Jonathan G. Foss, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0898

Jonathan G. Foss,
Respondent,

vs.

Mark Scott Savage,
Appellant,

Susan Foss, et al.,
Third Party Defendants.

Filed February 6, 2023
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27- CV-19-10716

Richard D. Snyder, Jeffrey W. Post, Ryan C. Young, Fredrikson & Byron, P.A.,
Minneapolis, Minnesota (for respondent)

Samantha J. Ellingson, Aaron R. Thom, Thom Ellingson, PLLP, Minneapolis, Minnesota;
and

Jonathan Uretsky (pro hac vice), PULLP, New York, New York (for appellant)

Considered and decided by Reilly, Presiding Judge; Bjorkman, Judge; and Cochran,
Judge.

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NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges a judgment in excess of $6 million following a jury trial on
the parties’ competing contract- related claims. Appellant argues that the district court
(1) erred by granting summary judgment dismissing appellant’s fraud and civil-theft
claims; (2) erred by granting judgment as a matter of law (JMOL) dismissing appellant’s
rescission and conversion claims; (3) erred by excluding evidence that certain transactions
amounted to a “universal settlement” between the parties; and (4) abused its discretion by
denying appellant’s motion for a new trial. We affirm.
FACTS
Appellant Mark Savage provides financial consulting services to small private
companies. He met respondent Jonathan Foss through a mutual acquaintance. Foss and
his wife, third-party defendant Susan Foss, are minority owners of third-party defendant
Foss Swim School.
During the spring of 2017, Savage approached Foss about investing in a series of
reverse-merger transactions. In a reverse-merger transaction, a public “shell” company is
purchased for the purpose of merging a private company into it. Doing so converts the
private company into a publicly traded company. Savage sought investors like Foss to
fund these transactions in exchange for obtaining shares of the public company’s stock.
Common shares acquired in a reverse- merger transaction must be held for a period of
time—usually six months. But the private companies raising funds to enter a reverse-
merger transaction can also award “consulting shares” to consultants like Savage as
3
compensation for finding investors like Foss. Unlike common shares, consulting shares
are “free trading” in that they are not subject to a holding period. And, to incentivize
investors, consultants can agree to split these consulting shares with investors as additional
compensation for funding a reverse-merger transaction.
Over the next two years, Savage brought a number of reverse-merger investment
opportunities to Foss’s attention. Foss would then either purchase company shares
directly,1 loan funds to Savage to purchase shares on Foss’s behalf, or a combination of the
two. When an investment opportunity included the incentive of consulting shares, Savage
advised Foss of the total funding required for a company to issue those shares to Savage ,
and Foss provided that funding to Savage on the condition that Savage agreed to split the
consulting shares with him. When Foss loaned Savage funds to purchase shares of
common stock, Savage agreed to sell those shares, with Foss’s permission, once those
shares were profitable. The proceeds from those sales were to be used first to repay Foss,
plus interest, and then split between Foss and Savage, typically on either a 60-40 or 50-50
percentage basis.
At issue here are funds Foss loaned to Savage to acquire shares in six companies.
The first three transactions involved Leafbuyers Technologies, Inc. (LBUY), Dala
Petroleum Corp. (DALA or KTEL), and Telehealthcare, Inc. (TLLT or XSPT).2 In each

1 Foss purchased shares directly either under his own name or through one of his privately
owned companies.

2 The parties also refer to each of the six companies by their four-letter trading symbols,
included herein for clarity.
4
instance, the parties memorialized the transaction through various documents, including
promissory notes, stock assignments, stock pledge agreements, common-stock purchase
agreements, and partnership agreements. The documents reflect that Foss invested a
specific dollar amount in exchange for obtaining a certain number of shares in each public
company (or warrants for future shares), including consulting shares.
By September 2017, Savage was in default because he had not fully repaid the funds
Foss loaned him and had not provided Foss with the promised consulting shares. To
address the situation, Foss and Savage entered into a Master Promissory Note (MPN) that
consolidated the three transactions and memorialized a new payment agreement. The MPN
required Savage to repay Foss for the funds loaned to him, and to pay Foss his share of any
remaining proceeds from the sale of the stock. This included the consulting shares Savage
promised to provide if Foss made certain contributions, though the MPN did not assign
them a dollar value. Savage agreed to pay 8% interest on the amount owed (then $694,000)
plus a late fee totaling 20% of the unpaid balance. At Savage’s request, the parties extended
the MPN twice. The final repayment deadline was March 31, 2018, and the amount due
totaled $903,000.
The second group of transactions at issue here involved NDivision (NDVN), Driven
Deliveries, Inc. (DRVD), and Quanta (QNTA). As to NDVN, the parties executed written
agreements whereby Savage represented that, in return for certain payments, Foss would
receive a specified number of shares, including consulting shares. Regarding QNTA, they
entered into stock purchase agreements under which Savage sold Foss a total of 1,271,000
shares of his QNTA stock for $0.02 per share, for a total purchase price of $25,420.
5
Although Foss provided the full amount to Savage, Savage did not immediately provide
Foss with the QNTA stock. With respect to DRVD, Savage sought a series of investments
from Foss, and in exchange for one of these investments Foss directly received 1,533,000
warrants for shares of common stock. Pursuant to their written agreements, Foss agreed to
split these shares with Savage when Savage fully compensated Foss for the amounts due
on the other transactions, including the MPN. At the time of trial, Savage had not
compensated Foss in full for these tra nsactions, and Foss had not provided Savage with
any DRVD stock warrants.
After Savage failed to timely pay the balance of the MPN or provide the agreed-
upon shares as to the second group of transactions, Foss sued Savage for: ( 1) breach of
contract (MPN, NDVN, stock assignment agreements, and stock purchase agreements);
(2) securities fraud under Minn. Stat. §§ 80A.68, .69 (2022); (3) common-law fraud;
(4) breach of fiduciary duty (as an agent and as a partner) ; (5) conversion; (6 ) unjust
enrichment; and (7) civil theft under Minn. Stat. § 604.14 (2022). Foss also sought and
obtained a temporary restraining order, which required Savage to account for shares he
purchased and sold in LBUY, XSPT, KTEL and NDVN, and to place the sales proceeds
into a dedicated account until the account balance reached $1,150,000.
Savage asserted counterclaims against Foss and third-party claims against Susan
Foss and the Foss Swim School alleging: (1) entitlement to contract rescission ;
(2) fraudulent inducement; (3) breach of the covenant of good faith and fair dealing;
(4) unjust enrichment; (5) promissory estoppel; (6) securities fraud under Minn. Stat.
6
§§ 80A.68, .69; (7) common-law fraud; (8 ) conversion; (9) civil theft under Minn. Stat.
§ 604.14; (10) breach of contract (MPN); and (11) breach of fiduciary duty as a partner.
The Foss parties moved for partial summary judgment seeking: (1) dismissal of
Savage’s third-party claims; (2) dismissal of all counterclaims against Foss; and (3 ) an
award of QNTA stock to Foss. The district court granted the motion in part, dismissing
Savage’s third-party claims in their entirety 3 and his counterclaims for fraudulent
inducement, securities fraud, common-law fraud, civil theft, and breach of the MPN. And
the court awarded Foss the 1,271,000 shares of QNTA stock that Savage had in his
possession.
The case proceeded to trial on the remaining claims in July 2021. About a month
before trial, the district court ruled on several motions in limine. In relevant part, the court
granted Foss’s motion to preclude Savage’s expert from testifying that Foss agreed to fully
fund the reverse-merger transactions, the consequences of failing to do so, and that the
simplest solution was to unwind all transactions. The district court also ruled that Savage
could not present evidence that the DRVD transactions constituted a universal settlement
of all claims between the parties because the “clear language of the written agreements”
defeated such an argument.
At trial, Foss sought to recover (1) the amount due under the MPN; (2) the shares
he was owed under the various contracts, including consulting shares; and (3) damages
based on Savage’s failure to timely turn over the QNTA stock. Foss testified that the

3 Savage does not challenge dismissal of his third-party claims on appeal.
7
written documents —promissory notes, stock assignments, stock pledge agreements,
common-stock purchase agreements, and partnership agreements— accurately represented
the parties’ agreements. His forensic accountant presented three written reports and
testified that Foss sustained total losses (excluding the DRVD transaction) in the range of
$8,571,587 - $8,846,787. The expert explained how he verified Foss’s loans to Savage,
traced Savage’s purchases (or lack thereof) and sales of shares in each of the six companies,
and how he calculated Foss’s damages. He provided a detailed account of several instances
in which Savage did not use Foss’s loans to purchase the agreed-upon number of shares,
instead using portions of the loans for Savage’s personal expenses —wiring them to his
significant other or to his attorney, for example—without informing Foss that he had not
acquired the promised shares. And he testified that Savage sold shares without seeking
permission from Foss and without splitting the proceeds with Foss, contrary to their written
agreements.
Savage testified that he performed his duties under the contracts. And both he and
his expert witness testified that it was impossible for Savage to owe consulting shares to
Foss because they either did not exist or he did not receive them. Savage also stated he is
entitled to the stock warrants Foss assigned to him under the DRVD agreements, testifying
that the warrants belonged to him because he had satisfied his contractual duties under the
MPN and the other transactions.
At the conclusion of the trial, the district court granted Foss’s motion for JMOL on
Savage’s remaining counterclaims, including those seeking rescission of the MPN and for
damages for conversion of the DRVD warrants.
8
The jury returned a verdict in Foss’s favor. As to liability, the jury determined that
Savage committed fraud; breached the MPN; breached the stock assignment agreements
as to LBUY, NDVN, and KTEL; and breached the NDVN promissory note. The jury found
that Savage did not prove it was impossible for him to provide consulting shares in LBUY,
NDVN, and KTEL to Foss. It further determined that Foss did not breach the DRVD
agreements by withholding the stock warrants. The jury awarded damages of $4,892,451
for fraud; $1,137,670 for breach of the MPN; $4,860,224 for failure to provide the
consulting shares; and $156,950 for breach of the NDVN agreement. The jury did not
award damages related to Savage’s failure to timely turn over the QNTA stock. After
deducting duplicative damage awards, the jury awarded Foss a total of $6,187,071.
Savage moved for a new trial, arguing that the damages were excessive, and that the
district court abused its discretion with respect to certain evidentiary rulings and jury
instructions. The district court denied Savage’s motion.
Savage appeals , challenging the district court’s grant of summary judgment on
certain claims, grant of JMOL on others, and denial of his motion for a new trial.
DECISION
I. Foss was entitled to summary judgment dismissing Savage’s counterclaims for
fraud and civil theft.

A district court must grant a motion for summary judgment “if the movant shows
that there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law.” Minn. R. Civ. P. 56.01. A party opposing summary judgment cannot
rely on “mere averments.” Hagen v. Steven Scott Mgmt., Inc., 963 N.W.2d 164, 172 (Minn.
9
2021) (quotation omitted). Rather, they must present “specific admissible facts giving rise
to a factual question.” Bixler by Bixler v. J.C. Penney Co., 376 N.W .2d 209, 215 (Minn.
1985); see also McIntosh Cnty. Bank v. Dorsey & Whitney, LLP , 745 N.W.2d 538, 545
(Minn. 2008) (stating that a nonmoving party must present evidence that is “sufficiently
probative” of an essential element of a claim that allows reasonable person to reach
different conclusions about the facts in dispute (quotation omitted)); Hopkins by
LaFontaine v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209, 212 (Minn. App. 1991)
(stating evidence opposing summary judgment “must be such evidence as would be
admissible at trial”).
We review de novo “whether there are genuine issues of material fact and whether
the district court erred in its application of the law.” Montemayor v. Sebright Prods., Inc.,
898 N.W.2d 623, 628 (Minn. 2017) (quot ation omitted). In so doing, “[w]e view the
evidence in the light most favorable to the party against whom summary judgment was
granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn.
2002).
Fraud
To establish fraud, a party must plead, with specificity, that
[1] there was a false representation regarding a past or present
fact, [2] the fact was material and susceptible of knowledge,
[3] the representer knew it was false or asserted it as his or her
own knowledge without knowing whether it was true or false,
[4] the representer intended to induce the claimant to act or
justify the claimant in acting, [5] the claimant was induced to
act or justified in acting in reliance on the representation,
[6] the claimant suffered damages, and [7] the representation
was the proximate cause of the damages.
10

Martens v. Minn. Min. & Mfg. Co., 616 N.W.2d 732, 747 (Minn. 2000); see also Minn. R.
Civ. P. 9.02.
Savage alleged that Foss falsely represented that he would fully fund the reverse-
merger transactions and that his failure to do so required Savage to find other investors
who then received shares or warrants in the public companies that Savage would have
otherwise obtained. Savage argues that he was entitled to have a jury decide this claim.
We disagree. In opposing summary judgment, Savage relied only on his own conclusory
averments—he present ed no competent evidence to support them. See Dyrdal v. Golden
Nuggets, Inc., 689 N.W.2d 779, 783 (Minn. 2004) (holding a party does not “establish
genuine issues of material fact by relying upon unverified and conclusory allegations”).
Instead, he cited—as he does on appeal—evidence that does not create a genuine fact issue.
For example, Savage points to the KTEL partnership agreement, which states that “Foss
will make his best efforts to finance all deals, through loans, personal funds and all
reasonable options available to him.” But he identifies no evidence to indicate that Foss—
at the time he entered into the agreement— did not intend to “make his best efforts” or that
he failed to do just that. And to the extent Foss’s representation concerned a future event,
it cannot support a fraud claim. See Vandeputte v. Soderholm, 216 N.W.2d 144, 147 (Minn.
1974) (stating the “well-settled rule that a representation . . . as to future acts is not a
sufficient basis to support an action for fraud merely because the represented act or event
did not take place”).
11
Absent competent evidence to support his bald allegations, Savage did not defeat
summary judgment and his fraud counterclaim was properly dismissed.
Civil Theft
“A person who steals personal property from another is civilly liable to the owner
for its value when stolen . . . .” Minn. Stat. § 604.14, subd. 1. We have defined “steals” to
mean “a person wrongfully and surreptitiously tak[ing] another person’s property for the
purpose of keeping it or using it.” TCI Bus. Cap., Inc. v. Five Star Am. Die Casting, LLC,
890 N.W.2d 423, 431 (Minn. App. 2017). Included in this definition is the requirement of
“some initial wrongful act in taking possession of the property.” Staffing Specifix, Inc. v.
TempWorks Mgmt. Servs., Inc., 896 N.W.2d 115, 126 (Minn. App. 2017), aff’d, 913
N.W.2d 687 (Minn. 2018).
Savage alleges that Foss stole half of the DRVD warrants because Foss is
withholding them from him. As in the district court, Savage identifies no evidence on
appeal that Foss wrongfully took possession of the warrants. Rather, he cites the district
court’s summary-judgment order, which states that “there is evidence that Foss is holding
certain DRVD warrants or shares belonging to Savage.” Savage argues this language
evinces a genuine fact issue as to Foss’s wrongful use and possession of the DRVD
warrants. We are not persuaded.
Savage’s argument fails to acknowledge that even if Foss currently possesses the
DRVD warrants, this is not evidence that Foss “wrongfully and surreptitiously” took them
in the first place. And the evidence Savage does cite, the “Warrant/Stock Pledge
Agreement,” reveals the opposite. It contemplates Foss rightfully holding the warrants at
12
the time he assigned them to Savage: “pursuant to an Assignment of Stock agreement
between [Savage] and [Foss], [Foss] has acquired 1,533,000 warrants for shares of
common stock . . . of DRVD.”
Because Savage presented no competent evidence—especially evidence of some
“initial wrongful act”—to support his civil-theft claim, we see no error in its dismissal by
summary judgment.
II. The district court did not err by granting JMOL dismissing Savage’s
counterclaims for rescission and conversion.

We review de novo a district court’s decision whether to grant or deny JMOL.
Christie v. Est. of Christie, 911 N.W.2d 833, 838 n.5 (Minn. 2018); see also Kedrowski v.
Lycoming Engines, 933 N.W.2d 45, 54-55 (Minn. 2019). In doing so, we view the evidence
in the light most favorable to the nonmoving party and independently determine “whether
there is sufficient evidence to present an issue of fact for the jury.” Jerry’s Enters., Inc. v.
Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816 (Minn. 2006).
Rescission
Rescission of a contract is an equitable remedy. SCI Minn. Funeral Servs., Inc. v.
Washburn-McReavy Funeral Corp., 795 N.W.2d 855, 861 (Minn. 2011) (citing Nadeau v.
County of Ramsey, 277 N.W.2d 520, 524 (Minn. 1979)). It “is the unmaking of a contract
. . . which not only terminates the contract but abrogates it and undoes it from the
beginning.” Johnny’s, Inc. v. Njaka, 450 N.W.2d 166, 168 (Minn. App. 1990). Generally,
a court may rescind a contract when both parties were mistaken as to its terms or as to facts
material to the agreement. Id. To support rescission, a mistake must be mutual—
13
“reciprocal and common to both parties.” Carpenter v. Vreeman, 409 N.W.2d 258, 261
(Minn. App. 1987). But even a mutual mistake does not warrant rescission if the “means
of information are open alike to both [parties] and there is no concealment of facts or
imposition.” SCI, 795 N.W.2d at 862 (quotation omitted).
Savage sought to rescind the MPN because the parties were mistaken as to Foss’s
intention to “fully fund” each of the underlying reverse- merger transactions. He cites
purported discrepancies between the parties regarding expected funding amounts and
consulting shares as material fact questions the jury should have decided. We disagree for
two reasons. First, Savage did not present evidence that Foss concealed facts or other
information. And Savage did not present evidence that the means of information were
unavailable to him—indeed, he was the one who presented and coordinated the transactions
at issue. Second, Savage ratified the MPN by making payments to Foss under it and
extending it twice. A party who may otherwise have grounds to rescind a contract may not
do so if they ratified it by accepting and retaining its benefits. Proulx v. Hirsch Bros. Inc.,
155 N.W.2d 907, 912 (Minn. 1968).
Finally, we see no error in the district court’s conclusion that “equity is not served
by unwinding the transactions between Foss and Savage through rescission. In the event
of rescission, Foss would only receive a return of his contributions plus interest while
Savage would enjoy all the stock purchased with Foss’s funds.”
Conversion
A person commits the conversion tort when they “willfully interfere[] with the
personal property of another without lawful justification, depriving the lawful possessor of
14
use and possession.” Staffing Specifix, 896 N.W.2d at 125 (quoting Williamson v.
Prasciunas, 661 N.W.2d 645, 649 (Minn. App. 2003)). But a tort remedy is generally not
available when the damages flow from a legal duty imposed by a contract. Id. at 125.
Under what is known as the independent-duty rule, a tort claim is available only “in
exceptional cases where the defendant’s breach of contract constitutes or is accompanied
by an independent tort.” Id. (quoting Wild v. Rarig, 234 N.W.2d 775, 789 (Minn. 1975)).
Savage argues that Foss’s retention of half of the DRVD stock warrants at the time
of trial constitutes conversion. But Savage’s entitlement to recover damages for this
claimed deprivation is grounded in the parties’ contract. He does not allege that Foss owed
him a duty outside of those imposed by the contract.
4 Accordingly, the district court did
not err by granting JMOL on the conversion claim.
III. The district court did not abuse its discretion by excluding evidence of a
purported universal settlement of claims between the parties.

A district court has broad discretion when ruling on the admission of evidence, and
“its ruling will not be disturbed unless it is based on an erroneous view of the law or
constitutes an abuse of discretion.” Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42,
45-46 (Minn. 1997). The complaining party must demonstrate prejudicial error. Id.
Savage argues that the district court erred by granting Foss’s pretrial motion to
exclude evidence that the DRVD transactions settled all of Foss’s claims. Savage asserts

4 Furthermore, as the district court noted, the parties’ written agreements support Foss’s
contention that he only owed half of the DRVD warrants to Savage once Savage fulfilled
his contractual obligations to Foss under all preexisting assignment, loan, and stock transfer
agreements, which Savage did not do.
15
that this ruling was akin to a summary-judgment order and that he was denied an
opportunity to address this issue due to a lack of notice. We disagree. Foss served his
motion about one month before the hearing. Savage presented no evidence and made no
offer of proof at the hearing to show a universal settlement. Even now, Savage does not
identify any supporting evidence he would have submitted if permitted to do so. Indeed,
the record supports the opposite conclusion: the contract assigning the DRVD warrants
expressly states, “These assignments are in addition and completely separate from previous
assignments in 2017 between Mark Scott Savage and Jonathan George Foss and and [sic]
2018 assignments between Mark Savage and Lane 8 LLC [Foss’s company] from
nDivision, Konatel KTEL, Leafbuyer LBUY, Sport XSPT.” The district court’s exclusion
of evidence regarding a purported universal settlement is neither legally erroneous nor an
abuse of the court’s broad discretion.
IV. The district court did not abuse its discretion by denying a new trial.

Savage contends that he is entitled to a new trial because the district court
improperly instructed the jury and the jury awarded excessive damages. We address each
argument in turn.
Jury Instruction
“The district court has broad discretion in determining jury instructions and we will
not reverse in the absence of abuse of discretion.” Hilligoss v. Cargill, Inc., 649 N.W.2d
142, 147 (Minn. 2002). Furthermore, “[d]istrict courts are allowed considerable latitude
in selecting language used in the jury charge and determining the propriety of a specific
instruction.” Morlock v. St. Paul Guardian Ins. Co., 650 N.W.2d 154, 159 (Minn. 2002).
16
Regarding Foss’s direct investments, 5 the district court instructed the jury as
follows: “If you find that Jonathan Foss realized gains on personal investments, either by
himself or through one of his limited liability companies, do not offset these gains from
any amount you determine that Jonathan Foss is owed from Mark Savage under the written
agreements.”
Savage contends this instruction is erroneous because it prevented the jury from
considering “whether Savage satisfied his obligations to Foss through the value Foss
received in [DRVD] shares.” The record defeats this contention. And the special verdict
form demonstrates that the jury did consider whether Savage satisfied his obligations to
Foss. In it, the jury was asked that precise question: “Did Jonathan Foss and Mark Savage
reach an agreement to satisfy the contractual duties owed by Mark Savage to Jonathan
Foss?” Its answer: “No.”
Because of the broad discretion and considerable latitude district courts are afforded
in determining jury instructions, and because Savage’s argument is contrary to the
evidence, we conclude that the district court did not abuse its discretion by denying a new
trial based on the jury instruction.
Damages
A jury may not base its award on speculation or conjecture. Busch v. Busch Constr.,
Inc., 262 N.W.2d 377, 399 (Minn. 1977). But as long as there is proof of a reasonable

5 In addition to his investment agreements with Savage, Foss “directly invested” in
companies (such as LBUY) by providing funding for their reverse -merger transactions
himself rather than loaning Savage the funds to act on Foss’s behalf.
17
basis to approximate the jury’s award, “the difficulty of proving its amount will not
preclude recovery.” Polaris Indus. v. Plastics, Inc., 299 N.W.2d 414, 419 (Minn. 1980).
A new trial is warranted only if “the verdict is so contrary to the preponderance of the
evidence as to imply that the jury failed to consider all the evidence, or acted under some
mistake.” Clifford v. Geritom Med. Inc., 681 N.W.2d 680, 687 (Minn. 2004) (quotation
omitted). Whether to grant a new trial based on excessive damages is within the district
court’s discretion and will be overturned only when that discretion is abused. Advanced
Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984).
Savage’s excessive-damages argument relates only to the consulting shares that he
avers do not exist. He argues that the jury awarded Foss excessive damages because “there
was no evidence the consulting shares were issued or . . . whether they would exist at any
point in the future.” This argument is unavailing. In denying the new-trial motion, the
district court noted that “Savage admitted that the [consulting] shares existed” and that he
claimed without evidence that he “either did not receive them or did not provide them to
Foss because Foss failed to ‘fully fund’ the transactions.” And the district court pointed
out that Savage did not provide consulting shares to Foss even where it was undisputed
that Foss made the investments specified in the contracts. The evidence supports the
district court’s determination: Savage repeatedly represented in the parties’ written
agreements that he possessed consulting shares and had assigned a specific percentage of
them to Foss as compensation for his investments.
Foss’s expert forensic accountant explained how he determined the total losses
caused by Savage’s actions. He analyzed the parties’ agreements and transactions
18
regarding each of the six companies. His calculations included the share sales that Savage
had not disclosed to Foss, the proceeds he did not split with Foss, and the shares he withheld
from Foss in violation of their agreements. Based on current share pricing, he calculated
total losses to be $8,571,587 - $8,846,787. Of that amount, $2,732,650 was attributed to
Savage’s untimely transfer of the QNTA shares. The jury awarded Foss $6,187,071 in
damages. This award was in accordance with Foss’s expert’s estimates on all but the
QNTA shares—suggesting neither speculation nor conjecture, as Savage asserts, but that
the jury found Foss’s expert credible.
Because the evidence supports the jury’s award of damages, we discern no abuse of
discretion by the district court in denying a new trial.6
Affirmed.

6 Savage argues that the district court’s cumulative evidentiary errors “improperly whittled
away at Savage’s defenses to such an extent that he could no longer present his case at all.”
But he cites no authority for this court to extend the cumulative-error doctrine available in
criminal cases to civil cases. We decline to do so.