                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                             F I L E D
                     In the                                   August 4, 2003
United States Court of Appeals                            Charles R. Fulbruge III
           for the Fifth Circuit                                  Clerk
               _______________

                 m 02-30696
               Summary Calendar
               _______________



       CABLEGUARD SYSTEMS, INC.,
UNITED STATES OF AMERICA FOR THE USE OF,

                                    Plaintiff-Appellee,

                    VERSUS

MID-CONTINENT CASUALTY COMPANY; ET AL.,

                                    Defendants,

  MID-CONTINENT CASUALTY COMPANY;
 PETE VICARI GENERAL CONTRACTOR, INC.,

                                    Defendants-Appellants


         _________________________

   Appeal from the United States District Court
      for the Eastern District of Louisiana
               m 99-CV-2064-A
        _________________________
Before JOLLY, HIGGINBOTHAM, and SMITH,                     wiring and the fire pull stations. Cableguard
  Circuit Judges.                                          again sought payment, but Vicari refused. In
                                                           November 1998, Cableguard therefore
PER CURIAM:*                                               submitted written notice to Vicari of its intent
                                                           to collect the contractual amount from the
    Pete Vicari General Contractor Inc. (“Vica-            payment bond under the Miller Act, 40 U.S.C.
ri”), and its surety, Mid-Continent Casualty               § 270b(a). Cableguard then sued Vicari and
Company (“Mid-Continent”), appeal a                        Mid-Continent.
judgment for Cableguard Systems, Inc.
(“Cableguard”), in this Miller Act suit.                      The parties disputed one key factual ques-
Finding no error, we affirm.                               tion, namely, whether Cableguard provided
                                                           timely notice of its claim to Vicari. The Miller
                       I.                                  Act requires a supplier to give written notice
    In 1997, Vicari became the general                     to the general contractor “within ninety days
contractor on a project to construct a building            from the date on which [the supplier] did or
for the United States Postal Service. As                   performed the last of the labor or furnished or
required by the Miller Act, 40 U.S.C. § 270a-              supplied the last of the material[.]” 40 U.S.C.
(a)(2), Vicari (through its surety, Mid-                   § 270b(a); see generally J.D. Fields & Co. v.
Continent) posted a payment bond to protect                Gottfried Corp., 272 F.3d 692, 696 (5th Cir.
its subcontractors and suppliers of labor and              2001). Cableguard’s notice was timely if its
material.                                                  October 1998 work is characterized as
                                                           “labor,” but not if it is characterized as
   Vicari subcontracted the electrical work to             “repairs.” See United States ex rel. Ga.
Phoenix Electrical, Inc. (“Phoenix”), which                Supply Co. v. United States Fid. & Guar. Co.,
contracted with Cableguard, doing business as              656 F.2d 993, 995-96 (5th Cir. Unit B Sept.
Dictograph Security (“Dictograph”), for the                1981).
supply and installation of a fire alarm and se-
curity system.        While Cableguard was                    The district court denied the parties’
performing its obligations in early 1998, a                motions for summary judgment on this factual
modification to the contract required it to                question and submitted the case to a jury. The
install two extra fire pull stations. Cableguard           jury found that the October 1998 work was
could not do so, however, because of                       “labor” under the Miller Act and, hence, that
improper wiring in the post office.                        Cableguard had provided timely notice. The
                                                           court then entered judgment for $51,261.41,
    Cableguard submitted a final bill to Vicari            the stipulated amount of contractual damages,
in July 1998 but did not receive payment. In               plus pre-judgment interest of $13,290.77.
October 1998, Cableguard removed the
improper wiring and installed the correct                     On appeal, Vicari and Mid-Continent do
                                                           not challenge the finding that the work was
                                                           “labor,”1 but argue that several alleged proce-
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
                                                              1
lished and is not precedent except under the limited              Actually, they raise this issue in their reply
circumstances set forth in 5TH CIR. R. 47.5.4.                                          (continued...)

                                                       2
dural and evidentiary errors require reversal.             capacity to sue under Louisiana law.

                       II.                                                       III.
    Vicari challenges Cableguard’s capacity to                Vicari appeals the decision to admit into ev-
sue. The district court entered summary judg-              idence a work order for the October 1998
ment for Cableguard on this question.                      work. Vicari argues that the work order,
Reviewing the judgment de novo, Hollowell v.               which Cableguard offered to prove that it had
Orleans Reg’l Hosp. LLC, 217 F.3d 379, 382                 performed work within the Miller Act’s ninety-
(5th Cir. 2000), and applying Louisiana                    day period, was inadmissible hearsay. The
corporate law, FED. R. CIV. P. 17(b), we                   court admitted the work order under the
affirm.                                                    business-records exception to the hearsay rule.
                                                           FED. R. EVID. 803(6). We review this
   Vicari contends that Cableguard lacks capa-             evidentiary ruling for abuse of discretion,
city to sue for two reasons. First, Phoenix                United States v. Wells, 262 F.3d 455, 459 (5th
contracted with Dictograph, not Cableguard,                Cir. 2001), and find no abuse.
to install the fire alarm and security systems.
Second, that contract prohibits assignment                     Rule 803(6) creates an exception to the
without Phoenix’s written consent. Vicari                  hearsay rule for a record “if kept in the course
concludes that without a valid contract                    of a regularly conducted business activity, and
between Cableguard and Phoenix, Cableguard                 if it was the regular practice of that business
cannot recover against the payment bond.                   activity to make the . . . record . . ., all as
                                                           shown by the testimony of the custodian or
    Vicari mistakenly assumes, however, that               other qualified witness[.]” FED. R. EVID.
Cableguard and Dictograph are different enti-              803(6). Rea and Frank Soehnlein, Cable-
ties. In fact, Edgar Rea, Cableguard’s                     guard’s general manager, competently testified
president, attested that Dictograph is merely              to these foundational requirements.           In
an assumed trade name of Cableguard. Under                 particular, they explained that Cableguard
Louisiana law, “a corporation may enter into a             installs fire alarm and security systems in the
binding contract under an assumed name ab-                 course of its regular business and regularly
sent any fraud or deceit.” Pro Source                      uses work orders to instruct its employees and
Roofing, Inc., v. Boucher, 822 So. 2d 881,                 bill its customers. Rea also identified the no-
884 n.2 (La. App. 2d Cir. 2002). Vicari                    tation “FO” on the work order as the initials
produced no evidence to dispute the identity of            and handwriting of Frank Ohlinger, the
Dictograph and Cableguard and has not                      employee who installed the fire pull stations.2
alleged fraud or deceit. Thus, Cableguard has
                                                               Vicari nevertheless argues that “the source
                                                           of information or the method or circumstances
(...continued)                                             of preparation [of the work order] indicate
brief, provoking a motion from Cableguard, to              lack of trustworthiness.” FED. R. EVID.
strike the reply brief. We do not consider issues          803(6); Wells, 262 F.3d at 459-60 (“Whether
not raised in an appellant’s opening brief, Peavy v.
WFAA-TV, Inc., 221 F.3d 158, 179 (5th Cir.
                                                              2
2000), so we will not address this issue, and we                Cableguard could not call Ohlinger as a wit-
therefore deny Cableguard’s motion as moot.                ness, because he died before trial.

                                                       3
evidence is admissible under Rule 803(6) is                                         IV.
chiefly a matter of trustworthiness.”)                          Vicari argues that the district court erred by
(quotation marks omitted). First, Vicari                     refusing to give a proposed jury instruction.4
contends that Cableguard prepared the work                   We review the court’s refusal to give the in-
order in anticipation of this lawsuit, not as a              struction for abuse of discretion, which we will
genuine business record.         The record,                 find only if the jury instruction as a whole is
however, contains no evidence to support this                not a correct statement of the law and does
assertion. Second, Vicari argues that Ohlinger               not clearly instruct the jury on the legal
“may” not have performed the work in                         principles applicable to the factual issues
October 1998 and that he “possibly” forged                   before them. Cozzo v. Tangipahoa Parish
the work order. Again, the record does not                   Council-President Gov’t, 279 F.3d 273, 293
support this rank speculation, as Vicari’s use               (5th Cir. 2002). There is no abuse of
of conditional verb tenses and adjectives                    discretion, because the proposed instruction
reveals.                                                     was not relevant to the factual dispute before
                                                             the jury.
    Third, Vicari notes that the local postmaster
did not sign the work order on the customer                     Vicari asked the court to instruct the jury
line. Yet, Rea’s uncontroverted testimony                    that a supplier to a subcontractor cannot
explains this supposed discrepancy.                          extend the ninety-day notice period by
Cableguard used work orders to instruct its                  furnishing labor or material directly to the
employees on a particular assignment and to                  general contractor. As a statement of law, this
bill its customers. On a fixed-price contract,               instruction is certainly correct. See United
however, the customer already had approved                   States ex rel. Harris Paint Co. v. Seaboard
the job and the price; thus, Cableguard did not              Sur. Co., 437 F.2d 37 (5th Cir. 1971). But the
need the customer’s signature on the work or-                instruction is as irrelevant to this case as it is
der. Because the post office project was a                   correct. The key factual dispute at trial was
fixed-price contract, Cableguard did not need                whether Cableguard performed “labor” or
the postmaster’s signature. And, in any event,               “repairs” in October 1998 (which in turn
Phoenix, not the postmaster, was Cableguard’s                determined whether it gave timely notice to
customer on the contract.3                                   Vicari). However characterized, though, there
                                                             is no factual dispute that Cableguard
   3
                                                             performed the work pursuant to its contract
      Vicari also challenges what it calls the court’s
decision to exclude evidence that Vicari paid
Phoenix. At a pretrial conference, the court
excluded the evidence as irrelevant under the Miller            3
                                                                 (...continued)
Act. After Cableguard presented its case, the court          entire issue bewildering, especially because Vicari
reversed itself and ruled that Vicari could offer            does not identify, on appeal, what other evidence or
evidence of payment from Vicari to Phoenix within            testimony it would have introduced.
unspecified “strict guidelines.” Peter Vicari then
                                                                4
testified that Vicari had paid Phoenix. Vicari’s                  Vicari actually appeals the court’s refusal to
counsel also reminded the jury of this testimony in          give eight proposed instructions, but we treat its
closing arguments. In other words, the court did             arguments on seven of these instructions as waived
not exclude the evidence. We therefore find the              for failure to brief adequately on appeal. FED. R.
                                     (continued...)          APP. P. 28(a)(9)(A).

                                                         4
with Phoenix, not for Vicari.         The court          Real Support Group, Inc., 950 F.2d 284, 287-
therefore did not err.                                   88 (5th Cir. 1992). In Louisiana, interest is
                                                         recoverable on a contractual debt from the
                      V.                                 time the debt becomes due, unless otherwise
   Vicari appeals the decision to use a general          stipulated. Corbello v. Iowa Prod., No. 2002-
verdict. The form asked simply whether Ca-               C-0826, 2003 La. LEXIS 613, at *50 (La.
bleguard had provided labor or materials with-           Feb. 25, 2003), rehearing granted in part on
in ninety days of its written notice to Vicari.          other grounds, 2003 La. LEXIS 1913 (La.
Vicari argues that the court instead should              June 20, 2003).7 The Phoenix-Cableguard
have used Vicari’s proposed forty special in-            contract therefore determines the assessment
terrogatories. “The decision to use a general            of pre-judgment interest against the payment
verdict rather than a special verdict . . . is a         bond. Lochridge-Priest, 950 F.2d at 289.
matter of discretion” to which we give                   Under that contract, Phoenix’s debt to Cable-
especially high deference. Martin v. Texaco,             guard became due ten days after Cableguard
Inc., 726 F.2d 207, 217 (5th Cir. 1984).5 The            completed performance. The jury found that
general verdict form accurately stated the               Cableguard completed performance in October
determinative factual question for the jury,             1998. Thus, the court rightly allowed pre-
whereas the proposed forty special                       judgment interest from that date.8
interrogatories are confusing, duplicative, and
often irrelevant. The court did not abuse its               AFFIRMED.
discretion by refusing to use the proposed
interrogatories.

                      VI.
   Finally, Vicari contends that the court erred
by awarding Cableguard pre-judgment
interest.6 Reviewing the award for abuse of
discretion, Reyes-Mata v. IBP, Inc., 299 F.3d
504, 507 (5th Cir. 2002), we affirm.

   Louisiana law applies to a motion for pre-
                                                            7
judgment interest under the Miller Act. Unit-                 See also Schiro-Del Bianco Enters., Inc. v.
ed States ex rel. Lochridge-Priest, Inc. v. Con-         NSL, Inc., 765 So. 2d 1087, 1092 (La. App. 4th
                                                         Cir), writ denied, 774 So. 2d 146 (2000) (“In an
                                                         action on a building contract, interest is recover-
                                                         able from the time the debt becomes due unless
   5
    “[T]here ought never be a reversal for use or        otherwise stipulated.”).
nonuse of special verdicts.” 9A CHARLES A.
                                                            8
WRIGHT & ARTHUR R. MILLER, FEDERAL PRAC-                      Vicari relies on Roques v. Alfonso, 399 So. 2d
TICE AND PROCEDURE § 2505, at 165 (2d ed.                1294, 1296 (La. App. 4th Cir. 1981), holding that
1995).                                                   interest on “[a]n unliquidated claim is due from the
                                                         time it becomes ascertainable.” In Roques,
   6
     Vicari argues that Cableguard is not entitled       however, the parties disputed both the amount of
to any pre-judgment interest, but does not dispute       the debt and a potential offset. This cases involves
the court’s calculation of that interest.                no such disputes.

                                                     5
