09-4954-cv
Ladenburg Thalmann & Co., Inc. v. Modern Continental Construction Holding Company, Inc.

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure
32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 9th day of November, two thousand and ten.

PRESENT:

          JOHN M. WALKER, JR.,
          JOSÉ A. CABRANES,
                               Circuit Judges,
          JOHN G. KOELTL,
                               District Judge.*
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LADENBURG THALMANN & CO., INC.,

                     Plaintiff-Appellee,

                     -v.-                                                                  No. 09-4954-cv

MODERN CONTINENTAL CONSTRUCTION HOLDING
COMPANY, INC.,

                     Defendant-Appellant.

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FOR PLAINTIFF-APPELLEE:                                        DAVID M. OLASOV (Rachel L Hollander, on the brief),


          *
          The Honorable John G. Koeltl, of the United States District Court for the Southern
District of New York, sitting by designation.

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                                              Olasov & Hollander, LLP, New York, NY.

FOR DEFENDANT-APPELLANT:                      ERIC F. EISENBERG (Jennifer V. Doran, on the brief),
                                              Hinkley, Allen & Snyder, LLP, Boston, MA.

       Appeal from a January 20, 2010, judgment of the United States District Court for the
Southern District of New York (Samuel Conti, Judge).1

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court be AFFIRMED.

        Plaintiff-Appellee Ladenburg Thalmann & Co., Inc., brought this action against defendant-
appellant Modern Continental Construction Holding Company, Inc. for breach of contract arising
from an agreement under which Ladenburg was retained by Modern to provide financial advice
and pursue financing opportunities. Ladenburg alleges a credit and security facility provided to
Modern by St. Paul Fire and Marine Insurance Company, Inc. entitles Ladenburg to compensation
under its agreement with Modern. After a two-day trial and jury verdict in favor of Ladenburg, on
January 20, 2010, the District Court denied Modern’s motion for judgment as a matter of law
under Fed. R. Civ. P. 50 or for a new trial under Fed. R. Civ. P. 59. Modern filed a timely appeal.
We assume parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

         On appeal, Modern argues that the District Court erred in (1) denying Modern’s motion
for judgment as a matter of law pursuant to Fed. R. Civ. P. 50 due to the District Court’s
mischaracterization of St. Paul’s provision of funding to Modern as a “loan” included in the
definition of “transaction” under Modern’s agreement with Ladenburg and insufficient evidence
establishing that Modern contacted St. Paul during the term of its agreement with Ladenburg for
the purpose of obtaining funding or a loan; (2) permitting Ladenburg to take depositions of two
witnesses before trial but after discovery concluded and denying its motion in limine to exclude
evidence of Modern’s efforts to complete a transaction with Ableco—another potential source of
funding—prior to terminating its agreement with Ladenburg; and (3) denying its motion for a new
trial pursuant to Fed R. Civ. P. 59 due to the District Court’s refusal to give jury instructions
requested by Modern or use a proposed verdict form submitted by the parties.




       1
         This case commenced before Judge Deborah A. Batts, of the United States District Court
for the Southern District of New York, but was reassigned on October 2, 2009 to Judge Samuel
Conti, of the United States District Court for the Northern District of California, sitting by
designation in the United States District Court for the Southern District of New York.

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Judgment as a Matter of Law

         We review the denial of a motion for judgment as a matter of law de novo, and will grant the
motion only if “a reasonable jury would not have a legally sufficient evidentiary basis to find for
the [non-movant] on that issue.” Fed. R. Civ. P. 50(a)(1); see also Cameron v. City of New York, 598
F.3d 50, 59-60 (2d Cir. 2010). A court should grant a motion for judgment as a matter of law after
the jury has returned a verdict only when there is “such a complete absence of evidence supporting
the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture,
or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair
minded men could not arrive at a verdict against [it].” Song v. Ives Labs., Inc., 957 F.2d 1041, 1046
(2d Cir. 1992) (citations omitted).

        Here, having conducted an independent review of the record on appeal, we conclude, for
substantially the reasons stated by the District Court in its well-reasoned order of March 23, 2009,
Ladenburg Thalmann & Co., Inc. v. Modern Continental Construction Company, Inc., No. 04-Civ-974, 2009
WL 855654, at *4-5 (S.D.N.Y. March 23, 2009), that the provision of funding by St. Paul to
Modern constituted a “loan” within the definition of a “transaction” under the Agreement
between Modern and Ladenburg. Specifically, the funding arrangement that Modern pursued with
St. Paul—a term and revolving credit facility—was precisely the arrangement which Ladenburg
had pursued on Modern’s behalf with other potential lenders. Id. Accordingly, we agree with the
District Court that “[i]t is not reasonable to interpret the definition of ‘Transaction’ under the
Agreement to exclude loans deals, given that the parties engaged in the negotiation of two such
deals under the Agreement.” Id.

        Moreover, we also conclude, for substantially the reasons stated by the District Court in its
comprehensive order of January 20, 2010, Ladenburg Thalmann & Co., Inc. v. Modern Continental
Construction Company, Inc., No. 04-Civ-974 (S.D.N.Y. Jan. 20, 2010), that the District Court did not
err in deferring to the jury’s conclusion that Modern contacted St. Paul during the term of its
Agreement with Ladenburg for the purpose of obtaining funding. Both the testimony at trial and
the text of the draft credit facility prepared by St. Paul suggest that—as the prospects of alternative
funding sources diminished—Modern contacted St. Paul in search of funding. Id. at *5-6.
Though both Modern and St. Paul executives testified to the fact that Modern did not formally ask
St. Paul for a loan, the jury’s decision not to credit such testimony does not render it’s verdict the
product of “ sheer surmise and conjecture.” Song, 957 F.2d at 1046.

De Bene Esse Depositions and the Ableco Exhibition

        We review a district court’s evidentiary rulings for “abuse of discretion,” and will reverse
only for manifest error. Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003). “A district court

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has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence, or rendered a decision that cannot be located within the
range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (citation, alteration,
and internal quotation marks omitted). The District Court reasonably allowed depositions to be
taken to establish the admissibility of documents that Modern refused to stipulate were admissible,
although there appeared to be no reasonable basis to contest their admissibility. Furthermore,
having leaned heavily on the depositions at trial in furtherance of its case, Modern cannot now
claim that the decision to admit those depositions lay outside “the range of permissible decisions.”
We afford “wide latitude” to the District Court both in determining whether evidence is
admissible, Meloff v. New York Life Ins. Co., 240 F.3d 138, 148 (2d Cir. 2001), and in controlling “the
mode and order” of its presentation to promote the effective ascertainment of the truth, Fed. R.
Evid. 611(a). We therefore cannot conclude that the District Court abused its discretion in
permitting Ladenburg to depose John Pastore and Martha Gaines.

        Similarly, Modern’s contention that the District Court abused its discretion by admitting
evidence of its aborted financing discussions with Ableco is without merit. We cannot say that it
was a “clearly erroneous assessment of the evidence” to conclude that the jury was entitled to
know that Ableco and Modern were in discussions regarding potential funding arrangements when
Modern simultaneously terminated its agreement with Ladenburg and announced a deal with St.
Paul—particularly because the structure of the financing with St. Paul mirrored the putative
arrangement under discussion with Ableco. The District Court, therefore, did not err, much less
abuse its discretion, in permitting Ladenburg to introduce evidence of Modern’s discussions with
Ableco at trial.

Motion for a New Trial

         “A motion for a new trial ordinarily should not be granted unless the trial court is
convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage
of justice.” Atkins v. New York City, 143 F.3d 100, 102 (2d Cir. 1998) (quoting Lightfoot v. Union
Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997)). Unlike a motion for judgment as a matter of law,
a motion for a new trial may be granted even if there is substantial evidence to support the jury’s
verdict. Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d Cir. 2000). In reviewing the District Court’s
denial of Modern’s Rule 59 motion, “we view the evidence in the light most favorable to the
nonmoving party and will reverse only if the trial court’s denial of the new trial motion constitutes
an abuse of discretion.” Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004) (internal
quotation marks omitted).

        Here, we agree with the District Court that Modern’s proposed jury instructions—which
the District Court rejected or modified—were more likely to create confusion than to avoid it.

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Ladenburg Thalmann & Co., Inc. v. Modern Continental Construction Company, Inc., No. 04-Civ-974, at *7
(S.D.N.Y. Jan. 20, 2010). The only question of fact for the jury to decide was whether Modern
contacted St. Paul in order to secure funding while its agreement with Ladenburg was in effect. It
was not an abuse of discretion, therefore, for the District Court to present the jury with
instructions and a verdict form that simply and succinctly addressed that question. Moreover, after
an independent review of the evidence, we conclude that Modern cannot demonstrate that the
jury’s verdict is either “seriously erroneous” or a “miscarriage of justice”—this trial turned on the
credibility of Modern’s witnesses, and we defer “to the jury’s determination of the weight of the
evidence and the credibility of the witnesses, and to the jury’s choice of the competing inferences
that can be drawn from the evidence.” United States v. Torres, 604 F.3d 58, 66 (2d Cir. 2010).

                                         CONCLUSION

        We have considered each of Modern’s arguments on appeal and find them to be without
merit. For the reasons stated above, we AFFIRM the judgment of the District Court.



                                               FOR THE COURT,

                                               Catherine O’Hagan Wolfe, Clerk of Court




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