In Culp v. Remington of Montrose Golf Club LLC, No. 24-1022 (10th Cir. Mar. 30, 2025), a district court’s conditional ruling to admit evidence is held unreviewable when the appellant chose strategically not to trigger the condition at trial. The panel notes that this forfeiture rule is not specifically anticipated by Federal Rule of Evidence 103(a), which governs preservation of a claim of error, but is nevertheless warranted by Luce v. United States, 469 U.S. 38 (1984).
Two plaintiffs, Culp and Peters, brought claims against their former employer Remington under federal (Title VII) and state (Colorado Anti-Discrimination Act, or CADA) law for sex harassment and retaliation. The district court granted summary judgment on Peters’ retaliation claim, but the rest of the case went to trial. “At trial the jury rejected Ms. Peters’s remaining claims and returned puzzling special verdicts on Ms. Culp’s claims, finding that Remington did not violate her rights under Title VII but nonetheless awarding her punitive damages on a Title VII claim.”
On appeal, the Tenth Circuit reverses the decision on Culp’s discrimination and retaliation claims, holding that the district court erred in its resolution of the inconsistent special verdicts based on supervening Supreme Court authority, Dietz v. Bouldin, 579 U.S. 40 (2016), unnoticed by the judge and parties. It affirms the judgment against Peters.
Among other claims of error at trial, “Ms. Peters argues that the district court erred in ruling that if she pursued ongoing emotional-distress damages, Remington could introduce evidence that she worked as an exotic dancer after she left Remington. But we need not resolve that issue because it was not adequately preserved below.”
“As trial approached, Remington indicated that it would seek to admit evidence of Ms. Peters’s work as an exotic dancer to rebut her claim for postemployment emotional damages. In particular, it sought to admit a contract Ms. Peters signed as a condition of her employment with one employer in which she agreed not to be offended by, among other things, ‘advances by customers,’ ‘depictions or portrayals of a sexual nature,’ and ‘similar types of behavior.’”
Peters moved on four separate occasions – twice in pre-trial motions in limine and twice again at trial – to exclude this evidence under Fed. R. Evid. 401, 403, and 404(b). The judge nevertheless rejected her arguments each time. The judge ruled conditionally “that unless [Peters] withdrew her claim for postemployment emotional damages, the evidence could come in to rebut her claim for ongoing emotional damages . . . . She then announced that she was waiving her claim for postemployment emotional damages. Her subsequent employment as an exotic dancer therefore did not come into evidence at trial.”
“We do not address the merits of Ms. Peters’s claim because she did not preserve her objection for appeal. The Supreme Court confronted a similar issue in Luce v. United States, 469 U.S. 38, 39 (1984). The trial court there ruled that if the defendant testified, the government could impeach him with his prior conviction under Fed. R. Evid. 609(a). See id. at 39–40. The defendant chose not to testify and sought to appeal the trial court’s ruling. See id. at 40. The Court held that the defendant had waived his right to appeal the issue because he had not testified.”
“We recognize that Luce is not on all fours with the present case. The evidentiary rule in issue here is not Rule 609(a) and the in limine ruling by the court in this case appears more definitive than the ruling in Luce. But the rationale underlying the Court’s ruling applies more broadly . . . . Other courts have adopted the same rationale and have refused to review conditional rulings if the appellant did not satisfy the condition at trial. Thus, Ms. Peters needed to pursue damages for ongoing emotional harm if she wished to preserve her objection to the disputed evidence. Because she did not pursue her claim and the offending evidence was not admitted, we have no ‘factual context’ in which to measure how harmful the disputed evidence would have been.”
“We note that Fed. R. Evid. 103(a)(1) and (2), which ordinarily govern whether an objection to an evidentiary ruling has been preserved, do not address conditional rulings, and its requirements are not a good fit for such rulings.” Nevertheless, the advisor committee note to Rule 103 “states that ‘[n]othing in the amendment is intended to affect the rule set forth in Luce . . . and its progeny,’ and cites several cases where ‘[t]he Luce principle has been extended . . . to other situations.’”
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