     Case: 17-40963      Document: 00514737814         Page: 1    Date Filed: 11/27/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-40963                    United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                      November 27, 2018
STEPHEN J. HELPERT,
                                                                        Lyle W. Cayce
              Plaintiff - Appellant                                          Clerk


v.

STEVEN P. WALSH,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:15-CV-240


Before REAVLEY, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This case arises out of a motor-vehicle collision between Stephen Helpert
and Steven Walsh. Although Walsh admitted the accident was his fault, a jury
found he was not negligent. Helpert now appeals the district court’s denial of
his motion for directed verdict and the subsequent denial of his motion for new
trial. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-40963    Document: 00514737814     Page: 2   Date Filed: 11/27/2018



                                 No. 17-40963
                                       I
      The accident occurred in Corpus Christi on July 17, 2014. Walsh, a pilot
in the U.S. Coast Guard, was in town to inspect an airplane-housing facility
and to obtain flight hours. After leaving work, Walsh became lost and pulled
into a parking lot to call a friend for directions. Upon completing the call and
reorienting himself, Walsh placed his mobile phone in the center console of his
rental vehicle and began moving towards the parking lot’s exit. To reach his
destination, Walsh needed to turn left out of the parking lot and head south, a
maneuver that required him to cross two lanes of northbound traffic. After
looking to his left and determining the coast was clear, Walsh began to execute
his turn. He did not see Helpert, who was traveling north in the second,
innermost lane. Just as Walsh crossed the first lane of oncoming traffic, he
struck Helpert’s passenger side and, because Helpert’s vehicle was still
moving, became jammed in the rear wheel of Helpert’s vehicle, damaging the
tire and surrounding area.
      Walsh apologized for the accident and offered to replace Helpert’s tire.
The pair traveled to several tire stores and Walsh bought a new tire and helped
install it on Helpert’s vehicle. After completing the installation, Helpert
commented the vehicle looked “okay” and drove away. That evening, at the
behest of his wife, Helpert went to an emergency room and complained of pain
to his knee, back, and neck.
      Helpert sued Walsh in Texas state court for several million dollars.
Walsh removed to federal court based on diversity jurisdiction. Settlement
attempts failed and the case went to a jury. During trial, Walsh admitted that
he caused the accident, failed to keep a proper lookout, and failed to yield the
right of way. On balance, however, Walsh also testified that he stopped, looked,
and proceeded to cross the road only after he believed the coast was clear; he
further explained that Helpert might have been in his blind spot, thus escaping
                                       2
    Case: 17-40963     Document: 00514737814    Page: 3   Date Filed: 11/27/2018



                                 No. 17-40963
his view. Much of Helpert’s testimony concerned the extent of the injuries he
suffered as a result of the car accident. Walsh attempted to cast doubt on
Helpert’s credibility by introducing evidence of Helpert’s prior theft
convictions, in addition to a post-accident video that showed Helpert using
physical force that appeared to rebut the extent of his claimed injuries.
        At the close of evidence, Helpert moved for a directed verdict on the
question of Walsh’s negligence, stating that “the evidence is undisputed as a
matter of law, and [Walsh has] admitted that he failed to keep a proper lookout,
[] failed to yield to the right of way, and he acknowledged that this wreck was
caused by his negligence and failing to do so.” Walsh countered that his
negligence, if any, was “a fact issue for the jury to determine.” The court
overruled Helpert’s request for a directed verdict. On May 17, 2017, and after
deliberating for two hours, a unanimous jury returned a no-negligence verdict
for Walsh.
        On June 27, 2017, Helpert filed a “motion for judgement [sic]
notwithstanding the verdict, or in the alternative, motion for new trial.” The
district court entered its final judgment two days later, on June 29, 2017,
without ruling on Helpert’s motions. On July 20, 2017, Helpert filed a second
motion for new trial. Believing that Helpert’s first motion had been overruled,
Walsh filed a motion for clarification to determine whether the district court’s
June 29 final judgment “was intended to dispose of [Helpert’s] motion for
judgment notwithstanding the verdict, motions for new trial, and motion to
seal, and is a final, appealable judgment[.]” The district court denied Walsh’s
motion, clarified that its final judgment “was not intended to preclude
[Helpert’s] post-judgment motion for a new trial,” and then overruled Helpert’s
second motion for new trial. Helpert filed a notice of appeal on September 15,
2017.


                                       3
    Case: 17-40963     Document: 00514737814     Page: 4   Date Filed: 11/27/2018



                                  No. 17-40963
                                        II
      We first address Walsh’s argument that we lack jurisdiction because
Helpert’s notice of appeal was untimely. As mentioned, Helpert filed a motion
for new trial two days before the district court entered final judgment. Walsh
contends the final judgment implicitly and necessarily overruled Helpert’s
prejudgment motion, thus running the 30-day clock for purposes of filing a
notice of appeal. Helpert disagrees; he argues the 30-day period started on
August 18, when the district court explicitly denied his second motion for new
trial and clarified that its final judgment was not intended to dispose of
Helpert’s prejudgment motion.
      Although a notice of appeal must generally be filed within 30 days after
the entry of the judgment or order that is being appealed, see FED. R. APP. P.
4(a)(1)(A), some motions toll the notice-of-appeal clock. If, for example, a party
files a motion for a new trial under Rule 59, as Helpert did here, the time to
file an appeal runs “from the entry of the order disposing of the last such
remaining motion.” FED. R. APP. P. 4(a)(4)(A). The question for us is whether
the district court’s June 29 final judgment “disposed” of Helpert’s prejudgment
motion for new trial, thus starting the 30-day appeals clock and causing his
September 15 filing to be untimely.
      Walsh relies on the Seventh Circuit’s decision in Dunn v. Truck World,
Inc., which holds that “[w]hen a party files a pre-judgment motion for a new
trial, the judgment itself is the order ‘denying a new trial’” and that “[f]inal
judgment necessarily denies pending motions, and so starts the time for
appeal.” 929 F.2d 311, 313 (7th Cir. 1991). Although we have acknowledged
the “ample precedent in this Circuit for the proposition that a district court’s
final judgment may impliedly deny an outstanding motion,” we have never
held that a final judgment necessarily decides all pending motions. See Perez
v. Lucas, 176 F.3d 480, at *2 (5th Cir. 1999) (per curiam) (“The entry of final
                                        4
     Case: 17-40963          Document: 00514737814            Page: 5      Date Filed: 11/27/2018



                                           No. 17-40963
judgment does not per se decide all motions pending before the trial court.”);
see also Addington v. Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663, 666 & n.2
(5th Cir. Unit A 1981), cert. denied, 454 U.S. 1098 (1981). Instead, we employ
a case-by-case approach to determine the effect of final judgments on pending
motions. See Lapeyrouse v. Texaco, Inc., 670 F.2d 503, 505 (5th Cir. 1982).
        The district court’s final judgment did not operate to overrule Helpert’s
prejudgment motion for new trial so as to start the time to file an appeal
because the court clarified its intent and subsequently made a decision on the
merits. Under circumstances such as these, “the entry of judgment obviously
was not intended to dispose of the motion for new trial.” See Greater Hous.
Chapter of the Am. Civil Liberties Union v. Eckels, 755 F.2d 426, 428 (5th Cir.
1985) (no implied denial when “the district court ordered the parties to brief
the matter on the same day that the judgment was entered, and the court
subsequently considered and made a decision on the motion”); see also United
States v. Pan Am. World Airways, Inc., 299 F.2d 74, 76 (5th Cir. 1962), rev’d on
other grounds sub. nom. 382 U.S. 25 (1965). Of course, a final judgment may
operate to impliedly deny a prejudgment motion, as noted by this circuit and
other sources. 1 But that is not the case here, so we turn to the merits.
                                                  III
        “The court reviews de novo a motion for directed verdict, applying the
same standard as the district court.” X Techs., Inc. v. Marvin Test Sys., Inc.,
719 F.3d 406, 411 (5th Cir. 2013). “If the facts and inferences point so strongly



        1See Edionwe v. Bailey, 860 F.3d 287, 294 (5th Cir. 2017), cert. denied; United States v. Jasso,
634 F.3d 305, 307 n.2 (5th Cir. 2011); Whiting v. Kelly, 255 Fed. App’x 896, 900 (5th Cir. 2007) (per
curiam); Tollett v. City of Kemah, 285 F.3d 357, 369 n* (5th Cir. 2002); Norman v. Apache Corp., 19
F.3d 1017, 1021 (5th Cir. 1994); Unida v. Levi Strauss & Co., 986 F.2d 970, 974 (5th Cir. 1993); 16A
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 3950.4 (4th ed.)
(“However, if the possibility exists that the court’s judgment could be taken to deny a tolling motion
that was made prior to the judgment’s entry, the prudent course is to assume the prejudgment motion
might not have the effect of tolling the time to appeal from the judgment”).
                                                   5
    Case: 17-40963     Document: 00514737814       Page: 6   Date Filed: 11/27/2018



                                   No. 17-40963
and overwhelmingly in favor of one party that the Court believes that
reasonable men could not arrive at a contrary verdict, granting of the motion
is proper.” Id. (citation omitted). “But ‘if reasonable persons could differ in their
interpretations of the evidence,’ a determination of the issue is for the jury.”
Id. (quoting Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 475 (5th Cir.
2005)). In conducting this analysis, we view the facts and draw inferences in
the light most favorable to the nonmovant. Id. “Although our review is de novo,
‘after a jury trial, the standard of review is especially deferential.’” Williams v.
Manitowoc Cranes, L.L.C., 898 F.3d 607, 614 (5th Cir. 2018) (cleaned up and
citations omitted).
      Helpert argues the district court erred in denying his motion for directed
verdict because the evidence established that Walsh was negligent as a matter
of law in failing to keep a proper lookout and in failing to yield the right of way.
This is so, according to Helpert, because Walsh: (1) admitted he caused the
accident; (2) admitted that he did not see Helpert’s vehicle; (3) apologized for
causing the accident; (4) testified that he failed to keep a proper look out and
failed to yield the right of way; and (5) stated that Helpert was not responsible
for the accident. Helpert additionally argues that Walsh’s statement in the
parties’ joint pre-trial order that “the July, 2014 accident was his fault”
constitutes a judicial admission and is similarly conclusive.
      Addressing Helpert’s arguments, we conclude the district court did not
err in denying Helpert’s motion for directed verdict because reasonable persons
could differ in their interpretations of the evidence. X Techs., 719 F.3d at 411.
Under Texas law, “[a]ll persons have the duty to maintain a proper lookout and
to observe in a careful manner the traffic and general situation at and in the
vicinity of an intersection.” Gomez v. Adame, 940 S.W.2d 249, 251 (Tex. App.—
San Antonio 1997, no writ); Lynch v. Ricketts, 314 S.W.2d 273, 275 (Tex. 1958).
However, the mere occurrence of an accident does not equate to negligence.
                                         6
    Case: 17-40963     Document: 00514737814     Page: 7   Date Filed: 11/27/2018



                                  No. 17-40963
Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.—Houston
[14th Dist.] 1989, writ denied); Mata v. Coastal Agric. Supply, Inc., No. 01-17-
00509-CV, 2018 WL 3150869, at *6 (Tex. App.—Houston [1st Dist.] June 28,
2018, no pet.) (mem. op.) (“A driver’s failure to yield the right-of-way does not
give rise to negligence as a matter of law.”). Instead, a party must prove
“specific acts” of negligence, which “is generally a question of fact for the jury
to determine.” Gomez, 940 S.W.2d at 252; Dedear v. James, 184 S.W.2d 319,
321 (Tex. Civ. App.—Austin 1944, writ ref’d w.o.m.). Indeed, “when evidence
shows that the driver exercised some care, ‘it becomes an issue of fact as to
whether the driver’s conduct was negligent.’” Mata, 2018 WL 3150869, at *6
(quoting County of Dallas v. Poston, 104 S.W.3d 719, 723 (Tex. App.—Dallas
2003, no pet.)); Waring v. Wommack, 945 S.W.2d 889, 894 (Tex. App.—Austin
1997, no writ).
      Walsh testified that he stopped, looked, and proceeded only after he
thought the coast was clear; he further explained that Helpert might have been
in his blind spot, thus escaping his view. In addition, Walsh testified that he
was not eating, drinking, or on his phone at the time of the accident. Thus, the
jury could have reasonably determined that Walsh was not negligent in
causing the accident. Helpert’s arguments to the contrary “labor[] under the
misperception that the mere occurrence of a collision establishes negligence as
a matter of law.” Gomez, 940 S.W.2d at 252; see Dedear, 184 S.W.2d at 321
(“The foregoing facts sustain the jury finding that while the truck driver failed
to keep a proper lookout and failed to yield the right of way to the approaching
automobile, that neither of such acts was negligence.”).
      Nor do Walsh’s fault-based statements prove negligence; instead, they
are merely evidentiary admissions that “may be controverted or explained” by
the party who made them. See Martinez v. Bally’s Louisiana, Inc., 244 F.3d
474, 477 (5th Cir. 2001); Risinger v. Shuemaker, 160 S.W.3d 84, 90–91 (Tex.
                                        7
    Case: 17-40963      Document: 00514737814       Page: 8   Date Filed: 11/27/2018



                                     No. 17-40963
App.—Tyler 2004, pet. denied) (defendant’s admission of fault was not
conclusive on the issue of negligence but merely a quasi-admission for the jury
to weigh); see also Bentley v. Snodgrass, No. 10-17-00319-CV, 2018 WL
4623940, at *3 (Tex. App.—Waco Sept. 26, 2018, no pet. h.) (mem. op.) (holding
that a jury could find the driver was not negligent even though he admitted
“that he failed to yield the right of way and that he was financially responsible
for the damages caused by the collision”).
      We also reject Helpert’s argument that Walsh’s statement in the parties’
joint pre-trial order serves as a judicial admission such that it is conclusive on
the issue of negligence. In that same order, Walsh expressly reserved as a
contested issue of fact whether he was negligent in causing the accident. Read
in context, Walsh admitted that he caused the accident, not that he was
negligent. As discussed, one may cause an accident without being negligent.
      And there is no error in the district court’s denial of Helpert’s new-trial
motion, which we review for abuse of discretion. Seibert v. Jackson Cty.,
Mississippi, 851 F.3d 430, 438 (5th Cir. 2017). “Under our precedent, ‘[a] trial
court should not grant a new trial on evidentiary grounds unless the verdict is
against the great weight of the evidence.’” Id. at 439 (quoting Whitehead v.
Food Max of Miss., Inc., 163 F.3d 265, 269 (5th Cir. 1998)). “In other words, the
movant must show ‘an absolute absence of evidence to support the jury’s
verdict.’” Id. (citation omitted).
      Helpert regurgitates many of his above-mentioned arguments and we
reject them for the above-discussed reasons. Wackman v. Rubsamen, 602 F.3d
391, 399 (5th Cir. 2010) (“[O]ur review of a denial of a motion for new trial . . .
is subsumed in our analysis of the denial of a motion for judgment as a matter
of law.”) (internal citation and quotation marks omitted). Helpert’s additional
argument is similarly unavailing. He contends that, because the evidence
“supports only one conclusion” (that Walsh was negligent), the only “plausible
                                          8
     Case: 17-40963       Document: 00514737814          Page: 9     Date Filed: 11/27/2018



                                       No. 17-40963
explanation” for the jury’s no-negligence finding is prejudice. Helpert’s
argument is bottomed on the district court’s admission of his prior theft
convictions and defense counsel’s references to Walsh’s military rank; that is,
Helpert claims he was “clearly prejudiced by his criminal past which was
poorly contrasted by the Defendant’s upstanding character.”
       First, Helpert is wrong that the evidence “supports only one conclusion.”
As explained, although Walsh admitted that he caused the accident and failed
to keep a proper lookout, that does not prove negligence as a matter of law.
While the evidence could support a negligence finding, it also could support a
no-negligence finding. Thus, there is not “an absolute absence of evidence to
support the jury’s verdict.” Williams, 898 F.3d at 614. And although Helpert
never objected to counsel’s mentioning of Walsh’s military rank, whether he
was prejudiced as a result rests on mere speculation; other courts have rejected
similar arguments and we do so here. 2 Nor do we find error regarding the
admission of Helpert’s prior criminal convictions. Under Rule 609(a)(1)(A),
evidence of such a conviction “must be admitted, subject to Rule 403” for the
purpose of impeaching a witness. When the resolution of a case turns largely
on the credibility of a witness, we have held that the probative value of a recent
criminal conviction is “not sufficiently outweighed by the potential for
prejudice to justify exclusion.” Mayes v. Kollman, 560 Fed. App’x 389, 394 (5th



       2 Galmore v. Hanks, 85 F.3d 631 at *3 (7th Cir. 1996) (“For all we know, the jurors
may have been unimpressed or even negatively affected by the military uniform.”); United
States v. Rosenberger, 502 Fed. App’x 389, 395 (5th Cir. 2012) (per curiam) (“The
prosecutor’s reference to a witness’s military service was relevant in the context of the trial
and cannot plausibly be interpreted as bolstering that witness’s credibility.”); Lloyd v. Riley,
No. CV-88-2847, 1990 WL 59592, at *2 (E.D.N.Y. May 3, 1990), aff’d, 930 F.2d 911 (2d Cir.
1991) (“In this case, there was no evidence that the uniform of a third class petty sergeant
unduly prejudiced the jury.”); Datsko v. City of Philadelphia, No. CIV.A. 93-4746, 1995 WL
574364, at *1 (E.D. Pa. Sept. 26, 1995) (“Plaintiff, however, has come forward with no
evidence that unfair prejudice would result from permitting the officers to dress as they
please.”).
                                               9
   Case: 17-40963     Document: 00514737814      Page: 10   Date Filed: 11/27/2018



                                  No. 17-40963
Cir. 2014) (per curiam) (quoting Eugene v. Mormac Marine Transp., Inc., 48
F.3d 529 (5th Cir. 1995) (unpublished)). Such is the case here: Helpert’s
credibility was central to this case; his account of the accident and the extent
of his alleged injuries was critical to Walsh’s liability and the millions Helpert
sought in damages. We find no error with its admission and Helpert has not
demonstrated sufficient prejudice so as to justify a new trial.
                                       IV
      AFFIRMED.




                                       10
