Simek v. J.P. King Auction Co.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 8, 2005
TENTH CIRCUIT
Clerk of Court

RONALD L. SIMEK,

Plaintiff - Appellant, No. 04-8109
v. (D. Wyoming)
J.P. KING AUCTION COMPANY, (D.C. No. 03-CV-198-CAB)

Defendant - Appellee.

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, ANDERSON and KELLY , Circuit Judges.

Mr. Simek appeals the district court’s denial of his motion for a new trial

after a jury held that when J.P. King Auction Co. auctioned off Mr. Simek’s

Wyoming property for less than Mr. Simek thought it was worth, it did so in

violation of Wyoming real estate statutes and in breach of its fiduciary duty to

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Mr. Simek, but that Mr. Simek incurred zero damages. Mr. Simek asserts five 1

grounds for error, each of which we address below. For the reasons stated, we

affirm.

BACKGROUND

Mr. Simek, a successful businessman and original cofounder of Tombstone

Pizza, first came into contact with J.P. King’s Executive Vice-President, Scott

King, in October 2000 when Mr. Simek inquired about auctioning a property he

owns in Nevada. At that time, Mr. Simek decided not to go forward with the

auction. He contacted Scott King again in July 2002, this time concerning the

auction of Mr. Simek’s custom-built log residence located on twenty acres of

riverfront property in the vicinity of Cody, Wyoming. In August 2002, Mr. Simek

and J.P. King entered into an Auction Marketing Agreement in regard to the

Wyoming property.

Under the terms of the Agreement, the auction of Mr. Simek’s property

would be conducted as an absolute auction, which requires the sale of the

property “to the highest bidder(s) . . . regardless of price,” rather than a reserve

auction, which allows a seller to reserve the right not to sell if the final bid does

Mr. Simek also alleged breach of contract, negligence, and negligent
1

misrepresentation in his complaint but abandoned these claims before trial.

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not exceed a certain amount. Agreement, Appellant’s App. Vol. III at 467. Scott

King and J.P. King’s marketing materials had strongly recommended the absolute

form of auction as the best method of obtaining the highest possible price for the

property. After reviewing the Agreement, Mr. Simek’s attorney had questioned

the use of the absolute auction method, but Mr. Simek agreed to proceed with that

method.

The Agreement also provided that Mr. Simek would pay J.P. King

$108,396.43 in advance for promotional and administrative expenses, and that,

“[s]hould any items ultimately be more or less than the budget agreed upon,

neither [Mr. Simek] nor [J.P.] K[ing] shall be entitled to a reimbursement.” Id. at

466-67. At the close of the sale of the property, Mr. Simek would also pay J.P.

King ten percent of the total purchase price.

At the time this Agreement was negotiated and signed, a number of

individuals at J.P. King had obtained Wyoming real estate licenses. However,

Scott King, the person at J.P. King with whom Mr. Simek had the most extensive

contact, did not have a Wyoming license, in violation of Wyo. Stat. Ann.

§ 33-28-101, although he obtained a license on October 1, 2002. In addition, J.P.

King failed to obtain Mr. Simek’s signature on a written disclosure of applicable

brokerage relationships that J.P. King was required to prepare under Wyo. Stat.

Ann. § 33-28-306.

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 The auction of Mr. Simek’s property took place on October 26, 2002. J.P.

King had imposed a $50,000 bid deposit requirement on qualified bidders. Six

qualified bidders were present at the auction. One of the six, Phil Spano, was

previously known to J.P. King, and J.P. King had waived the $50,000 bid deposit

for him and also arranged for him to bid by telephone. Another of the bidders,

Northeastern LLC, was an entity that Mr. Simek’s attorneys had created

specifically to protect Mr. Simek’s interests at the auction.

Northeastern submitted an opening bid of $800,000. After the bidding went

back and forth twice between Northeastern and Mr. Spano, Mr. Spano bought the

property with a winning bid of $1,050,000. Including a buyer’s premium, the sale

price for the property was $1,155,000. This amount was less than Mr. Simek’s

mortgage on the property of $1,256,027.27, and was a disappointment to Mr.

Simek, who believed the property was worth at least $3 million.

On September 26, 2003, approximately a year after the auction, Mr. Simek

filed this diversity suit against J.P. King in Wyoming federal court. The

complaint alleged, in relevant part, that, by failing to apprise Mr. Simek of the

risks of absolute auction and failing to promote the auction of Mr. Simek’s

property appropriately, among other things, J.P. King had breached the covenant

of good faith and fair dealing as well as its fiduciary duty as Mr. Simek’s real

estate broker. As a result of these alleged violations, Mr. Simek sought

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compensatory, consequential, and punitive damages. The complaint also alleged

that J.P. King had acted in violation of the Wyoming Real Estate License Act,

Wyo. Stat. Ann. §§ 33-28-101 to -401. 2
In regard to this claim, the complaint

indicated that, “[a]s a result of [J.P. King]’s actions . . . , [Mr. Simek] ha[d]

sustained significant losses and will continue to incur additional damages until

this matter is resolved.” Complaint, Appellant’s App. Vol. I at 24.

The case was tried to a jury over nine days. Mr. Simek testified to his

belief that his property was worth $3 million. He also presented an expert

witness’s appraisal of the property at $2.2 million. He further introduced witness

testimony indicating that the absolute auction process had come under increasing

scrutiny and that it was important for an auctioneer to make clients aware of the

risks. Mr. Simek also presented an expert witness at trial to assess the “total

amount received by J.P. King” as a result of its entering into the Auction

Marketing Agreement with Mr. Simek. Trial Tr., Appellee’s Supp. App. Vol. I at

333. The expert testified that this amount was approximately $135,712, in

addition to the $108,396.43 promotional fee.

2
The complaint referred specifically to Wyo. Stat. Ann. § 33-28-303, which
lists the duties and obligations of a seller’s agent to a seller. Among other things,
the provision obligates an agent “[t]o comply with all requirements of th[e Real
Estate License Act].” Wyo. Stat. Ann. § 33-28-303(a)(iv).

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 Over Mr. Simek’s objection, J.P. King introduced into evidence the 2002

county tax assessment of Mr. Simek’s property which indicated its value was

approximately $1.5 million. J.P. King also elicited testimony from Scott King

and another individual engaged in auctions, again over Mr. Simek’s objection, in

regard to the relationship between appraisers’ and tax assessors’ property

valuations and the price that one might expect a property to be sold for at auction.

Following the close of evidence, Mr. Simek raised a number of objections

in regard to the court’s proposed jury instructions, primarily arguing that the court

was improperly including negligence principles—such as proximate causation and

the duty to mitigate—in its instructions on damages for breach of fiduciary duty.

The district court overruled these objections, holding that the concepts of

causation and mitigation were common to all damages claims.

On August 27, 2004, the jury returned a verdict finding that J.P. King had

breached its fiduciary duty to Mr. Simek and had violated Wyoming real estate

laws but had not breached the implied covenant of good faith and fair dealing.

The jury further found that the fair market value of Mr. Simek’s Cody property on

the date of the auction was $1,050,000. The jury concluded that Mr. Simek had

not sustained any damages as a result of J.P. King’s illegal conduct and that there

were no damages that Mr. Simek could have “avoided or reduced by reasonable

care and diligence without exposing him to undue risk, burden, or humiliation.”

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Verdict, Appellant’s App. Vol. II at 196. In addition, it found that J.P. King did

not “receive any money either as a fee, commission, compensation or profit by or

in consequence of” its violation of Wyoming real estate laws. Id. at 197.

Following the verdict, Mr. Simek moved the trial court to award him the

statutory penalty available pursuant to Wyo. Stat. Ann. § 33-28-114, based on the

jury’s finding that J.P. King had violated Wyoming real estate laws. The court

denied this motion. Mr. Simek further moved the court for a new trial on the

issue of damages, or alternatively, for an additur. In support of this motion,

Mr. Simek argued that the jury’s finding regarding his property’s fair market

value was unsupported by the evidence because J.P. King “did not call any expert

witnesses on the question of value,” and thus the only evidence of value was that

provided by Mr. Simek. Plaintiff’s Mot. for New Trial, Appellant’s App. Vol. II

at 261. The district court denied this motion as well, reasoning that “there was

sufficient evidence for the jury to determine that the market value of [Mr.

Simek]’s home was the price obtained through the auction process.” Order of

Sept. 28, 2004, Appellant’s App. Vol. II at 281. Mr. Simek appealed the jury’s

verdict and the district court’s orders denying his motions for award of statutory

fees and for a new trial or additur.

DISCUSSION

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 On appeal, Mr. Simek argues that the district court erred by (1) refusing to

award Mr. Simek a statutory penalty pursuant to Wyo. Stat. Ann. § 33-28-114; (2)

instructing the jury on issues of causation and mitigation; (3) allowing J.P. King

to present evidence of Mr. Simek’s net worth; (4) allowing J.P. King to introduce

the county assessor’s valuation of Mr. Simek’s property into evidence and to elicit

nonexpert witnesses’ opinions on valuation; and (5) denying Mr. Simek’s motion

for a new trial on damages. 3
We consider each issue in turn.

I. STATUTORY PENALTY UNDER WYO. STAT. ANN. § 33-28-114

Mr. Simek first argues that he was entitled to receive an amount three times

the sum of money that J.P. King received as a result of their Agreement as a

statutory penalty pursuant to Wyo. Stat. Ann. § 33-28-114. According to Mr.

Simek, the district court, in denying his motion for an award of this amount,

“incorrectly treated the statutory penalty as a measure of damages to be awarded

by the jury rather than a statutory penalty to be awarded by the Court.”

Appellant’s Opening Br. at 26. Mr. Simek further contends that the district court

erred in “requiring proof of causation” as a prerequisite to awarding the statutory

penalty. Id. In Mr. Simek’s view, the award of treble damages pursuant to Wyo.

3
Mr. Simek raised two additional arguments in his brief regarding the
district court’s refusal to give a constructive fraud instruction and its failure to
excuse jurors. Both of these arguments were abandoned at oral argument.

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Stat. Ann. § 33-28-114 is mandatory once a violation of Wyoming real estate law

has been established.

The appropriate interpretation and application of § 33-28-114(b) are issues

of Wyoming law. We review de novo the district court’s evaluation of these

questions. Burton v. R.J. Reynolds Tobacco Co. , 397 F.3d 906, 910 (10th Cir.

2005) (“We review a district court’s interpretation of state law de novo.”). The

provision states, in relevant part:

If any person receives any money or the equivalent thereof as a fee,
commission, compensation or profit by or in consequence of a
violation of any provision of [the Wyoming Real Estate License Act],
he shall . . . be liable to a penalty of not less than the amount of the
sum of money so received and not more than three (3) times the sum
so received as may be determined by the court, which penalty may be
recovered in a court of competent jurisdiction by any person
aggrieved.

Wyo. Stat. Ann. § 33-28-114(b).

Under Wyoming law, the award of a statutory penalty pursuant to

§ 33-28-114(b) is equivalent to an award of punitive damages and is therefore a

matter within the discretion of the trial court. Cates v. Daniels , 628 P.2d 862,

867-68 (Wyo. 1981) (“The award of . . . punitive damages [pursuant to Wyo. Stat.

Ann. § 33-28-114(b)] is solely in the discretion of the trial court.”). In Cates , the

Wyoming Supreme Court thus held that the district court did not abuse its

discretion when it refused to award treble damages under § 33-28-114(b) even

though the defendants had violated Wyoming real estate laws. Id. at 868. The

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Wyoming Supreme Court has further held that such an award does require a

“causal connection between” a defendant’s violation and “the profit [or other

gain] realized by” the defendant. McCoy v. Thompson , 677 P.2d 839, 843 (Wyo.

1984). Moreover, it appears that it is not error for the jury, rather than the court,

to make at least a preliminary determination regarding the statutory penalty as

long as this determination is supported by the evidence. See Erickson v. Magill ,

713 P.2d 1182, 1187 (Wyo. 1986) (upholding a district court’s reversal of a jury’s

award of a penalty under § 33-28-114(b) to the plaintiff where the court

determined there was no violation of Wyoming real estate laws).

Here, as indicated above, the jury found that J.P. King did not “receive any

money either as a fee, commission, compensation or profit by or in consequence

of” its violation of Wyoming real estate laws and did not award Mr. Simek any

damages. Verdict, Appellant’s App. Vol. II at 197. In denying Mr. Simek’s

subsequent motion for an award of the statutory penalty, the court reasoned that

“the jury considered the statutory penalty” but had “appropriately” assessed the

amount of damages at zero based on its determination that J.P. King’s statutory

violations “were not the proximate cause of any damages.” Order of Sept. 21,

2004, Appellant’s App. Vol. II at 280.

Mr. Simek appears to contend that the district court, in reaching this

conclusion, misunderstood the penalty determination under § 33-28-114(b) as

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connected to the amount of damages Mr. Simek sustained that were

“proximate[ly] cause[d]” by J.P. King’s violations. It is true that the “causal

connection” required under Wyoming law appears more like “but for” causation

than “proximate” causation, 4
see McCoy , 677 P.2d at 843, and the statute requires

the connection to be between the violation and the money received by the

defendant, not between the violation and the damages sustained by the plaintiff.

However, even if the district court’s order appeared to rely on an incorrect

interpretation of Wyoming law in regard to these matters, the jury instructions and

verdict form do not reflect the same error. In answering the question on the

verdict form regarding whether J.P. King “receive[d] any money . . . by or in

consequence of” its real estate law violations, the jury had before it the very

language of the statute. The applicable jury instruction indicated that “if you find

that J.P. King received money . . . as a consequence of a violation of any

provision of the Wyoming Real Estate License Law, J.P. King may be liable for

not less than the amount of money so received and not more than three times the

amount of money so received.” Instr. No. 34, Appellant’s App. Vol. II at 241.

The jury found that J.P. King received no money as a consequence of its statutory

violations. Given that finding, there was no basis upon which the court could

4
See Restatement (Third) of Torts § 26 (proposed final draft)
(distinguishing “but for” or “factual” causation from “proximate” causation for
purposes of negligence liability).

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have awarded Mr. Simek a statutory penalty of “not less than the amount of the

sum of money so received and not more than three (3) times the sum so received,”

as allowed under § 33-28-114(b).

On appeal, Mr. Simek does not argue that there is no basis in the record for

the jury to find no causal connection, nor does he attempt to explain the causal

connection between specific statutory violations committed by J.P. King and its

receipt of money. Essentially, Mr. Simek argues that, as a matter of law, all

money received by J.P. King as a result of the auction of Mr. Simek’s property

was received “by or in consequence” of J.P. King’s statutory violations. We see

no basis for such a conclusion unless the Agreement between Mr. Simek and J.P.

King was itself rendered invalid by these violations. Having carefully reviewed

the record, we are unpersuaded that any of the violations alleged by Mr. Simek

were sufficient to render the Agreement invalid. The only alleged violation that

might have invalidated the Agreement at the outset was Scott King’s failure to

have a Wyoming real estate license during his negotiations with Mr. Simek.

However, although Scott King did not have a license at that time, other

individuals at J.P. King did have licenses. Moreover, Scott King did have a valid

license as of October 1, 2002, before the auction date of October 26. While the

Real Estate License Act states that an unlicensed broker may not bring suit to

recover a commission, Wyo. Stat. Ann. § 33-28-115, the Wyoming Supreme Court

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has observed that generally, in the absence of some further violation, “one who

has paid money to an unlicensed person for performance of a contract is not

entitled to recover the money back,” in part because “there is no equitable reason

for making restitution to a plaintiff who gets what he expected, and the parties to

an illegal contract which has become executed cannot in equity and principles of

restitution require that money be paid back.” Bowlerama, Inc. v. Woodside

Realty Co. , 752 P.2d 1377, 1383-84 (Wyo. 1988). We therefore affirm the district

court’s order denying the statutory penalty.

II. JURY INSTRUCTIONS

Mr. Simek next argues that the district court gave erroneous jury

instructions in regard to the standard for awarding damages based on a breach of

fiduciary duty. “We review de novo whether, as a whole, the district court’s jury

instructions correctly stated the governing law and provided the jury with an

ample understanding of the issues and applicable standards.” Grace United

Methodist Church v. City of Cheyenne , 427 F.3d 775, 793 (10th Cir. 2005). Even

if, after reviewing the instructions in isolation from the rest of the trial, we are

left with a substantial doubt in regard to whether the jury received proper

guidance, we may reverse a jury’s verdict in a civil trial only if we conclude the

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erroneous instructions prejudiced the losing party. Id. (citing Morrison Knudsen

Corp. v. Fireman’s Fund Ins. Co. , 175 F.3d 1221, 1236 (10th Cir. 1999)).

Mr. Simek contends that, although his damages claims were based on

breach of fiduciary duty rather than negligence, “the District Court repeatedly

included ordinary negligence concepts in the jury instructions and verdict form”

and that, “[a]s a result, the jury was misled on the law applicable to the breach of

fiduciary duty claims against J.P. King.” Appellant’s Opening Br. at 31. Mr.

Simek further claims that the district court erroneously instructed the jury to apply

the affirmative defense of mitigation even though, he alleges, that defense is not

available for a breach of fiduciary duty, as opposed to negligence, claim. The

result of these errors, according to Mr. Simek, is that the jury focused on the

question of “actual damages and did not properly address the equitable relief of

forfeiture,” which would have required disgorgement by J.P. King of all sums

paid to it by Mr. Simek. Id. at 35.

In regard to the causation issue, Mr. Simek objected at trial to Instruction

No. 14, which stated:

An injury or damage is caused by an act, or a failure to act,
whenever it appears from a preponderance of the evidence that the
act or omission played a substantial part in bringing about the injury
or damage.

Conduct which plays a substantial part in bringing about the
injury or damage is that conduct which directly brings about the
injury either immediately or through happenings which follow one

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 after another. If, however, the conduct created only a condition or
occasion for the harm to occur then it would not be a substantial
factor in bringing about the harm.

Jury Instr. No. 14, Appellant’s App. Vol. II at 216. The district court denied this

objection, indicating its belief that general damages law applied, and that

damages require causation.

Mr. Simek also objected to the court’s proposed instruction on mitigation

of damages, which stated:

If you find that [Mr. Simek] is entitled to recover damages,
then you should reduce the amount of damages that you award to
[Mr. Simek] by the amount of damages that [he] could have avoided
or reduced by reasonable care and diligence without exposing him to
undue risk, burden, or humiliation.

Instr. No. 35, Appellant’s App. Vol. II at 242. Mr. Simek objected to this

instruction on the basis that J.P. King had failed to demonstrate mitigation was an

affirmative defense for breach of fiduciary duty claims in Wyoming law. The

district court responded that, in its view, as a general tort principle, Mr. Simek

“had a duty to mitigate, if he could.” Jury Instr. Conf., Appellant’s App. Vol. III

at 430. Both of these instructions were given to the jury.

Under the circumstances here, we are unpersuaded that the district court’s

instructions constituted reversible error. For one thing, it is undisputed that Mr.

Simek did seek damages on his claim of breach of fiduciary duty. The Wyoming

Supreme Court has recognized that such claims “‘sound[] in tort,’” and that

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“‘[t]he measure of damages [in an action for breach of fiduciary duty] is the

amount which will compensate for all the detriment proximately caused by the

breach of duty.’” Hulse v. First Am. Title Co. , 33 P.3d 122, 140 (Wyo. 2001)

(quoting Hagar v. Mobley , 638 P.2d 127, 139 (Wyo. 1981)). We therefore see no

error in the district court’s conclusion that the general tort concept of proximate

causation was applicable to Mr. Simek’s claim for damages, and with its inclusion

of this concept in its jury instructions.

In regard to the mitigation instruction, it appears unsettled in Wyoming law

whether the duty to mitigate applies to offset a damages award in a breach of

fiduciary duty claim. But see Wachovia Bank of Ga., N.A. v. Namik , 620 S.E.2d

470, 473 (Ga. App. 2005) (holding duty to mitigate applied where breach of

fiduciary duty was not intentional or fraudulent). However, assuming the court’s

mitigation instruction was in error, we hold that no prejudice resulted. As

indicated above, the jury found that there were no damages that Mr. Simek could

have avoided or reduced by reasonable care. Thus, the mitigation instruction

could not have affected the outcome of the case.

Aside from the damages issue, Mr. Simek appears to argue that the district

court’s jury instructions were erroneous because they failed to inform the jury of

the availability of a forfeiture remedy, which, unlike damages, does not require

proof of causation or mitigation. See, e.g. , Arst v. Stifel, Nicolaus & Co. , 954 F.

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Supp. 1483, 1492-93 (D. Kan. 1997). However, as J.P. King points out, Mr.

Simek did not indicate in his complaint, in his proposed jury instructions, in his

proposed verdict form, or at trial that he was seeking forfeiture or disgorgement

as a remedy for J.P. King’s breach of fiduciary duty. Mr. Simek first claimed

entitlement to disgorgement of all money J.P. King had received in his motion for

a new trial.

We recognize that at least one court has held that, where a plaintiff has

limited his complaint to certain forms of relief, a district court may nevertheless

be obligated under Federal Rule of Civil Procedure 54(c) 5
to instruct the jury on

all remedies to which the plaintiff is entitled in light of the evidence presented at

trial. See Scutieri v. Paige , 808 F.2d 785, 792 (11th Cir. 1987) (holding that a

district court “commits reversible error in not instructing the jury” on punitive

damages “[i]f the complaint alleges conduct that would support a claim for

punitive damages, and if evidence is presented creating a jury question on such

relief” (citing Guillen v. Kuykendall , 470 F.2d 745, 748 (5th Cir. 1972))). We do

not consider the district court’s lack of a forfeiture instruction error here,

however, as Mr. Simek has not cited any conclusive authority for the proposition

5
Rule 54(c) states that “every final judgment shall grant the relief to which
the party in whose favor it is rendered is entitled, even if the party has not
demanded such relief in the party’s pleadings.” Fed. R. Civ. P. 54(c).

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that the forfeiture remedy is available for breach of fiduciary duty under

Wyoming law. 6

We therefore affirm the district court on this issue.

III. EVIDENCE OF MR. SIMEK’S NET WORTH

Mr. Simek next argues that the district court erred in allowing J.P. King to

present evidence indicating Mr. Simek’s net worth. We review the district court’s

decision to allow the admission of evidence for an abuse of discretion. Grace

6
We note that the Restatement and some jurisdictions have indicated that a
plaintiff claiming a breach of fiduciary duty by an agent may seek both damages
and forfeiture of “commissions and other compensation paid or payable to the
agent during the period of the agent’s disloyalty.” Restatement (Third) of Agency
§ 8.01 cmt. d(1)-(2) (T.D. No. 6, 2005); see, e.g., Mabry v. Tom Stanger & Co.,
33 P.3d 1206, 1209 (Colo. Ct. App. 2001) (recognizing that under Colorado law,
“a real estate broker's breach of a fiduciary duty to a seller results in a forfeiture
of the broker's entitlement to a commission, even if the seller has not suffered any
demonstrable harm as a result of the breach and even if the breach does not
amount to fraud or self-dealing or result in a profit to the broker”). However, we
do not believe Rule 54(c) imposes a duty on the district court to recognize this
principle as part of Wyoming law at a point where no Wyoming court has done so
and neither of the parties had urged it to do so. In addition, although Mr. Simek
has not challenged the district court’s entry of judgment under Rule 54(c), either
here or in his motion for a new trial, we note that any such challenge would not
prevail under the circumstances here because the court’s post-trial imposition of a
forfeiture remedy would have unfairly prejudiced J.P. King. See Minyard Enters.,
Inc. v. Se. Chem. & Solvent Co., 184 F.3d 373, 386 (4th Cir. 1999) (holding that
Rule 54(c) does not allow a plaintiff to seek a certain form of relief for the first
time after trial where its failure to do so before trial was “unfairly prejudicial” to
the defendant).

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United Methodist Church , 427 F.3d at 802-03. Here, we hold there was no abuse

of discretion. Mr. Simek’s objection relates to J.P. King’s questioning of Mr.

Simek on cross-examination. The questioning, relating to Scott King’s initial

visit to Mr. Simek regarding his Nevada property, proceeded as follows:

Q: And what did you think all of that property was worth when you
invited Mr. King out to talk to you about it?

....

A. It is anybody’s guess.

Q. You actually had a draft document where you projected that it
could be sold for 40 million if everything was developed, didn’t you?

A. If everything was developed and the lots were sold individually,
approximately.

Trial Tr., Appellant’s App. Vol. III at 331. Mr. Simek objected to this line of

questioning on the grounds of relevance and now further asserts that allowing the

introduction of the value of Mr. Simek’s Nevada property was prejudicial to Mr.

Simek. However, as J.P. King indicates, Mr. Simek’s experience with valuable

real estate was relevant to J.P. King for the purpose of refuting Mr. Simek’s claim

that he was taken advantage of through the absolute auction of his Cody property.

Moreover, as J.P. King further points out, Mr. Simek had already introduced

evidence that in general related to his highly successful business career,

beginning with his cofounding of Tombstone Pizza, and specifically related to his

purchase of the Nevada property and his plans to develop it into a golf course and

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residential lots. Because this evidence already tended to show Mr. Simek’s

wealth, we do not believe J.P. King’s elicitation of the projected value of the

Nevada property was unfairly prejudicial. We therefore uphold the district

court’s ruling on this issue.

IV. ADMISSION OF COUNTY ASSESSOR’S PROPERTY ASSESSMENT
AND WITNESSES’ VALUATION TESTIMONY

Mr. Simek also challenges the district court’s refusal to exclude J.P. King’s

introduction of or reference to the county assessor’s assessment of Mr. Simek’s

property, and its refusal to prevent J.P. King from asking witnesses about that

document and other appraisals. According to Mr. Simek, the district court should

have evaluated the reliability of the assessment and of the witnesses’ testimony as

expert evidence of the fair market value of Mr. Simek’s property pursuant to

Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579 (1993). We review de novo

“whether the district court properly performed its role as ‘gatekeeper’ pursuant to

Federal Rule of Evidence 702 and Daubert .” Norris v. Baxter Healthcare Corp. ,

397 F.3d 878, 883 (10th Cir. 2005).

Here, we believe the district court had no obligation to analyze the

reliability of the assessment under Daubert . J.P. King originally referred to the

assessment in order to refresh Mr. Simek’s memory regarding the amount of the

assessment, for the purpose of asking Mr. Simek whether it was true that “the

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purchase price that was obtained at the auction was . . . very close to what the

county assessor appraised [Mr. Simek’s] house and the secondary building in

connection with the house in their 2002 appraisal.” Trial Tr., Appellant’s App.

Vol. III at 326. J.P. King later introduced a certified copy of the assessment into

the evidence. As J.P. King points out, that copy was admissible under Federal

Rule of Evidence 902(4) as a certified copy of a public record. See Rossi v.

United States , 755 F. Supp. 314, 316 (D. Or. 1990) (holding IRS Certificates of

Assessments and Payments admissible under Rule 902(4)).

Mr. Simek argues that because J.P. King used the assessment as evidence of

the value of Mr. Simek’s property, the assessment must be characterized as a

“back door” expert opinion. Appellant’s Opening Br. at 43. This argument

presumes that only expert opinions have possible relevance to the question of a

property’s value. However, tax records such as the assessment at issue are

certainly relevant to the question of value, even if they are not dispositive. See

Wyo. Stat. Ann. § 39-13-103(b)(ii) (requiring that “[a]ll taxable property shall be

annually valued at its fair market value”); BP Am. Prod. Co. v. Dep’t of Revenue ,

112 P.3d 596, 608 (Wyo. 2005) (holding that the Wyoming “Department [of

Revenue]’s valuations for state-assessed property are presumed valid, accurate,

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and correct”). 7
The fact that such a tax record is relevant for this purpose does

not automatically subject the record to Daubert analysis where the record is

admissible on other grounds and there is no attempt to characterize the tax record

as anything other than what it is. In this sense, a certified tax record is

distinguishable from factual findings from an investigation that are contained in a

government report admissible under Rule 803(8)(C), which courts have held

remain subject to Daubert . Cf. Desrosiers v. Flight Int’l of Florida, Inc. , 156 F.3d

952, 962 (9th Cir. 1998) (observing that Rule 803(8)(C)’s exclusion of a report’s

factual findings where “the sources of information or other circumstances indicate

lack of trustworthiness,” Fed. R. Evid. 803(8)(C), indicates that Daubert remains

applicable in that context); Heary Bros. Lightning Prot. Co. v. Lightning Prot.

Inst. , 287 F. Supp. 2d 1038, 1076 (D. Ariz. 2003) (holding that party could not

circumvent Daubert by submitting scientific or technical findings contained in a

government report). We therefore affirm the district court’s admission of the

assessment into evidence.

We note that the Wyoming Supreme Court has held that other “relevant
7

evidence of market value” includes the resale price of a property as well as “other
sales of the same or similar property, which were transacted reasonably close in
time and distance and under comparable market conditions.” Piroschak v.
Whelan, 106 P.3d 887, 893 (Wyo. 2005) (internal quotation omitted); see also Ely
v. Kirk, 707 P.2d 706, 712 (Wyo. 1985) (listing “purchase price of [property] or
similar property, attributes good and bad of the particular property, or
circumstances in the neighborhood or area having an effect on its value” as
relevant factors).

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 Mr. Simek further claims that J.P. King’s questioning of Mr. Hugh Miller,

an experienced auctioneer, regarding an appraiser’s valuation of Mr. Simek’s

property was contrary to J.P. King’s representation that Mr. Miller would not

present expert testimony on valuation. That representation had led the district

court to hold that Mr. Simek’s prior objection to Mr. Miller’s testimony on

Daubert grounds was moot. Mr. Simek also protests J.P. King’s questioning of

Scott King on the appraisal and the assessment. We disagree with Mr. Simek’s

contention that either Mr. Miller’s or Scott King’s testimony was subject to

Daubert . J.P. King questioned Mr. Miller as follows:

Q. What if I told you there was an appraisal on the property for
either 2 or 2.5 million?

....

A. I never cease to be amazed at how people – how high a regard
people hold appraisals. I can sit here and cite you examples of where
we have sold properties – well, one that comes to mind immediately
is we sold a little farm up in northern Indiana . . . . He appraised this
farm for 360,000. We sold the farm and it brought 798,000. I can
also sit here and quote you properties that we’ve sold for
substantially less than appraised values. An appraisal is nothing
more than one person’s opinion of value based on historical
information that they gather from the market. And that’s all it is.
The validity of that number that they come up with at the
bottom of that appraisal report is in direct proportion to the skill of
the person that has compiled the information that went in to making
that decision.

Trial Tr., Appellee’s Supp. App. Vol. II at 538-40. J.P. King also referenced

appraisals and the assessment when questioning Scott King:

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 Q. I want to ask you a little bit about value and what we know. In
this case, the testimony has been that there was an appraisal of 2.2
million, county assessor’s assessment of 1 point something million.
Tell us, first of all, in your experience, how reliable are either one of
those documents in terms of predicting what a property will sell for
at an auction?

....

A. An appraisal is an opinion is what it is. You know, granted, it is
a professional that’s tabulated it, but it is using historic comparables,
comps that are in the past. If it is a market that’s sliding in value,
then those comps will prove a wrong conclusion. On the other hand,
if those values are appreciating, obviously, those comps are going to
have a lower value than what it actually should be.
We’ve had sales higher and lower than appraisals. So to me an appraisal is
an opinion is what it is.
The tax records is for purposes of determining tax amounts and
it is a form of appraisal.

Trial Tr., Appellant’s App. Vol. III at 408. It is clear that J.P. King’s questioning

of Mr. Miller and Scott King on these points related to their experience in the

auction business, as regards the relationship between appraisals and tax

assessments and the actual price a property will sell for at an auction. Neither

Mr. Miller nor Scott King claimed to present their own appraisals of the fair

market value of the property. Their qualifications to perform such an appraisal

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were thus irrelevant. 8
We therefore conclude that the district court did not err in

failing to analyze these witnesses’ testimony under Daubert .

V. DENIAL OF A NEW TRIAL ON DAMAGES

Finally, Mr. Simek asks us to reverse the district court’s denial of his

motion for a new trial, or in the alternative additur, based on the inadequacy of

the jury’s damages award in light of the evidence. We review the district court’s

denial of a new trial on these grounds for an abuse of discretion. Bainbrich v.

Hammon Iron Works , 249 F.2d 348, 349 (10th Cir. 1957). Moreover, “[w]e will

not disturb a jury’s finding on damages [in a civil trial] unless it is so

unreasonable as to shock the judicial conscience and to raise an irresistible

inference that passion, prejudice, corruption, or other improper cause invaded the

trial.” Bennett v. Longacre , 774 F.2d 1024, 1028 (10th Cir. 1985) (internal

quotation omitted).

8
We note that at oral argument, Mr. Simek asserted that under Wyoming
law, only licensed appraisers are considered qualified to testify regarding a
property’s evaluation. However, the Wyoming Supreme Court has stated that
“‘[w]hether or not a witness has sufficient knowledge or special experience to
testify as to his opinion on valuation is within the discretion of the trial court and
will be disturbed on appeal only if clearly and prejudicially erroneous and then
only in extreme cases.’” Connor v. Bd. of County Comm’rs, 54 P.3d 1274, 1284
(Wyo. 2002) (quoting Ely, 707 P.2d at 712).

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 In his opening brief, Mr. Simek argued that his own evidence on damages

“was uncontroverted and undisputed” because “J.P. King did not call any expert

witnesses on the question of value” of Mr. Simek’s property, and concluded that

the jury’s zero damages award was therefore necessarily contrary to the evidence.

Appellant’s Opening Br. at 46. In response, J.P. King pointed to the testimony of

Mr. Miller and Scott King, discussed above, regarding how value is determined

through the auction process, as well as to the 2002 certified tax assessment

introduced as evidence at trial. In his reply brief, Mr. Simek then appeared to

merge his argument on this issue with his attack on the admissibility of the

assessment and Mr. Miller’s and Scott King’s testimony, which we have already

discussed above. In light of our resolution of the admissibility issues in J.P.

King’s favor, we take into account that evidence and conclude that the jury’s

finding that Mr. Simek did not sustain any damages was not so unreasonable as to

warrant a new trial.

Mr. Simek criticizes J.P. King as representing the absolute auction as “the

best evidence of fair market value” when “the absolute auction concept is under

attack throughout the country and is the subject of numerous lawsuits and claims

against auction companies like J.P. King who utilize the absolute auction device.”

Appellant’s Reply Br. at 29. However, the jury heard testimony regarding the

“enormous amount of discussion and articles written [and] litigation revolving

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around” the absolute auction method, Trial Tr., Appellant’s App. Vol. III at 353,

and was entitled to conduct its own evaluation of J.P. King’s and Mr. Simek’s

conflicting evidence. The jury’s verdict form indicates its determination that Mr.

Simek received the fair market value of his property at the auction and that Mr.

Simek sustained no damages. There is evidence in the record to support these

conclusions. We therefore uphold the district court’s ruling on this issue.

CONCLUSION

For the foregoing reasons, the district court’s denial of Mr. Simek’s motion

for a new trial or for additur is AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

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