     Case: 09-60850     Document: 00511553506           Page: 1   Date Filed: 07/27/2011




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

                                                                            FILED
                                                                            July 27, 2011
                                       No. 09-60850
                                                                           Lyle W. Cayce
                                                                                Clerk
ESTATE OF WILLIE MAE MOORE,

                                           Plaintiff,

v.

WAL-MART STORES, INC.,

                                           Defendant-Third Party Plaintiff –
                                           Appellee Cross-Appellant,

v.

ROBERT SCHMIDT; PUBLIC PAY PHONE COMPANY,

                                           Third Party Defendants –
                                           Appellants Cross-Appellees.


                   Appeals from the United States District Court
                      for the Northern District of Mississippi
                                  4:07-cv-5-mpm


Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
        The petition for rehearing en banc is denied. We, however, withdraw our
previous opinion in this matter, Estate of Moore v. Wal-Mart Stores, Inc., No. 09-


       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 09-60850

60850, 2011 WL 1659419 (5th Cir. Apr. 28, 2011), and substitute the following
opinion.
      Public Pay Phone appeals the district court’s order requiring it to pay Wal-
Mart’s attorneys’ fees. Wal-Mart sought to recover the costs of defending the
personal injury suit brought by Plaintiff Willie Mae Moore, who alleged that a
piece of the wooden casing around a pay phone in the store’s customer service
department fell and injured her foot. Public Pay Phone installed and maintained
the phone, pursuant to an agreement with Wal-Mart. Under that agreement,
Public Pay Phone promised to indemnify Wal-Mart for lawsuits related to the
phone in certain circumstances. The indemnification provision does not apply,
however, “in the event the injury or damage arises out of or is caused by the
negligence or willful conduct of Wal-Mart.”
      Before trial, Wal-Mart moved for summary judgment on the
indemnification claim. The district court denied the motion, reasoning that,
because there could be no indemnification if Wal-Mart had been negligent, the
most sensible course was to take up the issue again after trial on the underlying
personal injury action:
      [T]he court concludes that a final resolution of these issues should
      properly wait until after the jury has had a chance to determine to
      what extent, if any, fault for Moore’s injuries lies with Wal-Mart
      and/or [Public Pay Phone]. The court will therefore deny Wal-
      Mart’s motion for summary judgment at this juncture, but it will
      entertain any motions relating to the issues of attorney’s fees and
      indemnification after the jury has spoken regarding fault for the
      underlying accident in this case.
      At trial, both sides adduced evidence on the question of Wal-Mart’s
negligence. Public Pay Phone presented evidence that a Wal-Mart employee had
reported the damaged condition of the phone casing to her supervisor at least a
week before the accident, yet Wal-Mart never informed Public Pay Phone of the
need for repairs until after the accident. On the other hand, Wal-Mart presented


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                                        No. 09-60850

evidence that none of the store’s managers knew about the damage prior to the
accident, but that a representative of Public Pay Phone had visited the store and
observed the damage before the accident.
       Ultimately, Wal-Mart prevailed. The jury returned a general verdict for
the defense: “We, the jury, find for the Defendant.” Because they were not given
special interrogatories, the jury made no findings regarding allocation of fault
to Wal-Mart, Public Pay Phone, or Moore.
       Following the jury verdict for Wal-Mart on the underlying personal-injury
action, the parties submitted post-trial briefs on the indemnification
claim—essentially a renewed motion for summary judgment. In construing the
indemnification provision, the district court made no findings regarding the
relative negligence of the parties. Rather, the court assumed that the jury had
allocated no fault to Wal-Mart: “[T]he jury returned a defense verdict in this
case, and the court assumed that Public Pay Phone would agree to pay Wal-
Mart’s attorneys’ fees since Wal-Mart had not been found to be negligent.”
Based on this assumption, the district court required Public Pay Phone to pay
Wal-Mart’s attorneys’ fees relating to the action.
       The legal effect of a jury verdict, like the interpretation of a contract, is a
legal question that we review de novo. See, e.g., RecoverEdge L.P. v. Pentecost,
44 F.3d 1284, 1290 (5th Cir. 1995). In this case, the jury’s verdict does not
establish that Wal-Mart was not negligent. The jury simply made no such
finding. Instead, the jury rendered only a general verdict, indicating only that
the plaintiff failed to prove an essential element of her claim.1 As a result,
“[w]ithout specific jury findings, no one can logically or realistically draw any


       1
         Indeed, a jury note suggests that the jury was considering whether plaintiff had been
injured at all: “Did the plaintiff’s lawyer have to prove that Mrs. Moore was actually hurt by
the falling shelf on April 22, 2006?” The jury’s question nicely illustrates the problem. If the
jury found that the plaintiff’s proof failed on the issue of actual injury, it would not even need
to consider whether Wal-Mart acted negligently to find for Wal-Mart.

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                                       No. 09-60850

factual finding inferences.” United States v. Watts, 519 U.S. 148, 155 (1997)
(internal quotation marks and citation omitted). Thus, the jury’s verdict does
not resolve the question of whether Wal-Mart was negligent, which would
preclude indemnification under the terms of the agreement.
       For the first time on rehearing, Wal-Mart argues that we should review
the question of whether Wal-Mart was negligent for clear error because it is a
factual finding made after a bench trial. According to Wal-Mart, immediately
after the jury verdict, the parties stipulated that “the resolution and final
adjudication of Wal-Mart’s [indemnification claims] will be decided by [the
district court] via a bench trial.”2 Wal-Mart provides no citation to the record for
this stipulation and we have been unable to locate the stipulation in the record
filed in this court.3
       Assuming that the parties stipulated to a bench trial of the
indemnification claims, however, the stipulation does not affect the standard of
review or outcome on the issue presented by this appeal. Rule 52(a) of the
Federal Rules of Civil Procedure, which governs bench trials, “is clear in its
mandate that the district court must find the facts specially and state separately
its conclusions of law thereon.” In re Incident Aboard D/B Ocean King, 758 F.2d
1063, 1072 (5th Cir. 1985); see also Fed. R. Civ. P. 52(a)(1). Here, the district
court’s order contains no factual findings regarding Wal-Mart’s negligence.
Instead, the district court’s determination that Wal-Mart had not acted

       2
         Wal-Mart states that this “stipulation was stated on the record immediately after the
jury rendered its verdict and the parties were awaiting a final presentation of evidence to
consider the [indemnification] claims. The Court and all remaining parties agreed that the
final resolution of the Third-Party claims was a legal issue so the parties agreed to submit the
defenses and indemnity issues to [the district court] and to dismiss the jury to expedite
resolution of such claims and prevent unnecessary retention of the jurors.”
       3
         Public Pay Phone does not deny that such a stipulation was made. Instead, it asserts
that the record does not reflect an understanding “that a general verdict in favor of Wal-Mart
reflected a finding that Wal-Mart was not negligent thereby triggering Wal-Mart’s right to
indemnification by Public Pay Phone pursuant to the agreement.”

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negligently rested on a legal conclusion about the effect of the jury’s verdict.
Conclusions of law are always reviewed de novo. In re Mid-South Towing Co.,
418 F.3d 526, 531 (5th Cir. 2005). As we have already explained, the court’s
legal interpretation of the jury’s verdict was incorrect. Accordingly, we reverse
the judgment of the district court and remand for further proceedings consistent
with this opinion.
      On remand, the district court is authorized to determine what, if any,
stipulation was made and make a finding on that issue. If the court determines
that the parties agreed that it could decide any unresolved factual and legal
issues regarding indemnity, the court may conduct whatever additional hearings
it finds necessary to resolve any issues regarding Wal-Mart’s negligence and
render a judgment on Wal-Mart’s indemnity claim. The mandate shall issue
forthwith.
      REVERSED AND REMANDED.




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