                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 27, 2005
                       _______________________
                                                          Charles R. Fulbruge III
                             No. 04-40537                         Clerk
                       _______________________

                       H.E. STEVENSON; ET AL,

                             Plaintiffs,

         H.E. STEVENSON, DIANA STEVENSON, AND SHARON HARPER,

                      Plaintiffs - Appellants,

                                 v.

                 E.I. DUPONT DE NEMOURS AND COMPANY,

                        Defendant - Appellee.

                       _______________________

            Appeal from the United States District Court
                 for the Southern District of Texas
                              (01-CV-24)
                       _______________________

Before SMITH, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     This is a trespass case, which now makes its second

appearance before this court.    In the original appeal of this

case, we affirmed a jury finding of liability but reversed and

remanded to allow the plaintiffs to present additional evidence

of damages at a new trial.    Shortly before the second trial,

however, the district court entered judgment in favor of the

     *
      Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

                                  1
defendant.    The court concluded that two of the original jury

questions established that the plaintiffs suffered no damages.

Because the district court’s actions violated the mandate rule,

we reverse.

     H.E. Stevenson, Dianna Stevenson, and Sharon Harper sued

DuPont for negligence, nuisance, and trespass based on DuPont’s

emission of heavy metal particulates from its plant in Victoria,

Texas.   The plaintiffs alleged that these particulates damaged

their properties, which are located near the plant.       The case

went to trial in the Southern District of Texas; the jury found

in favor of DuPont on the plaintiffs’ negligence and nuisance

claims but found that DuPont had trespassed on the plaintiffs’

land.

     Four verdict-form questions——6, 8, 11(a), and 12(a)——are

crucial here.    Question 6 laid the groundwork for possible mental

anguish damages.    It read, “Do you find from a preponderance of

the evidence that the trespass, if any, committed by DuPont

against the property of the Stevensons was willful and that the

trespass caused actual damages to the Stevenson’s [sic]

Property?”    Question 8 was the same, with Harper’s name

substituted for the Stevensons’.       The jury answered both “no.”

Later questions, however, contained different queries related to

damages for permanent trespass injury.       Question 11(a) asked,

“What is the difference in the market value of the property owned

by H.E. Stevenson and Dianna Stevenson immediately before and

                                   2
immediately after the damage you have found was proximately

caused by DuPont’s operation of the Victoria Plant?”     The jury

provided the amount of $168,000 as the answer to this question.

Question 12 asked the same question with regard to Harper’s

property, to which the jury answered with the amount of $96,000.

The district court entered judgment in those amounts.

       DuPont appealed.   On appeal, a panel of this court

determined that airborne particulates’ entry onto the plaintiffs’

land could be a trespass and that the plaintiffs had produced

sufficient evidence of that entry.     Stevenson v. E.I. DuPont De

Nemours & Co. (“Stevenson I”), 327 F.3d 400, 408 (5th Cir. 2003).

The court concluded, however, that the jury could not have

awarded damages for permanent injury to land——“the difference in

the market value of the land immediately before and immediately

after the trespass”——because “[n]o evidence was presented to show

the value of the land before the trespass began.”     Id. at 409.

The court remanded the case for a new trial on damages.      Id. at

410.

       Following remand, the parties conducted additional discovery

about damages.    DuPont then filed Daubert1 motions that sought to

exclude the plaintiffs’ expert witnesses.     The district court

denied all of these motions.

       The day after denying the Daubert motions, the district


       1
        Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

                                   3
court conducted a pretrial conference to hear limine motions.    In

the middle of hearing these motions, the district court stated,

“You know this is just so crazy. . . .   I just don’t know why

we’re here.   I’m sorry.   You know what I’m thinking about doing?

Let me go off the record.”   The district court recessed and then

returned to enter judgment in DuPont’s favor.   The district court

provided the following reasons for its actions: “I’m going to

just give judgment in favor of DuPont based on the jury answers

to Questions 6 and 8, which said no damages as a result of the

trespass.”    The judgment, too, indicates that it is based on “the

jury findings in Questions No. 6 and 8 of the Verdict Form from

the original trial.”   The Stevensons and Harper appealed.

     In this appeal, the Stevensons and Harper argue that the

district court violated the mandate rule by entering judgment on

the original jury findings instead of holding a new trial on

damages. “Absent exceptional circumstances, the mandate rule

compels compliance on remand with the dictates of a superior

court and forecloses relitigation of issues expressly or

impliedly decided by the appellate court.”    United States v. Lee,

358 F.3d 315, 321 (5th Cir. 2004).    Based on this rule, “a lower

court on remand ‘must implement both the letter and the spirit of

the appellate court's mandate and may not disregard the explicit

directives of that court.’” Id. (quoting United States v.

Matthews, 312 F.3d 652, 657 (5th Cir. 2002)).   The mandate rule


                                  4
is subject to three exceptions: “(1) The evidence at a subsequent

trial is substantially different; (2) there has been an

intervening change of law by a controlling authority; and (3) the

earlier decision is clearly erroneous and would work a manifest

injustice.”   Matthews, 312 F.3d at 657.    We review whether the

district court departed from the mandate de novo.     See United

States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004).

     The district court violated the mandate rule.    We determined

in the original appeal that the appropriate measure of damages

was the difference in the value of the land before and after the

trespass, and we remanded the case for trial on that amount.

Stevenson I, 327 F.3d at 409.   On remand, however, the district

court decided that the amount of damages was controlled by the

jury’s answer to the question asking whether the trespass was

willful and caused actual damages.   In reaching this conclusion,

the district court did not follow this court’s mandate.

     Nevertheless, DuPont argues that the district court’s

actions were proper.2   Its principal argument is that the

mandate, with its remand of this case for trial, did not prevent

the district court from granting summary judgment based on the

plaintiffs’ failure to provide adequate expert evidence of the

properties’ value before the trespass.     DuPont argues that this



     2
      DuPont does not defend the entry of judgment based on the
original jury findings.

                                 5
is exactly what the district court did.

     The record does not support DuPont’s characterization of the

ruling as a sua sponte summary judgment based on defects in

expert testimony.   While there were some discussions about expert

testimony during the pretrial conference in which the district

court entered judgment, the court did not enter judgment

immediately after those discussions.   In fact, just before the

court’s ruling, the parties and the judge addressed how long the

parties could question witnesses about DuPont’s plant operations.

Moreover, only one day earlier, the district court had denied

DuPont’s Daubert motions to exclude the testimony of the

plaintiffs’ expert.   Finally, the district court’s statement of

reasons for the judgment does not refer to experts; it relies

solely on the jury answers from the trial.3   In this

circumstance, we decline to transform the district court’s entry

of judgment on the original jury findings into a sua sponte entry

of summary judgment on the basis of expert testimony.4


     3
      DuPont analogizes this situation to that in Brumley Estate
v. Iowa Beef Processors, Inc., 704 F.2d 1351 (5th Cir. 1983). In
Brumley Estate, we affirmed a partial summary judgment even
though the district court had provided no reason for its ruling.
Id. at 1362. Brumley Estate is distinguishable; there the
relevant facts were undisputed and the appellants “concede[d] the
reason for the district court’s ruling.” Id. at 1359. That is
not the case here.
     4
      We also note that although a district court may grant
summary judgment sua sponte, when it does so, the court must
“provide adequate notice and an opportunity to respond akin to
that required by [FED. R. CIV. P.] 56(c).” Mannesman Demag Corp.

                                 6
     In the alternative, DuPont argues that this case presents

the kind of “exceptional circumstances” that would permit

deviation from the mandate rule.       Although it claims that

exceptional circumstances exist, DuPont does not argue that this

case falls within any of the three recognized exceptions to the

mandate rule.   In other words, it does not argue that the

evidence was substantially different at the second trial, that

there has been a change in controlling authority, or that the

earlier decision was incorrect and would result in a manifest

injustice.   Instead, DuPont relies on the same failure of proof

arguments that it raises for its summary judgment argument.      This

possible failure of proof does not justify creating a new

exception to the mandate rule.

     For these reasons, we reverse the judgment of the district

court and remand this case for trial on damages.

REVERSED AND REMANDED.




v. M/V Concert Express, 225 F.3d 587, 595 (5th Cir. 2000).

                                   7
