07/18 11:41
00:00:01 3AN20-08622CIVIL Parties in Council are present.
00:00:07 Jury is out.
00:00:07 We have another question from the jury.
00:00:09 I've left each of you a copy also.
00:00:10 I guess Mr. Bedinger, you want to?
00:00:25 Tell me your view.
00:00:28 Yes.
00:00:30 Well, I believe, in my opinion, the answer to their question is no.
00:00:35 If they're unable to come to a decision on number five, does that negate any other decisions?
00:00:39 No.
00:00:41 That sounds to me like they're having trouble with number five, but they're not a hung jury.
00:00:45 And so my suggestion would be that we say no, and then the court charge them to keep trying.
00:00:53 Okay, Mr. Campion?
00:00:55 I agree.
00:01:04 Let me ask this question of both parties.
00:01:11 The assumption, I think, in the way this question is worded, at least my assumption is that they are working through the questions in order.
00:01:20 and if they have if this means they have gone through questions one through four that completes their work on Mr. Kroenke's claims against Mr. Elliott in which case the answer is I think correct no they don't it doesn't negate anything they've done so far if they've been going through them in a different order which I don't think is likely
00:01:49 I suppose there's a possible different answer.
00:01:54 And I'm only saying that because of the question the very first day over can we answer yes to all of these questions.
00:02:03 So we did not instruct them in the instructions or in your jury verdict form to answer questions in a specific order.
00:02:16 If this, then go to that.
00:02:18 which is sometimes done.
00:02:21 So I make that observation.
00:02:24 Does that change anybody's view of what the answer ought to be?
00:02:30 Not in my opinion your honor if So number six which comes after five is the abuse of process counterclaim Whether they've answered yes or no to that.
00:02:41 I think it's immaterial to their question number five the only spot where I think this could make a difference is if If they have tried to award damages for breach of contract on the counterclaim for breach of contract
00:02:59 and then we could we could possibly have an inconsistent verdict at the end I think we could sort that out we know certainly well if the answer is yes that Mr. Kroenke breached the contract then the damages are $1 if the answer is no he didn't breach the contract then regardless of what they put in that line the answer has to be $0
00:03:27 for breach of contract.
00:03:28 For breach of contract, right.
00:03:29 And so I agree with the court.
00:03:31 I'm not sure if we know which order they're going in.
00:03:37 I don't think that that changes the answer in my opinion, and I don't think it's anything we can't fix down the road.
00:03:43 I think their decisions are very boxed into our decision-making tree here.
00:03:49 Okay.
00:03:49 Mr. Campion?
00:03:51 With regard to the question before the Court, I think I agree with Mr. Benger.
00:03:56 The answer should simply be no.
00:03:58 Okay.
00:04:00 All right.
00:04:07 One more observation.
00:04:08 I will write the answer no.
00:04:09 I think if they come back and they have not completed all of the questions, for example,
00:04:20 It doesn't rule out the possibility that there's some problem with the verdict if they are unable to agree on the second half of the verdict form.
00:04:28 But those are issues that we take up when they come back.
00:04:33 So that's just an observation.
00:04:36 The other thing I wanted to raise, I have been made aware, Mr. Campion, of your email message that came in after we last met on the last question.
00:04:46 Mr. Bedinger, do you get that?
00:04:49 I've not seen it.
00:04:50 Let me check.
00:04:52 I can make a record if that's helpful.
00:04:54 Sure, please.
00:04:55 So after we concluded the answer to the last question, I went back and looked at jury instruction number 15, and I think it would be appropriate in making a request to the court that you supplement the answer you provided to the last question and refer the jury also to jury instruction number 15.
00:05:38 Okay, Mr. Bendinger.
00:05:44 Well, first, I think it's a little out of the ordinary to supplement a response, but setting that aside, the way I read the question is they're asking whether a specific act can be considered a breach of contract.
00:06:00 A breach of contract is our count one, essentially.
00:06:04 count two which is independent as a breach of the covenant of good faith and fair dealing that's not raised in the juror question I think if they wanted that they'd say is it considered a breach of the covenant of good faith and fair dealing
00:06:18 And so to the extent that we're referring jurors back to instructions, we can refer them back to every single instruction in the packet.
00:06:26 We've all agreed to these instructions.
00:06:28 But I think I view our task as responding as narrowly as possible to the jury to avoid being suggestive.
00:06:39 Thank you.
00:06:41 Yes, thank you for the opportunity.
00:06:43 I don't view the claims of the plaintiff as independent, as Mr. Benger suggested.
00:06:48 It's my understanding there are alternative theories for the same acts by Mr. Elliott and Treasure Chest LLC, and the first sentence of the first full paragraph in jury instruction number 15 is a reference to all contracts or every contract, and I believe
00:07:08 I think it is appropriate to do it.
00:07:09 I don't think there's anything unusual about supplementing an answer to a juror's question, and I would ask the court to supplement its answer by also instructing the jury to look at jury instruction number 15.
00:07:31 As I said previously, we've agreed to all these instructions.
00:07:34 They have them all in front of them, so it's not like we're giving the jury new information.
00:07:38 If we are going to supplement the instruction, or excuse me, the response with the breach of the implied promise instruction, then I think we might as well also supplement with the damages instruction for the breach of contract and make it a full packet for them.
00:07:59 And that would be number 13.
00:08:11 I don't object to that, Your Honor.
00:08:16 I think my first position, Your Honor, is that we not supplement.
00:08:20 That's why I don't want the court to misunderstand my argument.
00:08:23 But if the court does decide to supplement, then I think we should present a more complete picture.
00:09:43 All right Here's my ruling I I think I
00:10:11 Two things.
00:10:13 Number one, in the absence of a follow-up question, we would not be going back to re-instruct the jury to answer a new question.
00:10:25 So I think your initial point, Mr. Bedinger, is well taken.
00:10:30 But number two, I do think the question that they asked
00:10:42 could possibly be interpreted in more than one way.
00:10:48 And so telling them, essentially taking the opportunity to supplement since they seem to be struggling over parts of the questions.
00:10:58 We're making the assumption that they may have completed questions one through four, but that's not necessarily set in stone by any means.
00:11:10 I think it may be appropriate to supplement the instructions and remind them of the essentially the full breadth of the breach of contract instructions not just breach but the definition of essentially starting with question 13 and going through sorry instruction 13 as you've suggested and running through the nominal damage instruction on 17
00:11:44 essentially guide them back to all of the instructions on contract.
00:11:49 That may also have the collateral benefit of helping them decide the question that they've now posed, which they seem to be hung up on.
00:11:59 So I think it's appropriate to supplement and remind them to look at all of those instructions as it relates to their previous question, but they may also consider those instructions as they're trying to determine
00:12:14 question five which they appear to be struggling with understanding the course decision is to supplement then I agree with the courts proposed supplement okay champion as do I thank you all right
00:13:22 Seth Kroenke v Treasure chest LLC
00:14:19 Here's what I would propose to say in response to their question.
00:14:25 The answer to this specific question is no, it does not negate your answers.
00:14:30 For this question and your previous question, the jury is directed to the complete instructions regarding breach of contract numbers 13 through 17.
00:14:39 No objection.
00:14:43 Mr. Campion?
00:14:44 No objection.
00:14:44 All right.
00:14:46 I'm going to write that out a little more carefully so that they can read it and get them that answer.
00:16:12 Yeah, it's a very dedicated jury, that's for sure.
00:16:17 They're not flipping court.
00:16:19 It's a really good sign for our judicial system that people actually give a shit.
00:16:53 All right, so the response I've now written in for them is the answer to this question is no, it does not negate your prior answers, period.
00:17:02 For this question and your previous question, comma, the jury is directed to the complete instructions regarding breach of contract at instructions number 13 through 17, dated and signed.
00:17:14 Good to go?
00:17:16 Yes.
00:17:17 Yes, sir.
00:17:17 Thank you.
00:17:17 All right.
00:17:26 Okay, anything else?
00:17:29 We'll pass this back to him.