United States District Court, M.D. Tennessee, Nashville Division
PAUL F. CARUANA, Plaintiff,
DAN J. MARCUM, et. al., Defendants.
JEFFERY S. FRENSLEY UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on in Limine motions
6-15 brought by Defendant Donald J. Ray (“Ray”),
on October 10, 2016, to exclude aspects of Plaintiff's
evidence on damages. Defendants C. Dennis Hyde, Joe E.
Lester, and Dan J. Marcum adopted these motions. On October
14, 2016, Plaintiff and Defendant Ray gave notice to this
Court that they have settled the dispute between them.
Because remaining Defendants have adopted these motions, the
Court addresses them below. However, a handful of the motions
were specific to the nature of Plaintiff's dispute with
Defendant Ray resulting in Plaintiff's responses to
claims of hearsay inadmissibility, in some of these motions,
to be unavailing.
Ray's in Limine Motion 6-8 to 6) Exclude Statements Made
by Buick Representatives to Paul Caruana; 7) Exclude Alleged
Proposal to Sell Dealership to Michael C. Petty; and 8)
Exclude Alleged Proposal to Buy Dealership from Larry
Ray asserts that Plaintiff should be unable to insert into
trial 6) the Buick Rep's reported dealership valuation as
an assessment of TMI's value; 7) An offer of sale made by
Plaintiff at $750, 000 to Michael C. Petty; and 8) Larry
Vicker's offer to buy TMI for $750, 000. Defendant
ultimately asserts that these “proposals” are
inadmissible hearsay pursuant to Fed.R.Evid. 802. Hearsay is
a “statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” Fed.R.Evid.
801(c). Hearsay is inadmissible unless it qualifies as an
exception. Fed.R.Evid. 802.
essentially combines his responses to these assertions by
pointing out that his inclusion of these valuations in a
supplemental brief responding to Defendant Ray's
complaint was intended to show Defendant Ray that he was on
notice of Plaintiff's damages because Plaintiff disclosed
these valuations in his deposition. This argument
specifically hinges on Plaintiff's introduction of these
valuations as unintended to assert the value of the
dealership (here, the truth of the matter asserted), but
rather to make Defendant Ray aware of the particular damages
Plaintiff is requesting. First, Defendant Ray is no longer a
party to this suit rendering Plaintiff's explanation for
introducing these valuations moot and irrelevant. Relevant
evidence is that which has “any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Fed.R.Evid.
401. “Evidence which is not relevant is not
admissible.” Fed.R.Evid. 402.
Plaintiff ultimately concedes to using these statements (i.e.
the Buick's rep's valuation), in response to
Defendant Ray's earlier motion to dismiss, as
incorporated into his assessment of his dealership's
worth. This poses a quandary for Plaintiff who otherwise
claims that these assessments are not being used to put forth
the value of his dealership. Defendant Ray's 6-8 in Limine
motions are GRANTED.
Ray's in Limine Motion 9 to Exclude Evidence of Purported
Deal with Gene Caldwell
Ray moves to exclude evidence of Plaintiff's attempts at
a deal with Gene Caldwell (“Caldwell”) for TMI.
Even Defendant Ray's statement of facts (Docket No. 326),
make it clear that Caldwell's deal with Plaintiff
involved the following: 1) he would assume liabilities of TMI
and make an initial $275, 000 capital infusion into TMI in
exchange for operating control and 50% interest in TMI; 2) by
the end of 2001 pay Plaintiff $750, 000 for the remaining
stock in TMI and $560, 000 for the real estate, essentially
buying out Plaintiff. The parties acknowledge that the
agreement with Caldwell was breached by Mr. Caldwell's
failure to perform. Both parties have alluded to that fact
and it provides the reason Defendants entered into the
agreements at issue in this case. Therefore, evidence related
to the Caldwell agreement it relevant and admissible. To the
extent that the agreement with Caldwell was actually reached,
there is no prejudice to Defendants. This in Limine
motion is DENIED.
Ray's in Limine Motion 10 to Exclude Outline of Events
Drafted by P. Caruana
not immediately clear why Defendants do not want Plaintiff to
be able to use his Outline of Events. Defendants assert that
"Plaintiff's inclusion of this document on his
Exhibit List suggests that he intends to introduce the entire
document as “substantive evidence” (Docket No.
620 at 5) but this appears unsubstantiated. Defendants also
assert, without offering more, that this is hearsay. This
document was created by Plaintiff who will be a witness at
this trial. Plaintiff intends to use it to rebut statements
made by Defendants that he made contrary assertions to the
statements made in the Outline of Events. However, Plaintiff
concedes that the document might include hearsay, while also
asserting that "hearsay within hearsay is not excluded
by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule."
Fed.R.Evid 805. This Court, without more from either party,
is unable to decide at this time which components of
Plaintiff's Outline of Events includes hearsay and does
not. In order to avoid blanket exclusion, judgement on how
Plaintiff can use his Outline of Events is hereby RESERVED.
Ray's in Limine Motion 11 to Exclude the Transaction
Summary as Evidence of Valuation or Damages
and Defendants disagree whether this Transaction summary
qualifies as a contract or a mere “agreement to
agree.” Either way, it is admissible and can be used by
Plaintiff as evidence of valuation. Even if this
“Transaction Summary” were a mere informal
agreement, which the Court does not necessarily concede to,
it still includes statements made by Defendant Marcum, in his
representative capacity, which qualify it as admissible.
“Generally, statements such as those in the affidavits
and letter would be inadmissible as hearsay. See
Fed.R.Evid. 801(c). Certain statements made by parties,
however, fall outside of the hearsay definition if the
statements are offered against a party and the statements are
made in the party's individual or representative
capacity. Fed.R.Evid. 801(a) & 801(d)(2)(A).”
Estate of Shafer v. C.I.R., 749 F.2d 1216, 1219 (6th
Cir. 1984) (alterations in original). Since Defendant Marcum
is a party to this action and was acting in his
representative capacity at the time he engaged in this
agreement with Plaintiff, this Transaction Summary is
admissible under 801(d)(2)(A). This motion is DENIED.
Ray's in Limine Motion 12 to Exclude Evidence of
dispute whether they contractually agreed to compensate the
other for attorney's fees and Defendant Ray notes that if
fees are recoverable, they will be decided by this Court at
the end of trial and on submission of fee applications.
Whether either party is entitled to recover attorney fees is
not an issue for the jury therefore, Plaintiff may introduce
evidence that he has incurred attorney ...