me is whether the at wells or the pick your ring cause of the sale or did they don't abandon westgate in favor of another more lucrative client seeking to purchase the same property now there were multiple abandonment issues raised during the course of the trial this particular one comes to this court as a matter of law based on the admissions by heather at well actually and under the ricci case those submissions are are binding and must be accepted by this court and that admission is that she did in fact take on a competing client seeking to purchase the exact same property in competition with represent two different masters competing parties who are going for a an opportunity which only one of them composite would get representing to  what or the other is unusual useless and therefore taking on these new clients that twice the commission rate as a matter of law affected an abandonment of westgate claim sorry and this argument to the district co does come before this court is a pure question of law and under and the record was fully developed in fact you know that there's no doubt at all from how the route was a mouth that on the very day the westie contract went hard i she got a phone call telling her don't bring your other clients because the properties are so so the record is fully developed is purely a matter of law and under this court's decision in boulder in the other cases we cited this court has discretion to reach this issue even if it was not ever raised in the district court so simply put in a faceless judiciary who as a result of being faithless waves in abandons not a right to do that commission and that should be the ruling of this court as a matter of law moving on to the fraud issue if i may th is no fraud in this case because there is no fraudulent mistake mr siegel expressed an interest in buying the riviera hotel instead for who knows perhaps in addition to the las but merely expressing an interest in buying the riviera cannot rise to the level of a fraudulent misstatement this is purely a prediction of future business original judge motion for judgment as a matter of law and it was raised in the supplemental record on appeal or excuse me in the renewed motion which is in the supplemental record on appeal a page thirty two honor i don't recall the jury instruction on that but it was raised in the j mall that it should not have gone to the jury at all regardless of whether the jury was properly instructed it should have been taken from the jury by the judge in true or false it's almost like setting i like chocolate well that's certainly maybe true but no one wants a steady diet of either i mean not one bad quality chocolate but it's so good it's really not a statement is capable of being true no additional damage over and above the commission and the judge was very very plain about that at trial now of course he burst in self owes trial and in effect  suffering and loss of opportunity and whatnot that came from the fraud but if you look through the ten pages of transcript there cited it's very clear that at this point she's referring to  anxiety and lost concentration business whatever resulting from her work on the financing for the purchase of the las vegas hilton not based on the riviera or it was based solely on this just taste of being involved in a litigation itself and so there's no evidence damages for a fraud here we're also in titles to a new trial for two different reasons one is the trial court  cut off questioning about the license your status of r p inc and its ability to recover a real estate commission read if you look at the transcript or not but we quoted the sections in the reply brief the judge did in fact cut and developing that record was essential to making a jame all we're bringing to this court the question of whether i was entitle to recover commission of all we're also intitled to a new trial on a you know whether or not there was an intent to replace one contract with the other is a matter for the jury to decide based on the parties actions and subjective intentions not the issue so the jury should have been instructed enough  know when you made up this verdict form it was the judge's verdict form and sent it back to the jury that there was a possibility there would be some double recoveries here and he was going to just that when the jury came back he was going to take care of that while  would have been improper for them to for there to be a portion instruction because there is no theory be face was tried upon where they've been damages could be apportioned from one party against another party it was all players against all defendants on the  recognize that during the trial again we asked the reverse entirely or alternatively burson fraud judgment or alternatively brand new trial or alternatively remit the verdict thank  mister good morning to the panel and may it please the court what is finally becoming clear in this entire appeal of the westgate is willing to say anything to undo the unanimous jury verdict and get around the arguments it clearly waived at trial the trouble with that argument is that absent clearly erroneous findings by the district court jury verdicts are sacrosanct in the united states as this court held in westinghouse electric even assuming the verdict could be considered inconsistent and we are not there it is well established that in most cases where a jury renders inconsistent verdicts the trial judge must allow those  telling you specific what specifically happened at the trial and where in the record as you asked him as you asked mr culture where in the record was that raised at trial they do not tell you what was clearly erroneous as a matter of law and the standard for review they have excerpt small portions of the record asking now for this court to step in as the jury to substitute its judgment for that of the jury and the trial judge that sat through the trial reviewed the entire record and then later issued a thirteen page written order the panel for the st time in their reply brief appellant raise the applicability of the mercury decision to claim that waiver does not apply to  record mr interprete ing quote unquote the verdict because it's a legal issue the trouble with that argument is that appellant's remedy was to ask the jury before the jury was let go and this they did not do instead allowing the court to dismiss the jury as you correctly asked we believe that waiver applies to this argument this is not a situation where an exception to a waiver applies even if it is an issue of law mercury requires that there be an adequately developed record to address it here it cannot be overlooked that this issue must depend on the record low but westgate prevented the development of that record  and did not finally the deckers could have objected after the verdict had been announced but before the jury was released here record x or one hundred and forty three during the oral m j m a well westgate argued about duplicat at record accept one hundred and fifty one when moving to the verdict form weskit had no objection despite the fact that they had a notice of this quote unquote supervision issue as noted above the jury deliberates and during that time westgate does not raise this as an issue and we have record expert twenty eight dollars the verdict is returned and that out of court asked if there's any reason the jurors could not be dismissed and westgate said no so it wasn't that he didn't deal with it he asked he asked year they didn't deal with it and you're absolutely right i believe there was a question that they didn't even see going to portion the instruction so after westgate argued about duplicative damages in the m j m a well contacts after the judge said to wait and see what the jury did giving west a full notice of when to discuss the issue and see after the verdict form was presented after the jury deliberated and after the jury's verdict was read out westgate still did not object the circumstances are identical to yet and yet he court is clear by waiting until the post trial motions to raise specific decker's prevented the court from correcting any problems ex ante or some of these contentions prevented the development of an adequate record this is precisely what westgate has done here as to the birth form and the verdict render now they want you to step in or issues they clearly where this court should decline to speculate now just as the yeti court declined to do an interesting issue that came to us only in the reply more clearly was even setting aside the waiver argument what are they asking you to do and that kind of got to it there at the end they're asking you to rule that the district court judge erred in interpreting and entering judgments as you did in junior lading the damage award westgate could not have known about this and so judgment was entered so it's not something that could have been raised that's the best we can amalgamate what that argument actually yes we disagree as i just argued we believe westgate had full notice of this issue and failed to raise a timely perhaps purposely nd even if that is the case weskits briefing on this issue is most notable for what it does not tell this panel it does not tell this court the scope of its review as to the it does not clearly articulate what remedy it is seeking from the court and weskits briefs are simply a smattering of cases none of which appropriately framed the issue we need to this is telling and we believe that the reason for this is that it wants the wants to avoid its high burden that must be met not request a new trial as to the error but this is precisely what wes asked if i held a rule fifty nine dollars motion seeking a new trial or remit it or the district court denied that request as so this court is guided by the standard of  review for such a request this core reviews a district court's denial of motion for a new trial or use of discretion the abuse discretion standard requires us to up hold a district court's determination that all then a broad range to support the jury's best this is the standard here the court need only ask whether the district court's entry of judgment as it did falls within a range of permissible conclusion one such conclusion as set forth in our briefing is addition the r p a was entitled to one million brought down the just independent of the last commission obviously this relates to the evidence in the record so this court must determine whether there is an absolute absence of evidence to support the jury's verdict this is a high burden there was evidence to support a verdict on each of these claims we've gone over that and it's important to know that in these in these intense briefing that ensued  after the verdict the court issued a thirteen page order and the court spent a fair bit of time going through the evidence and he he noted quite  appropriately that the plaintiffs put forward testimony that their customary seats are one percent of the purchase price of a given property and his testimony was bolstered by the evidence that defendants agreed to pay plaintiffs a one percent commission and then contrary  was when they could not afford purchased at representing an interest in engaging plaintiffs chinese clients in our in our grief we go over forgive me we go over distinguished from representations of fact and that may be the predicate for a charge of fraud they clearly don't all to be more clear they clearly do not fall within the definition of a non actual statement of opinion or representation is testified he was very excited about it and immediately said he wanted to make a seventy five million dollars offer this was also around the same time that he told about the broker so it's important to know that he said he really wanted the riviera and he was eager to make the purchase mr siegel said he was no longer pursuing the l b age and they should just focus on the riviera these are far more than simple expressions of sole issue of whether substantial evidence supports the fraud for the record here clearly sets forth substantial evidence noneconomic damages related to west gates fraud specifically miss out well testified extensively as to the human capital and reputational resources my client put into procuring the riviera for western property he never intended purchased these efforts could have been directed to serve other clients but for west she also testified that the back and forth with riviera while westgate was simultaneously going under contract of the d h had impacted her father emotionally while he was still alive is that what was clearly testifying as as a whole not simply being a party to the living geisha that is just absolutely not true and the rest of us to the district court did not consider this last client as part of a substantial evidence supporting fraud damages instead it noted the jury that well and mr out well was gravely ill and the westgate action and failure to sensually took advantage of his inability to advocate for his own interests and to the extent that westgate contends that the amount awarded above the one percent commission was too high this circuit has long held that the damages of the type described above are peculiarly within the discretion of the jury  excuse me of the jury and that specific greyhound since the amount award above the one percent commission is not outrageous the judgment should be affirmed in my last few minutes i would like to address motion stipulation related to the exhibits ending the united states district court for nevada does not keep copies of admitted exhibits in the record and or order did not transcribe the video deposition that was played in lieu of testimony this is a based on the fraud claim but the way i read the answer brief they affirmatively way you do any damage or destroy lost opportunity and so be it that should not be considered by this court on the project the nature of the statement  simply saying you're very interested as opposed to being interested doesn't raise the interest up to a level of fraud and mr siegel is correct he was not in contract on the only age at the time he had those conversations now again we