07/16 08:33
00:00:01 Good morning, everybody.
00:00:02 Please be seated.
00:00:03 Welcome back.
00:00:04 All right, folks.
00:00:10 We are on record in the Kroenke v Treasure Chest and Randy Elliott case 3AN20-08622.
00:00:18 Civil parties and counsel are present.
00:00:21 Jury is out.
00:00:22 Thank you for coming in early, folks.
00:00:24 A couple of housekeeping matters to address.
00:00:27 First, obviously jurors are not here yet.
00:00:29 Even our early birds haven't called in yet so far.
00:00:34 So let me deal with the motion for directed verdict first.
00:00:38 I did ask my JA to send at least a brief note to counsel last night alerting you that my bottom line of my decision is I'm denying the motion for directed verdict at least so you had that notice last night.
00:00:52 Briefly the standard for directed verdict is set out under civil rule 50A I have to look at the evidence of the light most favorable to Mr. Elliott and Treasure Chest I have to determine that reasonable jurors could not differ in their judgment stated differently that fair-minded jurors could reach only one conclusion there are two aspects to the motion for directed verdict first on the abuse of process claim that has been brought as a counterclaim by Mr. Elliott and Treasure Chest
00:01:21 The question is whether Mr. Kroenke committed a willful act in the use of process not proper in the regular course of the proceeding, and second, did he have an ulterior motive?
00:01:34 On the question of whether or not it was a willful act, the evidence shows that Mr. Kroenke recorded a lien for $500,000 on property, including the Idaho gulch parcels, which was not part at least of the first agreement explicitly.
00:01:51 He treated the project as a construction contract for time and materials.
00:01:56 When the contract does not say that, he demanded reimbursement for expenses before the end of the season, when again the contract didn't provide for that.
00:02:06 Viewing the text messages that were exchanged between the parties, Mr. Kroenke was threatening liens and legal process even as early as July.
00:02:13 In the text messages that start around July 20,
00:02:17 It's clear Mr. Kroenke is saying that he has to have his expenses covered now and that is essentially a time and materials contract.
00:02:24 And Mr. Elliott is saying that was not the deal.
00:02:28 Mr. Kroenke is claiming that he's entitled to access to the area being mined by FUBAR when the contract specifically excludes certain other properties.
00:02:37 Mr. Elliott, excuse me, Mr. Kroenke continues making demands for guarantees or early payment and says that he won't be the bank.
00:02:44 It is apparent that by the end of July, the parties were not on the same page over what the agreement provided.
00:02:50 When I look at the evidence in the light most favorable to Mr. Elliott, Mr. Kroenke did a willful act he was not entitled to take.
00:02:57 He filed a lien for $500,000 on property that was excluded by the contracts.
00:03:02 The lien tied up Mr. Elliott's ability to sell it to any other buyer.
00:03:07 A reasonable conclusion is that the lien was done specifically to force payment when he had no right to leave the property.
00:03:14 It was done for an ulterior motive, arguably, yes, to recover his expenses, but also more than his expenses.
00:03:21 His billings included both overhead and profit, not just expense.
00:03:25 He was seeking more than the contract provided for him.
00:03:29 Also, in the words of Mr. Turnbull, at least as reported by Ron Widom, they didn't need to mine because they were going to mine the miner.
00:03:36 Now, that's going to be a credibility determination for the jury in terms of whether or not they believe that statement was made.
00:03:43 Once again, I have to view the evidence in the light most favorable to Mr. Elliott when deciding on a directed verdict.
00:03:50 Based upon the evidence that I've reviewed and heard, including the written exhibits, I cannot say that fair-minded jurors could only reach one conclusion in this case.
00:04:01 Stated differently, at least some fair-minded jurors could potentially conclude that there was an abusive process.
00:04:11 On the question of punitive damages, quite frankly, this is a closer call.
00:04:15 The burden of proof on punitive damages is higher.
00:04:18 There must be clear and convincing evidence that Mr. Kroenke's conduct was recklessly indifferent to Mr. Elliott's rights or was outrageous or was done with bad motives.
00:04:29 But again, if I view the evidence in the light most favorable to Mr. Elliott, the evidence I just outlined shows, on the one hand, a successful commercial contractor, Mr. Kroenke,
00:04:39 jumping into a new venture without expressly spelling out how he intended to charge for his expenses.
00:04:45 He saw an opportunity to make money.
00:04:47 In the words of Mr. Clark, a crazy idea.
00:04:50 He thought he could do it better than the guy who'd been up there for 40 years mining.
00:04:55 According to the second contract, they were supposed to sit down at the end of the season, quote, roughly in November, close quote, and talk about a buyout.
00:05:04 But again, viewing the evidence in the light most favorable to Mr. Elliott,
00:05:08 Mr. Kroenke was impatient.
00:05:10 He was pressing hard in July because he couldn't afford to be the bank.
00:05:14 He made threats, involved lawyers, complaints, liens, all before the season was over.
00:05:19 So once again, I cannot say that the jury can reach only one conclusion based upon the evidence.
00:05:25 Fair-minded jurors may well differ.
00:05:28 And so for all of these reasons, I think the jury gets to decide both of the issues, so the motion for directed verdict is denied.
00:05:35 That's the court's decision.
00:05:41 turning to jury instructions I sent you each last night the jury instructions at least as I put them together in a packet I did see a response from Mr. Campion with suggested changes to instruction number 16 which basically as I read it makes the instruction parallel between the two parties in terms of the damages instruction that had been claimed otherwise I didn't see any other
00:06:08 noted changes or objections from Mr. Campion unless you spotted something else this morning.
00:06:12 I did not hear anything.
00:06:13 Okay.
00:06:13 Mr. Bedinger, comments?
00:06:16 If I could start with a few small changes.
00:06:21 Does the court mind if I stay here so I can see the instructions on the computer?
00:06:24 Not at all.
00:06:26 instruction number seven is addressing expert witnesses I think this is the instruction that we submitted jointly when we thought there would be two expert witnesses there's only been one and so I think we might be able to simplify number seven
00:06:44 by referring to an expert witness instead of multiple expert witnesses.
00:06:47 And then the last two paragraphs of that instruction talk about whether experts agree or disagree.
00:06:53 And I think we can take out those two paragraphs because that possibility doesn't exist in our case.
00:06:58 Okay.
00:06:58 Mr. Campion, any issue with those suggested changes?
00:07:01 No, I agree.
00:07:01 Thank you.
00:07:02 All right.
00:07:02 So let me – so this is for jury instruction number seven.
00:07:06 I'm going to say an expert witness
00:07:14 testified in this case, goes on to say experts have special training.
00:07:18 I don't see a need to change the tense or the plurality there.
00:07:26 And then strike the last two paragraphs.
00:07:29 That's correct, Your Honor.
00:07:30 All right.
00:07:31 I'll make those changes.
00:07:42 Next.
00:07:43 Next.
00:07:43 And I assume the court was going to address this later, but instructions number 8 and 21 have bracketed language where the court can choose between different options.
00:07:55 Quite right.
00:07:56 So... And so for number 8, I think I'd be fine including that bracketed language.
00:08:08 I don't see any reason not to.
00:08:19 Looking at it given the very limited deposition testimony that was read in this case I actually think it would be better to strike the second sentence from that paragraph that say all parties are given an opportunity just take that out so just the first sentence when a deposition is taken the witness takes an oath identical to the purpose
00:08:44 in the courtroom, and then the law does not distinguish between deposition testimony and live testimony.
00:08:49 That's fine with me, Your Honor.
00:08:57 That way you're not inviting a further question about what more is in the deposition.
00:09:06 Okay.
00:09:07 Number 21 also has some bracketed language.
00:09:10 Anything between 9 and 21?
00:09:14 Or were you just jumping the one on the bracket?
00:09:17 I'm kind of going from simple to complicated.
00:09:20 Okay.
00:09:20 All right.
00:09:21 Let me go over to 21 then and we'll come back.
00:09:36 So I'll just take out the brackets around 830 to 430.
00:09:45 Is that the only bracket you saw on 21?
00:09:46 Yes.
00:09:47 Okay, I'll make that change.
00:09:52 And then number 24 as well just has some brackets and some spaces for the court to fill in.
00:10:26 All right, so before the blank, well, there's actually a bracket.
00:10:30 Let me back up to the brackets first.
00:10:34 So at least 10 of you must agree, correct?
00:10:38 No disagreement about that point?
00:10:40 Agreed.
00:10:40 Mr. Campion?
00:10:42 Yes, I agree.
00:10:42 Thank you.
00:10:43 So I'm going to strike the brackets around 10 on the second paragraph and then say before 4 p.m.
00:10:53 in the third paragraph.
00:10:58 We do not encourage them to stay late unless it's a Friday, frankly.
00:11:03 They can just come back the next day.
00:11:08 So 4 p.m.
00:11:09 in the fourth paragraph.
00:11:10 The foreperson will seal the envelope.
00:11:21 We've got a bailiff, so I'll strike the sentence, keep possession.
00:11:36 And then for exhibits, I'm going to insert in the jury room.
00:11:47 We'll talk about exhibits here in a moment, but the exhibits won't fit in an envelope.
00:11:53 They're contained in binders, so that's not going to work.
00:12:10 I'm going to say 4pm on returning homes
00:12:43 All right.
00:12:43 I apologize.
00:12:44 I should have made these editorial changes before I sent it out last night, but let me read you what it should say now for instruction number 24.
00:12:55 So, again, the second paragraph should say at least 10 of you must agree in each of those positions.
00:13:01 I've inserted 4 p.m.
00:13:02 in the third paragraph.
00:13:03 I've inserted 4 p.m.
00:13:06 in the fourth paragraph.
00:13:08 The fourth paragraph I'm going to read you.
00:13:10 It says, if you do not agree on a verdict before 4 p.m.
00:13:13 but you agree later tonight, your foreperson should date and sign the verdict form and place it together with the instructions and the exhibits in the envelope I'm giving you.
00:13:22 Foreperson will seal the envelope and give the sealed envelope to the bailiff.
00:13:27 Exhibits that do not fit in the envelope may be kept in the jury room.
00:13:31 If you use this method of sealing your verdict, you must return to the jury room by 8.30 a.m.
00:13:36 You must not speak with anyone concerning the case and the verdict until verdict till the verdict is opened in court in your presence We pause there any issue with those changes to that paragraph And so the next paragraph Fifth paragraph again, I've said 4 p.m.
00:13:57 And
00:14:01 I've struck things starting in the third sentence, so before you go home the foreperson should take the unsigned verdict form, these instructions, and the exhibits, place them in the envelope I am giving you, seal the envelope, and lock the jury room so that the exhibits, instructions, and unsigned verdict form will remain undisturbed.
00:14:20 If you have not agreed on a verdict, you must return to the jury room by tomorrow morning by 8.30 to continue deliberations.
00:14:27 Any issues with that sent?
00:14:28 No, Your Honor.
00:14:29 No, Your Honor.
00:14:35 So that takes care of the minor ones, Mr. Bettinger.
00:14:37 Next, Your Honor, if we could look at instruction number 20, which is the punitive damages instruction.
00:14:45 This is a pattern instruction.
00:14:48 However, I think it's worth clarifying that the defendants, they have two counterclaims in front of the jury, breach of contract and abuse of process.
00:14:59 The award of punitive damages can only be based on abuse of process.
00:15:05 I think the way this is currently worded, it's potentially confusing.
00:15:09 Specifically, if we look at the second paragraph, the second sentence says Mr. Elliott and Treasure Chest LLC are eligible for an award of punitive damages only if he proves by clear and convincing evidence that Mr. Kroenke's conduct, which forms the basis of your verdict,
00:15:30 So my proposal would be that we say if he proves by clear convincing evidence that Mr. Kroenke's conduct which forms the basis of your verdict on abuse of process demonstrated reckless indifference.
00:15:47 Mr. Campion?
00:15:51 I understand his proposed language change.
00:15:53 I'm questioning his statement of law that the
00:16:01 I believe we briefed that previously.
00:16:08 Breacher contract claims cannot support an award of punitive damages.
00:16:11 They're only awarded for torts, abusive process, and discovery responses, which we can go through.
00:16:16 I think as when Mr. Albert was representing Mr. Elliott.
00:16:21 He confirmed on multiple occasions that their only basis for penal damages was the misrepresentation claim and the abuse of process claim.
00:16:29 Misrepresentation has been dismissed by the defense.
00:16:31 Abuse of process is the only notice to counterclaim left in support of penal damages.
00:16:37 Mr. Campion?
00:16:40 I don't know what part I'm responding to.
00:16:49 I can't recall at this moment whether this issue was briefed.
00:16:52 I frankly don't remember what exactly Mr. Albert had asserted.
00:17:03 Let me give you a clarifying question.
00:17:09 Is it your position that punitive damages may be awarded for breach of contract?
00:17:15 I don't believe it's prohibited.
00:17:16 Whether it's warranted in this case is
00:17:19 I'm not certain because of all the procedural things that happened really before I was involved.
00:17:23 So I don't know if I can give you a straight answer.
00:17:26 I'm thinking as I'm standing here, so I don't know that I can give you... Understood.
00:17:29 I wish we had done this before.
00:17:31 I would have been helpful, but I'll defer to the court.
00:17:35 I think that's probably the way I want to handle this, Your Honor.
00:17:41 Well, Mr. Bedinger, I think you're correct that in the earlier briefing that was done on this issue,
00:17:49 There was a misrepresentation claim that was then pending.
00:17:53 There's no question in the law that misrepresentation as a tort can form the basis of a potential punitive damages claim.
00:18:02 And that claim has not been pursued through trial.
00:18:09 Now there are situations in which the law does allow for punitive damages.
00:18:16 In breach of contract, for example, breach of the duty of good faith and fair dealing implied in all contracts can support an award for punitive damages.
00:18:28 You have an express claim for breach of the covenant of good faith and fair dealing as part of your direct claims.
00:18:35 But once again, the law says that the duty of good faith and fair dealing exists both ways in all contracts.
00:18:44 even though there's no express claim for breach of the duty of good faith and fair dealing here.
00:18:48 So I think Mr. Campion is correct that the law does not expressly prohibit punitive damages in all ways for a breach of contract claim.
00:19:07 So I think as written the instruction is correct.
00:19:12 but I also think it may be cleaner for purposes of the record to ask the jury a separate question and the verdict form over what's the basis for any determination on punitive damages for example are they making are they saying that the conduct which forms the basis of punitive damages is breach of contract
00:19:41 or abuse of process.
00:19:50 I do agree.
00:19:51 Maybe I generalize.
00:19:52 There are very specific instances before breach of contract where opinion of damages can be awarded.
00:19:57 I don't think this case falls in one of those categories.
00:20:00 We haven't briefed that issue.
00:20:01 But I am 100% positive that in our discovery, which has previously been briefed, I believe in my motion for partial summary judgment where I move for summary judgment on opinion of damages,
00:20:14 The defense's position this entire case through discovery has been that their penal damages claim is based only on their torts, not breach of contract.
00:20:25 And I don't think it's fair or just for the defendants the morning of the final day of trial to expand their factual basis for their penal damages claim.
00:20:35 MR. Campi, do you want to respond to that?
00:20:38 MR. I don't.
00:20:51 I'm happy to pull up that briefing on the summary judgment issue.
00:20:55 I'm sure I attached those discovery responses to that motion.
00:20:57 It'll be in the file as well.
00:21:01 Let me do this.
00:21:02 I think this point is significant.
00:21:04 Let me go pull the file out.
00:21:05 I didn't bring it in here and take a look at it.
00:21:08 So let me defer that question for a moment and let's see if we can get through any other substantive objections that you have so that I can deal with them all at one time.
00:21:17 My final objection is
00:21:20 It's going to be even more disputed, I'm afraid.
00:21:23 But I'm happy to raise it right now.
00:21:25 Please.
00:21:26 So last night we received the defendant's proposed edit to jury instruction number 16, which was Kroenke's damages instruction.
00:21:38 The defendants have tried to make it parallel.
00:21:42 First, for a really minor correction.
00:21:46 There is a paragraph that concludes the damages instruction that says that if you don't find that these elements have been met, you can't award damages instead you do nominal damages.
00:21:56 As the instruction was edited, that paragraph only applies to Mr. Kroenke and there is not an analogous one for Mr. Elliott.
00:22:08 So if we look at instruction number 16, that final paragraph,
00:22:15 should really be above the language that Mr. Campion inserted.
00:22:21 And then there should be an identical paragraph from Mr. Elliott at the very bottom.
00:22:24 I agree with that, Your Honor.
00:22:28 All right.
00:22:28 So final paragraph.
00:22:31 So tell me again where
00:22:33 You would put that would be The paragraph as it's currently written should go after the romanette number 3 that says Mr. Kroenke has established the amount of his financial loss with reasonable certainty And we're just copying that final paragraph in both locations but changing the name Correct So the paragraph where it is right now at the bottom instead of saying to Mr. Kroenke and must award Kroenke nominal damages it should say Elliott and Treasure Chest
00:23:11 actually as I'm looking at it now I notice that so that the way that was worded at the bottom it says only cranky so it ought to say cranky up above where you just indicated and Elliott and Treasure Chest down below correct okay okay I'll make that change
00:23:39 I have one final objection when the court's prepared.
00:23:42 I'm ready.
00:23:44 This edited jury instruction number 16 asks for damages for Mr. Elliott in the form of half the value of gold that Mr. Elliott and Treasure Chest LLC would have mined if Mr. Kroenke had followed the contract, basically taking one of Mr. Kroenke's measure of damages and flipping it.
00:24:09 The problem I have is very similar to the motions and lemonade that we did on discovery and the defense's Disclosure of the damages that are seeking throughout this entire case over four years and the defendants damages disclosed damages have been based on Mr. Elliott's expenses that he incurred at the mine and that failed 1 million dollar buyer that has to do with the abusive process and
00:24:36 In their initial disclosures, the disclosed damages referred to Defense 305306 that exited 14 that has not been admitted.
00:24:47 And then in interrogatories, which I attached to the motions in limine where we further asked the defense to
00:25:00 Please itemize all categories and amounts of damages you are claiming against Kroenke, including but not limited to the category of each claim for damages, the amount of each claim for damages, and the counterclaim that supports each claim for damages.
00:25:13 Mr. Albert objected and then cited saying it's repetitive of prior interrogatories and he cited his prior responses.
00:25:20 Seth Kroenke v Treasure
00:25:41 was it 14 that was not admitted and so last night when we received the defendants proposed amendment to
00:25:51 instruction number 16 was the first time in the entire case that the defendants have claimed that they should be entitled to half the value of the goldmine.
00:26:00 It wasn't in their trial brief.
00:26:01 It's not in the opening statement.
00:26:03 It hasn't been really explored through testimony.
00:26:05 If we had known, we certainly would have directed Mr. Kroenke about it, cross-examined Mr. Elliott about it.
00:26:11 Instead, this is an entirely new category of damages, and my request is that
00:26:18 in requesting damages for breach of contract, the defense should be required to ask for what they've said they're going to ask for this entire case, which is reimbursement of half of Mr. Alley's expenses.
00:26:28 Thank you.
00:26:29 Thank you, Mr. Bedinger.
00:26:30 Mr. Campion?
00:26:35 I'm not going to dispute anything Mr. Bedinger said here.
00:26:41 All right.
00:26:46 based upon the record before the court given the discovery that had been done previously, the responses that were provided previously, the testimony that's been elicited, I think Mr. Bedinger's position is correct.
00:26:58 There has not been a specific request put forth during this trial by Mr. Elliott for half of the gold he would have mined if Mr. Kroenke had followed through.
00:27:11 There had been quite a lot of discussion about
00:27:14 exhibit 14 on the expenses quite frankly there wasn't much testimony about the expenses other than some broad brush numbers in terms of what those expenses are there was no effort made to introduce the expense list beyond the after we dealt with the objections exhibit 14 is not part of the evidence that has been put in front of the jury
00:27:43 I think Mr. Bedinger's request is well taken.
00:27:46 I don't think there is evidence before the court, nor is there a discovery response where a request for half the gold that would have been mined is identified as an element of damages that Mr. Kroenke should be responsible for if the jury determines there was a breach of contract.
00:28:05 So in light of that, I think construction number 16
00:28:15 needs to be edited further.
00:28:19 Well, it probably just needs to go back to the one that was proposed last night without my edits.
00:28:28 I still think if the defense is going to request anything other than nominal damages, we have to have those damage elements in there where the jury has to find that the loss was reasonably foreseeable and proved with reasonable certainty.
00:28:45 I get limit brass tax.
00:28:46 Mr. Campion, are you still asking for expenses?
00:28:50 Well, I mean, what I proposed, the instruction 16 that I proposed implicitly is not asking for expenses.
00:28:57 Right.
00:28:57 And we have not introduced it 14.
00:28:59 It's not my intent to argue for compensation for Mr. Kroenke or for Mr. Elliott for expenses.
00:29:06 Okay.
00:29:15 I think in crafting number 16, my question would be what damages is the defense requesting for breach of contract?
00:29:23 Sounds to me like nominal damages.
00:29:24 Yes, Your Honor.
00:29:25 Impunitive damages.
00:31:19 I think instruction number 16 needs to be clear that what Mr. Elliott is claiming for breach of contract is nominal damages and punitive damages, but that's not compensatory because 16 is really dealing with compensatory damages.
00:31:37 17 then deals with nominal damages specifically.
00:31:49 so I do think there ought to be language so the court's original instruction which was the one the parties had jointly proposed quite frankly doesn't say anything about Mr. Elliott
00:32:41 Let me ask this question.
00:32:42 Is there any disagreement that if the jury finds in favor of Mr. Elliott that Mr. Kroenke breached the contract, that Mr. Elliott would be entitled to an award of nominal damages?
00:32:57 No disagreement.
00:33:00 Then I think the, Mr. Campion, any disagreement?
00:33:02 No.
00:33:04 Then instead of, so I'm looking at the proposed, Mr. Campion's proposed 16.
00:33:16 And on the second page where it starts as compensatory damages, I would strike that wording and say Mr. Elliott and Treasure chest claim Mr. Kroenke breached the contract.
00:33:31 If you find that Mr. Kroenke has breached the contract, you must award nominal damages.
00:33:37 I'm sorry, could the court repeat where that language being inserted?
00:33:40 I'm sorry, I lost it.
00:33:42 The highlighted paragraph that begins as compensatory damages
00:33:46 Okay, I see.
00:33:47 I would start it by saying Mr. Elliott and Treasure chest claim Mr. Kroenke breached the agreement.
00:34:12 I would ask for breach the contract.
00:34:14 Breach the contract, sorry.
00:34:21 If you find this is true, you must award Mr. Elliott
00:34:50 nominal damages and then the same sentence again in a moment I will instruct you regarding the word of nominal damages I'm sorry could the court read what it's added let me go back so in Mr. Campion's proposed 16 after paragraph number 3
00:35:22 We've moved up the language.
00:35:23 If you decide these requirements for an award of compensatory damages have not been met, you cannot award compensatory damages to Mr. Kroenke.
00:35:31 Instead, you must award Mr. Kroenke nominal damages.
00:35:34 In a moment, I will instruct you regarding an award of nominal damages.
00:35:38 I would then go on to say Mr. Elliott and Treasure Chest LLC claim Mr. Kroenke breached the contract.
00:35:46 If you find this is true, you must award Mr. Elliott nominal damages.
00:35:53 Your Honor, if I could propose a suggestion.
00:35:56 I think we have an instruction already on the party's claim for breach of contract, and this one's just damages.
00:36:03 And so I prefer if we can mirror the way this instruction starts for Mr. Kroenke, where at the top of instruction 16 it says, if you find in favor of Mr. Kroenke on his claim for breach of contract, you must decide, et cetera.
00:36:15 And so perhaps we could say, if you find in favor of Mr. Elliott and Treasure Chest LLC on their claim for breach of contract,
00:36:22 You must award nominal damages.
00:36:29 Can't get any objection to that language?
00:36:31 There are.
00:36:32 So read that to me one more time Mr. Bedinger.
00:36:35 Sure.
00:36:36 If you find in favor of Mr. Elliott and Treasure Chest LLC
00:36:50 on their claim for breach of contract.
00:37:03 You must award Mr. Elliott and Treasure chest LLC nominal damages
00:37:15 And then we can repeat in a moment, I will instruct you regarding an award of nominal damages.
00:37:24 Okay.
00:37:36 Is that agreed, Mr. Campion?
00:37:40 Yes, Your Honor.
00:37:41 Any other changes to 16 then?
00:37:45 No, Your Honor.
00:37:47 I did find my backing for my request on the punitive damages instruction.
00:37:58 It was in the summary judgment motion and it's a citation to the defendant's counterclaims and their list of requested relief.
00:38:10 which is eight paragraphs long and paragraph seven says I agree I just found the same thing when he was looking so I agree in our counter claims we didn't ask for recovery half gold so I'm sorry we didn't ask for punitive damages regarding the breach of contract and so if the court thinks that it's necessary to modify that instruction that's fine or if you want to modify the third one that's fine too but we're not going to argue
00:38:36 I don't intend to argue for punitive damages for the breach of contract because it wasn't pled.
00:38:41 Just for the abusive process?
00:38:42 Yes, Your Honor.
00:38:43 All right.
00:38:43 So I think that objection then is well taken based upon the prior briefing, the prior orders of the court.
00:38:49 Thank you for that concession, Mr. Campion.
00:38:51 So let me go back then.
00:38:54 Let's make sure we're...
00:39:09 So those corrections were in instruction 24, not 24, which instruction?
00:39:12 Twenty Twenty
00:39:38 Do you have suggested language then, Mr. Bettinger?
00:39:41 Yes, if we look at the second paragraph and the second sentence that begins with Mr. Elliott and Treasure Chest LLC are eligible for an award of punitive damages only if he proves by clear and convincing evidence that Mr. Kroenke's conduct which forms the basis of your verdict on abusive process demonstrated reckless indifference, etc.
00:40:01 Any objection to that language, Mr. Kinner?
00:40:04 So just inserting words on abusive process?
00:40:07 Yes, Your Honor.
00:40:18 Okay, anything else?
00:40:20 Just final housekeeping, if we could, if the court doesn't mind, I would like to, and Mr. Campbell might like to as well, review the binder of exhibits that's going back to the jury just to check against my exhibit list to make sure there's no mistake.
00:40:34 We absolutely want to do that.
00:40:36 Thank you.
00:40:38 So let me ask this.
00:40:40 What I want to do here in just a moment is step back, have the bailiff alert the jury that we're just finishing up and we'll be ready for him shortly.
00:40:48 I want to give the parties at least get my JA working on cleaning up the jury instructions give you one last chance to review them before they go forward whether you want to do that between now before we close or after doesn't matter to me but I'd like to make sure that we're agreed on the language of the substantive instructions so generally I like to make sure we're clear before we close I agree with that your honor
00:41:18 So any changes now to the verdict form in light of what we just went through?
00:41:31 I'm just double checking.
00:41:47 I don't think we need any further changes.
00:41:50 I think the vertiform captures the punitive damages issue correctly.
00:41:55 Yeah, I agree.
00:42:34 I'm going to go work on these changes.
00:42:37 What I'm going to ask Madam Clerk to do is to go let the jury know that we need about 15 minutes to finish up the instructions and then we'll be ready for them to do closing arguments.
00:42:47 This shouldn't take long to make these changes.
00:42:49 Thank you.
00:42:50 Thank you, Judge.