                                                               [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT           FILED
                           ________________________ U.S. COURT  OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                               FEBRUARY 13, 2009
                                  No. 07-12886
                                                                THOMAS K. KAHN
                            ________________________                CLERK

                    D.C. Docket No. 04-00026-CV-FTM-29-DNF

MARCO ISLAND CABLE,
a Florida Corporation,

                                                           Plaintiff-Appellee,

versus

COMCAST CABLEVISION OF THE SOUTH, INC.,
a Colorado Corporation,

                                                           Defendant-Appellant.
                            ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________
                                (February 13, 2009)

Before BLACK, PRYOR and COX, Circuit Judges.

PER CURIAM:

                                 I. BACKGROUND

         This is a dispute between competitor providers of cable services to Multiple

Dwelling Units (MDUs) on Marco Island. Marco Island Cable (“Marco”) sued
Comcast Cablevision of the South (“Comcast”), alleging that Comcast engaged in

anti-competitive behavior which damaged Marco’s business. After several of

Marco’s claims were dismissed on Comcast’s motion for summary judgment, the case

went to trial. The evidence at trial focused on Marco’s allegation that Comcast’s

assertion of ownership rights in the cable wiring within Marco Island MDUs violated

the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq.

(“the Act”).

      At trial, Comcast moved for judgment as a matter of law. The court denied the

motion and submitted the case to the jury. The jury awarded Marco over $3.2

million. Post-trial, Comcast again moved for judgment as a matter of law. The court

denied that motion but granted Comcast’s alternative motion for a new trial. Later,

on Marco’s motion, the district court remitted the judgment to $800,000, in lieu of

granting a new trial.

      Comcast appeals the judgment, arguing only that the district court erred in

denying its renewed motion for judgment as a matter of law. Comcast does not seek

review of the denial of its motion for a new trial.

                          II. STANDARD OF REVIEW

      This court reviews de novo a district court’s grant or denial of a renewed

motion for judgment as a matter of law under Federal Rule of Civil Procedure 50.

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Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192 (11th Cir. 2004)

(citing Thosteson v. United States, 331 F.3d 1294, 1298 (11th Cir. 2003)). “Under

Rule 50, a court should render judgment as a matter of law when there is no legally

sufficient evidentiary basis for a reasonable jury to find for that party on that issue.”

Id. (citing Fed. R. Civ. P. 50). “Where, as here, a defendant’s motion for directed

verdict is denied by the district court, and the jury returns a verdict adverse to the

defendant, the reviewing court cannot concern itself with any question of conflict in

the evidence, but is required to assume that all conflicts have been resolved by the

jury in favor of the plaintiff.” Russell v. Baccus, 707 F.2d 1289, 1292 (11th Cir.

1983) (quoting Prudential Ins. Co. v. Schreffler, 376 F.2d 397, 399 (5th Cir. 1967)).

                     III. CONTENTIONS OF THE PARTIES

      Comcast makes three arguments: (1) Marco did not present any evidence that

Comcast’s actions violated the Act; (2) Marco did not present any evidence that

Comcast’s actions proximately caused Marco’s injury; and (3) Marco did not present

any competent evidence of damages. (Appellant’s Br. at 24-28.) Marco originally

filed a notice of cross-appeal but has abandoned that cross-appeal and now defends

the judgment.




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                                  IV. DISCUSSION

      The jury’s liability verdict was a general one, finding only that Marco

established, by a preponderance of the evidence, that Comcast violated the Act. (R.29

at 2098-99.) Therefore, we will uphold that verdict if any of Marco’s theories of

liability is supported by sufficient evidence. Cabello v. Fernández-Larios, 402 F.3d

1148, 1160 (11th Cir. 2005).

      A review of the trial record reflects sufficient evidence for a reasonable jury to

conclude that Comcast violated the Act by asserting ownership of inside wiring in

Marco Island MDUs in the manner that it did and despite the fact that Comcast may

not have owned the inside wiring. Evidence was presented that Comcast did not pay

personal property taxes on the inside wiring, as it should have if it, in fact, owned that

wiring. Marco also offered evidence that Comcast intimidated customers into

contracting with Comcast by: deceptively omitting key operative language when

quoting from its contracts in letters sent to the MDUs asserting ownership of the

wiring; seeking to grossly overcharge the MDUs and their occupants who may have

wanted to purchase the wiring; misleading customers about their access to the wiring

and the necessity for its removal should they choose another cable provider; invoking

inapplicable FCC regulations in support of Comcast’s asserted rights to the wiring;




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and sending a crew out to remove interior wiring from an MDU, an act that would

cause significant damage, without the MDU occupants’ permission.

      Given this evidence, several theories support the jury’s verdict. The jury could

have concluded that Comcast violated the Act by dishonestly asserting that it owned

the inside wiring. The jury could have concluded that Comcast violated the Act by

knowingly misrepresenting its rights to charge MDU owners for the inside wiring or

its rights to remove that wiring. And, the jury could have concluded that Comcast

violated the Act by using the deceptive and bullying conduct we have described to

induce the MDUs into contracting with Comcast.

      A reasonable jury also could have found that these actions by Comcast

proximately caused Marco damage. Comcast argues that Marco failed to present

evidence tying Comcast’s actions to Marco’s damages. But, Comcast’s arguments

ignore the evidence that Comcast’s illegal actions affected the MDU cable market on

Marco Island as a whole, not just those particular MDUs with which Comcast had

interactions about the wiring in their individual buildings. Indeed, Comcast intended

to affect the purchasing decisions of the whole MDU community on Marco Island.

Testimony at trial (by Comcast’s own employee) was that Comcast intended for

members of the Marco Island MDU ownership and management community to be

made aware of its “new policies” and, that in addition to taking the actions listed

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above, Comcast representatives communicated with members of the MDU

community through an industry association, in an effort to make that community as

a whole aware of Comcast’s position that it would not “relinquish” the wiring

ownership rights that Comcast asserted. (R.26 at 1173-75.)

       And, Marco’s owner testified that Comcast’s actions did, in fact, affect his

business. He testified that, given the historical performance of his business and what

he knew of the Marco Island market, he would have expected to receive invitations

to bid on eight to ten MDU contracts per year but, after Comcast took the actions it

did (again, actions that the jury found illegal), he received no such requests. (R.26

at 1303.) Marco’s damages expert testified that Marco’s business stopped expanding

in 2003 “because of the necessity to deal with the business tactics and methodologies

of the new Comcast that had come into the area.” (R.27 at 1537.) And, Comcast itself

admits that Marco’s damages expert testified that Marco’s business diminished in

value “as a result of Comcast practices.”1 Appellant’s Br. at 21 (citing R.27 at 1545).




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         Comcast argues that this evidence was improperly admitted as it was evidence of an
incorrect measure of damages under the statute, it was speculative, and Comcast was not given
sufficient notice of Marco’s damages expert’s opinion. But, Comcast has not properly presented for
review the propriety of the district court’s admission of evidence or the propriety of the court’s
charge to the jury. These are arguments more properly made in an appeal of a denial of a motion for
new trial. Comcast challenges only the district court’s denial of its motion for judgment as a matter
of law. And, denial of the new trial motion was proper if there was proof of damage in any amount,
caused by Comcast’s illegal actions. Of course, there was such proof. Comcast’s arguments
themselves – challenging the admission of some of that evidence – demonstrate that.
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(See also R.27 at 1559 (expert testimony that Marco “[was] plateauing as a result of

Comcast’s actions.”))

                               V. CONCLUSION

      For the foregoing reasons, we affirm the judgment of the district court.

      AFFIRMED.




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