     Case: 12-30386       Document: 00512152915         Page: 1     Date Filed: 02/22/2013




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

                                                                            FILED
                                                                         February 22, 2013

                                     No. 12-30386                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DON RANDAL JACKSON,

                                                  Plaintiff–Appellee /
                                                  Cross–Appellant
v.

STRANCO, INCORPORATED,

                                                  Defendant–Appellant /
                                                  Cross–Appellee



                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                            U.S.D.C. No. 2:08-CV-4293


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Stranco, Incorporated, appeals from an adverse jury verdict and judgment
entered in favor of Don Randal Jackson. Jackson cross-appeals the district
court’s nonspecific award of “legal interest.” We AFFIRM the district court’s
judgment on the jury’s verdict and damage award, and VACATE and REMAND



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30386       Document: 00512152915         Page: 2    Date Filed: 02/22/2013



                                      No. 12-30386

for further consideration the portion of the court’s judgment awarding “legal interest.”
       A few weeks after Hurricane Katrina struck the Gulf Coast, Jackson
assembled a small work crew and traveled from Florida to St. Tammany Parish,
Louisiana, to help clear debris from storm-ravaged areas. The Government
hired Omni Pinnacle, LLC, (“Omni”) to organize debris-clearing efforts. Omni
subcontracted with Stranco, who in turn subcontracted with several nonparties
to this suit. Jackson originally contracted with two of the nonparties, but he
soon contracted directly with Stranco to work in various places, including the
town of Abita Springs.1 Jackson’s crew grew to a few dozen “subcontractors.”
He claims his crew had exclusive responsibility for Abita Springs.
       The contractors received payment for each cubic yard of cleared debris.
Independent monitors issued “truck tickets” to Jackson and his subcontractors
as they unloaded debris at the city dump, indicating the number of cubic yards
collected in each load. Jackson collected the truck tickets at the end of each day
and passed them along to Stranco. Stranco then billed Omni, who billed the
Government. Jackson paid his subcontractors various rates per cubic yard,
depending on whether the individual used Jackson’s equipment and other
factors. At trial, an independent auditor testified that his records showed that
roughly 61,182 cubic yards of debris were removed from Abita Springs from
October 2005 through February 2006 (the “Kyle Report”). Stranco produced an
invoice that showed Stranco had billed Omni for 51,532 cubic yards through
February 26, 2006.2

       1
         The parties stipulated at trial that Jackson had a contract with Stranco, but the
record is not clear whether that stipulation extended to an agreement that Jackson’s contract
began in October 2005. Stranco argued that the contract began no earlier than November
2005. Regardless, the jury appropriately settled on an October start-date.
       2
         Stranco argues that the district court erred in admitting this document because it
listed billings to other contractors. Stranco fails to show that it suffered prejudice. The
document went to the jury in redacted form, and Stranco provides no real explanation for how
the document improperly influenced the jury’s damage calculation.

                                             2
     Case: 12-30386       Document: 00512152915          Page: 3     Date Filed: 02/22/2013



                                       No. 12-30386

       Jackson’s relationship with Stranco eventually unraveled, and he quit at
the end of February 2006. Jackson claimed that Stranco had not paid him as
agreed, thereby making him unable to pay some of his subcontractors. Jackson
later filed this lawsuit to collect the allegedly unpaid amounts.3                   Stranco
counterclaimed. It asserted that it had overpaid Jackson, and that Jackson had
pocketed amounts due to his subcontractors. Stranco paid several of Jackson’s
subcontractors $5 per cubic yard in exchange for a release and assignment of any
claims they might have against Jackson.
       The case went to trial. In short, “the evidence was profuse, somewhat
fragmentary, and conflicting in critical areas.” Conway v. Chem. Leaman Tank
Lines, Inc., 610 F.2d 360, 367 (5th Cir. 1980). Given the passage of time, the
exigencies of working in a disaster zone, and subsequent alleged events in
Jackson’s life, he lacked “hard” evidence documenting many of the oral
agreements and payments central to the parties’ dispute. He relied primarily
on his memory and Stranco’s evidence, including spreadsheets and other
documents. The parties continued to sift through evidence throughout trial.
Their attorneys stipulated to a number of matters in an effort to narrow and
clarify issues for the jury, and they participated in numerous side-bar
conferences with the district judge. The jury ultimately had to decide three
issues: (1) whether the Jackson/Stranco agreement provided for $6 or $7 per
cubic yard; (2) whether Stranco owed Jackson and, if so, how much; and (3)
whether Jackson owed Stranco and, if so, how much.
       The jury ruled in Jackson’s favor and concluded that Stranco owed him
$161,381.43—a figure that reflected a “netting” of sums paid to Jackson and
subcontractors against what Stranco owed Jackson.                      The district court


       3
        Stranco contends that this case fails to meet the amount-in-controversy requirement.
Jackson’s and Stranco’s pleadings, however, both clearly establish that their dispute concerned
several hundred thousand dollars in alleged damages at the time the action was filed.

                                              3
     Case: 12-30386        Document: 00512152915           Page: 4      Date Filed: 02/22/2013



                                         No. 12-30386

accordingly entered judgment, and later amended that judgment to award
Jackson “legal interest.” Stranco moved for judgment as a matter of law and for
a new trial. The district court concluded that adequate evidence supported the
verdict and denied both motions.
       On appeal, Stranco challenges the district court’s denial of its motions for
judgment as a matter of law and for a new trial. In Stranco’s view, the jury
disregarded the “only empirical data and evidence at trial” and instead
improperly accepted as true Jackson’s unsubstantiated claims and speculation.
The jury compounded that mistake, Stranco argues, by crediting Jackson for
work done by other contractors who cleared debris in Abita Springs, and by
making other errors attributable to “confusion” over several aspects of the case,
including misunderstanding the import of the parties’ stipulations.
       “‘A motion for judgment as a matter of law . . . in an action tried by jury
is a challenge to the legal sufficiency of the evidence supporting the jury’s
verdict.’” Ford v. Cimarron Ins. Co., 230 F.3d 828, 830 (5th Cir. 2000) (omission
in original) (citation omitted).           We usually review such rulings de novo.
Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316, 1322-23 (5th Cir. 1994).
However, we review only for plain error where, as here, a party fails to raise in
its pre-verdict motion the same issues raised in its post-verdict motion.4 See
Roman v. W. Mfg., Inc., 691 F.3d 686, 699-700 (5th Cir. 2012) (citing, inter alia,
Bay Colony Ltd. v. Trendmaker, Inc., 121 F.3d 998, 1003-04 (5th Cir. 1997)). In
such cases, we must “uphold the jury’s resolutions if we discern ‘any evidence’
in support.” 691 F.3d at 700 (quoting United States ex rel. Wallace v. Flintco,
Inc., 143 F.3d 995, 964 (5th Cir. 1998)).



       4
         Stranco moved for a directed verdict at the close of Plaintiff’s evidence by stating only:
“I think I know how you’re going to rule on this before I make the motion, but in the break I
should have made my motion for a directed verdict.” The district judge replied, “I wondered,”
and denied the motion.

                                                4
     Case: 12-30386      Document: 00512152915         Page: 5     Date Filed: 02/22/2013



                                      No. 12-30386

       We review rulings on motions for new trials for abuse of discretion.
Bernard v. IBP, Inc. of Neb., 154 F.3d 259, 264 (5th Cir. 1998). In practice, “our
review is more narrow when a new trial is denied than when one is granted.”
Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir. 1998). A “denial will be
affirmed unless, on appeal, the party that was the movant in district court
makes a ‘clear showing’ of ‘an absolute absence of evidence to support the jury’s
verdict[.]”’ Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 269 (5th Cir.
1998) (citation omitted). A jury’s damage award will stand unless clearly
erroneous. Myers v. Griffin-Alexander Drilling Co., 910 F.2d 1252, 1255 (5th Cir.
1990).
       Stranco’s arguments fall short of these stringent standards. The jury
confronted a melange of conflicting and confusing documents, numbers, and
testimony. “[I]n constructing its own view of what most probably happened, this
jury could have reached a number of different conclusions, all of which would
have sufficient support in th[e] evidence to be upheld.” Conway, 610 F.2d at 367.
       The jury’s findings nonetheless have a simple explanation: the jury
believed Jackson and resolved disputed fact issues in his favor. The jury
apparently accepted         testimony showing that Jackson had exclusive
responsibility for Abita Springs and, thus, reasoned that his crews collected the
full 61,182 cubic yards of debris logged in the Kyle Report. Taking that amount,
at $7 per cubic yard, minus the three credit amounts Jackson agreed were due
to Stranco, results in the damage award arrived at by the jury.5



       5
        More accurately, the jury found—in line with Jackson’s testimony—that Stranco owed
Jackson $7 per cubic yard for debris collected between October and December 2005, and $6 per
cubic yard for January and February 2006. Jackson accounted for this by testifying that, if
the jury used $7 per cubic yard, he would owe Stranco a credit for $12,816.18. He also
conceded that Stranco had already paid him $145,482.27, and that he owed his subcontractors
$108,594.12. Multiplying 61,182 cubic yards by $7 results in $428,274. Subtracting Jackson’s
three credits from that equals $161,381.43—the damage award.

                                             5
     Case: 12-30386       Document: 00512152915          Page: 6     Date Filed: 02/22/2013



                                       No. 12-30386

       Stranco resists this conclusion primarily by arguing that Jackson lacked
credibility and construing conflicting evidence in its favor. We decline this
invitation to substitute our own views for that of the jury. See Foradori v.
Harris, 523 F.3d 477, 485 (5th Cir. 2008)
       Stranco also asserts that the jury erred by rejecting its calculation of the
amount Jackson owed his subcontractors. At trial, the parties extensively
discussed Defense Exhibit 30 (“Exhibit 30”), a Stranco spreadsheet listing some
of Jackson’s subcontractors and the amount Jackson allegedly failed to pay each
of them. Stranco paid the subcontractors the amounts listed for each as provided
in Exhibit 30, totaling $154,592.82, which was calculated assuming that Jackson
had agreed to pay each one a rate of $5 per cubic yard. When Jackson reviewed
Exhibit 30 at trial, however, he refuted Stranco’s calculations by contending that
some of the listed subcontractors had (1) already been paid by him; (2) agreed to
a rate lower than $5 per cubic yard; or (3) claimed amounts that were never due
to them in the first place. After accounting for these factors, Jackson agreed
that he owed various subcontractors a total of $108,594.12, and the jury’s
damage award calculation incorporates that amount.
       Stranco objects that Jackson presented no objective, tangible evidence to
support that and other conclusions. As to Exhibit 30, Jackson could have—and
did—testify from his personal knowledge as to whether particular contractors
remained unpaid and whether they worked for $5 per cubic yard or some other
amount. Indeed, a sizable part of the difference between Stranco’s proffered
amount and Jackson’s comes from Jackson’s excluding an individual allegedly
owed over $25,000, but who Jackson said worked for only three days.6



       6
          Stranco claims this individual was one of Jackson’s business partners. Jackson
testified that the partnership never materialized and that the putative partner worked for only
a few days. The district court concluded that Stranco provided “no evidence” on this issue and
that Jackson had standing to bring this case. We leave those determinations undisturbed.

                                              6
     Case: 12-30386        Document: 00512152915           Page: 7     Date Filed: 02/22/2013



                                        No. 12-30386

       Jackson claimed that much of his documentation was lost during a falling-
out with a woman who helped run his business. The district court, at Stranco’s
insistence, gave the jury an “adverse presumption” instruction that essentially
permitted the jury to use Jackson’s lack of evidence in Stranco’s favor. That the
jury apparently accepted Jackson’s explanations and refused to draw the
presumptions Stranco preferred does not mean that the jury rendered its verdict
against the evidence or miscalculated its damage award.
       “On this record, the jury’s conclusions are at least as likely to be true as
any others, are not at variance with any established physical laws, and are not
against any great evidentiary weight.” Conway, 610 F.2d at 367. Nor can we
say that the damage award is clearly erroneous.                      The parties presented
numerous genuinely disputed issues of material fact, and the jury “sorted it out,”
albeit overwhelmingly in Jackson’s favor. It appropriately did so under the “any
evidence” standard of review applicable here.
       Accordingly, we AFFIRM the district court’s judgment in Jackson’s favor
along with the jury’s calculated damage award. We VACATE the district court’s
award of “legal interest”and REMAND for clarification of the amounts of pre-
and post-judgment interest owed by Stranco to Jackson.7




       7
         We vacate the district court’s interest award because there appears to be a factual
dispute as to when Jackson put Stranco on notice of his claims. Resolution of that dispute
controls the award of pre-judgment interest. See, e.g., St. Paul’s Evangelical Lutheran Church
v. Quick Response Restoration, Inc., 381 F. App’x 408, 412 (5th Cir. 2010) (unpublished)
(“Louisiana substantive law presumes that interest will be awarded on judgments, and ‘a debt
or claim for the payment of money or damages under a contract is ascertainable and becomes
due on the date an active violation occurred or the obligor was put in default, which can be
earlier but never later than judicial demand, and legal interest runs from that date.’” (citations
omitted)).

                                                7
