Aspen Highlands Skiing Corp. v. Aspen Skiing Co., s. 82-1407

Decision Date13 July 1984
Docket Number82-1424,Nos. 82-1407,s. 82-1407
Citation738 F.2d 1509
Parties1984-2 Trade Cases 66,101, 17 Fed. R. Evid. Serv. 600 ASPEN HIGHLANDS SKIING CORPORATION, a Delaware Corporation, Plaintiff-Appellee, Cross-Appellant, v. ASPEN SKIING COMPANY, a Colorado General Partnership, Substituted Defendant-Appellant, Cross-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Tucker K. Trautman, Denver, Colo. (John H. Evans and Owen C. Rouse of Ireland, Stapleton & Pryor, P.C., Denver, Colo., were also on brief), for plaintiff-appellee, cross-appellant.

Richard M. Cooper, Washington, D.C. (Edward Bennett Williams and Harold Ungar of Williams & Connolly, Washington, D.C., and David G. Palmer and William W. Maywhort of Holland & Hart, Denver, Colo., of counsel, were also on brief), for substituted defendant-appellant, cross-appellee.

Before HOLLOWAY, DOYLE and SEYMOUR, Circuit Judges

HOLLOWAY, Circuit Judge.

Defendant Aspen Skiing Company operates skiing facilities at three of the four skiing mountains in the Aspen, Colorado area, Ajax Mountain, Buttermilk and Snowmass. Plaintiff Aspen Highlands Skiing Corporation operates skiing facilities at the fourth mountain, Aspen Highlands.

For many years, plaintiff and defendant individually offered a wide variety of ski-lift tickets. Defendant's ski-lift tickets were interchangeable among its three Aspen facilities. From the 1962-63 ski-season through the 1971-72 season, plaintiff and defendant offered a joint multi-day ski-lift ticket which could be used at any of the four Aspen mountains. Revenues from the joint ticket were divided through coupons used to measure actual use at the four mountains. II App. 488-49. 1 After a one-year discontinuance of the joint ticket during 1972-73, the joint ticket was reinstituted in 1973-74 through 1976-77. Profits were divided on the basis of surveys of actual use. Plaintiff received 17.5% of the net revenues from the sale of four-area tickets during 1973-74, 18.5% in 1974-75, 16.8% in 1975-76, and 13.2% in 1976-77.

Defendant offered to continue the joint ticket for 1977-78 if plaintiff would accept a 13.2% fixed percentage of the revenues. I App. 90-91. Plaintiff objected to this percentage because it was based on the survey for 1976-77, which plaintiff contended was a ski-season marked by below average amounts of snowfall and an unusually low number of skiers visiting the Aspen area. Id. at 91. Although plaintiff wanted revenues to be divided on the basis of actual usage, it eventually accepted a fixed 15% of revenues for 1977-78. Id. at 92-93.

Defendant offered to continue the joint ticket for 1978-79 if plaintiff would accept 12.5% of revenues. Id. at 145-46. Plaintiff again urged a return to a system of sharing revenues on the basis of actual usage. Id. at 73, 77-78. The parties were unable to agree and no joint tickets were offered thereafter.

Plaintiff brought suit against defendant under Sec. 4 of the Clayton Act, 15 U.S.C. Sec. 15. Plaintiff alleged that defendant violated Secs. 1 and 2 of the Sherman Act, 15 U.S.C. Sec. 1 and 2, by monopolizing, attempting to monopolize, and conspiring to monopolize the sale of downhill skiing services in Aspen, and by conspiring to restrain trade.

After the close of the evidence at trial, the district court granted defendant's motion for a directed verdict with respect to all of plaintiff's claims except the claims of unlawful monopolization and conspiracy to restrain trade between defendant and nonparties.

The jury found for plaintiff on the monopolization claim and for defendant on the conspiracy claim. II App. 603; I App. 31-32. The jury by special interrogatories found that the relevant product market was downhill skiing at destination ski resorts and that the relevant product submarket was downhill skiing services in the Aspen area, including multi-area and multi-day lift tickets. The jury also found that the relevant geographic market was North America and that the relevant geographic submarket was the Aspen area. I App. 30-31, II App. 601-02. The jury found that plaintiff had suffered $2.5 million in damages by defendant's unlawful monopolization. I R. 33, II App. 603. 2

The district court thereupon trebled the verdict and entered judgment of $7.5 million plus attorneys' fees and costs. I App. 35, II App. 607. The court also issued an injunction requiring defendant to participate with plaintiff in offering a joint four-area six-day ski-lift ticket for a period not exceeding three years. I App. 36-40. The district court denied motions for judgment notwithstanding the verdict, for a new trial, and for remittitur filed by defendant both after trial and seven months later. I R. 294, 296. The district court issued an order fixing the amount of costs and attorney's fees. Id. at 244. Defendant appeals, and plaintiff cross-appeals. 3

I

The relevant market

On appeal, defendant contends that the district court erred in instructing the jury on the relevant market. The trial court's instructions on the market and submarket are reproduced in the Appendix to this opinion. Defendant argues that the instructions on the relevant product submarket and geographic submarket were inadequate, and that the court erred in instructing the jury that "[t]here can be both a relevant market and a relevant submarket." II App. 584-85. See Brief of Defendant-Appellant, Cross-Appellee, at 22-40. Plaintiff says that at trial, however, defendant did not object to the instructions on these grounds. Instead, defendant objected on the ground that the relevant market Rule 51 of the Federal Rules of Civil Procedure provides that "[n]o party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Fed.R.Civ.P. 51. The purpose of this rule is to "prevent a litigant from taking advantage of an error which could be rectified by the court if called to its attention by timely and specific objection." Corriz v. Naranjo, 667 F.2d 892, 896 (10th Cir.1981), cert. granted, 456 U.S. 971, 102 S.Ct. 2233, 72 L.Ed.2d 844, cert. dismissed, 458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1983) (by stipulation); see also Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 924 (10th Cir.1984); Taylor v. Denver and Rio Grande Western Railroad Co., 438 F.2d 351, 353 (10th Cir.1971); 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2551 (1971).

issue should be decided by the court as a matter of law and should not be submitted to the jury. II App. 580-81.

Accordingly, Rule 51 requires counsel "to make abundantly clear to the trial court the objecting party's position." Rogers v. Northern Rio Arriba Electric Cooperative, Inc., 580 F.2d 1039, 1042 (10th Cir.1978); see also Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 483, 87 L.Ed. 645 (1943) ("In fairness to the trial court and to the parties, objections to a charge must be sufficiently specific to bring into focus the precise nature of the alleged error."); Community National Life Insurance Co. v. Porter Square Savings & Loan Association, 406 F.2d 603, 606 (10th Cir.1969) (objection to instruction "not sufficient because it was not distinct in explaining the grounds for objection as required by Rule 51"); 9 C. Wright & A. Miller, supra, Sec. 2554, at 643 ("grounds must be stated with sufficient clarity"). We have indicated that the grounds stated in the objection must be obvious, plain, or unmistakable. Corriz, supra, 667 F.2d at 896 (objections on grounds that elements of cause of action were not proven as a matter of law and that there was no evidence to support submission of claim to jury "are shotgun objections which do not meet Rule 51's specificity requirement").

Defendant argues that it did object to the charge on relevant submarket and contends that it took action at trial to sufficiently apprise the district court of these grounds. Defendant points to (1) its objection at the conference on instructions, set out below, where it objected to any submission of the market question to the jury; (2) its proposed instruction on market definition, which did not include instructions relating to submarkets; and (3) the argument made both in its trial memorandum and in its motion for a directed verdict that the relevant market, as a matter of law, could not be limited to Aspen, "and, implicitly, that there can be only one relevant market." Reply Brief of Defendant-Appellant, Cross-Appellee, at 2-3 (earlier emphasis added, later emphasis in original).

We note that at the conference in the district judge's chambers, during which both sides made their objections to the trial court's proposed instructions, counsel for the defendant made only the following objection to the relevant market instruction:

Your Honor, Defendants would object to the instruction concerning relevant market contained on pages 16 through 18 of the instructions. While the defendants recognize that there is case authority supporting the submission of the relevant market--the relevant market question to the jury, we believe that on the record established in this case that the market definition of both the product market and the geographic market should be decided as a matter of law and should not be submitted to the jury.

XIV R. 2290. 4

A few pages later in the record of the conference on instructions, the judge Further, as noted the defendant did argue for a directed verdict on the theory that the evidence showed a larger market than just this Aspen area. IX R. 1450. And defendant says that its proposed instructions 13 through 16 "excluded any instruction on submarkets." Reply Brief of Defendant-Appellant, Cross-Appellee, at 2. The proposed instructions on product and geographic market are general statements on the tests for the jury to follow, they state detailed tests on both product and geographic market, and make no...

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