UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HOBET MINING, INCORPORATED, a
corporation,
Plaintiff-Appellee,

v.
                                                                    No. 98-1090
LOCAL 2286, UNITED MINE
WORKERS OF AMERICA; LOCAL 5817,
UNITED MINE WORKERS OF AMERICA,
Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CA-96-36-2)

Submitted: December 8, 1998

Decided: December 31, 1998

Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Kevin F. Fagan, DISTRICT 17, UMWA, Charleston, West Virginia,
for Appellants. Mark A. Carter, Christopher L. Slaughter, HEENAN,
ALTHEN & ROLES, Charleston, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Local Union 2286 and Local Union 5817, United Mine Workers of
America, ("Locals" or "Unions"), appeal from the district court's
judgment order entering the jury's finding in favor of Hobet Mining,
Inc., and against the Locals in the combined amount of $500,000
based upon the Unions' illegal work stoppages.1 On appeal, the
Unions allege that the district court committed reversible error
because it incorrectly instructed the jury. For the reasons that follow,
we affirm.

Hobet sued the Locals under Section 301 of the Labor Management
Relations Act; the district court found the Unions liable for conduct-
ing illegal work stoppages and the parties proceeded to a jury trial on
the sole issue as to the amount of damages. James Pye, Hobet's expert
witness on damages, testified that because of the illegal work stop-
pages Hobet was prevented from mining and selling its coal on the
"spot market"2 for approximately five to seven dollars a pound, which
Pye testified was a conservative price estimate as the price was below
what Hobet could receive from a long term supply contract. Although
Hobet did not rely on or enter into evidence any long term supply
contracts to show the financial losses it suffered, the Unions' counsel,
on cross-examination, did get Pye to admit that such supply contracts
often contain force majeure clauses, which would suspend Hobet's
obligation to supply coal if certain circumstances, over which the
company had no control, occurred. In his closing argument, the
Unions' attorney argued that the work stoppages would be covered
under the force majeure clauses of Hobet's supply contracts and
therefore the company suffered no damage:
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1 The jury found against Local 2286 in the amount of $375,000 and
against Local 5817 for $125,000.
2 "Spot market" refers to the price coal could be bought and sold on the
open market at a given time.

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          Now there was no evidence, there was no evidence that the
          company suffered any damages in another respect as a result
          of these three work stoppages. Did you hear any evidence
          that the company lost any customers? There is no evidence
          with respect to that. Did you hear any evidence that the
          company lost any contracts as a result of the three work
          stoppages. There was no evidence of that.

          On the contrary, Mr. Pye [Hobet's damages expert witness]
          testified that the contracts that Hobet Mining typically had
          with its companies contained a force majeure clause, and the
          judge will instruct you and I will tell you what my version
          is. The evidence established what a force majeure clause is
          and that is where a situation arises where the contracting
          party cannot control something which prevents it from meet-
          ing its contractual obligation, and I will submit to you that
          a work stoppage would be a circumstance. Where are those
          contracts and where is the testimony or evidence that a force
          majeure clause was not in any of the contracts Hobet Mining
          had with its, quote, buyers.

(J.A. at 183-84.)

At the conclusion of the Locals' closing argument, the following
bench conference occurred between the trial judge and the Locals'
counsel Mr. Fagan:

          THE COURT: I think you contradicted the instructions of
          the Court, Mr. Fagan.

          MR. FAGAN: I'm sorry.

          THE COURT: You instructed the jury and your version was
          that a voluntary work stoppage by one party could result in
          a force majeure to the other. On these facts and on the law
          of this case, a voluntary illegal strike does not excuse one
          from performance of the obligation under a contract.

          MR. FAGAN: Okay, Your Honor, I apologize for my trans-
          gression there and it was not intentional and I was not
          attempting to violate your authority.

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          THE COURT: It just requires that I explain that to the jury.

          MR. FAGAN: I'm sorry.

(J.A. at 186-87.) Then the court instructed the jury:

          THE COURT: Ladies and gentlemen, I think one of the
          counsel inadvertently misspoke on an issue and I find it nec-
          essary to revisit that issue of a force majeure, which is some
          sort of accidental unplanned-for event which might affect
          one[']s ability to meet the obligations of the contract. And
          I instruct you that the voluntary intentional work stoppage
          done by one party to another party is not a force majeure
          event that would excuse performance of a contract. So under
          the facts and law of this case, such a work stoppage would
          not be an excusable event under that theory.

          You have anything further? [Neither counsel responded.]

(J.A. at 187.)

The Locals argue that the trial judge's above instruction to the jury
was erroneous as a matter of law and they seek to have the matter
remanded to the district court for a new trial. We decline to grant such
relief and affirm the judgment of the district court for several reasons.

First, it is uncontroverted that the Locals failed to object to the dis-
trict court's instruction regarding the effect of a force majeure clause.
See Fed. R. Civ. P. 51, 46. As this Court has repeatedly held, issues
raised for the first time on appeal generally will not be considered.
See, e.g., Eastern Auto Distribs., Inc. v. Peugeot Motors of Am., Inc.,
795 F.2d 329, 336 (4th Cir. 1986) (holding that because plaintiff
failed to object to absence of certain instructions in the trial court,
appellate review foreclosed). Based on the record before this Court,
there are no exceptional circumstances justifying departure from the
general rule.3
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3 We do not find that refusal to consider this issue for the first time on
appeal would be "plain error or . . . result in a fundamental miscarriage
of justice." Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).

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Second, even if the Locals objected to the district court's instruc-
tion and the instruction was in fact erroneous, they suffered no preju-
dice because Hobet did not claim or present any evidence regarding
damages suffered from any of its supply contracts. Rather, Hobet
presented evidence showing the amount of coal that was not col-
lected, as a result of the Locals' illegal activities, and the dollar
amounts per ton it could have sold the coal on the spot market.
Whether Hobet suffered a loss or not in its long term supply contracts
was simply irrelevant to the jury's damage findings. See Hartsell v.
Duplex Prods., Inc., 123 F.3d 766, 775 (4th Cir. 1997) (holding that
a judgment will be reversed for an erroneous jury instruction only if
the error is prejudicial, based upon a review of the record as a whole).

Accordingly, we affirm the judgment of the district court. We grant
the parties' motion to decide the appeal without oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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