4-16; 38:22-39:5; 39:20-23; 40:25-41:21.) Kaltreider
also testified that Simmons agreed to utilize Kaltreider’s formulas for as long as he (Simmons)
stayed in his current career and to pay Kaltreider a portion of revenue generated from the
agreement but that Simmons breached the agreement, either by (a) altering the formulas or
misusing the formulas, (b) abandoning the formulas without giving Kaltreider the opportunity to
modify them to make them work, or (c) (as explained in the previous paragraph) continuing to
utilize the formulas without paying Kaltreider for revenue generated. Although Simmons is
correct that Kaltreider offered differing accounts of the potential breaches that occurred,
Kaltreider did (collectively) testify to multiple potential forms of breach, and it was for the jury
to determine whether any inconsistencies in Kaltreider’s testimony undermined his allegations of
breach.
Simmons also contends that Kaltreider failed to present competent proof of his damages.
Kaltreider provided a damages estimate to the jury of $230,666.54. To arrive at that estimate, he
(1) identified the final payment that he received in 2008 ($10,930) and multiplied it by 19 (i.e.,
nineteen quarters) to reflect “the amount of quarters that [Simmons] missed,” (2) added 3.5%
annual interest, and (3) added $2,235 in travel expenses. (Tr. I at 47:2-49:23.) In support of his
post-trial motions, Simmons contends that it was arbitrary for Kaltreider to calculate his damages
in this fashion and that the estimate was not based on proof of what Simmons actually earned
from exploiting the formulas. Notably, Simmons’ counsel did not cross-examine Kaltreider
concerning the basis for his damages estimate, Simmons offered no contrary damages estimate
(other than zero), and Simmons’ counsel did not address this topic in closing. Under the
circumstances, the jury was entitled to rely on Kaltreider’s damages extrapolation in reaching its
11
damages verdict. Whether the calculation was an accurate representation of what Kaltreider was
owed, a best estimate, or wild speculation was a matter for the jury to weigh in its deliberations.
The jury awarded Kaltreider exactly the amount that he requested in his evidence,
indicating that the jury’s damages award was based on evidence rather than sympathy, passion,
or prejudice. Indeed, the court specifically instructed the jury that damages are prohibited only
when the existence of damages is uncertain, not when the amount is uncertain, that mathematical
certainty was not required, and that damages may be reasonably inferred from the evidence. (Tr.
II at 242:13-25.) The jury instructions also stated that the fact that the court had instructed the
jury concerning the proper measure of damages should not be considered as reflecting any
indication by the court as to which party was entitled to a verdict. (Id. at 243:10-19.) The court
also instructed the jury as follows:
Sympathy or hostility must not enter into your deliberations as jurors, no matter
what your sympathy or hostility may lead you to think. Sympathy or hostility has
no place in the trial of a lawsuit, or in the making up of your minds as to what
your verdict shall be. Do not permit any such emotional considerations to enter
into your deliberation at all.
(Id. at 32.) The jury presumptively understood and applied these instructions in its deliberations.
Conwood Co. v. U.S. Tobacco Co., 290 F.3d 768, 794 (6th Cir. 2002).
With respect to damages, Simmons does make one valid point: the court should have
instructed the jury that damages relating to travel expenses were not recoverable under the
contract. The court will therefore reduce the verdict by $2,235 to account for the amount
claimed by Kaltreider for travel expenses.
B. Additional Arguments
1. Lack of Durational Limit
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Simmons argues that the oral contract with Kaltreider is against public policy because it
did not contain a durational term. In his oral Rule 50(a) motion, Simmons did not raise this
argument (see Tr. II at 203:23-205:15), and it does not appear that he raised this argument at any
point before trial (in his Amended Answer, in his Rule 56 motion, or otherwise). The argument
is therefore waived and the court need not reach its merits.
Even if it were appropriate to reach the merits of this argument, it is not against public
policy for someone to enter into a perpetual contract or a contract of an indefinite duration.
Parks v. Morris, 914 S.W.2d 545, 549 (Tenn. Ct. App. 1995) (citing Apco Amusement Co, Inc. v.
Wilkins Family Restaurants of Am., Inc., 673 S.W.2d 523, 528 (Tenn. Ct. App. 1984)). Although
indefinite contracts are not favored, a party can enter into one and a court can enforce it, if that is
the parties’ intent. See Sun-Drop Bottling Co., Inc. v. Helton, 2006 WL 547994 (Tenn. Ct. App.
Mar. 6, 2006). Here, the jury could have found that the parties intended to enter into a perpetual
contract, whereby Simmons either bound himself to utilize the formulas for the rest of his career
without qualification or, in the alternative, for the rest of his career only insofar as he gave
Kaltreider the chance to update the formulas to changing market conditions.
Even if the parties did not enter into a perpetual contract, when the duration of a contract
is indefinite, it is to be performed within a reasonable time. Parks, 914 S.W. 2d at 549 (citing
Big Coca Cola Corp. v. World Bottling Co., 134 F.2d 718, 721 (6th Cir. 1932)). The jury could
have found that Simmons bound himself to pay Kaltreider for as long as Simmons utilized
Kaltreider’s formulas or their derivatives, and that a “reasonable time” stretched as far as that
condition was met.
2. Unclean Hands
13
Simmons also argues that Kaltreider had “unclean hands” because Kaltreider disclosed
his own formulas to Dr. Martin Moore. Simmons did not raise the defense of unclean hands in
his Amended Answer (Docket No. 20), in support of his Rule 56 motion, in his pretrial “Succinct
Statement of the Case” (Docket No. 136), in his proposed jury instructions (Docket No. 137), or
in his Rule 50(a) motion before the jury began its deliberations. Simmons therefore waived the
right to assert this defense at trial and, by the same token, waived the right to assert it in a posttrial Rule 50(b) motion.
3. Statute of Frauds
Simmons argues that the Statute of Frauds prevents enforcement of the contract. As the
court instructed the jury, the equitable doctrine of partial performance provides an exception to
the Statute of Frauds and permits an oral contract to be enforced, if there has been partial
performance of the contract by one of the parties and reliance by the other party upon that
performance. To show that this doctrine applies, the plaintiff must show, by a preponderance of
the evidence, that (1) the defendant partially performed the alleged oral contract, and (2) the
plaintiff relied upon the defendant’s performance such that he would suffer an unjust or
unconscionable injury and loss if the Statute of Frauds were applied and the contract was not
enforced. (Tr. II at 239:8-241:5 (jury instructions concerning the Statute of Frauds and the
partial performance exception thereto).)
Simmons claims that the record cannot support the reliance element because, according
to Simmons, Kaltreider testified that the payments made by Simmons “were not even pursuant to
the alleged oral contract.” (Docket No. 199 at p. 18.) Simmons provides no citation to the trial
transcript for this proposition. To the contrary, the basis for the payments from Simmons
(totaling $662,000) was a focal point of dispute between Kaltreider and Simmons at trial, and
14
Kaltreider testified that Simmons cut checks to him under the agreement, rather than as a
“consultant” (as Simmons claimed).9 The jury reasonably could have found that, in light of his
ongoing business arrangement with Simmons, Kaltreider refrained from marketing his formulas
to other investment managers or from updating the formulas while Simmons performed his end
of the bargain and paid Kaltreider. Thus, assuming that the jury found that the agreement could
not be performed within one year, the evidence supported the application of the part performance
exception to the Statute of Frauds.
C. Conclusion
For these reasons, the court finds there were genuine disputes of material fact and that the
evidence supported the jury’s verdict. The court will therefore deny the Rule 50(b) motion.
II. Motion for New Trial
A. Weight of the Evidence
To the extent that Simmons’ Rule 59 motion incorporates the arguments set forth in his
Rule 50(b) motion, the court finds no basis for a new trial for substantially the same reasons set
forth with respect to the his Rule 50(b) motion. Specifically, the court finds that the verdict was
not against the great weight of the evidence and, subject to one adjustment, that the damages
were not excessive. The court will address the defendant’s asserted grounds for a mistrial
separately.
B. Alleged Misconduct by the Presiding Judge
9
(See, e.g., Tr. I at 114:18-20 (“Q: But he [Simmons] certainly cut checks to you in the past;
correct? A: According to our agreement, he did.”) (emphasis added)); 109:8 (“A: He [Simmons]
never asked me to be a consultant.”); Tr. II at 193:23-194:1 (“Mr. Simmons paid me our agreedupon percentage. I, as a partner, supplied the knowledge and the ability for us to have a
company. He supplied salesmanship and computer skills.”).)
15
The defendant’s Motion for New Trial asserts that the court delivered a verdict to
Kaltreider by treating Simmons unfairly, by admonishing defense counsel in front of the jury,
and by abandoning its neutral role and acting as an “advocate” for Kaltreider at trial. These are
serious charges, which impugn the integrity and impartiality of the presiding judge.
To manufacture the appearance of bias by this court, Simmons cherry picks adverse
rulings and statements by the court, divorces quotations from their context, omits reference to
any rulings favorable to the defendant, omits reference to the court’s castigation of the plaintiff at
numerous junctures, and fails to acknowledge defense counsel’s own failures during the course
of trial.
The court has a responsibility to streamline the presentation of relevant evidence to the
jury. Simmons attempts to spin the court’s execution of this fundamental responsibility as
“advocacy.” As is often the case with a pro se plaintiff, Mr. Kaltreider was not skilled in the
rules of evidence and trial procedure. As a consequence, during the trial, the court often had to
intervene (either in response to an objection or acting sua sponte) to keep Kaltreider focused on
relevant issues, to confine his testimony or questioning appropriately (such as limiting his crossexamination to the scope of direct or confining his rebuttal testimony to addressing points raised
by Simmons with which he disagreed), and to prevent him from testifying through questions.
Simmons contends that a “substantial” amount of Kaltreider’s testimony was provided to
the jury while Kaltreider was questioning witnesses, thereby forcing defense counsel to
“continually object,” which made counsel look “unfavorable and obstreperous to the jury.” This
argument does a disservice to the court’s extensive efforts at trial. Simmons fails to
acknowledge that the court consistently stopped Kaltreider from testifying while questioning
witnesses, sustained appropriate objections from Simmons’ counsel (when raised), specifically
16
admonished Kaltreider for this conduct multiple times in front of the jury (including
admonishing Kaltreider that he was “not lecturing a class”), and often acted sua sponte to cut off
Kaltreider from offering impermissible testimony.10 For example, in a four-page section of the
transcript of Kaltreider’s cross-examination of Mr. Simmons, the court sua sponte intervened six
times to prevent Kaltreider from asking irrelevant questions, from testifying through his
questions, and from exceeding the scope of cross-examination – all without the need for an
objection by Simmons’ counsel. (See Tr. II at 171:1-174:25.) Only a true partisan could have
10
For examples of the court acting sua sponte and admonishing Kaltreider in front of the jury,
see Tr. I at 172:8-13 (“You may not testify at this point, Mr. Kaltreider. You’re asking her
questions.”); 172:20-24 (“Mr. Kaltreider, you are asking questions, not lecturing to a class . . .
Ask a question of the witness); 180:19 (“You don’t answer her questions. You ask her
questions.”); 180:3-4 (“Mr. Kaltreider, ask her a question. Don’t tell her.”); 196:17-18 (“Let’s
not testify. You’re asking him questions.”); Tr. II at 8:12-13 (“Let’s not tell him what it is. Ask
him if he knows what it is.”); 9:19-20 (“You can’t testify. He either does or does not
remember.”); 24:1-12 (“Mr. Kaltreider, you cannot testify. He’s already agreed with you –”);
39:11-12 (“Don’t say what it is. Ask him a question.”); 67:23-67:2 (“And you may not testify
about it. And it doesn’t matter why you left Eagle, so move on to something else . . . [A]nd you
have said inappropriately that you were let go. So we’ve got both pieces of evidence and the
jury can decide whether it’s important to know which of you [is] telling the truth.”); 67:23-24
(“Mr. Kaltreider, you may not testify.”); 161:5-7 (“He’s answered that question. He’s answered
that question. He said it’s not going to happen. That’s what he said his answer was.”); 171:6-9
(“This is not proper cross-examination. He didn’t testify about this at all on his direct
examination. Cross-examination has to relate to what he was asked on direct.”); 172:7-8
(“You’ve asked that question. Move on to something else.”); 173:8-10 (“It doesn’t matter what
people in here have seen. He doesn’t need to testify to that.”); 174:23-25 (“This is not something
he testified to on direct. So it’s improper cross-examination.”) For examples of the court
sustaining valid objections by Simmons’ counsel (often as Simmons’ counsel rose from
counsel’s table before she even had to speak) and admonishing Kaltreider in front of the jury, see
Tr. I at 185:14-20 (sustaining objection) and Tr. II at 10:10-12 (sustaining objection and
reminding Kaltreider that “You cannot testify.”); 51:9-16 (sustaining two successive objections
and reiterating that Kaltreider cannot ask a witness to speculate); 59:17-18 (“Sustained. Ask a
question he knows the answer to.”); 84:5-6 (sustaining objection and directing Kaltreider to
“[s]top testifying. Ask a question.”)
17
sat through the trial and concluded that the court allowed Kaltreider to run roughshod over trial
procedures, “forced” Simmons’ counsel to “continuously object,” and otherwise attempted to
place Kaltreider in a more favorable light to the jury. Moreover, the court instructed the jury as
follows:
The parties for both sides may have objected to some of the things that were said
or done during the trial. Do not hold that against either side. The parties have a
duty to object whenever they think that something is not permitted by the rules of
evidence. Those rules are designed to make sure that both sides receive a fair
trial. And do not interpret my rul[ings] on their objections as any indication of
how I think the case should be decided. My rulings were based on the rules of
evidence, not on how I feel about the case. Remember that your decision must be
based only on the evidence that you saw and heard here in court.
(Tr. II at 233:7-20.) The jury presumptively followed this instruction in its deliberations.
In a similar vein, by taking certain transcript quotes out of context, Simmons attempts to
characterize the court’s execution of its basic trial responsibilities as advocacy for Kaltreider.
For example, at one point in his direct testimony, Kaltreider indicated that he was about to testify
concerning the issue of breach. After he began to describe the law as to what a “breach of
contract” is, counsel for Simmons immediately objected, and the court intervened by directing
Kaltreider not to attempt to state the law of breach, but instead to “describe to us in your words
why you think he breached the contract.” (Tr. I at 39:17-19.) Taken in context, the court’s
statement was appropriate and not an act of “advocacy”: the court sustained the objection and
directed Kaltreider to focus on facts relating to breach.
Simmons also complains that Kaltreider improperly elicited sympathy from the jury
when Kaltreider twice “began” to discuss his alleged illness and disability. In one instance, Mr.
Kaltreider stated that he had a “very terrible disease,” at which point the court intervened sua
sponte and cut off the statement. (Tr. II at 139:16-21.) Two questions later, Kaltreider began to
18
ask the witness about “a Klein’s disorder that I have had,” at which point Simmons’ counsel
objected, the court sustained the objection, and the court stated specifically that Mr. Kaltreider’s
illness was “not at issue here” and that he should “move on to something that is important.” (Id.
at 140:6-15.) The court presumes that the jury understood the court’s ruling that the matter –
which Kaltreider only hinted at – was not relevant to Kaltreider’s claim. Regardless, the court
instructed the jury not to let “any bias, sympathy, or prejudice that you may feel toward one side
or the other influence your decision in any way.” The jury presumptively understood and
followed that instruction in its deliberations. Conwood, 290 F.3d at 794.
Simmons argues that the jury may have been confused into believing that Kaltreider and
Simmons had entered into a written contract because, at one point in his direct testimony,
Kaltreider relied upon his notes (perhaps including the Complaint) in recounting to the jury what
he believed the terms of the oral contract were. Simmons’ argument is without merit. It ignores
the entirety of the trial record, which made abundantly clear that the central issue was whether
the parties entered into an oral contract in 1994. Both parties’ opening statements and closing
arguments focused on whether the parties entered into an oral contract, Kaltreider emphasized
repeatedly in his testimony that he and Simmons agreed to a deal by “shaking hands” as
“honorable men” or words to similar effect, defense counsel questioned Kaltreider extensively as
to why Kaltreider did not reduce the agreement to writing, Simmons denied that he had orally
agreed to a contract with Kaltreider, and the jury received instructions specific to whether the
parties had agreed to an oral contract, including instructions regarding the Statute of Frauds.
Moreover, in the cited passage, the court clarified with Kaltreider, in the jury’s presence, that he
was “giving what you think the terms of the agreement were,” to which Kaltreider stated that
19
“[t]his is what we talked about on my front porch, yes, ma’am.” (Tr. I at 35:6-7 (emphasis
added).)
Simmons also complains that the court “improperly instructed” Kaltreider how to present
his case, thereby giving the jury the impression that the court was advocating for Kaltreider. The
examples cited by Simmons are relatively mundane directives from the court to Mr. Kaltreider
during the course of trial proceedings, generally in instances in which Kaltreider began testifying
about issues of limited relevance. There is nothing inherently improper about the court’s
requiring the parties to focus on disputed issues, which streamlines the presentation of evidence
to the jury, fosters judicial economy, and avoids wasting time and resources. Simmons quotes
three statements made by the court during the first day of proceedings (Tr. I at 25:2-8, 39:17-19,
and 43:19). Simmons omits, however, the context in which the court made these statements. For
example, during his direct testimony, Kaltreider began a sentence that would have addressed his
reaction to the Magistrate Judge’s August 13, 2013 summary judgment opinion in this case. (Id.
at 24:20-21). Before Kaltreider finished the sentence, Simmons’ counsel objected, the court
intervened, and the court admonished Kaltreider that “it really do[es]n’t matter what was said in
summary judgment.” (Id. at 24:22-25.) The court directed Kaltreider to focus on the nature of
his alleged business relationship with Simmons and the terms of their alleged agreement. The
court did not state or imply that it believed Kaltreider’s version of events. In a perverse logic,
Simmons seems to argue that it was unfair for the court to focus the presentation of evidence on
relevant issues.
Simmons also complains that the court “coached” Kaltreider by indicating to Kaltreider
the nature of rebuttal testimony and rebuttal evidence. In a single instance, the court asked
Kaltreider whether, in light of the defense’s cross-examination of him, there was anything else
20
that he wanted to address or explain. (Tr. I at 159:24-160:2.) The court’s statement was an
accurate recitation of the nature of redirect testimony. At any rate, in redirect, Kaltreider briefly
testified that he did not attempt to blackmail Simmons and complained that it was unfair for
Simmons not to pay him. (Id. at 160:4-161:13.) Simmons does not explain why Kaltreider’s
testimony, which contained nothing revelatory, somehow prejudiced him.
Similarly, outside the presence of the jury, the court told Kaltreider that, after Simmons
finished testifying, Kaltreider could take the stand again to counter anything that Simmons had
said. (Tr. II at 136:23-137:1.) After Simmons finished testifying, the court told Kaltreider (in
the jury’s presence) that he had the option to testify, at which point Kaltreider asked whether the
court would “please answer the following question for me.” (Id. at 184:23-185:14.) Rather than
permit Kaltreider to continue, the court intervened, directed Kaltreider that he could testify,
directed him not to direct any questions to the court, and indicated that he could say “[a]nything
that you want to say to counter [Simmons’] testimony. If you think he lied about something,
then you tell what your testimony is about that.” (Id. at 185:15-24.) Simmons complains that the
court gave the jury the impression that Simmons in fact lied and unfairly elicited testimony from
Kaltreider (when Kaltreider might otherwise have neglected to offer more testimony). The
court’s statement was an accurate statement of the nature of rebuttal evidence, and the court did
not comment on the credibility of testimony by Simmons or Kaltreider. Furthermore, Kaltreider
in fact testified on rebuttal about disputed issues, and the court permitted Simmons’ counsel to
cross-examine Kaltreider on rebuttal. Simmons appears to be complaining that he was
prejudiced because the court applied basic trial procedures appropriately, namely by affording
Kaltreider his right to present rebuttal evidence.
21
Simmons also complains that the court elicited critical testimony by asking a substantial
number of questions during Kaltreider’s case, thereby indicating “an alignment on the part of the
Court” with Kaltreider. Simmons again cherry picks citations to the record to create an
impression of partiality. The court asked questions of all witnesses in the case or otherwise
intervened during questioning, such as cutting Kaltreider off before he gave more than a “yes”
answer to a leading question (Tr. I at 119:11-14), directing a witness to provide a responsive
answer (Tr. II at 123:18-124:14), obtaining necessary background information from a witness so
that the jury would not be confused about the individual’s relationship to the case (Tr. I at
193:17-194:16), and cutting off lines of questioning by Kaltreider that were going nowhere (Tr.
II at 8:19-9:3.) None of these actions indicated or reflected favoritism towards one side or the
other.
Simmons also complains that the court was unfair to him with respect to the marking and
presentation of exhibits. For example, Simmons claims that the court favored Kaltreider by
prompting him to enter several exhibits into evidence. Simmons neglects to mention that the
court did the same for Simmons when, for instance, defense counsel forgot to enter Exhibit 10B
into evidence at the conclusion of a line of questioning. (Tr. II at 138:18-19.) Similarly, when
defense counsel had difficulty determining how best to number certain exhibits, the court
provided suggestions to counsel to keep the record clear. (Tr. II at 125:19-126:6.) The court
even denied Mr. Kaltreider’s request to ask a question about that procedure. (Id. at 126:7-9.)
Simmons also complains about the introduction of a brochure as rebuttal evidence during the
testimony of Mr. Barksdale, in part because the exhibit was not on Kaltreider’s case-in-chief
exhibit list. As the court stated at trial, the exhibit was on Kaltreider’s impeachment exhibit list,
which is precisely the purpose for which the court admitted it on rebuttal.
22
Simmons also omits reference to the instances in which the court elicited testimony from
witnesses that supported Simmons’ case or that cut off lines of inquiry by Kaltreider. For
example, the court closed off lines of inquiry by Kaltreider (establishing that Ms. Johnson did
not know anything about whether Mr. Kaltreider had requested that Simmons make some
corrections to a certain dataset (Tr. I at 185:14-20)), got Kaltreider to admit on cross-examination
that he had not given any money to Dr. Hartman (Tr. I at 84:8-9), asked a series of questions of
Kaltreider (during his cross-examination by Ms. McKellar) designed to pin down whether
Kaltreider had disclosed his formulas to Simmons before or after Kaltreider signed a 1992
agreement with Kaltreider’s former business partner (Tr. I. at 101:8-102:7), interrupted nonresponsive answers by Kaltreider to elicit responsive answers (id. at 116:24-117:11, 118:7-25),
cut off Kaltreider before he could add detail after answering a question on cross (id. at 119:14),
and established that Mr. Webb could not attest to the accuracy of a series of calculations that
Kaltreider had prepared and was relying upon (id. at 202:17-203:2). Indeed, in support of its
Motion for Judgment as a Matter Law, Simmons relies upon testimony elicited by questions from
the court – testimony that he claims supports a judgment in his favor. (See Docket No. 199 at p.
6-7 (referencing Tr. II at p. 91:14-92:2), pp. 9-10 (referencing Tr. I at 134:1-135:8), and p. 10
(referencing 40:8-17)).
Simmons also complains that the court unfairly admonished his counsel for failing to
have appropriate exhibit stickers, while at the same time “assisting” Kaltreider with his exhibits.
During a recess, the court attempted to sort out objections to Kaltreider’s exhibits, which
required the court to identify the exhibit numbers and the associated objections. The court
directed the parties to confer and to reconvene at 12:50 p.m. (Tr. I at 52:3-19.) Although Mr.
Kaltreider appeared by that time, counsel for Simmons was 12 minutes late. (Tr. I at 52:22-24.)
23
The court asked what had happened, counsel apologized (providing no explanation for violating
the court’s directive), and the court moved on to address the exhibit issue. (Id. at 52:22-53:1.) In
the ensuing discussion, the court held that some exhibits could not come into evidence, indicated
that some exhibits could come in through certain witnesses or with an appropriate foundation,
and informed Mr. Kaltreider that he could question a witness about a particular topic without
introducing tax returns. After the conference, counsel for Simmons cross-examined Kaltreider.
During that examination, counsel for Simmons attempted to move in several exhibits that had
been marked incorrectly or that had not been pre-marked, leading to distracting on-the-record
colloquies concerning the appropriate labels and numbers. (See Tr. I at 122:5-122:24; 125:19126:6.) For example, the court indicated that the names on a particular document did not match
the names contained on the parties’ exhibit list, at which point defense counsel admitted that she
“obviously should have done my exhibit list differently,” apologized to the court, and admitted
that she “d[idn’t] know why it’s [the exhibit] described that way.” (Id. at 122:10-20.) During
the ensuing recess – i.e., outside the presence of the jury – the court expressed frustration to both
parties about the manner in which exhibits were being handled in front of the jury in violation of
the court’s procedures.11 (Id. at 141:12-142:5.) Even if the court had not conveyed that
requirement in advance, the court was critical of both parties, the court expressed its frustration
11
Counsel for Simmons suggested on the record that it was unaware of the court’s pre-marking
requirement, a suggestion that it brazenly repeats in its post-trial motions. That requirement is
set forth in Judge Trauger’s publicly available Individual Practices and Procedures. (Prac. &
Proc. Manual for Judges and Magistrate Judges for the Middle District of Tennessee, Judge Aleta
A. Trauger, Rule V.K. (“Judge Trauger wants exhibits to be premarked.”).) Approximately six
months before the trial, the Magistrate Judge also issued a detailed Order to Mr. Kaltreider
concerning the pre-marking of exhibits, which placed counsel for Simmons on further notice of
this requirement. (Docket No. 165.)
24
outside the jury’s presence, and the statement on the record (even if it were “unfair”) did not
explicitly or implicitly reflect bias for or against either party.
Simmons also complains that the court showed “impatience” with defense counsel,
thereby giving the jury the impression that the court favored Kaltreider. The court once stated
that Ms. McKellar should stand while objecting, stated that it was permissible for the plaintiff to
ask Simmons leading questions, and once asked counsel to define a term that she was using
when asking questions of Kaltreider. The court’s straightforward handling of these situations
was justified in each instance and, at any rate, amounted to three examples of court directives in
the course of two full days of testimony.12 Regardless, if impatience were somehow the measure
of favoritism in this case, it was Kaltreider – not Simmons or his counsel – whom the court
admonished most, often in the jury’s presence.13
12
Ms. McKellar claims that it was unfair for the court to remind her to stand while objecting,
because she was “in the process” of standing while attempting to object in that particular
instance. That is not what the court observed at the time. The court notes that Ms. McKellar
similarly attempted to create a misleading record after trial, when she accused Mr. Kaltreider of
addressing her co-counsel in a hostile and aggressive manner and accused the court of failing to
prevent Mr. Kaltreider from doing so. (Docket No. 194, February 13, 2015 Trial Transcript, at
7:8-13.) As the court stated on the record, these were misrepresentations. (Id. at 7:20-23.)
13
(See, e.g., Tr. I at 172:20-21 (“Mr. Kaltreider, you are asking questions, not lecturing to a
class.”) and 192:16-19 (“Sustained. He doesn’t – he doesn’t even know what you are talking
about. He doesn’t know about Money Manager Review. He said that.”); Tr. II at 12:18-19
(“Don’t say anything, Mr. Kaltreider. Just show her the possible exhibits.”); 12:24-25 (“Don’t
talk to counsel, you talk only to the court.”); 39:11-12 (“Don’t say what it is. Ask him a
question.”); 51:14-16 (“You may not ask him that question. You’re asking him to speculate. He
doesn’t know what was in the mind of the bank.”); 61:15-16 (“Sustained. The question doesn’t
make any sense.”); 63:1-3 (“I don’t know what the relevance of it is. Sustained. Move on to
something else.”); 66:17-19 (“And it doesn’t matter why you left Eagle. Move on to something
else.”); 66:23-67:2 (“And you have inappropriately said that you were not let go. So we’ve got
both pieces of evidence and the jury can decide whether it’s important to know which of you is
telling the truth.”); 78:9-24 (“Mr. Kaltreider, . . . I’m not going to have the two of you arguing. . .
. You have both tried to show the jury how smart you are . . . And we’ve had enough of it. You
focus on whatever further questions you need to ask this witness. And no arguing.”) (during a
25
Simmons also ignores his own violations of court procedures. For example, in addition
to mishandling exhibits, asserting multiple baseless hearsay objections, and asserting a frivolous
objection to the plaintiff’s leading the defendant on cross-examination, counsel for Simmons
inappropriately began to discuss the burden of proof in her opening statement (Tr. I at 16:19-20),
improperly attempted to show the jury instructions (Tr. I at 211:12-17), inappropriately gave her
opinion of the evidence (id. at 211:16-21 (“I don’t know about you, but I found the evidence and
his position . . .”)), and was prepared to introduce the verdict form to the jury in violation of the
court’s procedures (id. at 221:20-22.)14 These violations could have given Kaltreider a basis for
complaint, had he been knowledgeable enough to assert it.
The court had no predisposition concerning the merits of this case and expressed none to
the jury, directly or indirectly. As the trial transcript clearly shows, this was a challenging case
that required intervention by the court as to both sides.
C. Other Arguments
recess); 85:21-22 (“Ask another question. He doesn’t know the motivation for a company.”);
87:11-14 (“He has said he did not say that to you. So ask another question. He said, I did not
ever propose 50/50.”); 140:12-15 (“Mr. Kaltreider, your illness is not at issue here. He has
admitted driving across the country with you at least twice. So move on to something that is
important.”); 141:10-12 (“The question he was asked is if you ever paid him anything. And the
answer was no. So ask another question.”); 146:9-10 (“I do not see the relevance of this line of
questioning. Move on to something else.”); 163:4-5 (“Mr. Kaltreider, don’t testify.”); 171:6-9
(“This is not proper cross-examination. He didn’t testify about this at all on his direct
examination. Cross-examination has to relate to what he was asked on direct.”); 172:7-8
(“You’ve asked that question. Move on to something else.”); 173:8-10 (“It doesn’t matter what
people in here have seen. He doesn’t need to testify to that.”); 174:23-25 (“This is not something
he testified to on direct. So it’s improper cross-examination.”); 180:13-14 (“I’ve admitted it into
evidence, so don’t argue with me.”).)
14
After suggesting that she would introduce the verdict form to the jury, counsel for Simmons
asked for the court’s permission to show it, which the court denied.
26
In a cursory fashion, Simmons also objects that several specific evidentiary rulings
prejudiced him and justify a new trial. Simmons cites several rulings, declares that they were
erroneous without citation to any legal authority, and does not address why the rulings (even if
clearly erroneous) constitute more than harmless error. On the merits, Kaltreider was entitled to
testify about what he told Simmons in their 1994 meeting, it was relevant for Kaltreider to testify
that Simmons had refused to give him access to the figures necessary to calculate his damages,
and Simmons does not identify any actual instances in which the court permitted Kaltreider to
lead Cindy Johnson or explain what harm it caused for the court to permit Kaltreider to lead her.
Indeed, in his Rule 50(b) motion, Simmons contends that Johnson’s testimony was not helpful to
Kaltreider in the first place.
Simmons also contends that a mistrial is warranted because, in response to a request from
the jury, the court sent a calculator to the jury without consulting the parties. Even if the court
had consulted with the parties on this matter, the court is not aware of any rule precluding the
jury from utilizing a calculator. The court cannot conceive of an argument that Simmons would
have raised that would have convinced the court not to provide a calculator to the jury upon
request. Even if it were somehow improper for the court to have provided the calculator,
Simmons does not explain what practical difference providing the calculator had on the jury’s
deliberations. The jury awarded precisely the damages amount that Kaltreider requested at trial.
Finally, Simmons contends that he should be granted a mistrial because of two issues
relating to the jury instructions. First, he contends that the court should have given an instruction
on mitigation of damages, an issue that was “crucial” because Kaltreider “claimed that he could
sell his formula for millions of dollars, yet never tried to do so.” (Docket No. 201 at p. 10.)
Simmons cites no legal authority for this position, nor is it clear to the court what point he
27
believes required a mitigation instruction. As the Magistrate Judge held, Kaltreider claimed only
damages for non-payment, not damages for lost opportunity, thereby rendering mitigation
irrelevant. Simmons has not convinced the court that this ruling was clear error. Moreover,
Simmons is attempting to argue both sides of the same issue: at trial, he testified that the
formulas were no longer helpful to him because the basis for them was “in the public domain,”
and anyone could create stock-picking formulas using that information. (See Tr. II at 43:2144:25.) Second, Simmons argues that the court failed to instruct the jury about whether
Kaltreider’s travel costs were recoverable as contract damages. For the reasons explained in this
opinion, the court agrees that it should have issued an instruction to that effect, that Kaltreider’s
litigation travel costs were not recoverable, and that the award must be reduced accordingly.
This oversight requires a modest fixed adjustment to the damages award, not a new trial.
For all of these reasons, the court will deny the defendant’s Rule 59 motion.
CONCLUSION
For the reasons stated herein, subject to the reduction of the jury award by $2,235, the
defendant’s motions will be denied.
An appropriate order will enter.
_____________________________
ALETA A. TRAUGER
United States District Judge
28
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