United States District Court, D. Colorado
SUNFLOWER CONDOMINIUM ASSOCIATION, INC., a Colorado nonprofit corporation, Plaintiff and Counterclaim Defendant,
OWNERS INSURANCE COMPANY, Defendant and Counterclaimant.
SUPPLEMENTAL RULING ON SUNFLOWER'S RULE 50 MOTION
& ORDER THAT OWNERS SUBMIT A FORM OF JUDGMENT
William J. Martinez United States District Judge.
close of Counterclaimant Owners's evidence on day 2 of
last week's trial (October 16, 2018), Counterclaim
Defendant Sunflower orally moved for Rule 50(a) judgment as a
matter of law. (See ECF No. 215 at 3.) The Court
took that motion under advisement. (Id.) Then, at
the close of its own case on day 4 (October 18, 2018),
Sunflower renewed its Rule 50(a) motion on its previous
grounds, as well as on two new grounds: (1) the insurance
policy strictly limits the fraud clause to the actions of the
“insured, ” to the exclusion of any agent; and
(2) recoupment is not an available remedy because the
insurance policy does not expressly state that it is an
available remedy. (See ECF No. 217 at 2) The Court
expressed serious concern, and Owners similarly argued, that
Sunflower waived these new arguments for failure to raise
them in the mid-trial motion. The Court nonetheless ordered
Sunflower to file its arguments in writing, and it permitted
Owners to file a written response. In between those two
events, the jury rendered a verdict in Owners's favor.
(See ECF No. 229.) The Court must now determine
whether it may enter judgment on the verdict in Owners's
favor in light of Sunflower's two new arguments.
written brief says nothing about the waiver question raised
in open court. (See generally ECF No. 218.)
Owners's response points out as much, and cites Tenth
Circuit authority supposedly supporting its waiver argument.
(ECF No. 219 at 2- 3.) But the cases Owners cites address
renewal of a Rule 50(a) motion through a post-verdict Rule
50(b) motion. See M.D. Mark, Inc. v. Kerr-McGee
Corp., 565 F.3d 753, 763 (10th Cir. 2009); Marshall
v. Columbia Lea Reg'l Hosp., 474 F.3d 733, 738 (10th
Cir. 2007). They do not address a mid-trial Rule 50(a) motion
at the close of the opposing party's evidence and the
renewal of that same motion at the close of all the evidence.
50(a) is frankly not clear about this circumstance.
Timing-wise, its only requirement is that the motion
“be made at any time before the case is submitted to
the jury.” Fed.R.Civ.P. 50(a)(2). Sunflower's
motion, including its two new arguments, satisfies this
requirement, strictly speaking. However, the Court finds that
Sunflower raised these two new arguments too late, for two
reasons unrelated to any timing requirements inherent in Rule
as noted, Sunflower's written submission entirely fails
to address the waiver question that the Court and Owners
repeatedly raised during oral argument on the motion. The
Court thus deems Sunflower to have conceded the issue.
See, e.g., Phoenix Ins. Co. v. Trinity Universal
Ins. Co., 2013 WL 12106960, at *10 n.13 (D. Colo. Aug.
29, 2013); Kosak v. Catholic Health Initiatives, No.
08-CV-01505-CMA-MJW, 2009 WL 3497782, at *6 (D. Colo. Oct.
28, 2009), aff'd, 400 Fed.Appx. 363 (10th Cir.
forfeiture may apply when a party fails to present a legal
argument at the time when its resolution could have obviated
the case entirely, or at least a significant portion of it.
See Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775,
791 (10th Cir. 2013) (party forfeited counterargument that
was not raised in a summary judgment response but naturally
should have been, given that it would have mooted analysis of
other arguments made in the summary judgment motion). This
applies to Sunflower's two new arguments. If raised at an
appropriate time (most likely summary judgment) and accepted
by the Court, one or both of those arguments may have
disposed of this case entirely or, at a minimum, would have
obviated most of the testimony and evidence presented at
Court's view, it would be fundamentally unjust to put
Owners to its proof on its counterclaim at a week-long jury
trial, and then consider at this late date arguments from
Sunflower which, if now accepted by the Court, would render
the entire trial a nullity. This is a result the Court would
only conceivably entertain in the event it was plausibly
argued that the Court lacked either in personam or
subject matter jurisdiction. Since jurisdiction is manifestly
not an issue raised by the supplemented Motion, the Court
finds that Sunflower forfeited both arguments for failure to
timely raise them before trial.
Court therefore ORDERS as follows:
Court DENIES Sunflower's oral Rule 50(a) motion, as
supplemented by ECF No. 218, for the reasons stated on the
record in open court and for the reasons stated in this
or before October 29, 2018, Owners shall
submit a proposed form of judgment as an attachment to a
brief addressing whether Owners has an obligation, in this
circumstance, to refund Sunflower's policy premium (or,
in other words, whether the Court should order a $50, 000
setoff to the judgment). Sunflower may file ...