          Case: 16-16655   Date Filed: 04/12/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-16655
                      ________________________

                  D.C. Docket No. 1:11-cv-01366-CAP



CHEMENCE MEDICAL PRODUCTS, INC.,

                             Plaintiff - Counter Defendant - Appellant,

CHEMENCE, INC.,

                             Consol Plaintiff - Counter Defendant - Appellant,

                                 versus

JAMES QUINN,

                             Defendant - Counter Claimant - Appellee.


                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (April 12, 2017)
                Case: 16-16655        Date Filed: 04/12/2017       Page: 2 of 6


Before WILSON and BLACK, Circuit Judges, and RESTANI, * Judge.

PER CURIAM:

       Chemence, Inc. (Chemence) and Chemence Medical Products, Inc. (CMPI)

appeal the district court’s denial of their motion for judgment as a matter of law, its

denial of their motion for a new trial, and certain of its evidentiary rulings in this

litigation against Dr. James Quinn. After consideration of the parties’ briefs, and

with the benefit of oral argument, we affirm. 1

       Chemence and CMPI (together, the Chemence Parties) raise seven issues in

this appeal. First, they contend the district court erred in granting judgment as a

matter of law because the oral contract between CMPI and Quinn was barred by

the statute of frauds. Second, they assert the district court erred in excluding the

testimony of the Chemence Parties’ attorney, Robert Wilson. Third, the Chemence

Parties argue the district court erred in refusing to grant judgment as a matter of

law to them on Quinn’s corporate alter ego theory. Fourth and fifth, they submit

       *
          Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
       1
          This Court reviews de novo a motion for judgment as a matter of law, and must
determine whether a reasonable jury would have had a legally sufficient evidentiary basis to find
for the non-moving party on that issue. Fed. R. Civ. P. 50(a)(1), (b); Abel v. Dubberly, 210 F.3d
1334, 1337 (11th Cir. 2000). “[T]he court must evaluate all the evidence, together with any
logical inferences, in the light most favorable to the non-moving party.” McGinnis v. Am. Home
Mortg. Servicing, Inc., 817 F.3d 1241, 1254 (11th Cir. 2016) (quotation omitted). The motion
will be denied if “reasonable minds could reach differing verdicts.” Abel, 210 F.3d at 1337.

       A district court’s evidentiary rulings are reviewed for an abuse of discretion. Proctor v.
Fluor Enter., Inc., 494 F.3d 1337, 1349 n.7 (11th Cir. 2007). Finally, this Court reviews a ruling
on a motion for a new trial for abuse of discretion. McGinnis, 817 F.3d at 1255.
                                                2
                Case: 16-16655        Date Filed: 04/12/2017      Page: 3 of 6


that the district court abused its discretion when it excluded their damages witness

and permitted Quinn’s damages witness to testify. Sixth, they contend Quinn’s

future damages were not recoverable under Georgia law and the district court

should have granted judgment as a matter of law on that basis. Finally, the

Chemence Parties assert the district court should have granted their motion for a

new trial on Quinn’s claim that the Chemence Parties acted in bad faith in bringing

an action against him for violation of the Georgia Trade Secrets Act. 2

                                       I. DISCUSSION

A. Statute of Frauds

       The Chemence Parties acknowledge there was an oral agreement with Quinn

but contend that agreement was unenforceable under Georgia’s statute of frauds.

See O.C.G.A. § 13-5-30. Their argument consists primarily of two points. First,

Quinn argued at trial that the oral agreement included the terms of his prior written

agreement with CMPI. According to the Chemence Parties, some of those terms

could not have been performed within one year. See id. § 13-5-30(5) (statute of

frauds applies to “[a]ny agreement that is not to be performed within one year from

the making thereof”). Second, the Chemence Parties insist Quinn cannot avail

himself of the part performance exception to the statute of frauds because his

actions must have been both “consistent with the presence of [the alleged oral]

       2
         We discuss only the first and second issues in this opinion and affirm the remaining
issues without discussion.
                                                3
              Case: 16-16655     Date Filed: 04/12/2017   Page: 4 of 6


contract and inconsistent with the [absence] of [it].” Morgan v. Am. Ins.

Managers, Inc., 521 S.E.2d 676, 678 (Ga. Ct. App. 1999) (quotation omitted); see

O.C.G.A. § 13-5-31(3) (statute of frauds does not apply “[w]here there has been

such part performance of the contract as would render it a fraud of the party

refusing to comply if the court did not compel a performance”).

      We need not determine whether the contract could have been performed

within one year because the evidence was sufficient for a reasonable jury to find

that Quinn rendered part performance and thus the oral agreement was removed

from the statute of frauds. It is undisputed that Quinn continued to perform his

duties, which the Chemence Parties accepted—indeed, they continued paying him

his $4,000 consulting fee, consistent with the terms of the alleged oral agreement.

Quinn provided medical and scientific advice, conducted testing to support the

Chemence Parties’ submissions to the FDA, answered customers’ questions, and

met with FDA representatives, all after the written agreement had expired. In

addition, the jury was permitted to credit Quinn’s testimony that when he was

solicited to perform consulting work for a competitor, he refused and continued to

put his best efforts into his work for the Chemence Parties because he was entitled

to commissions. According to Quinn, he notified the Chemence Parties of the

solicitation immediately and they expressed concern that he would leave. These

and other facts recounted by the district court show there was sufficient evidence


                                         4
               Case: 16-16655     Date Filed: 04/12/2017    Page: 5 of 6


on which a reasonable jury could find the oral contract fell within the part

performance exception to the statute of frauds. See Hemispherx Biopharma, Inc. v.

Mid-S. Capital, Inc., 690 F.3d 1216, 1226–27 (11th Cir. 2012) (“The question of

whether there has been part performance sufficient to warrant application of this

exception to the statute of frauds is generally one for the jury.” (citing Hathaway v.

Bishop, 449 S.E.2d 318, 320 (Ga. Ct. App. 1994))).

B. Exclusion of Wilson

      The Chemence Parties also contend the district court erred when it excluded

Robert Wilson, the Chemence Parties’ general counsel, from serving as a witness

at trial. Our review of the district court’s decision here is “sharply limited to a

search for an abuse of discretion and a determination that the findings of the trial

court are fully supported by the record.” Mee Indus. v. Dow Chem. Co., 608 F.3d

1202, 1211 (11th Cir. 2010) (quotation omitted). We find no such abuse of

discretion. The district court accurately assessed the history of the case, including

the Chemence Parties’ multiple representations to the court that Wilson would not

serve as a witness, resulting in the court’s permitting him to continue as litigation

counsel over Quinn’s objection. As a result, Wilson participated in all subsequent

discovery in the case. The district court was within its discretion to grant Quinn’s

motion to exclude Wilson as a witness.




                                           5
        Case: 16-16655    Date Filed: 04/12/2017    Page: 6 of 6


                          II. CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.




                                   6
