     Case: 11-11158     Document: 00511957212         Page: 1     Date Filed: 08/15/2012




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

                                                                            FILED
                                                                          August 15, 2012
                                     No. 11-11158
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

COURIER SOLUTIONS INCORPORATED,

                                                  Plaintiff - Appellee

v.

CSA DELIVERY INCORPORATED, doing business as Courier Solutions of
America Incorporated; WOODROW CLAYTON, SR.; WOODROW CLAYTON,
JR.; DARLENE CLAYTON; ACTION COURIER & LOGISTICS L.L.C.; NORTH
AMERICAN PRESORT INCORPORATED; HOUSTON AREA COURIERS
INCORPORATED,

                                                  Defendants - Appellants


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:08-CV-2254


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        CSA Delivery Incorporated, et al. (Appellants) challenge the jury-trial
judgment in the amount of approximately $1,760,098 and costs for, inter alia,
breach of fiduciary duty, violations of the Lanham Act, and tortious interference
with Courier Solutions Incorporated’s (CSI) contracts. Appellants contend the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-11158    Document: 00511957212      Page: 2    Date Filed: 08/15/2012

                                  No. 11-11158

court erred because: it failed to include a duplicative-damages instruction to
prevent the jury from counting damages for lost profits twice; it failed to exclude
Plaintiff’s Exhibit 94; and, the evidence was insufficient to support the verdict.
       CSI was a courier service formed by Woodrow Clayton, Sr. and three
other shareholders, created for the primary purpose of pursuing contracts with
Washington Mutual (WAMU) in the Dallas area. Clayton, Sr.–who had
experience in the courier-service industry and owned other courier services–was
primarily responsible for developing business for the joint benefit of all
shareholders and he succeeded in obtaining the contract with WAMU. As the
business grew, Clayton, Sr. successfully pursued contracts with WAMU in other
cities under the auspices of benefitting CSI. This new business was pursued
under a variety of different corporate names, all thought to be subsidiaries of
CSI by the shareholders. But, it was ultimately revealed that Clayton, Sr. had
been personally benefitting from these subsidiaries while CSI and its
shareholders were not reaping the profitability of this new business. This action
followed.
      Because Appellants did not preserve the duplicative-damages objection in
district court, it is subject only to plain-error review. E.g., Puckett v. United
States, 129 S. Ct. 1423, 1428-29 (2009); United States v. Dunigan, 555 F.3d 501,
506 (5th Cir. 2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
To establish reversible plain error, Appellants must show a clear or obvious error
affecting their substantial rights. E.g., Puckett, 129 S. Ct. at 1429. Even if
reversible plain error is shown, our court retains discretion to correct the error
and will do so only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings”. Id.
      In Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277 (5th Cir. 2007),
our court reviewed a duplicative-damages challenge under the plain-error
standard and, to satisfy that standard, required a showing that “the challenged
instruction was an obviously incorrect statement of law that was probably

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                                  No. 11-11158

responsible for an incorrect verdict”. Id. at 300. Our court ultimately concluded
that the incorrect instruction could not be considered responsible for an incorrect
verdict when the total damages do not exceed the amount which defendants
argued would be reasonable at trial. Id. As CSI notes on appeal, the total
damage award is equal to that which was testified to by Appellants’ damages
expert at trial and, as a result, Appellants cannot establish error, much less
reversible plain error.
       Our court reviews the district court’s determination on the admissibility
of evidence for abuse of discretion. Compaq Computers Corp. v. Ergonome Inc.,
387 F.3d 403, 408 (5th Cir. 2004). Even if an abuse of discretion is found, the
harmless error doctrine applies unless a substantial right of the complaining
party is affected. Id.
       Appellants contend the court abused its discretion in admitting Plaintiff’s
Exhibit 94–offered for calculation of damages–because CSI failed to disclose the
exhibit in a timely manner in accordance with Federal Rule of Civil Procedure
26 and, as a result, the jury may have considered improper information therein
when computing damages. But, Appellants point to no errors in Exhibit 94 that
could be improperly relied upon. Therefore, Appellants have failed to establish
an abuse of discretion or, even assuming an abuse of discretion, harmful error.
       Appellants further contend that the evidence was insufficient to support
the verdicts against Clayton, Jr., Darlene Clayton, and Action Courier &
Logistics, L.L.C.. But, this contention is waived because Appellants failed to
raise this challenge at the close of evidence and failed to timely raise this
challenge after the judgment was entered. See Navigant Consulting, 508 F.3d at
288.
       AFFIRMED.




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