Lobato v. Bleidt
| Decision Date | 29 November 1993 |
| Citation | 54 F.3d 787 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before KELLY and SETH, Circuit Judges, and KANE, * District Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are therefore ordered submitted without oral argument.
Robert Lobato brought this action against Carwin Bleidt and Limited Gaming of America, Inc. (LGA) asserting contract and fraud claims. Lobato's claims relate to breach of an alleged oral contract under which Bleidt, as primary owner of LGA, agreed to give Lobato shares of LGA stock and other remuneration in return for Lobato's becoming LGA's president. Bleidt and LGA counterclaimed for conversion and breach of fiduciary duty. Lobato's breach of contract claim went to the jury, and the jury found in his favor against Bleidt, awarding him $3,394,900.15 in damages for the value of the securities Bleidt failed to deliver. The jury also awarded LGA $67,500.00 plus interest on its counterclaim against Lobato for conversion. Bleidt appeals and Lobato cross-appeals against LGA. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm.
The parties are familiar with the facts, and we will not restate them. On appeal, Bleidt raises several issues. He contends first that the oral agreement for the transfer or sale of the stock is unenforceable because it is barred by Colorado's statute of frauds, Colo. Rev. Stat. Sec. 4-8-319, which generally requires that contracts for the sale of securities be in writing. He then contends that in any event, the oral agreement was merged into or discharged by the parties' subsequent written employment outline. Lobato argues that his substantial performance of the oral contract took it out of the statute of frauds. He also argues that he and Bleidt never finalized the outline because they never agreed to the meaning of the term "cause." Therefore, there was no subsequent written contract into which the oral contract could be merged or which could replace the oral contract.
Under Colorado law, the existence of an oral contract, its terms, and whether it has been modified are factual questions. See L.U. Cattle Co. v. Wilson, 714 P.2d 1344, 1347 (Colo. Ct. App. 1986); Dime Box Petroleum Corp. v. Louisiana Land & Exploration Co., 938 F.2d 1144, 1149 (10th Cir. 1991). Similarly, whether part performance of an oral contract is substantial enough to take the contract out of the statute of frauds is also a factual question. See, e.g., A & R Co. v. Union Air Transp., Inc., 738 P.2d 73, 74-75 (Colo. Ct. App. 1987); Ellis Canning Co. v. Bernstein, 348 F. Supp. 1212, 1229 (D. Colo. 1972). The jury was instructed on determining the existence, terms, modification, and substantial part performance of contracts, and Bleidt does not challenge these instructions. We will not disturb determinations by the jury if the record contains substantial evidence, viewed in the light most favorable to the prevailing party, supporting the jury's decision. Oklahoma Federated Gold & Numismatics, Inc. v. Blodgett, 24 F.3d 136, 142 (10th Cir. 1994). There was conflicting evidence on all of these issues, and we will not disturb the jury's determinations.
Bleidt's next challenges all relate to the amount of the jury's damages award. The district court instructed the jury that its damages award should reflect the value of the stock Lobato was entitled to receive, and the jury awarded Lobato $3,394,900.15. This is the same amount as contained on Lobato's exhibit 76, which he presented as evidence of his share of LGA's book value as of April 30, 1992, based on the shares of stock to which he was entitled. Exhibit 76 is based in turn on Lobato's exhibit 74, which Lobato prepared as a "Computation of Fair Market Value of [LGA's] Assets as of April 30, 1992." Appellant's App. Vol. 9 at 48. Bleidt directs his arguments primarily at exhibit 74.
Bleidt makes the related arguments that the district court should not have admitted exhibit 74, that the jury's determination of damages was not based on competent evidence, and that the damages awarded are excessive and require remittitur. We review a trial court's admission of evidence for abuse of discretion. Durtsche v. American Colloid Co., 958 F.2d 1007, 1011 (10th Cir. 1992). Bleidt contends, as he did at trial, that exhibit 74 was inadmissible because it purports to represent the "fair market value" of LGA's assets but instead represents only the book value (cost or face amount) of the assets, and because Lobato admitted that he did not know the fair market value of the assets. Bleidt further contends that because there was no evidence of LGA's fair market value, the damages award is not supported by competent evidence. He also argues that exhibit 74 exaggerated LGA's value because it understated liabilities and overstated assets and that the district court erred in denying his request for remittitur.
The district court rejected Bleidt's objection to the admission of exhibit 74 on the basis that the objection went to the weight, and not the admissibility, of the evidence. We agree. Book value, such as cost and face amount, is a valid measure of an asset's worth. Other measures may be more appropriate in certain circumstances, and may have been more appropriate in this case, but that does not negate the probative worth of book value. Moreover, Bleidt could have presented his own evidence of LGA's value using these other measures and reflecting his determinations of LGA's assets and liabilities. He chose not to. The district court did not abuse its discretion in admitting exhibit 74, and that exhibit is competent evidence to support the damages award. The court's denial of Bleidt's request for remittitur was not a gross abuse of discretion. See Sheets v. Salt Lake County, 45 F.3d 1383, 1390 (10th Cir. 1995).
Bleidt also contends that the district court erred in refusing to instruct the jury that actual damages must be measured as of the time of the breach of contract. The court...
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Murray v. Crawford
... ... Under Colorado law, the existence of an oral contract and the contents of its terms are factual questions. Lobato v. Bleidt, 54 F.3d 787, 1995 WL 307609, *1 (10th Cir.1995); Dime Box Petroleum Corp. v. Louisiana Land and Exploration Co., 938 F.2d 1144, 1149 ... ...