     Case: 09-30706    Document: 00511204185         Page: 1    Date Filed: 08/16/2010




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

                                                 FILED
                                                                        August 16, 2010
                                    No. 09-30706
                                  Summary Calendar                       Lyle W. Cayce
                                                                              Clerk

FLO ANN RICHMOND,

                                          Plaintiff–Appellant
v.

HORACE MANN INSURANCE COMPANY,

                                          Defendant–Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-5086



Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Hurricane Katrina damaged the home of appellant Flo Ann Richmond.
Richmond filed a claim with her homeowner’s insurance provider, appellee
Horace Mann Insurance Company.              Horace Mann disputed the claim, and
Richmond filed suit. After a jury trial, Richmond appealed. She argues that the
trial court committed plain error by favoring the defense, and that the evidence
did not support the jury’s verdict. Finding that the trial court did not commit


       *
         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not be published and is not precedent except under the limited circumstances set forth in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.
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                                  No. 09-30706
plain error and the evidence supported the jury’s verdict, we AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In September 2005, soon after Hurricane Katrina, Richmond notified
Horace Mann of structural damage to her home. After sending an adjuster to
Richmond’s home, Horace Mann issued a $17,616.33 structural damage payment
in October 2005.     Richmond hired a public adjuster to provide further
information regarding damage to her home. As a result, Horace Mann issued an
additional $12,000 check for structural damage.
      In May 2007, Richmond demanded policy limits from Horace Mann in the
amount of $149,200 for structural damage (minus the amounts already paid) and
$89,500 in damage to contents.       She did not specify which contents were
damaged. Horace Mann sent Richmond a proof of loss and contents inventory
form for her to complete. She did not respond.
      Richmond filed suit against Horace Mann. At trial, Richmond admitted
that she had no photographs or other documentation of any lost or damaged
contents, either before or after the storm. She stated that the storm destroyed
all of her documents, credit card statements, and cancelled checks, which might
otherwise have corroborated her claim for damaged contents.
      During the trial, the district court actively questioned witnesses. It asked
Richmond’s expert witness questions about bricks, eventually concluding the
expert did not know about bricks in the New Orleans area; asked Richmond
detailed questions about the contents of her house; and asked Richmond
numerous questions about why she did not inform an adjuster about damage to
certain ostensibly valuable contents of her home. At the conclusion of this last
line of questioning, Richmond broke down in tears, prompting the district court
to take a recess.
      At the close of trial, the district court instructed the jury to disregard any
possible prejudice or opinions the jury may have felt the district court exhibited


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                                     No. 09-30706
when he questioned the witnesses. The jury returned a $14,000 verdict in favor
of Richmond as to her claim for structural damage. The jury concluded that
Richmond was not entitled to any amount for damage to contents. Richmond
timely appealed.
                                   II. ANALYSIS
A.     Conduct of the Trial Court
       A trial court “shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to . . . make the
interrogation and presentation effective for the ascertainment of the truth, . . .
[and] avoid needless consumption of time . . . .” F ED. R. E VID. 611(a). Under
Federal Rule of Evidence 614(b), “[t]he court may interrogate witnesses, whether
called by itself or by a party.”       If a party wishes to object to the court’s
interrogation of a witness, it may do so immediately or as soon as the jury is not
present. F ED. R. E VID. 614(c).
       Here, Richmond did not object at all, so our appellate review is for plain
error. F ED. R. E VID. 103(d). Under the plain error standard, we will reverse only
if “(1) there is an error, (2) that is clear or obvious, and (3) that affects [a party’s]
substantial rights.” United States v. Ferguson, 211 F.3d 878, 886 (5th Cir. 2000);
see also Septimus v. Univ. of Houston, 399 F.3d 601, 606–07 (5th Cir. 2005)
(applying plain error review in a civil case). Even if these factors are met, “the
decision to correct the forfeited error is within the sound discretion of the court,
and the court will not exercise that discretion unless the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Ferguson,
211 F.3d at 886 (citing United States v. Olano, 507 U.S. 725, 735–36 (1993)).
       We must determine whether the district court “stray[ed] from neutrality”
in its interactions with witnesses, United States v. Lankford, 196 F.3d 563, 573
(5th Cir. 1999) (quotation omitted), to such an extent that it committed plain
error. We find that it did not. It is true that the district court seemed to question


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                                   No. 09-30706
Richmond’s witnesses more actively than Horace Mann’s witnesses, and that its
questioning seemed to point out flaws in Richmond’s case. However, “[t]he mere
fact that there were more interruptions on one side or the other” and “[t]he
judge’s elicitation of ‘damaging information’ in the course of questioning
witnesses” are “insufficient to demonstrate that the judge was engaged in
misconduct.”      Id. at 572–73 (finding no misconduct when the trial court
interrupted the defendant’s examination of key witnesses almost sixty times,
while only interrupting the Government’s examination of the same witnesses
twenty times); see also McMillan v. Castro, 405 F.3d 405, 412 (6th Cir. 2005)
(finding no misconduct even when the trial court’s questioning “bordered on
condescending”). Instead, the district court’s questions were more focused on
ascertaining the truth and “avoid[ing] needless consumption of time.” F ED. R.
E VID. 611(a)
       Finally, we note that the district court’s jury instruction would have helped
to cure any perceived prejudice. See Lankford, 196 F.3d at 573 (explaining that
jury instructions can “operate against” a finding of judicial misconduct).
B.     Sufficiency of the Evidence
       Appellate review of factual findings underlying a jury verdict is very
deferential. Ham Marine, Inc. v. Dresser Indus., Inc., 72 F.3d 454, 459 (5th Cir.
1995). “Unless the evidence is of such quality and weight that reasonable and
impartial jurors could not arrive at such a verdict, the findings of the jury must
be upheld.” Id.
       Here, there was ample evidence for the jury to find that Richmond should
not receive any compensation for damage to contents. First, more than a year
and a half passed between the time Richmond filed her initial claim and the time
she filed a claim for damage to contents. Even when she did file a claim, she did
not respond to Horace Mann’s request for more detailed information. Also,
Richmond failed to provide sufficient evidence of the contents, despite numerous


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                                No. 09-30706
opportunities to do so. She had no photographs of the contents from before the
hurricane and took no photographs of the damaged contents before throwing
them out. She had no documentation of having purchased the contents: she
stated that this documentation was destroyed during the hurricane, but she did
not explain why she was unable to procure duplicate statements from her credit
card company or cancelled checks from her bank.        Finally, she provided no
documentation of having replaced any of the damaged items after the storm.
                            III. CONCLUSION
     Because the trial court did not commit plain error and the evidence
supported the jury’s verdict, we AFFIRM.




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