my name is april hollingsworth and i represent aaron johnson in this case against west jordan city the district court made three errors below one in reducing the two point seven seven million dollar verdict to three hundred thirty five thousand the second and as we said in the briefing that encompasses two errors that i'll get into but the second error was reducing the billing right mr jenson's attorney without reliable support on the record for doing that and the third was not allowing mr johnson to amend his complaint to add robert schober in his personal capacity schober had always been a defendant in his official capacity on the first issue on instructions what decision of the district court are you pealing you filed a motion post judgment well we tell me how this occurred ok so first you had an instruction conference i assume we had an instruction come to you offer instructions did you propose instructions well no what i said is that it doesn't make sense to ask the jury to apportion damage or you did not so i never asked for an instruction because i didn't believe that and i don't believe that there was any logical way to ask the jury to apportion damages in under these circumstances and so so then you had the trial the other side apparently proposed this apportionment not exactly they posed a different verdict form than the court created on its own but so both sides wanted something at the end so yeah they're there when you had the trial and you know the rest of the story and then after the court apportioned and followed require the jury to follow and  apportionment and had them go back and recount what they were doing and then what did you do so and i want that's an important step and i want the court should pay close attention and read the transcript of what the jury initially decided and that's that and the record at twelve zero one after that the jury count and we had a discussion of the bench counsel said we believe that this is an inconsistent verdict and this leave the court said well i think it's obvious that they just intended that the amount at the end was the whole amount of damages counsel for west jordan object to the again and ultimately the court decided because it was inconsistent when you add up all the siraj you don't get to that big number i actually your honor i don't believe that it was inconsistent but that was their argument and that was there are court accepted that ok because if you if you read over the verdict form actually what it asks is you know for each question did mr jenson prove retaliation under title seven for instance yes or no yes and then what is the amount of damages he proved that mr johnson suffered as a result of the title seven retaliation i think i'm putting zero on that makes perfect sense because what they were saying and what they've testified to later was that we didn't see how you could apportion this these damages so i don't believe it was inconsistent but assuming it was so i asked the judge well can i make an argument that and he said no so there's no instructions to the jury on how they're supposed to do this what they have been instructed in is that they are not to award the same damages twice that's clear in the instruction so i don't know what the jury was supposed to do in this situation but they did and so when the court then accepted the jury's second verdict form and entered judgment you filed a motion to alter right to to reinstate the full amount of because it is the application of law not facts so even though i could find nothing in the record of the similar situation i think based on this  court's repeated assertions in other contexts that when you're when we are reviewing the decision on applying the law it's a novo review then i think that most accurately fits the situation what is the law we should apply here laws there's there's nothing that speaks to this exact situation there is you know the second restatement of torch which says intent should stand so those those things are what i think the court has jury has to follow the law right but there is no law that says that they have to apportion the verdict in their initial i think their initial verdict where you had multiple claims i mean isn't that the problem here right and your honor i want to tell the story afterwards when you know when the dust settled and i thought back on all of this i thought you know in that hour and a half that we had in between the first verdict and the second i wish that i had been thinking clearly i wish i could have foreseen this and just dropped the title seven quite and i thought what if i had you know been able to think about this  judge and say ok we're going to we're going to drop the title seven claim let's tell the jury that now they just have to serve the last learn too late i mean multiple claims arising out of the same harm right and you want to so pick one you know right but we don't we don't have to pick one but what my point is if i had come if i had been able to foresee that and come up with this really arbitrary decision to to drop one of our four hyams then we wouldn't be here but does seem pretty clear that the jury thought at least the second time around that everything was supposed to total up to the bottom line ray i'm not sure that that was the intent even the first time around i sort of thought maybe i thought what you were trying to tell the jury and what i think they tried to follow was put zero in the amount where the the difference between right areas claims meaning the damages are the same right all the claims right but if they would have put the total damages as each claim on the first verdict it would not have totalled up which is what they seem to be instructed to do the second time around that makes sense i mean oh we're going to have to make this total up so here's how we're going to do it right i mean they were told to apportion the damages so that suggest that put some of the damage on this claim and some on this claim some of this crime and some of this claim and yet it was possible and i don't know that they understood this to say the same damages applied to each claim right and they didn't seem to understand that the second time around right right you know if they had put the one point seven five million on each of the right places where it said emotional distress and then for each question where it said what is about these is over and above the last question and they are then but that and that's the problem there has to the in the instruction jury form that they were given they were not to include the amount they had previously awarded in the prior claim so you couldn't have put the same same same same same right i've made it would have been better for you in the end i appreciate that but i don't think that's what the verdict form required so well for instance on i'm looking at the verdict form number five it says what is the amount of damages if any mr jensen pre buy proponents of the evidence that he suffered as a result of malicious prosecution and they put four thousand and five thousand for that on the economic damages if on question six then they had it said what is the amount of these that is different than in addition to the damages you found in question two above if they had put zero zero and zero that then it would make sense if you have a right so i don't think either verdict makes sense that's my problem i think what you're asking us to do is reinstate the first verdict which or at least the total sum of the verdict right the problem is the first verdict is flawed as well well i think that the i think the form is flawed but i but i think actually as i said to judge must i think that it is it makes the best sense to say we couldn't we couldn't say that he moved any damages are specific to the title seven claims so therefore we broke but at the end the whole amount of damages we found them liable for for their illegal conduct are these amounts i think that actually does make sense and so therefore i think that first verdict makes more sense than what they were asked to do without any instructions afterwards you know and if i'd had the opportunity to argue anything i would have of course you know disregard that and again this is true of law according to your argument and again what case are really rely on are cases  i think the restatement of torts thing i'm sorry the whole thing no no no the part that says the part about the damages that you can't the damages sued only be allocated when they are capable of being divided and you know no one has explained in this case not a court not was jordan how the court could have actually told the jury how do you separate the damages and say ok the title seven claim which is based on television for this protected conduct has different damages than the first amendment claim which is based on retaliation for the protected conduct it makes no sense when the damages and the conduct are all the same and but the problem here for the jury is that with all of these claims and the rest of the instructions they were given all the claims had different elements so they had to walk through each claim right and they could have found no liability on one or other of the claims or i could have thrown out the title seven they still would have said the same amount according to please the court my name is danny separate niche for west orden city and lieutenant robert schober if possible i'd like to focus the first portion of my time stay on mr johnson's argument regarding the application of the damages cat and the remainder with respect to the damages cap it's difficult to identify exactly what is being challenge share and therefore what standard of review applies to the extent that mr jensen raises an argument about the form of the verdict form that to the jury that's reviewed for abuse of discretion as set forth in johnson versus kansas city and then if we're looking at the second issue about the actual application of the cat to the verdict that the jury rendered it's unclear if that would be a no vote standard of review because it does appear to be somewhat of a question of law but it's also an application of the the law which is the caps to the particular facts of this case which is the type of damage that the j awarded and so turning to the first issue about the verdict form the second time that the jury went out it was not actually required to apportion damages in the sense that it was required to put some on one cla and some on another it was very much given the opportunity to say that each of the damages for the claims with the exception of breach of contract for which you can't get emotional distress damages were exactly the same there were two lines so the first allows  jury to identify what total amount of damages mr jensen suffered in connection with each claim and then immediately under it the jury was asked to identify what portion of those damages if any were different from the other claims so those indeed alliance did not need to add up to the total they very well could have been the same as the total amount that the jury put at the end of the verdict form so i guess you're saying they could they could put the same amount they just couldn't put zero exactly because i had the argument once that once a jury came back with a zero award for each is if the jury really did find that the total damages mr jensen suffered in connection with each specific claim was dear oh then how could possibly have found two point seven million dollars in total damage as but doesn't the court say something like go back and do your best to apportion the district court did say to go back in to allocate to the best of its ability as required by the form and the form did allow again the jury to identify the specific amount total for each claim and then if any was different it was never told that it needed to apportion again and what we would think of as the traditional sense of putting ten dollars here in time dollars here it could have said that twenty dollars was the total for each of them and that there was no difference among the damages suffered for each claim and only if you're right i'm sorry but didn't the jury clearly under they must have understood that they thought and they went back this is all supposed to total up we gotta make this a number and we gave you the first time total up somehow and so they did i mean it's clear that they didn't understand and i have to say i don't know that i and i would understand from reading this that they don't have to total up question when they got sent back a second time they seem to think that's what they were sent back and with all due respect i believe part of that confusion came from the argument that mr jenson's counsel made at the close of trial with the reference to just putting zero over that line your honor mentioned a moment ago that explains the first time around and how does it explain the second time around so i think that the second time around you could interpret it that the jury understood that if it if it was possible it was to identify the total amount for each claim and any amount that was different and it's important to keep in mind here that there are different elements that are required for the various claims this is particularly important with section one thousand nine hundred three which was limited to the acts of policy makers so three specifically identified final policy makers not all employees  of and then with the breach of contract claims there were different damages that were available and also different conduct that was at issue and mr jensen hasn't raised an argument on appeal and did not clearly race in the district court irreconcilably inconsistent which is what it seems may now be the argument but we would maintain that that's been waived because it wasn't specifically briefed and in order to maintain that type of argument you have to clearly present the issue to the district court before the jury is released and although there was some discussion about the second verdict that wasn't clearly raised to the district court and again to the extent that it's a challenge to the district court asking the jury to specifically identify the total for each claim and whether or not any of that was different that would be an abuse of discretion and that hasn't been shown here where there are different claims this appeal highlights one of the reasons that it was important to know for each claim what the jury found the damages to be if the court agrees with west jordan on any portion of its cross the peel that it was entitled to judgment as a matter of law this  now allow the court to send back the verdict without requiring a new trial to identify whether or not the damages would be different excluding whatever claim western word to prevail on and then again it's also important for the damages cap which for title seven but not for the other claims so if we accept that the district court did not abuse its discretion in asking the jury to identify these various points or to identify the various damages and i think it's important to keep in mind that mr jensen after it was clear that this was the verdict form the district court was planning to use did not propose or request a specific instruction further explaining how to use  her i think what would be proposed i mean the answer would be we win or we lose i mean she voiced the opposition to allocation among the cl and she said it's all the same claim if there was you can turn a yes or no so there was a concern that the jury may not understand that that total for each each specific claim did not need to be the same total or that they could find that the damages were considered equal across the board if if mr jensen believed there was some confusion about that there could have been a supplemental jury instruction saying as you're filling out the verdict form please indicate on the first line what you believe was caused by you claim a and then indicate if that was different from the other claims in any respect please note that they do not need a total at that and you just need to identify for each claim the total amount of damages and then that could be the same as the total at that and there was no similar instruction i guess i what would you if we disagree with you and we think that it was legal error to apportion the damage verdict form both verdict forms were in error obviously what would you say the remedy should be i believe it depends on what precisely the error is if it was that asking for an identification of the damages for each claim then i think that it's possible to rely on the total amount but if it's that asking for the identification for each claim is permissible and there was something wrong with this specific verdict form i believe the appropriate remedy is to send it back for a new trial because under rule six zero six it's improper for the court to rely on a juror's testimony about the intent of the jury there is an exception for mistakes but the advisory committee comments to that rule makes it very clear that that's limited to the clerical type mistake of writing down something that's different and the district court did actually address the jurors affidavit in the ruling on post trial motions in a footnote and refused to consider it so i don't think it's proper on appeal for the court to hypothesize or substitute the judgment about what the jury intended if it was not an of discretion to ask not for an apportionment but for an identification of the total damage suffered in connection with each claim so in that event it would require a new trial in our view if we accept in a title seven claim and here because west jordan is fits within the largest category that cap would be three hundred thousand dollars and mr jensen has not argued that it was in appropriately applied to the non economic emotional distress damages so that portion of the ruling is undisputed the question really is whether or not the district court erred in applying the cap to the economic damages that mr johnson was awarded and it's undisputed that those damages are to compensate him for what he argued was a lost opportunity to obtain the full measure of his retirement benefits under the retirement system for law enforcement in order to do that you need to work at twenty years within a law enforcement position in the state of utah and he argued that because of west jordan conduct he was no longer going to be able to find a new position in law enforcement and therefore would be unable to obtain that additional seven and a half years that he needed and he argues that this makes those damages similar to front pay or back pay but this case is fairly unique in that at the time of the alleged retaliatory conduct mr jensen was no longer employed by west he had resigned approximately one year earlier as a settlement of a sexual harassment complaint that although ten generally related is separate and distinct from the retaliation that's alleged in this case so at the time of the alleged retaliatory conduct he was not employed as a law enforcement officer was not currently working toward obtaining that seven and a half additional years  and had no present right to the full amount of retirement benefit so his argument is really that the retaliation caused such damage to his reputation and affected his life to the degree that he would no longer be to be qualified to work as a law in for no longer be able to obtain employment as a law enforcement officer pretty true isn't it i mean he can't be certified because even expungement show up and i don't think too many law enforcement agencies are going to accept someone for certification with this kind of a charge and so that's a record that's an issue that we've raised in our cross appeal as well that mr jordan had mr johnson i'm sorry had not establishes in title meant to those damages because there was an assumption that prior to the criminal prosecution at issue in this case that he would have been qualified but there was substantial evidence that that was not the case prior to the criminal prosecution mr jensen had been diagnosed with adjustment disorder post traumatic stress disorder he had voluntarily checked himself into a drug and rehabilitation center because he had been abusing prescription pain medications he had had  of those things was he still employed by west jordan as a police officer no he was not so this all that's her afterwards this occurred after his voluntary resignation to settle his sexual harassment complaint which he released all claims in connection with and the time that he was criminally prosecuted so this is within that one year window where mr jensen experienced severe issues in his life that couldn't possibly be related to the criminal prosecution which had not yet occurred and there again were issues with prescription pain medication abuse he had an altercation with a different police department in which he had to be handcuffed because he was aggressive toward the police officers that responded and where an individual has these types of issues that arguably on their own would preclude him from maintaining his post certification or being qualified to be employed by a new law enforcement department particularly given that he had worked in narcotics and now had an issue with abusing prescription pain medication western's position is that something more than his own testimony about his lifelong dream to be a police officer was required to establish that he actually could have but for the criminal prosecution found new employment in the law enforcement field going  forward and there the williams case i believe that we've cited from the seventh circuit is perhaps the best for distinguishing from paying back pay which are typically equitable remedies that are awarded by the court from this type of loss future earnings that is based on a alleged damage to reputation really it's a form of consequential damage that comes from the alleged damage to reputation it's not designed to put mr johnson back into the same position he was the day before the prosecution which again was unemployed in the law enforcement field and not presently working toward his full twenty years of obtaining at the utah retirement system and so we believe that accepting that it was not an abuse of discretion for the courts asked the jury to specifically identify the total damages suffered with each claim which did not require an apportionment to one over the other at the district court then properly applied the damages cap to reduce the titles of an award that the jury found for that particular claim thank you trial and were measurable at that time even though he would have started necessarily earning the retirement benefits at issue so it is an economic damages damage that was   new title seven but i want to go back to what we were talking about before you asked about what what law you should be following in our opening brief we cited to this and us industries in first ross and company and then said that where a single injury gives rise to more than one claim of relief a plaintiff may recover his his damages under any claim but may recover them only well these are there are these are duplicative damages for one injury and he can't recover that so what the jury did makes the most sense this court also said in bell versus middleton that where of the jury is clear and is easily rectified then the court should just correct the error so that's what we asked the court to do here is correct this error reinstate what is obviously the intent of the jury and what makes the most sense to award the full amount of the verdict that they issued to mr jensen thank you thank you thank you counsel thank you both for your arguments this morning on the cases submitted