                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 14 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

WESTERN OILFIELDS SUPPLY CO.,                    No. 10-16254

              Plaintiff - Appellant,             D.C. No. 2:09-cv-286-RLH-LRL

  v.
                                                 MEMORANDUM*
JERRY GOODWIN, et al,

              Defendant - Appellee.

WESTERN OILFIELDS SUPPLY CO.,                    No. 10-17212

              Plaintiff - Appellant,             D.C. No. 2:09-cv-286-RLH-LRL

  v.

JERRY GOODWIN, et al,

              Defendant - Appellee.

WESTERN OILFIELDS SUPPLY CO.,                    No. 10-17573

              Plaintiff - Appellant,             D.C. No. 2:09-cv-286-RLH-LRL

  v.

JERRY GOODWIN, et al,



       *     This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
               Defendant - Appellee.

                     Appeal from the United States District Court
                        for the District of Nevada, Las Vegas
                    Roger L. Hunt, Chief District Judge, Presiding

                     Argued and Submitted November 16, 2011
                             San Francisco, California

Before: NOONAN and BEA, Circuit Judges, and WALTER, Senior District
Judge.**

       Appellant Western Oilfields Supply Co. (“Rain for Rent”), appeals: the

district court’s judgment, following a jury trial, in favor of Jerry Goodwin and the

directed verdict dismissing Flora Goodwin from the suit; the district court’s

post-judgment order finding that Rain for Rent was not the prevailing party and

thus not entitled to attorney’s fees; and the district court’s post-judgment order

granting Goodwin $181,530.42 in attorney’s fees. For the following reasons, we

affirm the district court in all respects.

       The district court did not err in excluding “lack of consideration” from the

jury instruction given on promissory estoppel. “Jury instructions must be

formulated so that they fairly and adequately cover the issues presented, correctly

state the law, and are not misleading.” Chuman v. Wright, 76 F.3d 292, 294 (9th



       **   The Honorable Donald E. Walter, Senior United States District Judge
for Western Louisiana, sitting by designation.
                                             2
Cir. 1996). “If the instructions are challenged as a misstatement of the law, they

are then reviewed de novo.” City of Long Beach v. Standard Oil Co., 46 F.3d 929,

933 (9th Cir. 1995) (citation omitted). The district court properly instructed the

jury on the four prima facie elements of promissory estoppel, based on California

law, and was not required to further instruct the jury as to that which need not

exist. See U.S. Ecology, Inc. v. State, 28 Cal. Rptr. 3d 894, 901 (Cal. Ct. App.

2005) (internal citation omitted).

      Rain for Rent also challenges the sufficiency of the evidence for the jury’s

finding that Rain for Rent had not completed its delivery and installation of an

irrigation system, as a condition precedent to triggering Goodwin’s obligation to

pay for the system. A jury’s verdict must be upheld if it is supported by substantial

evidence. Johnson v. Paradise Valley Unified School Dist., 251 F.3d 1222, 1227

(9th Cir. 2001) (citing Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir.

1999)). Rain for Rent failed to object to the form of the jury interrogatories at trial.

Goodwin presented sufficient evidence to allow the jury to find there was a failure

of a condition precedent.

      The district court likewise did not err in admitting Jerry Goodwin’s non-

expert, firsthand testimony regarding his estimated crop yield. A district court’s

decision to permit a witness offering opinion testimony to testify as a lay witness is


                                           3
reviewed for abuse of discretion. U.S. v. Matsumaru, 244 F.3d 1092, 1101 (9th

Cir. 2001). It was within the court’s discretion to find that Goodwin’s 45 years of

experience as a farmer and rancher amply qualified him to provide such lay

opinion. Any calculations involved in Goodwin’s testimony required only

rudimentary math skills and could qualify as lay opinion testimony under Fed. R.

Evid. 701.

       The district court did not err in granting a directed verdict for Flora

Goodwin. Our review is de novo. West America Corp. v. Vaughan-Bassett

Furniture Co., Inc., 765 F.2d 932, 934 (9th Cir.1985). A directed verdict is proper

where the evidence permits only one reasonable conclusion as to the verdict.

Meehan v. County of Los Angeles, 856 F.2d 102, 106 (9th Cir. 1988). There was

no evidence to suggest that Flora Goodwin was a legal partner or active participant

in O Bar Cattle Company. Both Flora Goodwin’s testimony at trial and the weight

of the documentary evidence proved that she did not participate in the business at

all.

       Finally, the district court did not err in finding Goodwin to be the prevailing

party and thus entitled to reasonable attorney’s fees. “The court’s determination

[that] a party prevailed on a contract action is an exercise of discretion which

should not be disturbed on appeal absent a clear showing of abuse.” Jackson v.


                                           4
Homeowners Assoc. Monte Vista Estates-East, 113 Cal. Rptr. 2d 363, 375 (Cal. Ct.

App. 2001) (citation omitted). Under Cal. Civ. Code § 1717, Goodwin is the

proper “prevailing party” in this case. Rain for Rent failed to achieve its main goal

of litigation, which was to prevail on its breach of contract claim against Goodwin.

Rather, Goodwin successfully defended against that claim. The district court did

not abuse its discretion in granting Goodwin reasonable attorney’s fees based on

his successful defense of Rain for Rent’s breach of contract claim.

      AFFIRMED.




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