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

                                                                            FILED
                                                                            May 8, 2008

                                     No. 07-60698                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


BONNIE FIGUERO

                                                  Plaintiff-Appellant
v.

PEPPERIDGE FARM INC

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:04-CV-929


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Appellant Bonnie Figuero appeals the district court’s grant of judgment
as a matter of law, which nullified a $112,626.99 jury verdict in Figuero’s favor.
For the following reasons, we AFFIRM.
       Figuero was a distributor for Appellee Pepperidge Farm, Inc. (“Pepperidge
Farm”) in Mississippi. On August 9, 2003, Pepperidge Farm terminated
Figuero’s distributorship agreement (the “Agreement”).                      Figuero sued


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-60698

Pepperidge Farm, and a jury trial was conducted from May 22-24, 2006. The
jury found that: (1) Pepperidge Farm terminated the Agreement “with cause”
and (2) Pepperidge Farm did not act in bad faith. These two findings are not
contested on appeal. The jury was instructed–pursuant to language in the
Agreement–that if it found a termination with cause, then Figuero was entitled
to receive compensation “in accordance with the established business practices
of [Pepperidge Farm], and each party’s right to receive any favorable balances
and obligation to pay any adverse balances.”        The jury awarded Figuero
$121,000, less $8,373.01 previously tendered by Pepperidge Farm, for a total
award of $112,626.99.
      On June 13, 2006, Pepperidge Farm filed a motion for judgment as a
matter of law or, in the alternative, motion for amendment of the judgment and
remittitur. Pepperidge Farm argued that, pursuant to its “established business
practices,” a reasonable jury could not award $121,000 to Figuero. On July 25,
2006, the district court granted Pepperidge Farm’s motion for judgment as a
matter of law under Federal Rule of Civil Procedure 50.
      We review a motion for judgment as a matter of law de novo, applying the
same standard as the district court. See Ford v. Cimarron Ins. Co., 230 F.3d
828, 830 (5th Cir. 2000). Judgment as a matter of law is appropriate where
“there is no legally sufficient evidentiary basis for a reasonable jury to have
found for that party with respect to that issue.” Id. (citation and internal
quotation marks omitted).
      Doug Kolojack, Pepperidge Farm’s Director of Operations, provided the
only evidence at trial concerning Pepperidge Farm’s established business
practices regarding terminations with cause. Mr. Kolojack testified that if “a
distributorship agreement is terminated for cause, it is Pepperidge Farm’s
established business practice to sell that distributorship for whatever price the
market will bear and to pay the proceeds of that sale, less any balances owed by

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                                       No. 07-60698

the distributor, directly to the distributor upon receipt of the sale proceeds.”
Figuero v. Pepperidge Farm, Inc., No. 3:04CV929LN, 2006 WL 2088280, at *1
(S.D. Miss. July 25, 2006). Mr. Kolojack further testified that, immediately
following the Agreement’s termination, Figuero’s route was put up for sale. A
small portion of the route was sold for $1,000, and Pepperidge Farm retained
this entire amount to offset part of Figuero’s indebtedness.                       In 2006,
approximately half of the territory was sold for $10,000.1 A portion of this
amount was applied to Figuero’s remaining balance of $1,626.99, and the rest,
$8,373.01, was tendered to Figuero.2              We find the district court properly
concluded that, pursuant to Pepperidge Farm’s established business practices,
Figuero was only entitled to receive $8,373.01–the amount that the route sold
for and which had already been tendered by Pepperidge Farm.
       The jury’s award of $121,000 was based upon Pepperidge Farm’s asking
price for the entire territory, based upon the “optimum” value of the
distributorship. However, this amount was never offered by any buyer–in fact,
no offers were made at all in the first two years the distributorship was up for
sale. The district court properly concluded that the contractual language at
issue only entitles Figuero to funds pursuant to Pepperidge Farm’s established
business practices–i.e., the value that the distributorship actually sold for, less
any indebtedness. This is exactly what Pepperidge Farm tendered to Figuero,
and the district court properly granted judgment as a matter of law to
Pepperidge Farm.
       AFFIRMED.


       1
        The district court erroneously stated that this portion of the distributorship was sold
in 2004. The record–including statements from both parties in the First Amended Pretrial
Order–confirms that the sale occurred in 2006.
       2
          Pepperidge Farm acknowledged that, when it sells the remaining portion of the
distributorship, all proceeds will be tendered to Figuero. The district court entered an order
to this effect.

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