           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        December 10, 2008
                                       No. 08-60126
                                                                      Charles R. Fulbruge III
                                                                              Clerk


TIA SAUCIER,

                                                  Plaintiff-Appellant,
v.

COLDWELL BANKER JOSEPH M. ENDRY REALTY;
CLARA K. PLUMMER,

                                                  Defendants-Appellees.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                No. 1:04-CV-686




Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Tia Saucier appeals a judgment regarding a suit for breach of contract.
We affirm in part, reverse in part, and remand.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                        No. 08-60126

                                               I.
       Saucier is a real estate agent who obtained a Mississippi real estate li-
cense in 2002 after working as a real estate agent in Florida.1 Coldwell Banker
Joseph M. Endry Realty (“JME”) is a real estate broker in Mississippi that had
an agreement to serve as broker for The Legacy Condominiums (“Legacy”), a de-
velopment in Gulfport, Mississippi. JME signed a contract with Clara Plummer
retaining her as a co-listing agent on Legacy, and the two shared commissions
from the project.
       In April 2003, Plummer interviewed Saucier to become the on-site sales
associate for JME at Legacy. After the interview, Saucier signed two agree-
ments with JME saying that she would assist in the sales at Legacy. The agree-
ments were worded in the same fashion as the one between Plummer and JME.
Saucier also made an oral contract with Plummer that stated that they would
split commissions from JME equally. Saucier resigned in September 2003,
claiming Plummer had breached their oral contract.
       Saucier sued JME and Plummer alleging misrepresentation, conspiracy,
and the breach of three agreements: the two written contracts with JME and an
oral contract with Plummer. The district court granted summary judgment for
defendants on breach of the first two contracts, leaving for trial only the alleged
breach of an oral contract, conspiracy, and misrepresentation.
       At trial, Saucier alleged that she and Plummer had formed a “team” for
purposes of commissions on Legacy sales and that under that arrangement she
was owed money from JME and Plummer. At the trial’s conclusion, defendants
moved under Federal Rule of Civil Procedure 50(a) for judgment as a matter of
law (“j.m.l.”) on all claims. The district court granted the motion on the conspir-

       1
         “In assessing the legal sufficiency of the evidence, we consider the entire trial record
in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.”
Arguello v. Conoco, Inc., 330 F.3d 355, 357 (5th Cir. 2003) (citing Burch v. Coca-Cola Co., 119
F.3d 305, 313 (5th Cir. 1997)).

                                               2
                                        No. 08-60126

acy and misrepresentation grounds, leaving only the breach of contract issue for
the jury, which found for Saucier and awarded $410,000. Defendants moved un-
der Federal Rule of Civil Procedure 50(b)2 for j.m.l. on the oral contract claim or,
alternatively, under Federal Rule of Civil Procedure 59 for a new trial. The
court asked for information from both sides regarding the evidence that sup-
ported the jury’s award, then granted JME’s Rule 50(b) motion and granted JME
a new trial under Rule 59. The court denied Plummer’s Rule 50(b) motion and
reduced damages to $30,411.51.


                                               II.
       We review a j.m.l. de novo. See Coffel v. Stryer Corp., 284 F.3d 625, 630
(5th Cir. 2002). “A [j.m.l.] is appropriate only where ‘there is no legally sufficient
basis for a reasonable jury to find for [a] party.’” Arguello, 330 F.3d at 357 (cit-
ing FED. R. CIV. P. 50(a)(1)) (second brackets in original). An issue is properly
submitted to the jury where there is a conflict in substantial evidence. Id. (citing
Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc), overruled
on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.
1997) (en banc)). Substantial evidence exists when there is “evidence of such
quality and weight that reasonable and fair-minded men in the exercise of im-
partial judgment might reach different conclusions.” Brown v. Bryan County,
219 F.3d 450, 456 (5th Cir. 2000). It is not this court’s or the district court’s job
to weigh conflicting evidence and inferences or to determine witness credibility;

       2
         “If the court does not grant a motion for [j.m.l.] made under Rule 50(a), the court is
considered to have submitted the action to the jury subject to the court’s later deciding the le-
gal questions raised by the motion. No later than 10 days after the entry of judgmentSSor if
the motion addresses a jury issue not decided by a verdict, no later than 10 days after the jury
was dischargedSSthe movant may file a renewed motion for judgment as a matter of law and
may include an alternative or joint request for a new trial under Rule 59. In ruling on the re-
newed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or (3) direct the entry of judgment as a matter of law.” FED. R. CIV. P.
50(b).

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                                      No. 08-60126

that responsibility lies with the jury alone. See Miller v. Butcher Distribs., 89
F.3d 265, 268 (5th Cir. 1996) (citations omitted).


                                            III.
                                             A.
       Saucier contends the district court erred when it found that there was in-
sufficient evidence that Plummer was acting within the scope of her agency au-
thority when she entered her oral contract with Saucier. Saucier claims that
Plummer had apparent authority to bind JME to Saucier and Plummer’s oral
contracts. Under Mississippi law, “[a]pparent authority exists when a reason-
ably prudent person, having knowledge of the nature and usages of the business
involved, would be justified in supposing, based on the character of the duties
entrusted to the agent, that the agent has the power he is assumed to have.”
Hutton v. Am. Gen. Life & Accident Ins. Co., 909 So. 2d 87, 94 (Miss. Ct. App.
2005) (citing Andrew Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172, 1180
(Miss. 1990)). “The person asserting apparent authority has the burden of prov-
ing three elements: (1) acts or conduct on the part of the principal indicating the
agent’s authority, (2) reasonable reliance on those acts, and (3) a detrimental
change in position as a result of such reliance.” Id. (citing Williams, 566 So. 2d
at 1181).
       The district court found that there was not sufficient evidence to meet the
“acts or conduct” or “reasonable reliance” requirement. For Saucier to prevail
on the first requirement, she would have to show that JME communicated with
her about Plummer’s authority for binding JME to contracts.3 Although Saucier
cites numerous instances of Plummer’s professing her authority to deal on JME’s


       3
        See Barhonovic v. Am. Nat. Ins. Co., 947 F.2d 775, 778 (5th Cir. 1991) (interpreting
Mississippi law and finding that apparent authority requires a direct representation from the
principal to the third party authorizing the agent’s statements).

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                                  No. 08-60126

behalf, the only direct communication between JME and Saucier regarding
Plummer is the contract between the two. Saucier alleges that provisions 7 and
9 provided direct notice that Plummer could have authority to bind JME to con-
tracts.
      Saucier is mistaken in her reading of the two provisions, which in reality
show that JME communicated that agents such as Plummer did not have au-
thority to bind it. Regarding the splitting of commissions, which the oral con-
tract concerned, Provision 7 dictates that commissions would “be divided be-
tween the participating Sales Associates according to agreement between them.”
Thus, the provision removes JME from any promises or disputes regarding com-
mission sharing between brokers.
      Provision 9, likewise, states that a “Sales Associate shall have no authority
to bind the Broker by any promise or representation, unless specifically ap-
proved by manager [sic] in a particular transaction.” Provision 9 shows that the
contract anticipated problems with agents’ binding JME to contracts and en-
sured that its agents knew that was not allowed.
      Because Saucier served as an agent in the same respect as did Plummer,
she knew that Plummer could not bind JME. The verdict lacked proper factual
basis for finding that JME had communicated to Saucier that Plummer had au-
thority on its behalf. Therefore, that claim’s dismissal under Rule 50(b) was
proper.


                                        B.
      Saucier alleges that the district court erred in reducing damages from
$410,000 to $30,411.51. She claims two mistakes in the reduction: (1) the reduc-
tion based on sales that occurred before Saucier quit and (2) the elimination of
damages based on sales that occurred after Saucier quit.
      A damages assessment is not reversed unless it is clearly erroneous. Ham


                                        5
                                  No. 08-60126

Marine, Inc. v. Dresser Indus., Inc., 72 F.3d 454, 462 (5th Cir. 1995) (citation
omitted). Uncertainty regarding the exact amount of damages will not prevent
recovery. Id. (citing Harrison v. Prather, 435 F.2d 1168, 1174-75 (5th Cir. 1970).
The evidence need only lay a foundation on which the trier of fact can form a fair
and reasonable assessment of the amount of damages. Mut. Life Ins. Co. v. Es-
tate of Wesson, 517 So. 2d 521, 536 (Miss. 1987) (citation omitted), abrogated on
other grounds by Gen. Am. Life Ins. v. McCraw, 963 So. 2d 1111 (Miss. 2007).
The nature and cause of damages must be shown with reasonable certainty,
however. S.H. Kress & Co. v. Sharp, 126 So. 650, 655 (Miss. 1930). For a breach
of contract claim, Mississippi law requires that damages not be based on specu-
lation or conjecture. Kaiser Invs., Inc. v. Linn Agriprises, Inc., 538 So. 2d 409,
415 (Miss. 1989) (citations omitted).


                                        1.
      The district court properly reduced damages from sales that occurred
while Saucier was employed by JME. Her claim for those damages was based
on speculation and conjecture. The evidence consisted of vague testimony from
either Saucier or Plummer regarding Plummer’s general reputation as a good
salesperson or her description as a “technical millionaire.” When it came to pro-
ducing evidence regarding the sales Plummer and Saucier were to have split un-
der the oral contract, there was no documentation provided to support the find-
ing of $410,000.
      Saucier argued that the average sales commission, multiplied over all of
the units sold at Legacy, would have yielded about $820,000, half of which be-
long to her. That calculation, however, did not involve the specific numbers from
the Legacy sales commissions, which were available. Those documented sales
figures, instead of the generalized calculations based on other sales that Saucier
made, should have been used to calculate damages. Also, when asked to present

                                        6
                                  No. 08-60126

evidence supporting the jury’s finding of damages, Saucier neglected to file the
requested documentation. With such uncertainty in damages, and nothing but
speculation to support the verdict, the court was right to reduce the award.


                                        2.
      The district court erred in eliminating damages from sales taking place
after Saucier’s resignation. Under Mississippi law, consideration is needed for
a valid contract. See Marshall Durbin Food Corp. v. Baker, 909 So. 2d 1267,
1273 (Miss. Ct. App. 2005). The district court found that consideration did not
exist for all of the sales that took place after Saucier had resigned from JME.
      That finding is mistaken. The court in essence split the contract into dif-
ferent parts, finding that Plummer’s initial sales were considered part of one
contract, and the sales of Plummer after Saucier’s departure were part of an-
other. The court recognized consideration for the first contract but not for the
second.
      Realistically, however, there was only one contract between the two: In
exchange for Saucier’s moving from Florida to Mississippi and participating in
the Legacy project, Plummer would split commissions with her, past, present,
and future. That contract contained consideration in the form of Saucier’s
moving to Mississippi and assisting Plummer with sales while employed.
Although Plummer and Saucier dispute the details of the oral contract, the jury’s
finding of $410,000 in damages reflects its conclusion that the contract must
have included the future sales. Because consideration existed for the entire
contract, the latter portion of the contract was valid.
      Because there was consideration for the oral contract, the elimination of
damages on units sold after Saucier’s departure was incorrect. On remand, the
district court should calculate damages on the units Plummer sold at Legacy fol-
lowing Saucier’s departure in the same fashion in which it calculated the dam-


                                        7
                               No. 08-60126

ages on units sold during Saucier’s term with JME.


                                    IV.
     For the foregoing reasons, the Rule 50(b) dismissal of damages against
JME is AFFIRMED. The reduction of damages on commissions from Legacy
units sold during Saucier’s time at JME is also AFFIRMED. The elimination of
damages based on commissions from sales following Saucier’s departure is
REVERSED and REMANDED for proceedings consistent with this opinion.




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