Free Notice (Other) - District Court of Colorado - Colorado

Case 1:00-cv-01282-JLK

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The Personnel Department, Inc. v. Professional Staff Leasing Corporation and Bala Ramamoorthy

EXHIBIT A TO P A N IFSNOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF L I TF ' PENDING MOTION TO AMEND JUDGMENTS

_________________ EXHIBIT A 00-cv-1282-JLK

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--- F.3d ------ F.3d ----, 2005 WL 3481481 (C.A.10 (Colo.)) (Cite as: --- F.3d ----)

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Briefs and Other Related Documents Only the Westlaw citation is currently available. United States Court of Appeals,Tenth Circuit. Linda LOUGHRIDGE; William P. Loughridge; Jerry Hannah; Nancy Hannah; Donna L. Garth; Ronald Hochfield; Marsha Hochfield; Balaju, LLC, a Colorado limited liability company; Dale V. Kesler; Judith A. Kesler; Rosemarie Glas; Christopher W. Congalton; Susan T. Congalton; Claire Beck; Calvin Daks; Carol Daks; Justine Parker; Howard G. Parker; Janet Sutterley; Randy Kilgore; Sue Taylor; Darrell Taylor; Janet G. Upton; Charles R. Upton; Robert B. Grossman; Gale K. Grossman; Mark A. Lathrop; Susan K. Lathrop; Janice C. Meyer; Gary Q. Barnett; Julia Watson Barnett; Robert S. Julian; Corey Bender Mindlin; Addison L. Piper; Richard C. Raczuk; Claudette L. Raczuk; Thomas A. Hardilek; Sandra J. Hardilek; Fuyu Farms, a Colorado general partnership; Donald K. Hagar; Leila M. Hagar; Donald M. Johnson; Teresa Y. Johnson; Steve Shuman; Karen Shuman; David Price; Mary Price; Tim Borden; Janet Borden; John W. Paul; Linda T. Paul; Marcus Meyer; Karrie Meyer; James C. Holzwarth; Niki K. Holzwarth; Martha W. Hibbard; Robert C. Comyn; Noelle L. Comyn; Kiefer Mendenhall; Mary Mendenhall; William F. Gorog, on behalf of the Grantor Retained Income Trust, Plaintiffs-Appellants/Cross-Appellees, v. CHILES POWER SUPPLY COMPANY, INC., doing business as Heatway Radiant Floors and Snowmelting, Defendant-Cross-Claimant-Appellee, v. Goodyear Tire & Rubber Company, an Ohio Corporation, Defendant-Cross-DefendantAppellee/Cross-Appellant. Nos. 04-1261, 04-1263. Dec. 20, 2005. Background: Homeowners brought action against seller of hydronic heating systems and manufacturer of a defective hose used in those systems. After a jury returned verdicts in favor of seller on homeowners claims, and in favor of homeowners on claims against manufacturer, the United States District Court for the District of Colorado, Lewis T. Babcock, Chief Judge, 281 F.Supp.2d 1252, awarded prejudgment interest and cross-appeals were taken.

Holdings: The Court of Appeals, Paul J. Kelly, Jr., Circuit Judge, held that: 7(1) verdicts finding in favor of seller on homeowners' claims asserted against it as a party were not irreconcilably inconsistent with verdicts finding seller at " fault" a nonparty with respect to as homeowners' claims successfully asserted against manufacturer; 15(2) homeowners provided sufficient evidence to sustain damages awards based on diminution in value; 18(3) jury's findings of liability against manufacturer of defective hose on the claims of other homeowners did not become law of the case with respect coplaintiff homeowner's claims once district court entered judgment on the verdict in favor of the other homeowners; and 24(4) prejudgment interest accrued from the date of installation of defective product where homeowners sought damages to remedy their past, not future, injury arising from the defective product.

Affirmed in part, reversed in part, and remanded. [1] Federal Civil Procedure 170A 2602

170A Federal Civil Procedure 170AXVII Judgment 170AXVII(E) Notwithstanding Verdict 170Ak2602 k. Necessity for Motion for Directed Verdict. Most Cited Cases Relief on motion for judgment notwithstanding the verdict (JNOV) was not available where movants did not file a motion for directed verdict at the close of all the evidence. Fed.Rules Civ.Proc.Rule 50, 28 U.S.C.A. [2] Federal Civil Procedure 170A 2653

170A Federal Civil Procedure 170AXVII Judgment 170AXVII(G) Relief from Judgment 170Ak2651 Grounds 170Ak2653 k. Error in General. Most

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--- F.3d ------ F.3d ----, 2005 WL 3481481 (C.A.10 (Colo.)) (Cite as: --- F.3d ----) Cited Cases Motion to alter or amend the judgment, in its role of correcting manifest errors of law, may be used to contest verdict inconsistencies. Fed.Rules Civ.Proc.Rule 59(e), 28 U.S.C.A. [3] Federal Courts 170B 847

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When the jury provides answers that are irreconcilably inconsistent, the court cannot enter judgment without choosing between the conflicting findings of fact and thereby overturning one of them; to be irreconcilably inconsistent, the jury's answers must be logically incompatible, thereby indicating that the jury was confused or abused its power. [6] Federal Courts 170B 847

170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)5 Questions of Fact, Verdicts and Findings 170Bk847 k. Verdicts in General. Most Cited Cases Federal Courts 170B 943.1

170B Federal Courts 170BVIII Courts of Appeals 170BVIII(L) Determination and Disposition of Cause 170Bk943 Ordering New Trial or Other Proceeding 170Bk943.1 k. In General. Most Cited Cases In order to protect the jury's function, courts must reconcile the jury's findings, by exegesis if necessary, before they are free to disregard the jury's special verdict and remand the case for a new trial. Fed.Rules Civ.Proc.Rule 59(e), 28 U.S.C.A. [4] Federal Courts 170B 847

170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)5 Questions of Fact, Verdicts and Findings 170Bk847 k. Verdicts in General. Most Cited Cases A jury's verdict may not be overturned merely because the reviewing court finds the jury's resolution of different questions in the case difficult, though not impossible, to square. [7] Federal Civil Procedure 170A 2237.1

170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)5 Questions of Fact, Verdicts and Findings 170Bk847 k. Verdicts in General. Most Cited Cases Consistency of a jury's verdict must be considered in light of the instructions given to the jury, among other factors. [5] Federal Civil Procedure 170A 2237.1

170A Federal Civil Procedure 170AXV Trial 170AXV(J) Special Verdict 170Ak2237 Form and Sufficiency of Verdict 170Ak2237.1 k. In General. Most Cited Cases Verdicts finding in favor of seller of defective heating system on homeowners' claims asserted against it as a party were not irreconcilably inconsistent with verdicts finding seller at " fault" a as nonparty with respect to homeowners' successfully asserted claims against manufacturer of component part; furthermore, verdicts were not inconsistent with jury instructions, which allowed jury to consider seller's fault as a nonparty with respect to the claims asserted against manufacturer. [8] Products Liability 313A 73

170A Federal Civil Procedure 170AXV Trial 170AXV(J) Special Verdict 170Ak2237 Form and Sufficiency of Verdict 170Ak2237.1 k. In General. Most Cited Cases

313A Products Liability 313AII Actions 313Ak72 Pleading 313Ak73 k. Complaint, Declaration, or Petition in General. Most Cited Cases Seller of defective hydronic heating systems sufficiently designated nonparty seller to be at fault for purposes of reducing its liability under Colorado apportionment statute on homeowners' claims successfully asserted against manufacturer for

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--- F.3d ------ F.3d ----, 2005 WL 3481481 (C.A.10 (Colo.)) (Cite as: --- F.3d ----) defective product, negligence, and negligent failure to warn, and sufficient evidence was adduced at trial to support such a finding that seller was equally at fault for the damages suffered by the homeowners; final pretrial order clearly contemplated the reduction of manufacturer's liability based on the " negligence or fault" of nonparties, including seller, and a reasonable jury could have found that seller, in the exercise of reasonable care, should have known of the risks associated with using manufacturer's product, that it acted negligently in failing to warn the homeowners thereof, and that such negligence contributed to the homeowners' damages. West's C.R.S.A. § 13-21-111.5. [9] Federal Courts 170B 373

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with reasonable certainty by a preponderance of the evidence. [12] Damages 115 6

115 Damages 115I Nature and Grounds in General 115k6 k. Certainty as to Amount or Extent of Damage. Most Cited Cases Damages 115 184

170B Federal Courts 170BVI State Laws as Rules of Decision 170BVI(A) In General 170Bk373 k. Substance or Procedure; Determinativeness. Most Cited Cases Federal Courts 170B 416

115 Damages 115IX Evidence 115k183 Weight and Sufficiency 115k184 k. In General. Most Cited Cases Once the fact of damage has been established with the requisite degree of certainty, a plaintiff will not be barred from recovery under Colorado law for failing to prove the amount of loss with mathematical certainty. [13] Damages 115 208(1)

170B Federal Courts 170BVI State Laws as Rules of Decision 170BVI(C) Application to Particular Matters 170Bk416 k. Evidence Law. Most Cited Cases In diversity cases, the substantive law of the forum state governs the analysis of the underlying claims, including specification of the applicable standards of proof. [10] Damages 115 108

115 Damages 115X Proceedings for Assessment 115k208 Questions for Jury 115k208(1) k. In General. Most Cited Cases Federal Courts 170B 871

115 Damages 115VI Measure of Damages 115VI(B) Injuries to Property 115k107 Injuries to Real Property 115k108 k. In General. Most Cited Cases Under Colorado law, diminution in value is ordinarily the rule applied to measure damages to real property. [11] Damages 115 184

170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)5 Questions of Fact, Verdicts and Findings 170Bk870 Particular Issues and Questions 170Bk871 k. Damages and Extent of Relief. Most Cited Cases Amount of damages to be awarded under Colorado law is a matter within the sole province of the jury, and such award may not be disturbed unless it is completely without support in the record. Amount of damages to be awarded under Colorado law is a matter within the sole province of the jury, and such award may not be disturbed unless it is completely without support in the record. [14] Evidence 157 474(18)

115 Damages 115IX Evidence 115k183 Weight and Sufficiency 115k184 k. In General. Most Cited Cases Damages are not recoverable under Colorado law for losses beyond an amount that a plaintiff can establish

157 Evidence 157XII Opinion Evidence

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--- F.3d ------ F.3d ----, 2005 WL 3481481 (C.A.10 (Colo.)) (Cite as: --- F.3d ----) 157XII(A) Conclusions and Opinions of Witnesses in General 157k474 Special Knowledge as to SubjectMatter 157k474(18) k. Value of Real Property. Most Cited Cases Twelve-year owner of home containing defective heating system, who testified that he sold home for less than he would have had it contained a fully functional heating system, was qualified to testify regarding its value; owner was deemed to have special knowledge of his property given his long ownership and familiarity with it. [15] Damages 115 188(2)

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of remedies prevents double recovery by requiring a party to make an election when the remedies sought are inconsistent and contradictory; it has no application where a party seeks only one remedy. [18] Courts 106 99(5)

115 Damages 115IX Evidence 115k183 Weight and Sufficiency 115k188 Loss of or Damage to Property 115k188(2) k. Value of Property. Most Cited Cases Homeowners, who presented evidence that they sold their homes at a diminished price because of defective hose in their hydronic heating systems, provided sufficient evidence to sustain damages awards based on diminution in value; jury was free to make the reasonable inference that the purchase prices of the homes were diminished by costs of future repairs or replacement of heating systems. [16] Federal Civil Procedure 170A 837

106 Courts 106II Establishment, Organization, and Procedure 106II(G) Rules of Decision 106k99 Previous Decisions in Same Case as Law of the Case 106k99(5) k. Trial or Evidence, Rulings Relating To. Most Cited Cases Jury's findings of liability against manufacturer of defective hose on the claims of other homeowners did not become law of the case with respect to coplaintiff homeowner's claims once district court entered judgment on the verdict in favor of the other homeowners. [19] Federal Civil Procedure 170A 2237.1

170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(E) Amendments 170Ak835 Conforming to Proof 170Ak837 k. Issues Tried by Consent of Parties. Most Cited Cases Manufacturer of hose used in defective heating system implicitly consented to trial of diminution in value theory of damages when it cross-examined both homeowners on the issue, and therefore, any argument that homeowners were prohibited from seeking damages under a diminution in value theory was waived by manufacturer. Fed.Rules Civ.Proc.Rule 15(b), 28 U.S.C.A. [17] Election of Remedies 143 1

170A Federal Civil Procedure 170AXV Trial 170AXV(J) Special Verdict 170Ak2237 Form and Sufficiency of Verdict 170Ak2237.1 k. In General. Most Cited Cases Verdict against homeowner on his claims against manufacturer of defective hose was inconsistent with verdicts in favor of co-plaintiff homeowners, entitling homeowner to a new trial; since jury did not answer the statute of limitations question on the verdict form, verdict could not be reconciled with finding that jury accepted that defense, and since manufacturer offered materially the same evidence on homeowner's claims as those of other homeowners, it was unreasonable to conclude that the jury accepted manufacturer's contention of nonliability only as to homeowner's claims. [20] Federal Civil Procedure 170A 2239

143 Election of Remedies 143k1 k. Nature and Grounds in General. Most Cited Cases Under Colorado law, doctrine of election of election

170A Federal Civil Procedure 170AXV Trial 170AXV(J) Special Verdict 170Ak2239 k. Failure to Find. Most Cited Cases Principle espoused in Domann, that failure by a jury to answer some of the questions in a special verdict does not vitiate an otherwise unanimous verdict where the unanimous answers to the verdict

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--- F.3d ------ F.3d ----, 2005 WL 3481481 (C.A.10 (Colo.)) (Cite as: --- F.3d ----) conclusively dispose of the case, does not apply when questions on the verdict form that are vital to the disposition of the case remain unanswered. [21] Federal Courts 170B 415

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170B Federal Courts 170BVI State Laws as Rules of Decision 170BVI(C) Application to Particular Matters 170Bk415 k. Damages, Interest, Costs and Fees. Most Cited Cases A federal court sitting in diversity applies state law, not federal law, regarding the issue of prejudgment interest. [22] Federal Courts 170B 776

219 Interest 219III Time and Computation 219k39 Time from Which Interest Runs in General 219k39(2.5) Prejudgment Interest in General 219k39(2.30) k. Contract and Sales Matters. Most Cited Cases Under Colorado law, prejudgment interest accrued from the date of installation of defective product, where homeowners sought damages to remedy their past, not future, injury arising from the defective product. West's C.R.S.A. § 5-12-102(1)(b). [25] Interest 219 12

170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)1 In General 170Bk776 k. Trial De Novo. Most Cited Cases Federal Courts 170B 830

219 Interest 219I Rights and Liabilities in General 219k8 Compensation for Use of Money 219k12 k. Money Wrongfully Obtained, Held, or Used. Most Cited Cases Date when a claim accrues for statute of limitations purposes is independent from the date of the wrongful withholding for the purpose of awarding interest under Colorado law.

170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)4 Discretion of Lower Court 170Bk830 k. Costs, Attorney's Fees and Other Allowances. Most Cited Cases An award of prejudgment interest under Colorado law is generally subject to an abuse of discretion standard of review on appeal; however, any statutory interpretation or legal analysis underlying such an award is reviewed de novo. [23] Interest 219 39(2.20)

219 Interest 219III Time and Computation 219k39 Time from Which Interest Runs in General 219k39(2.5) Prejudgment Interest in General 219k39(2.20) k. Particular Cases and Issues. Most Cited Cases Prejudgment interest may not be awarded under Colorado law for future lost profits or earnings, nor for consequential damages until such damages are actually incurred. West's C.R.S.A. § 5-12-102. [24] Interest 219 39(2.30)

Stephen G. Masciocchi, Holland & Hart LLP, Denver, CO, (David L. Black, Holland & Hart LLP, Denver, CO, William W. Maywhort and J. Lee Gray, Holland & Hart LLP, Greenwood Village, CO, Geoffrey P. Anderson, Burns, Figa & Will P.C., Englewood, CO, Rohn K. Robbins, Law Offices of Rohn K. Robbins LLC, Vail, CO, with him on the briefs), for Plaintiffs-Appellants/Cross-Appellees. Roger P. Thomasch, Ballard, Spahr, Andrews & Ingersoll, LLP, Denver, CO, (Mary A. Wells and L. Michael Brooks, Jr., Wells, Anderson & Race LLC, Denver, CO, David L. Lenyo and Chad Schmit, Garfield & Hecht, P.C., Aspen, CO, with him on the briefs for Appellee/Cross-Appellant Goodyear Tire and Rubber Company, and Wendelyn K. Walberg and Lynaia M. South, Walberg, Dagner & Tucker, P.C., Centennial, CO, on the brief for Appellee Chiles Power Supply Company), for Appellee/CrossAppellant Good Year Tire and Rubber Company. Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge and, KELLY Circuit Judge. PAUL KELLY, JR., Circuit Judge. *1 This appeal and cross-appeal arise from a diversity action brought under Colorado state law by the owners of 36 Colorado homes (" Homeowners" )

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--- F.3d ------ F.3d ----, 2005 WL 3481481 (C.A.10 (Colo.)) (Cite as: --- F.3d ----) against Defendants Chiles Power Supply, Inc. d/b/a Heatway Radiant Floors and Snowmelting (" Heatway" and Goodyear Tire and Rubber ) Company (" Goodyear" After a jury trial and post). trial motions, many, but not all, of the Homeowners were awarded damages against Goodyear only. We affirm the district court's amended judgment in part, reverse in part, and remand.

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Background In the 1980s, Heatway began selling parts for hydronic radiant heating systems. These systems use hose to circulate warm fluid under indoor flooring as an alternative to conventional heating systems, or under driveways and sidewalks to melt snow and ice. Heatway originally contracted with Dayco Rubber Products Company (" Dayco" to produce the hose, ) " Entran," used in Heatway's radiant systems. In 1989, Heatway contracted with Goodyear to manufacture a new hose, " Entran II." By 1990, Heatway discontinued Dayco as a supplier and thereafter used Goodyear as its sole supplier of hose. Goodyear made Entran II until 1993 and supplied it exclusively to Heatway. As early as 1991, some homeowners began noticing problems with their hydronic heating systems, including cracking, leaking and sediment build-up in their Entran II hose. In many cases, these problems required the removal and replacement of the hose in its entirety, as well as the replacement of most other parts of the hydronic heating system. By 1992, Heatway began receiving complaints from homeowners about hardening of the Entran II hose and leaks in the installed heating systems. Believing that the Entran II hose was causing the leaks, Heatway stopped paying Goodyear for hose shipments. As a result, Goodyear sued Heatway in 1997 in federal district court in Ohio (the " Ohio action" Heatway filed a counterclaim alleging that ). the Entran II hose was defective. Goodyear had by this time manufactured 25,000,000 feet of Entran II hose. The Ohio action went to trial on the issue of the merchantability of all 25,000,000 feet of Entran II hose. The jury returned a verdict for Goodyear, whereupon Heatway declared bankruptcy. Between 1998 and 2000 a number of suits were filed in Colorado state and federal courts by homeowners against Goodyear, Heatway, or both. Eight of these cases were consolidated. Homeowners sought recovery from Goodyear for sale of a defective product, negligence, negligent failure to warn,

violation of the Colorado Consumer Protection Act (" CCPA" and civil conspiracy. Homeowners ), claimed that Goodyear was liable for the costs of removing and replacing the Entran II hose installed in their homes, the diminution in value of their homes, and other costs and losses. Four homeownersRosemarie Glas, Robert Julian, Corey Bender Mindlin, and Jane and Charles Upton (the " Heatway plaintiffs" )-also sought recovery against Heatway for violation of the CCPA and civil conspiracy. Goodyear and Heatway asserted cross-claims against one another for contribution or indemnification under Ohio law. Goodyear cross-claimed against Heatway for deceit (fraud), and Heatway cross-claimed against Goodyear for sale of a defective product. *2 After the close of evidence, Goodyear moved, pursuant to Fed.R.Civ.P. 50(a), for judgment as a matter of law as to the claims of three homeowners who sold their homes prior to trial: James and Nikki Holzwarth (the " Holzwarths" Janet Sutterley and ), Randy Kilgore (" Sutterley/Kilgore" and Ms. Glas. ), The district court denied Goodyear's motion as to the claims of the Holzwarths and Sutterley/Kilgore. However, the district court granted the motion as to Ms. Glas, reasoning that her damages were too speculative. Ms. Glas filed a post-judgment motion asking the court to alter or amend the judgment in her favor and for a new trial concerning damages. The district court denied the motion. With the exception of one homeowner, William Gorog, the jury returned verdicts in favor of all Homeowners and against Goodyear on three theories of recovery: sale of a defective product, negligence, and negligent failure to warn. The jury awarded Homeowners damages in the aggregate of $4,079,391.50. J.A. at 800-943. The jury found in favor of Goodyear and Heatway on all claims for violation of the CCPA and civil conspiracy. Neither Goodyear nor Heatway prevailed on its cross-claim against the other. The jury did, however, apportion fault evenly between Goodyear and Heatway as to all prevailing Homeowners. With respect to the jury's apportionment of fault to Heatway, Homeowners filed a post-trial motion for judgment as a matter of law or to alter or amend the judgment pursuant to Fed.R.Civ.P. 50(b) and 59(e) respectively. Homeowners argued that because the jury did not find Heatway liable on any of the Heatway plaintiffs' claims or on Goodyear's crossclaim, damages were not appropriately apportioned to it as a nonparty at fault. J.A. at 1146. The district court denied the motion.

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As to the Holzwarths, the jury awarded them $243,072 in " reasonable repair and/or replacement costs." The jury awarded Sutterley/Kilgore $240,071 in " other reasonable costs or losses." After the district court entered judgment on the jury's verdicts, Goodyear renewed its motion for judgment as a matter of law as to the claims of the Holzwarths and Sutterley/Kilgore, pursuant to Fed.R.Civ.P. 50(b). Goodyear argued that the Holzwarths and Sutterley/Kilgore presented evidence and were awarded damages for future repair costs that they had not incurred and would never incur because they had already sold their homes. J.A. at 1050-58. The district court construed the motion as a Fed.R.Civ.P. 59(e) motion and granted it. As such, the district court amended the judgment and reduced the Holzwarths' jury award to $43,072 and Sutterley/Kilgore's jury award to $44,000, thereby eliminating the portions of their awards which the district court interpreted as representing future repair costs. With respect to Mr. Gorog, the only homeowner against whom Goodyear had asserted a statute of limitations defense, the jury found in favor of Goodyear on all claims. But the jury did not answer the questions on the verdict form about Goodyear's statute of limitations defense. The district court entered judgment against Mr. Gorog. After entry of judgment, Mr. Gorog moved for judgment as a matter of law, to alter or amend the judgement or for a new trial. The district court denied the motion. *3 After trial, Homeowners moved for prejudgment interest. The district court held that Homeowners were entitled to prejudgment interest from the date on which the hydronic heating systems, containing Entran II, were originally installed in the Homeowners' respective homes. The district court awarded prejudgment interest in the aggregate of $5,701,367. Homeowners appeal from the district court's order contending that (1) the jury rendered inconsistent verdicts and the district court's attempt to reconcile the verdicts conflicts with the jury instructions and Colorado law, and the district court erred (2) in reducing the jury's award of damages to the Holzwarths and Sutterley/Kilgore, (3) in granting judgment as a matter of law in favor of Goodyear on Ms. Glas's damage claims, and (4) in granting judgment in favor of Goodyear on Mr. Gorog's claims when the jury failed to answer the questions about Goodyear's limitations defense. Goodyear cross-appeals arguing that the district court erred in

determining that prejudgment interest should be calculated from the date of installation of the heating systems. Goodyear also conditionally cross-appeals contending that the district court erred in instructing the jury on design defect. Goodyear asks us to address its conditional cross-appeal in the event we reverse the fifty percent apportionment of fault to Heatway or order a new trial on the claims of the Holzwarths, Sutterley/Kilgore, Ms. Glas or Mr. Gorog. We deal with each issue in turn.

Discussion I. Apportionment of Fault

Homeowners contend that the district court erred in denying its post-trial motion for judgment as a matter of law or to alter or amend the judgment. Homeowners' argument on appeal is twofold: first, the jury rendered inconsistent verdicts; and second, the district court's attempt to reconcile the verdicts conflicts with the jury instructions and Colorado law. [1] As a preliminary matter, Goodyear asserts that Homeowners' post-trial motion never raised the argument that the jury verdicts were inconsistent. Upon review of Homeowners' motion, Goodyear's response, and the district court's order relating thereto, we are satisfied that the issue was adequately raised post-trial. See United Int'l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1229 (10th Cir.2000) (Rule 50 " does require that [the grounds for a motion] be stated with sufficient certainty to apprise the court and opposing counsel of the movant's position with respect to the motion." ) (internal quotations and citations omitted). Homeowners did not, however, make a Rule 50(a) motion on the grounds that Goodyear's evidence was insufficient as to Heatway's fault at the close of all the evidence. Accordingly, relief under Rule 50(b) is unavailable. See Fed.R.Civ.P. 50(b); Trotter v. Todd, 719 F.2d 346, 350 (10th Cir.1983). [2] Whether Homeowners' Rule 59(e) motion may be used to secure the relief sought is a closer question. " Rule 59(e) motion to alter or amend the A judgment should be granted only to correct manifest errors of law or to present newly discovered evidence." Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.1997) (internal quotations and citations omitted). Although this circuit has not directly addressed whether a Rule 59(e) motion, in its role of correcting manifest errors of law, may be used to

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--- F.3d ------ F.3d ----, 2005 WL 3481481 (C.A.10 (Colo.)) (Cite as: --- F.3d ----) contest verdict inconsistencies, other circuits have so allowed. See Munafo v. Metro. Transit Auth., 381 F.3d 99, 105 (2d Cir.2004); Top of Iowa Co-op. v. Schewe, 324 F.3d 627, 632 (8th Cir.2003); Turyna v. Martam Const. Co., Inc., 83 F.3d 178, 181-82 (7th Cir.1996). On such authority, we are persuaded that Homeowners' Rule 59(e) motion was appropriate to raise the issues presented here. *4 This court reviews the district court's ruling on a Rule 59(e) motion for abuse of discretion. Minshall v. McGraw Hill Broadcasting Co., Inc., 323 F.3d 1273, 1287 (10th Cir.2003). Accordingly, we will not reverse the decision of the district court unless the district court made a " clear error of judgment or exceeded the bounds of permissible choice in the circumstances." (citations omitted). " abuse of Id. The discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions." Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir.2005) (internal quotations and citations omitted). [3] [4] [5] [6] In order to protect the jury's function, courts must " reconcile the jury's findings, by exegesis if necessary, ... before [they] are free to disregard the jury's special verdict and remand the case for a new trial."Johnson v. Ablt Trucking Co., Inc., 412 F.3d 1138, 1143 (10th Cir.2005) (quoting Gallick v. Baltimore & Ohio R.Co., 372 U.S. 108, 119, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963)). " When reviewing claims that a jury verdict is inconsistent, [the reviewing court] must accept any reasonable view of the case that makes the jury's answers consistent."Heno v. Sprint/United Mgmt. Col., 208 F.3d 847, 852 (10th

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Cir.2000) (quoting Patton v. TIC United Corp., 77 F.3d 1235, 1241 (10th Cir.1996)). The consistency of a jury's verdict must be considered in light of the instructions given to the jury, among other factors. See Harvey By and Through Harvey v. General Motors Corp., 873 F.2d 1343, 1348 (10th Cir.1989). When the jury provides answers that are irreconcilably inconsistent, the court cannot enter judgment without choosing between the conflicting findings of fact and thereby overturning one of them. Johnson, 412 F.3d at 1144. To be irreconcilably inconsistent, the jury's answers must be " logically incompatible, thereby indicating that the jury was confused or abused its power."Id. (quoting Stone v. Chicago, 738 F.2d 896, 899 (7th Cir.1984)). A jury's verdict may not be overturned merely because the reviewing court finds the jury's resolution of different questions in the case difficult, though not impossible, to square. Id.

A. Verdict Inconsistencies With the exception of Mr. Gorog, the jury returned the following verdict (the " Apportionment Verdict" ) for each homeowner: APPORTIONMENT OF FAULT [ ]Taking as 100 percent the combined fault that caused the damages or losses, what percentage of plaintiff's damages was caused by the fault of each person or entity identified below. Enter the figure of zero, " 0"for any person or entity who you have found to be not at fault.

Goodyear: Heatway: Other non-parties: See J.A. at 802-942. The jury found in favor of Heatway on all claims asserted against it as a party, including violation of the CCPA, civil conspiracy, and fraud (the " Liability Verdict" No ). Homeowners maintain " [t]hese findings necessarily meant that Heatway was not at fault-and [the Apportionment Verdict's instruction] to ` enter zero'for any party found not to be at fault was applicable." (Aplt. Op. Br. at 19). Homeowners therefore argue that the jury's allocation of fifty percent fault in the Apportionment Verdict is irreconcilably inconsistent with the No Liability Verdict and " correct resolution is to the

50% 50% 0% disregard the Apportionment Verdict as surplusage and give effect only to the jury's finding that Heatway was not at fault." Id. *5 The district court rejected the Homeowners' argument that the jury was somehow precluded from assessing fault to Heatway. It concluded that Goodyear was not required to cross-claim against Heatway and prevail on claims against it in order to have the jury instructed as to apportionment of fault. In any event, the district court observed that Homeowners never objected to the verdict forms on this basis. The district court further reasoned: Plaintiffs did not pursue claims against Heatway based on the sale of a defective product, negligence or negligent

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--- F.3d ------ F.3d ----, 2005 WL 3481481 (C.A.10 (Colo.)) (Cite as: --- F.3d ----) failure to warn-the very claims upon which the jury found Goodyear liable. Here, it is not only plausible, but likely that the jury concluded Heatway and Goodyear to both be ` at-fault'for negligence, negligent failure to warn, and sale of a defective product, but not liable for violation of the CCPA or for civil conspiracy. The verdict is wholly consistent ... J.A. at 1880-81. We agree. [7] Homeowners attempt to manufacture a conflict where one does not exist. As noted, the instruction within the Apportionment Verdict actually stated that the jury was to " enter zero for any person or entity found not at fault," not " any party found not at fault."J.A. at 802-942 (emphasis supplied). The actual instruction properly preserves the distinction between Heatway's role as a party to certain claims and a nonparty to other claims. Although Heatway was found not liable for the claims asserted against it as a party (CCPA, civil conspiracy and fraud), the jury was still required to address its " fault" a as nonparty to the claims successfully asserted against Goodyear (sale of a defective product, negligence, and negligent failure to warn). Thus, the verdicts are not irreconcilably inconsistent.

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*6 Second, paragraph 3 of Instruction 23 FN1 directed the jury to compare " fault, if any, of Goodyear and/or the Heatway"with that of the " nonparties."Homeowners argue that " this reference to ` [i]f Heatway'were not meant to refer to Heatway in its capacity as a defendant, this sentence would be confusing at a minimum: it would ask the jury to compare the fault of Heatway as a defendant with the fault of Heatway as a nonparty." (Aplt. Op. Br. at 35). However, with regards to non-party status in this context, persons and entities are nonparties in their relation to claims, not the litigation. Heatway was a nonparty with respect to the claims asserted against Goodyear by Homeowners. Heatway was a party to the claims asserted against it by the Heatway plaintiffs. Thus, the jury was not asked to compare the fault of Heatway as a defendant with the fault of Heatway as a nonparty. Third, paragraph 3 of Instruction 23 omits, from the list of theories that could constitute " fault,"any mention of fraud. Homeowners assert that if Goodyear had chosen to include theories beyond those urged by the Heatway plaintiffs (CCPA and civil conspiracy) and including sale of a defective product, negligence and negligent failure to warn, Goodyear surely would have demanded that fraud be added to the list. This argument is wholly speculative. Goodyear may not have listed fraud as a theory of " fault" because it asserted a cross-claim against Heatway based on fraud, i.e., both Heatway and Goodyear were already parties to the fraud claim. Regardless, the absence of fraud in the list does not control this issue. Last, Homeowners argue that the district court's assumption that the jury could have found Heatway at fault for negligence, negligent failure to warn, and sale of a defective product was incorrect because its reliance on the term " fault," as defined in Instruction 23, was misplaced. Homeowners maintain that the definition of the term " fault" was merely a convenient " checklist"for the jury of all the theories of liability asserted against one or both of the defendants, Goodyear and Heatway, and that it was not intended to supersede all of the other instructions and submit to the jury theories of fault against Heatway that had not been raised. This argument is unavailing. The jury instructions defining the elements of the claims asserted against Goodyear specifically required the jury to " consider Goodyear's defense[ ] of ... the fault of others."J.A. at 755-56, 759, 765, 768. Thus, to the extent that the district court relied on the definition of the term " fault," within Instruction 23, its reliance was supported by the underlying elements of the claims instructions. Accordingly, we find no inconsistency between the verdicts and the jury instructions. The contended-for construction by the Homeowners borders on tortured.

B. District Court's Verdict Reconciliation Homeowners argue that the district court's conclusion that the jury " likely concluded" Heatway to be at fault for the claims successfully asserted against Goodyear rests on the erroneous assumption that the jury was instructed to assess Heatway's fault as a nonparty as to these claims. Homeowners further maintain that to the extent the verdict was sustained on these grounds, Heatway could not be considered a nonparty to these claims because Goodyear failed, under Colorado law, to plead and prove as such.

1. Jury Instructions Homeowners maintain, on several grounds, that the jury was instructed to consider Heatway's fault only with respect to claims asserted against it as a defendant. First, Homeowners point to the jury instruction's repeated reference to Heatway and Goodyear in their capacity as defendants. (Aplt. Op. Br. at 33-36). Yet, the repeated reference to Heatway as a defendant does not compel the conclusion that the jury was foreclosed from considering Heatway's fault as a nonparty with respect to the claims asserted against Goodyear. No instruction to that effect was given, nor did Homeowners request one.

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2. Colorado Law Homeowners also argue that to the extent the district court upheld the jury's apportionment of fault to Heatway as a nonparty to the claims successfully asserted against Goodyear, it adopted an interpretation of the verdict that conflicts with Colorado law. Homeowners maintain that in order for the jury to apportion fault to Heatway based on the claims asserted against Goodyear, Goodyear was required to plead and prove that Heatway was at fault as a nonparty on these grounds; yet it failed to do so. *7 In Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 80-81 (Colo.2001) and Barton v. Adams Rental, Inc., 938 P.2d 532, 535-40 (Colo.1997), the Colorado Supreme Court set forth the relevant requirements of the Colorado apportionment statute, Colo.Rev.Stat. § 13-21-111.5. First, a party must sufficiently designate the nonparty by making " brief statement of the basis for believing such a nonparty to be at fault."Redden, 38 P.3d at 80 (quoting Colo.Rev.Stat. § 13-21-111.5(3)(b)). To satisfy this requirement, the party must " allege the basis for believing the nonparty is legally liable to the extent the non-party's acts or omissions would satisfy all the elements of a[ ] claim."Id. at 81. Courts should " construe designation requirements strictly to avoid a defendant attributing liability to a non-party from whom the plaintiff cannot recover."Id. at 80. Second, the defendant seeking the allocation of fault must present sufficient evidence at trial to support a finding on each of the essential elements of the claimed basis for a finding of fault. See Barton, 938 P.2d at 536-37. Goodyear's initial designation of Heatway as a nonparty at fault stemmed from its cross-reference to allegations it made in its Answer to Plaintiffs' Complaint (" Goodyear's Answer" and Cross-Claim against Heatway (" ) Goodyear's Cross-Claim" J.A. at 310-12. Goodyear's Answer ). contained no allegation of fault against Heatway. See J.A. at 296A-P. Homeowners contend, therefore, that Goodyear's Cross-Claim, which asserted that Heatway had committed fraud, was the operative pleading. (Aplt. Op. Br. at 23); see J.A. at 250-56. Accordingly, Homeowners maintain that Goodyear's designation of Heatway as a nonparty at fault was limited to its allegation of fraud, and that the jury was thereby precluded from considering any other claims in determining Heatway's fault. (Aplt. Op. Br. at 39). The Amended Final Pretrial Order, dated February 3, 2003, however, by its own terms supplanted all prior pleadings of the parties. J.A. at 317-45. The Amended Pretrial Order states: Plaintiffs' claims asserted against Goodyear are barred or

reduced to the degree or percentage of negligence or fault attributable to certain non-parties at fault pursuant to § 13-21-111.5, C.R.S. J.A. at 322 (emphasis supplied). [8] Homeowners argue that the Amended Final Pretrial Order " affords no basis for altering the plain meaning of Goodyear's specific designation of Heatway as a nonparty at fault."(Aplt. Reply Br. at 44). We disagree. To the extent Goodyear's Cross-Claim was the operative document, it was obviated by the Amended Final Pretrial Order which clearly contemplated the reduction of Goodyear's liability based on the " negligence or fault" of nonparties, including Heatway. Further, logic compels the conclusion that the Amended Final Pretrial Order contemplated more than the fraud allegation contained in Goodyear's Cross-Claim because Heatway was not a nonparty to that claim; it was the defendant. Moreover, to the extent Goodyear's designation of Heatway in the Amended Final Pretrial Order was insufficient or lacked a basis for altering its designation in Goodyear's CrossClaim, the Homeowners failed to make a timely objection on that basis. Cf. Redden, 38 P.3d at 79-80 (plaintiff objected to a nonparty designation before the case was submitted to the jury). *8 Homeowners maintain that even if Goodyear's designation was proper, Goodyear failed to provide sufficient evidence that Heatway was negligent or at fault. The jury apportioned fifty percent " fault" Heatway as a to nonparty to the claims successfully asserted against Goodyear, but the verdict form did not allow the jury to indicate the claimed basis for its finding of fault: defective product, negligence, or negligent failure to warn. That is, the apportionment of fault verdict was general. As such, the jury's apportionment of fault to Heatway could have been based on defective product, negligence, or negligent failure to warn. Homeowners did not object to the instructions defining the elements of each claim, and our review of Colorado law reveals that they were proper. The jury instructions on defective product and negligence both required the jury to find Goodyear manufactured Entran II. J.A. at 755-64. The jury instruction on negligent failure to warn was not so restricted: If a manufacturer or seller of a product knows or in the exercise of reasonable care should know that the use of a product may be harmful or injurious to a consumer's or user's property, and such risk of harm or injury is not obvious to a reasonable consumer or user, then the manufacturer or seller must use reasonable care to warn the consumer or user of the risk of harm or injury if a reasonablely careful person would under the same or

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--- F.3d ------ F.3d ----, 2005 WL 3481481 (C.A.10 (Colo.)) (Cite as: --- F.3d ----) similar circumstances. The failure to do so is negligence. J.A. at 763. Upon review of record, we have little trouble concluding that sufficient evidence was adduced at trial to support such a finding. The Homeowners' failure to use a corrosion preventative may have contributed to the harmful effect that Entran II had on the Homeowners' hydronic heating systems, and ultimately their homes. Further evidence suggested that such risk of harm or injury was not obvious to Homeowners. Evidence was also presented that Heatway failed to use reasonable care to warn the Homeowners of these risks by, for example, providing them with instructions for the use of Entran II, including the need for corrosion prevention. Homeowners argue that Heatway was not aware of any problems with the design of Entran II and thus could not have been negligent for failing to warn the Homeowners of the risks associated therewith. However, this argument unduly narrows what the jury was required to find in order to conclude that Heatway was at fault for negligent failure to warn. The jury was required to determine whether Heatway, knew or in the exercise of reasonable care should have known, that the use of Entran II may be harmful or injurious to the Homeowners' property. See J.A. at 763. A reasonable jury could well have found that Heatway, in the exercise of reasonable care, should have known of the risks associated with using Entran II and that it acted negligently in failing to warn the Homeowners thereof. Moreover, it was reasonable for the jury to conclude that this negligence contributed to the Homeowners' damages. Therefore, we will not disturb the jury's determination that Heatway was equally at fault for the damages suffered by the Homeowners. The district court did not abuse its discretion in denying Heatway's post-judgment motion on this basis.

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damages, but declined to do so. The Holzwarths and Sutterley/Kilgore ask us to reverse the district court's grant of Goodyear's motion and to reinstate the full amount of their jury verdicts. They assert that they provided sufficient evidence to support the jury's awards because future repair costs represented a proxy for the amount they lost on the sale of their homes. Further, they maintain that because the evidence supports the damages awarded, the district court should have given effect to the jury's intention to award these diminution in value damages. We agree. [9] We review the grant of a motion for judgment as a matter of law de novo, reviewing all of the evidence in the record. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). All reasonable inferences are drawn in favor of the nonmoving party and this court does " make not credibility determinations or weigh the evidence." Id. Judgment as a matter of law is appropriate " only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position."Finley v. United States, 82 F.3d 966, 968 (10th Cir.1996) (internal quotation and citation omitted). We will reverse the district court if, viewing the record in the light most favorable to the nonmoving party, we find evidence upon which the jury could have properly returned a verdict in its favor. See Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1546 (10th Cir.1996). In diversity cases, the substantive law of the forum state governs the analysis of the underlying claims, including specification of the applicable standards of proof. Oja v. Howmedica, Inc., 111 F.3d 782, 792 (10th Cir.1997). [10] [11] [12] [13] Under Colorado law, diminution in value is ordinarily the rule applied to measure damages to real property. See Board of County Com'rs of Weld County v. Slovek, 723 P.2d 1309, 1314 (Colo.1986). The goal in compensating the property owner is to reimburse that owner for the actual loss suffered. Id. Damages are not recoverable, however, for losses beyond an amount that a plaintiff can establish with reasonable certainty by a preponderance of the evidence. Pomeranz v. McDonald's Corp., 843 P.2d 1378, 1381 (Colo.1993). The " of rule certainty"requires a reasonable degree of persuasiveness in the proof of the fact of damages or injury. Western Cities Broadcasting, Inc. v. Schueller, 849 P.2d 44, 48 (Colo.1993) (interpreting Pomeranz, 843 P.2d 1378) (quotations in original). Once the fact of damage has been established with the requisite degree of certainty, a plaintiff will not be barred from recovery for failing to prove the amount of loss with mathematical certainty. Id. The amount of damages to be awarded is a matter within the sole province of the jury, and such award may not be

II. Sutterley/Kilgore and the Holzwarths *9 Although the district court construed Goodyear's Rule 50(b) motion as a Rule 59(e) motion, it effectively granted Goodyear judgment as a matter of law on two grounds. First, because the jury awards mirrored the amounts Homeowners' expert testified were appropriate for future repair costs, these damages were impermissible. The Holzwarths and Sutterley/Kilgore would never incur those costs as they had already sold their homes, and thus the awards exceeded the amount which could have been granted based upon the evidence. Second, to the extent future repair costs served as a proxy for the losses these homeowners incurred on selling their homes, the jury was given the opportunity to award them diminution in value

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--- F.3d ------ F.3d ----, 2005 WL 3481481 (C.A.10 (Colo.)) (Cite as: --- F.3d ----) disturbed unless it is completely without support in the record. Margenau v. Bowlin, 12 P.3d 1214, 1218 (Colo.Ct.App.2000); see Bennett v. Longacre, 774 F.2d 1024, 1028 (10th Cir.1985) (" [T]he amount of damages awarded by a jury can be supported by any competent evidence tending to sustain it." ).

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home because of the presence of Entran II. Id. at 2705-06. Ms. Sutterley, as the designer and owner of the home since it was built, was qualified to testify regarding its value. See 10,031.98 Acres of Land, 850 F.2d at 636-37. In addition, Mr. Wilson testified that the cost to repair the hydronic heating system in the Sutterley/Kilgore home would be approximately $240,000. Tr. Vol. XXX at 3116. The jury awarded Sutterley/Kilgore $240,071. The testimony of Ms. Sutterley and Mr. Wilson provide sufficient evidence to sustain this award. Ms. Sutterley testified that she lowered the asking price of her home because of the difficulties associated with repairing or replacing the Entran II hose. Mr. Wilson testified that the cost to repair or replace the Entran II hose in the Sutterley/Kilgore home would be approximately $240,000. As with the Holzwarths, the jury was free to make the reasonable inference that the purchase price of the Sutterley/Kilgore home was diminished by the amount Mr. Wilson testified to. Although the $240,000 figure exceeded Ms. Sutterley's assessment that she " solidly" lost $100,00 on the sale of her home, because Sutterley/Kilgore sufficiently established the fact of damages, it was within the province of the jury to determine the amount of those damages to be awarded.
FN3

A. Sufficiency of the evidence *10 [14] Our review of the record reveals the following. At trial, Mr. Holzwarth testified that he and his wife incurred $43,072 in repair costs due to the problems they experienced with their hydronic heating system. He also testified that they considered repairing or replacing the Entran II, estimating the cost to be as much as $200,000. Tr. Vol. XVIII at 1933. The Holzwarths' expert, Mr. Wilson, supported that estimate. Id. Vol. XXX at 3105. Due to the high cost, the Holzwarths sold their home without replacing the hydronic heating system. Mr. Holzwarth testified that in his opinion, they received $150,000 to $200,000 less for their home then they would have had it contained a fully functional hydronic heating system. Id. at 1938-39. Based on this testimony, the jury could have returned a verdict in the Holzwarths' favor for $200,000 in diminution in value damages. Mr. Holzwarth, as the twelve-year owner of the home since it was built, was qualified to testify regarding its value. See United States v. 10,031.98 Acres of Land, 850 F.2d 634, 636-37 (10th Cir.1988). [15] To the extent the district court concluded that $200,000 of the jury's award to the Holzwarths was attributable to the testimony of Mr. Wilson regarding future repair costs, a different conclusion is not required. The Holzwarth's decision to forego complete repair or replacement of the hydronic heating system was a function of the high cost of doing so. The jury was free to make the reasonable inference that the purchase price of the Holzwarth's home was diminished by that amount. This evidence was sufficient to support the jury's award of $243,072 FN2 in favor of the Holzwarths. Sutterley/Kilgore, like the Holzwarths, sold their home before trial. At trial, Ms. Sutterley testified that when she first listed her home-prior to her discovery of any alleged defects in the Entran II hose-she listed it for $849,000. Tr. Vol. XXVI at 2701. She later learned about the problems associated with Entran II from a realtor and various plumbers. Id. at 2701-02. After evaluating the difficulties with repairing or replacing the Entran II, Sutterley/Kilgore disclosed the problem and dropped the listing price to $799,000. Id. at 2703-04. Ms. Sutterley eventually sold the home for $750,000. Id. at 2706. In her opinion, she " solidly"lost $100,000 on the sale of her

*11 Goodyear argues that any claim of Sutterley/Kilgore that future repair costs were a proxy for pre-repair, diminution in value damages was contradicted by counsel's closing. Counsel suggested $59,000 for the decrease in market value of the Suttereley/Kilgore home. The jury was properly instructed, however, that " statements and arguments are not evidence in this case." J.A. at 746. Counsel's closing arguments did not alter the evidence before the jury. [16] Goodyear also urges us to reject the characterization of the damages theory by these homeowners. Goodyear maintains that the Holzwarths and Sutterley/Kilgore made a pretrial election to seek repair or replacement costs and post-repair uncertainty damages FN4 that foreclosed them from seeking damages for the diminished prices at which they sold there homes. (Goodyear Ans. Br. at 57). Given the record, though, we cannot accept this contention. Without objection by Goodyear, these homeowners presented evidence at trial that they sold their homes at a diminished price because of Entran II. In fact, counsel for Goodyear diligently cross-examined both Mr. Holzwarth and Ms. Sutterley on this issue. Tr. Vol. XVIII at 194143; Vol. XXVI at 2709. Any argument that the Holzwarths and Sutterley/Kilgore were prohibited from seeking damages under a diminution in value theory was waived by Goodyear when it implicitly consented to trial of the issue. Fed.R.Civ.P. 15(b) (pleadings deemed

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--- F.3d ------ F.3d ----, 2005 WL 3481481 (C.A.10 (Colo.)) (Cite as: --- F.3d ----) amended when issues tried by consent); Green Country Food Market, Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1280 (10th Cir.2004) (" party impliedly consents to the A trial of an issue not contained within the pleadings either by introducing evidence on the new issue or by failing to object when the opposing party introduces such evidence." ). [17] Goodyear also argues that the Holzwarths and Sutterley/Kilgore should be precluded from seeking diminution in value damages under the election of remedies doctrine, citing Lakeside Ventures, L.L.C. v. Lakeside Dev. Co., 68 P.3d 516, 519 (Colo.App.2002). However, the doctrine of election of remedies is inapposite. " The doctrine of election of election of remedies prevents double recovery by requiring a party to make an election when the remedies sought are inconsistent and contradictory. It has no application where a party seeks only one remedy." Here, the Holzwarths Id. and Sutterley/Kilgore did not seek inconsistent remedies. They did not seek both pre-repair diminution in value damages and costs to repair or replace. Rather, they argue that future repair costs serve as a proxy by which to measure the losses they sustained on the sale of their homes. Last, Goodyear emphasizes that the Holzwarths and Sutterley/Kilgore provided no basis for their opinions on the value of their property. But both Mr. Holzwarth and Ms. Sutterley are deemed to have special knowledge of their property given their long ownership and familiarity with it. See 10,031.98 Acres of Land, 850 F.2d at 636. Moreover, neither Mr. Holzwarth nor Ms. Sutterley negated their special knowledge by their own testimony. Cf. id. (owner of property in condemnation suit negated the presumption of special knowledge by testifying that he relied on impermissible grounds when opining on the value of his property). Accordingly, they were permitted to offer such testimony without further qualification. Id. Furthermore, in testifying as to the value of their property they were entitled to the privileges of a testifying expert. Id.

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of the damages was inconsistent with the theory of damages advanced by the Holzwarths and Sutterley/Kilgore. When reviewing jury verdicts, we are guided by our duty to attempt to reconcile the jury's answers to special verdict questions. See, e.g., Heno, 208 F.3d at 852; Gallick, 372 U.S. at 119, 83 S.Ct. 659 (" ... must We attempt to reconcile the jury's findings, by exegesis if necessary, ..., before we are free to disregard the jury's special verdict and remand the case for a new trial." If ). there is any reasonable view of the case which makes the answers consistent, the case must be resolved in that way. See Heno, 208 F.3d at 852; Palmer v. City of Monticello, 31 F.3d 1499, 1505 (10th Cir.1994). The consistency of a jury's verdict must be considered in light of the instructions given to the jury, among other factors. See Harvey, 873 F.2d at 1348. The jury was instructed that " [t]he Homeowners have the burden of proving the nature and extent of their compensatory damages by a preponderance of the evidence." J.A. at 779 (emphasis supplied). The jury was further instructed that " determining these damages, [i]n you shall consider the following: (1) reasonable repair and/or replacement costs, if any; (2) other reasonable costs or losses, if any; and (3) the decrease in market value, if any, to the Homeowner's homes, as repaired." Id. (emphasis supplied). We note that category (1) does not state " reasonable repair and/or replacement costs incurred "and a reasonable jury certainly could conclude in light of the evidence that the categories were not mutually exclusive. The Holzwarths put forth evidence to substantiate the nature of their damages. While living at the home, the Holzwarths incurred $43,072 in repair costs due to Entran II, an amount which is uncontested by Goodyear. As discussed, the Holzwarths also provided evidence to support their claim for diminution in value damages. A fair reading of the jury's verdict suggests the jury accepted the Holzwarths' diminution in value theory of damages and, as required by the jury instructions, considered the amount Mr. Wilson testified to would cost to repair or replace the Holzwarths' hydronic heating system. As such, the jury placed the corresponding $200,000 amount in the category for " reasonable repair and/or replacement costs."The jury was not limited to " reasonable repair and/or replacement costs incurred, and could well have decided that the diminution in value of $200,000 was an excellent proxy for the repair and/or replacement costs that would have been required to remedy this problem." Although other interpretations may be reasonable, this view harmonizes the jury's verdict and we are bound by it. Accordingly, the jury's award of $243,072 to the

B. Damages Verdict *12 The jury placed the total $243,072 it awarded the Holzwarths in the category of the verdict form labeled " reasonable repair and/or replacement costs." J.A. at 867. The jury awarded Sutterley/Kilgore $240,071 in the category of the verdict form labeled " other reasonable costs or losses." J.A. at 923. The district court concluded that although the jury was provided the opportunity to award " in market value"damages, it declined to do loss so. J.A. at 1873. It reasoned that the jury's categorization

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--- F.3d ------ F.3d ----, 2005 WL 3481481 (C.A.10 (Colo.)) (Cite as: --- F.3d ----) Holzwarths must be reinstated. *13 Sutterley/Kilgore also put forth evidence to substantiate the nature of their damages, i.e., their claim for diminution in value damages. Unlike the verdict form given to the jury for the Holzwarths claims, the verdict form for Sutterley/Kilgore did not have a category for " reasonable repair and/or replacement costs."Instead, in considering the damages to award Sutterley/Kilgore, the jury had the option to award either " other reasonable costs or losses,"or " decrease in market value, if any, as the repaired."J.A. at 923 (emphasis supplied). The jury awarded Sutterley/Kilgore $240,071 as other " other reasonable costs or losses." A fair reading of the jury's Id. verdict indicates that this was the proper category for the jury to place the award because Sutterley/Kilgore did not have their home repaired. Again, this view harmonizes the jury's verdict and we are bound by it. As such, the jury's award of $240,071 to Sutterley/Kilgore must be reinstated.

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shall be entitled to any proceeds from this litigation as partial compensation for any reduction in the purchase price for the subject property."Id. at 2428. The home ultimately sold for $6,450,000, $1.65 million below the listing price. Id. at 2425-26. Ms. Glas testified that she believed the presence of Entran II was the cause of the reduced price she was offered and ultimately accepted for her home. Id. at 2425. In addition, Mr. Wilson testified that if Ms. Glas owned the home at the time of trial, she would have to pay approximately $710,000 to have the Entran II replaced and would incur uncertainty damages of approximately $211,000. *14 The district court initially set forth its reasons for granting Goodyear's motion for judgment as a matter of law in its ruling of July 17, 2003. The district court reasoned: [T]here is no dispute that [Ms. Glas] has no out-of-pocket past repair costs. In light of her testimony, as well as Mr. Wilson, and the [purchaser], it is apparent to me that even in the light most favorable to this plaintiff, any damages with regard to future repair costs, estimated at $709,718, and uncertainty in the amount of $211,100, is wholly speculative. It has no reasonable foundational basis to submit this claim by this plaintiff to the jury. Each of the claims pled by the plaintiff and tried in this case have as an element that damage was caused by the conduct inherent in each claim.... I have an unwavering conviction that her damage claim is wholly speculative. Tr. Vol. XLIII at 4895-96. In a later written order, the district court reinforced its conclusion by again referring to deposition testimony admitted at trial concerning the intent of the home's purchaser. The purchaser testified that his primary purpose in buying Ms. Glas's property was to use the land as a ranch and that the presence of Entran II was " never a negative to the property" " and never used as a negotiating point on my behalf to the property." J.A. at 1875-76. The district court also noted Mr. Kesler's testimony that the existence of Entran II was never a specific item of negotiation with the purchaser; the home's price negotiations were " more generalized."Id. at 1876. The district court concluded that " whole, no evidence in supports Ms. Glas's claim for damages caused by a decrease in market value due to Entran II in her home." Id. The evidence provided by Ms. Glas does not materially differ from that of the Holzwarths and Sutterely/Kilgore. The only noticeable difference in the district court's disposition of Goodyear's motion for judgment as a matter of law with respect to Ms. Glas's claims appears to be the district court's reliance on the purchaser's intent when

III. Dismissal of Ms. Glas's claims Ms. Glas argues that she presented sufficient evidence that the presence of Entran II in her home decreased its sale price. (Aplt. Op. Br. at 49). She seeks remand of her claims and requests that Goodyear be precluded from relitigating the issue of lia