     Case: 11-60046     Document: 00511604897         Page: 1     Date Filed: 09/16/2011




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

                                                                            FILED
                                                                        September 16, 2011

                                     No. 11-60046                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



JOHN WECKESSER; BARBARA WECKESSER, also known as Barbra
Weckesser,

                                                  Plaintiffs–Appellants
v.

CHICAGO BRIDGE AND IRON; L.G. BARCUS AND SONS,
INCORPORATED,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:08-CV-357


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        John and Barbara Weckesser appeal the district court’s denials of their
motion for new trial and motion for reconsideration in their suit against Chicago
Bridge & Iron and L.G. Barcus & Sons (collectively, the “Appellees”) for private
nuisance on multiple grounds. Because we find that these grounds are either
not preserved or lack merit, we agree with the district court. Accordingly, we

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60046

AFFIRM the district court’s orders denying the Weckessers’ motions for new
trial and for reconsideration.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      The City of Biloxi, Mississippi, contracted with Chicago Bridge & Iron
(“CBI”) to build a water tower between the Weckessers’ property and the railroad
tracks that run next to their property. CBI, in turn, subcontracted with L.G.
Barcus & Sons (“Barcus”) to install the auger piper foundation for the water
tower. According to the Weckessers’ allegations, this auger pipe foundation
installation damaged their property. Specifically, the Weckessers, proceeding
pro se, brought claims for negligence, gross negligence, private nuisance, and
emotional distress.
      This appeal concerns only the private nuisance claim because the district
court disposed of the other claims prior to the motions for new trial and
reconsideration. The district court permitted the private nuisance claim to go
to the jury, which returned a verdict in favor of the Appellees on October 19,
2010. Subsequently, the Weckessers filed two motions—a motion for new trial
on October 28, 2010, and a motion for reconsideration on April 27, 2011. The
district court treated the April 27 motion as a motion for reconsideration under
Federal Rule of Civil Procedure 60(b) as it would have been untimely under Rule
59(e). FED. R. CIV. P. 59(e). The Weckessers appealed.
                        II. STANDARDS OF REVIEW
      The decision on a motion for new trial “is generally within the sound
discretion of the trial court.” Foradori v. Harris, 523 F.3d 477, 503–04 (5th Cir.
2008) (quoting Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir.
1982)). Therefore, “[w]e will reverse the trial court’s denial of a motion for a new
trial only when there is a clear showing of an abuse of discretion.” Id. at 506–07
(internal quotations omitted). This same abuse-of-discretion standard applies
to review of motions for reconsideration under Rule 60(b). Hesling v. CSX

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                                  No. 11-60046

Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005) (quoting Edwards v. City of
Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc)).
      A Rule 59(a) motion for new trial may be granted for “any reason for which
a new trial has heretofore been granted in an action at law in federal court.”
FED . R. CIV. P. 59(a)(1). Though undefined by the Rule, “[a] new trial may be
granted, for example, if the district court finds the verdict is against the weight
of the evidence, the damages awarded are excessive, the trial was unfair, or
prejudicial error was committed in its course.” Smith v. Transworld Drilling
Co., 773 F.2d 610, 613 (5th Cir. 1985). Unlike a motion for new trial under Rule
59(a), however, Rule 60(b) only encompasses specifically enumerated grounds.
Those grounds are:
      (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
      discovered evidence that, with reasonable diligence, could not have
      been discovered in time to move for a new trial under Rule 59(b); (3)
      fraud (whether previously called intrinsic or extrinsic),
      misrepresentation, or misconduct by an opposing party; (4) the
      judgment is void; (5) the judgment has been satisfied, released or
      discharged; it is based on an earlier judgment that has been
      reversed or vacated; or applying it prospectively is no longer
      equitable; or (6) any other reason that justifies relief.

FED. R. CIV. P. 60(b).
      Although we “liberally construe” the filings of pro se litigants and “apply
less stringent standards to parties proceeding pro se than to parties represented
by counsel,” pro se appellants must still comply with the principles of appellate
procedure. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (citations omitted).
“It is a bedrock principle of appellate review that claims raised for the first time
on appeal will not be considered.” Stewart Glass & Mirror v. U.S. Auto Glass
Discount Cntrs., Inc., 200 F.3d 307, 316–17 (5th Cir. 2000). The same is true for
claims that were raised but not properly presented below. St. Paul Fire &
Marine Ins. Co. v. Convalescent Servs., Inc., 193 F.3d 340 (5th Cir. 1999). These


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principles are only excepted where failure to consider the issues would result in
“grave injustice.” McClellon v. Lone Star Gas Co., 66 F.3d 98, 100 (5th Cir.
1995).
                                   III. DISCUSSION
A.      Issue Preservation
        The Weckessers raise ten grounds to justify a new trial: (1) difficulties
associated with the audio in the trial courtroom; (2) prejudice caused from the
unavailability of out-of-state witnesses when the trial date was changed; (3)
withholding by Appellees of photographs allegedly showing the damage to the
Weckessers’ property; (4) exclusion of photographs allegedly showing the damage
to Weckessers’ property for lack of authentication; (5) exclusion of satellite
images of their property and surrounding area for lack of authentication; (6)
admission of Mark White’s testimony; (7) bias of the district court against them;
(8) Appellees’ failure to mitigate damages; (9) Appellees’ failure to respond to the
Weckessers’ motions to compel; and (10) Appellees’ failure to comply with the
Federal Rules of Civil Procedure and the district court’s orders.1 The Appellees
contend that the Weckessers failed to preserve all of these grounds for this
appeal, and so the first issue is to determine which of these grounds were
properly preserved in the district court.
        The Weckessers raised most of the grounds set forth in their appellate
brief in either the motion for new trial or the motion for reconsideration. They,
however, failed to raise to the district court the three grounds of: exclusion of
satellite images of their property and surrounding area for lack of
authentication; Appellees’ failure to mitigate damages; and Appellees’ failure to
comply with the Federal Rules and court orders. As those were not presented


       1
         The Weckessers’ brief itself divides these grounds into upwards of twenty grounds.
The Appellees read the brief as raising thirteen grounds. This Court has consolidated sections
that raise the same arguments into single grounds and found ten distinct grounds.

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                                       No. 11-60046

to the district court, we will not consider them here. In their motion for new
trial, the Weckessers raised three of the grounds asserted here: difficulties
associated with the audio in the trial courtroom; prejudice caused from the
unavailability of out-of-state witnesses when the trial date was changed; and
withholding by Appellees of photographs allegedly showing the damage to the
Weckessers’ property. As all of those are grounds that would tend to make the
trial unfair to the Weckessers, those grounds are properly preserved and we will
consider them in turn below. The Weckessers raised the remaining four grounds
asserted here in their motion for reconsideration.                    Only one of these
grounds—the Appellees’ failure to respond to the Weckessers’ motions to
compel—can fit into one of Rule 60(b)’s categories, namely misconduct by an
opposing party, and it is the only one preserved by that motion. This leaves the
exclusion of photographs allegedly showing the damage to Weckessers’ property
for lack of authentication, the admission of Mark White’s testimony, and bias of
the district court against them as grounds not appropriately before this Court,
and they will not be considered.2 The four preserved grounds are considered
below.3




       2
         To be sure, Rule 60(b) does contain a catch-all provision, but this provision has been
narrowly construed to apply only where “extraordinary circumstances” are present. Hess v.
Cockrell, 281 F.3d 212, 216 (5th Cir. 2002). Such circumstances do not exist here to justify
sacrificing “the principle of finality” that undergirds Rule 60(b). Hesling, 396 F.3d at 638
(citing Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir. 1981)).
       3
        The Appellees urge that we dismiss the entirety of the Weckessers’ appeal due to the
Weckessers’ failure to comply with Federal Rule of Appellate Procedure 28(a). The Weckessers
did omit some sections in their initial brief to this Court required under the Rule, but they
corrected these errors after being apprised of them by the clerk’s office.

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                                  No. 11-60046

B.      Preserved Issues
        1.    Difficulties Associated with the Audio in the Trial
              Courtroom
        The Weckessers allege that throughout the trial, and specifically during
the testimony of White, difficulties with courtroom audio equipment caused
them to “miss out on 30–40 percent of the testimony.” “[F]or a litigant to
preserve an argument for appeal, it must ‘press and not merely intimate the
argument during the proceedings before the district court.’” Rosedale Missionary
Baptist Church v. New Orleans City, 641 F.3d 86, 89 (5th Cir. 2011) (quoting
FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994)). The district court noted,
however, that at no point during the two day trial did the Weckessers even raise
this issue with the court. In fact, the Weckessers admit the same in their brief
to this Court. In light of this, it does not appear that the district court abused
its discretion in denying the Weckessers new trial motion on this front.
        2.    Prejudice Caused from the Unavailability of Out-of-State
              Witnesses When the Trial Date Was Changed
        The next preserved ground of the Weckessers is that they were prejudiced
when the trial date was changed and they were unable to secure three out-of-
state witnesses. We note at the outset that “[t]he district court enjoys broad
discretion in controlling its own docket.” Teal v. Eagle Fleet, 933 F.2d 341, 346
(5th Cir. 1991). The district court set the trial for October 18, 2010, at the
August 13, 2010, pretrial conference. Thirteen days prior to the previously set
trial date, the district court entered an order postponing the trial date to October
25, 2010, due to a conflicting criminal trial. After the conflict was resolved on
October 13, the district court reset the trial for the original date of October 18.
        The Weckessers argue that they could not secure the attendance of three
witnesses as a result of this switch—Pam Pollick, John Weckesser Jr., and Mark
Farris. Two of these witnesses’ testimony would have been completely irrelevant


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                                       No. 11-60046

to the issues in the trial.4 Since their testimony was irrelevant and would not
have been admitted, there can be no prejudice from the change in trial date on
account of the unavailability of these witnesses. See FED. R. EVID. 402. Pollick,
however, intended to testify about the damage caused to the Weckessers’
property, which on its face would have been relevant. Unfortunately, it does not
appear that the Weckessers raised the unavailability of Pollick to the district
court but rather only the unavailability of John Weckesser Jr. and Mark Farris.
Therefore, that issue is not preserved and cannot be ruled on by this Court.
Stewart Glass & Mirror, 200 F.3d at 316–17. In sum, there is no demonstrated
prejudice to the Weckessers as a result of the change in the trial date, and
therefore, the Weckessers cannot show any abuse of discretion on the part of the
district court on this issue.
       3.     Withholding by Appellees of Photographs Allegedly Showing
              the Damage to the Weckessers’ Property
       The Weckessers complain that the Appellees withheld photographs that
showed damage to their property until two days before trial. Unlike in their
subsequent motion for reconsideration where the Weckessers also asserted error
based on improper exclusion of the photographs, nowhere in the motion for new
trial (on which basis this ground is preserved) do the Weckessers allege that the
district court made any improper evidentiary ruling on the photographs. As
stated above, we hold pro se filings to a lesser standard than those of parties
represented by counsel, but we cannot rule on an issue that was not



       4
         John Weckesser Jr. was to testify about his father John Weckesser Sr.’s expertise in
the construction business, which has no bearing on whether the Appellees damaged the
Weckessers property. FED. R. EVID. 401. Mark Farris, Barbara Weckesser’s son, was to testify
as to his mother’s “anguish” and the Appellees’ unreasonable incivility to her in this matter.
Since the district court dismissed the emotional distress claims before trial and the other
evidence that Farris was to provide was intended to go to Appellees’ bad character, Farris’s
testimony was not relevant to the jury’s resolution of the issues in the Weckessers’ suit. FED.
R. EVID. 401, 404.

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appropriately before the district court. Gabel v. Lynaugh, 835 F.2d 124, 125 (5th
Cir. 1988) (“Generally speaking, we are a court of errors and appeals; and the
trial court cannot have erred as to matters which were not presented to it.”).
Thus, we can only look at whether the district court abused its discretion in not
granting a new trial based on the alleged withholding of the photographs by the
Appellees.
      According to the Appellees, they only obtained these photographs three
days before trial, and upon their receipt, they sent them to the Weckessers via
overnight delivery. Though Barcus’s counsel alluded to the photographs in his
opening statement, the Appellees never tried to enter the photographs into
evidence, and the jury did not see them. In fact, it was the Weckessers who tried
to admit them into evidence. Id. Since the jury never saw these photographs
and the issue of their admissibility is not properly before this Court, it cannot be
said that the district court abused its discretion by denying a new trial on this
ground.
      4.     Appellees’ Failure to Respond to the Weckessers’ Motions to
             Compel
      The Weckessers also take issue with the district court’s handling of
discovery with respect to disclosures regarding Sellers. Assuming, as the district
court did, that the Appellees did fail to respond to the district court’s order on
their motions to compel, the Weckessers cannot demonstrate that they suffered
any prejudice as a result of this. Appellees provided all the information they had
on Sellers, and the Weckessers “never argued at trial that [the Appellees]
prevented them from calling a witness.” Absent such a showing, we cannot say
that the district court abused its discretion in denying the Weckessers’ Rule
60(b) motion for reconsideration on this basis.




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                               No. 11-60046

                           IV. CONCLUSION
     For the foregoing reasons, we AFFIRM the district court’s denial of the
Weckessers’ motion for new trial and its denial of their motion for
reconsideration.
     AFFIRMED.




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