                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                             FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                        AUGUST 12, 2005
                             No. 04-12465              THOMAS K. KAHN
                       ________________________            CLERK


                    D. C. Docket No. 02-80527-CV-KLR

SEB S.A.,


                                                           Plaintiff-
                                                           Appellee,

                                 versus

SUNBEAM CORPORATION,
SUNBEAM PRODUCTS, INC.,

                                                           Defendants-
Cross-Claimants-
Third-Party
                                                           Plaintiffs-
                                                          Appellants-
                                                          Cross-Appellees,

WING SHING INTERNATIONAL, LTD. (BVI),

                                                          Defendant-
Counter-Claimant-
Third-Party
                                                           Defendant,
                                                           Appellee,
PENTALPHA ENTERPRISES, LTD.,

                                                               Defendant-
                                                               Counter-Claimant-
                                                               Third-Party
                                                               Defendant-
                                                                Appellee-
                                                               Cross-Appellant,

GLOBAL-TECH APPLIANCES, INC.,

                                                               Counter-Claimant-
                                                               Third-Party
                                                               Defendant-
                                                                Appellee-
                                                               Cross-Appellant.


                          ________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (August 12, 2005)

Before BIRCH, CARNES and HILL, Circuit Judges.

BIRCH, Circuit Judge:

      This appeal presents a number of issues arising from a Product Supply

Agreement entered into by Pentalpha Enterprises, Ltd. (“Pentalpha”), and Sunbeam

Products, Inc. (“Sunbeam Products”). Sunbeam Products and its parent company,

Sunbeam Corporation, Inc. (collectively, “Sunbeam”), sued Pentalpha and its

                                        2
parent company, Global-Tech Appliances, Inc. (“Global-Tech”), for

indemnification. Pentalpha brought a crossclaim against Sunbeam and alleged

breach of contract and fraudulent inducement. After a trial in district court, a jury

awarded Sunbeam $2,450,948.91 on its indemnification claims against Pentalpha

and Global-Tech and Pentalpha $6,600,000 on its breach of contract claim against

Sunbeam. On appeal, Sunbeam argues that the district court erred in refusing to

grant it judgment as a matter of law on Pentalpha’s breach of contract claim and in

declining to order a new trial because of the admission of allegedly improper

testimony. On cross-appeal, Pentalpha argues that the district court erred in

denying Pentalpha pre-verdict interest on its breach of contract award, in admitting

certain evidence which could have resulted in increased damages for Pentalpha,

and in denying Global-Tech judgment as a matter of law on Sunbeam’s breach of

contract claim. We AFFIRM in part, REVERSE in part, and REMAND for

proceedings consistent with this opinion.

                            I. FACTUAL BACKGROUND

       Global-Tech, formerly named Wing Shing International, (BVI) Ltd. (“Wing

Shing”),1 is a publicly-traded holding company incorporated in the British Virgin

Islands. Global-Tech is the parent company of Pentalpha. Pentalpha is based in


       1
          Global-Tech changed its name from Wing Shing International (BVI) Ltd. in 1997. For
clarity, we refer to the entity as Global-Tech throughout this opinion.
                                              3
Hong Kong and designs, manufactures, and sells household appliances for resale to

retail customers. Pentalpha Enterprises U.S., Inc. (“Pentalpha U.S.”), was owned

by Eyal Lior and Joe Sasso in 1997.

      Sunbeam Products, Inc., a company located in Boca Raton, Florida, sells

household appliances. In the early 1990s, Pentalpha began selling certain small

household appliances to Sunbeam, who then resold the appliances to retail

customers.

A.    The June Product Supply Agreement

      Pentalpha, Pentalpha U.S., Wing Shing Marketing (BVI) Ltd.,2 and

Sunbeam entered into a Product Supply Agreement (“June PSA”) dated 27 June

1997. Lior, part owner of Pentalpha U.S., negotiated the June PSA on behalf of

Pentalpha, Pentalpha U.S., and Wing Shing Marketing.

      Under the terms of the June PSA, Pentalpha became the exclusive supplier

for Sunbeam of certain appliances, listed in Schedule A to the PSA, “so long as

Sunbeam continues to market similar or like products of the type listed in Schedule

A . . . .” R4-201, Exh. 103 ¶ 2. Sunbeam did not guarantee “to purchase any

specific quantity of product at any time.” Id. As long as Sunbeam gave Pentalpha

ninety days notice, Sunbeam could change or discontinue its product line so that it



      2
          Wing Shing Marketing dissolved at the end of 1997.
                                               4
would not need to purchase any appliances from Pentalpha.

      The June PSA also provided a process by which Pentalpha would begin

manufacturing for Sunbeam any Schedule A products that it did not already

manufacture:

             All items not currently being manufactured by Pentalpha
             will be quoted by Pentalpha as soon as possible. If the
             quoted prices from Pentalpha are equal to or lower than
             Sunbeam’s existing pricing, a project will be started to
             move tooling from the current supply source to Pentalpha
             no later than by April 1, 1998. Sunbeam and Pentalpha
             agree that time is of the essence and will strive to move
             as much tooling as possible before the Chinese New Year
             holiday. If Sunbeam does not own the tooling, Pentalpha
             will begin new tooling construction when pricing is
             agreed upon.

Id. ¶ 3.B. The June PSA did not explicitly require Sunbeam to provide to

Pentalpha specifications or samples of Schedule A Products that Pentalpha did not

already manufacture. Further, the June PSA did not explicitly require Pentalpha to

provide project plans to Sunbeam before the transfer of tooling could take place.

      Additionally, the June PSA provided that “Pentalpha’s supply rights and

Sunbeam’s purchase requirements obligation” were subject to “Pentalpha’s

continued delivery of product in accordance with all terms and conditions of

Sunbeam’s purchase orders for product and product specific manufacturing and

distribution agreements.” Id. ¶ 2. The parties agreed that the law of Florida would



                                         5
govern the June PSA. Id. ¶ 5. The term of the June PSA ran from 1 July 1997 to

30 June 2001. Id. ¶ 1.

      A Rider to the June PSA, signed only by Lior, President of Pentalpha U.S.,

“supplement[ed] the Product Supply Agreement dated June 27, 1997 by and

between Sunbeam Products, Inc. and Pentalpha Enterprises US, Ltd.” R4-201,

Exh. 104 ¶ 1. It specified that “Pentalpha” would pay Sunbeam a rebate of one

million dollars “in consideration of the exclusive supply commitments contained

in” the PSA. Id. ¶ 2. At trial, John Sham, CEO of Pentalpha and Global-Tech,

testified that he did not see the Rider to the agreement until October 1997 and that

Lior did not have the authority to commit Pentalpha to pay a one million dollar

rebate to Sunbeam.

B.    The October Product Supply Agreement

      In October 1997, George Timchal, Vice President of Procurement at

Sunbeam, told Sham that the June PSA contained the Rider. Sham was “kind of

shocked” and “not happy,” and after discussions with Global-Tech’s investment

bank, concluded that the supply agreement had to be changed. On 22 October,

Sham met with Sunbeam’s representatives to discuss the one million dollar rebate

and other matters. At the meeting, Sham and Sunbeam’s representatives discussed

entering into a new Product Supply Agreement between Pentalpha and Sunbeam



                                          6
Products, Inc. Under the agreement proposed by Sunbeam, Pentalpha would give

Sunbeam a one million dollar rebate immediately. Sham was initially reluctant to

enter into the agreement, but after Timchal and other Sunbeam representatives

indicated to Sham that Sunbeam was a strong, growing company, Sham decided to

sign it on behalf of Pentalpha.

      On 23 October 1997, Sham executed the revised Product Supply Agreement

(“October PSA”) on behalf of Pentalpha. The October PSA, entered into between

Pentalpha and Sunbeam Products, Inc., differed from the June PSA in two main

ways. First, the October PSA contained the million dollar rebate provision, which

had been in a rider to the June PSA, in its main body. Second, the October PSA

included a merger clause. The provisions of the October PSA and June PSA were

identical in all other respects. The term of the October PSA was 1 July 1997 to 31

June 2001. Additionally, Sunbeam and Pentalpha executed an agreement which

stated that “Sunbeam accepts and agrees that the [June PSA] was never effective

and that it is of no force or effect.” R4-201, Exh. 113 ¶ 2.

C.    Pentalpha and Sunbeam’s Conduct Under the October PSA

      On 28 October 1997, Pentalpha submitted bids to Sunbeam on 27 Schedule

A products models, including certain coffee-makers, garment steamers, irons, rice

cookers, and rotisserie ovens. Pentalpha did not bid on the air filters, toaster



                                           7
ovens, hand mixers, ultrasonic humidifiers, or other coffee-makers listed in

Schedule A. According to Sham’s testimony at trial, Pentalpha did not bid on the

air filters, coffee makers, or toaster ovens because it could not meet Sunbeam’s

existing prices. Pentalpha did not bid on the hand mixers because Sunbeam did not

provide Pentalpha samples of those items. Pentalpha did not bid on the ultrasonic

humidifiers because Sunbeam informed Pentalpha that they had been discontinued.

Sham testified that Pentalpha needed the samples to determine the products’

specifications with certainty.

           Sunbeam did not respond to Pentalpha’s bids on irons. Sunbeam responded

to its bids on rice cookers only by communicating that the bid was higher than a

bid Pentalpha had submitted in 1996 on a different model of rice cooker.

Sunbeam accepted Pentalpha’s bids for a series of coffee makers identified on

Schedule A, two models of garment steamers, and rotisserie ovens. However,

Sunbeam never transferred tooling for these items.3 On 16 March 1998, Pentalpha


       3
         According to Sunbeam, it did not order the series of coffee makers from Pentalpha
because Pentalpha failed to “submit a project plan that met the minimum criteria for a
reasonable transfer of those products.” R9 at 174. On 24 December 1997, Nugent sent a
memorandum to Pentalpha which stated that, for the coffee makers, “Pentalpha needs to provide
project plan and provide Sunbeam with UL/CUL approval plan (dates) as well. . . . We will
agree to a tooling transfer date that fits in with your project plan.” R4-201, Exh. 127 at 1.
Pentalpha responded on 30 December 1997: “Yes, you are right, we need to prepare a UL
samples [sic] for approval under Pentalpha’s name. . . . But, we still need your tooling.
Otherwise, no sample (manufactured by Pentalpha) for UL approval.” R4-201, Ex. 128 at 1. In
its response, Pentalpha included a schedule indicating that the tooling for the coffee makers
should have been transferred completely by 28 February 1998.
                                              8
submitted lower bids on the rice cookers. Sunbeam did not respond to the

renewed bids.

D.    Sunbeam’s Indemnification Claims Against Pentalpha

      At some point during Sunbeam’s relationship with Pentalpha, the Rival

Company (“Rival”) filed a lawsuit against Sunbeam and asserted that a food

steamer manufactured by Pentalpha for Sunbeam infringed Rival’s patent. Soon

after, Black & Decker, Inc. (“Black & Decker”) filed a lawsuit against Sunbeam.

Black & Decker similarly claimed that a food steamer manufactured by Pentalpha

for Sunbeam infringed Black & Decker’s patent. On 5 February 1998, Sunbeam

wrote to Pentalpha and demanded reimbursement of approximately $850,000 of

legal fees spent defending successfully the Rival and Black & Decker lawsuits.

Sunbeam stated that “[e]ffective today there will not be any communications from

Sunbeam to Pentalpha on any issues on ongoing business until such time as you

personally contact Sunbeam to resolve the litigation expenses.” R9 at 12.

According to the parties’ pre-trial stipulations, Pentalpha did not deny its

responsibility to reimburse Sunbeam but rather “questioned the amount and nature

of the expenditures.” R9 at 20.

E.    Sunbeam’s Solicitation of Rebates from Other Manufacturers

      In 1997, Sunbeam solicited and received a $240,000 rebate from Tsann



                                          9
Kuen, its existing supplier of Schedule A hand mixers. In March 1998, Tsann

Kuen offered Sunbeam a one million dollar rebate in response to a request from

Sunbeam. Sunbeam also solicited a one million dollar rebate from Chiaphua

Industries, Ltd., another supplier. Sunbeam attempted to secure rebates from

other suppliers but was unsuccessful.

F.         Pentalpha’s 16 July 1998 Memorandum

           On 16 July 1998, Pentalpha wrote to Sunbeam and asserted that Sunbeam

had not fulfilled its obligations under the PSA:

                        Since the agreement has not been fulfilled by
                 Sunbeam, our auditor has forced Pentalpha to write off
                 the paid deposit, one million US dollars.
                        We have no choice but to issue the debit note to
                 Sunbeam for this one million. Please kindly
                 acknowledge by fax return. The original will be sent to
                 you and you’re [sic] A/C department by FedEx.

R4-201, Ex. 152 at 1. Attached to the memo was a debit note from Pentalpha to

Sunbeam for one million dollars. According to Sham, Sunbeam did not respond

to the 16 July 1998 memo.

                         II. PROCEDURAL BACKGROUND

           On 10 March 1998, SEB, S.A. (“SEB”), a French corporation, initiated an

action in district court4 and claimed that a deep fryer manufactured by Pentalpha


       4
         SEB commenced the action in United States District Court for New Jersey. The action
was later transferred to the Southern District of Florida.
                                              10
for Sunbeam infringed SEB’s patent. In its amended complaint, SEB named

Sunbeam, Global-Tech, and Pentalpha as defendants. Sunbeam asserted a third-

party claim and cross-claim against Pentalpha and Global-Tech for

indemnification.

      The district court dismissed SEB’s amended complaint against Global-Tech

and Pentalpha for lack of personal jurisdiction, and around July 1998, SEB and

Sunbeam settled for $2 million. In its amended complaint, Sunbeam claimed

rights to indemnification from Pentalpha and Global-Tech for costs arising from

prior litigation over the Rival and Black & Decker food steamer patents and for

the SEB litigation and settlement. Pentalpha asserted counterclaims against

Sunbeam for breach of contract and fraudulent inducement.

A.    Summary Judgment

      Sunbeam moved for summary judgment on its indemnification claims and

Pentalpha’s fraudulent inducement and breach of contract counterclaims. The

district court granted Sunbeam’s motion in part. First, the district court granted

Sunbeam’s motion for summary judgment as to Pentalpha’s liability to indemnify

Sunbeam for attorneys’ fees from the Rival and Black & Decker food steamer

litigation but denied the motion as to the amount of damages. The district court

noted that Pentalpha conceded its obligation to indemnify Sunbeam but concluded



                                         11
that there existed material issues of fact as to the amount of fees owed. Second,

the district court granted Sunbeam’s motion as to Pentalpha’s liability to

indemnify Sunbeam for the SEB settlement but denied summary judgment as to

damages. Again, there existed material issues of fact as to the amount of

Sunbeam’s attorneys’ fees. The district court held that Pentalpha’s obligation to

indemnify Sunbeam arose out of U.C.C. § 2-312(3) and was thus independent of

Sunbeam’s purchase orders or the October PSA. Third, the district court granted

Sunbeam’s motion as to Pentalpha’s fraudulent inducement claim. Finally, the

district court ruled that there existed material issues of fact as to which party

breached the PSA first and denied Sunbeam’s motion as to Pentalpha’s breach of

contract claim. The case proceeded to trial.

B.    The District Court’s 15 December Order

      Before trial, on 14 November 2003, Sunbeam filed a motion in limine to

exclude any evidence of Sunbeam’s receipt of rebates from vendors other than

Pentalpha (“rebate evidence”) from 1997to 1999. Sunbeam argued that Pentalpha

offered the rebate evidence to prove Sunbeam’s motive in allegedly breaching the

October PSA. The district court ruled that the rebate evidence was admissible for

two purposes. First, any rebate evidence which showed that Sunbeam committed

a material breach of the October PSA was admissible. Pentalpha could offer, for



                                           12
example, evidence relevant to a claim that Sunbeam could not perform under the

October PSA because, in accepting a particular rebate, it became contractually

bound to another vendor. Second, Pentalpha could introduce rebate evidence to

rebut any explanation offered by Sunbeam of its failure to perform under the

agreement. The rebate evidence could not be admitted for any other purposes.

C.    The District Court’s 17 December Order

      On 14 November 2003, Pentalpha moved to preclude Sunbeam from

offering evidence that Pentalpha breached the October PSA by failing to

indemnify Sunbeam for the SEB litigation and settlement and Rival and Black &

Decker food steamer lawsuits. Pointing to the merger clause in paragraph 8 of the

October PSA, Pentalpha argued that the October PSA did not require

indemnification. In response, Sunbeam contended that paragraph 2 of the October

PSA required indemnification because it incorporated into the PSA the terms of

Sunbeam and Pentalpha’s purchase orders and manufacturing and distribution

agreements, both of which required indemnification. The district court agreed

with Sunbeam. It held that Paragraph 2 of the October PSA incorporates the

terms and conditions of the purchase orders, which required Pentalpha to

indemnify Sunbeam for the SEB litigation and settlement, and the terms and

conditions of the manufacturing and distribution agreements, which required



                                        13
Pentalpha to indemnify Sunbeam for the Rival and Black & Decker food steamer

litigation attorneys’ fees. Accordingly, the district court ruled that evidence

concerning Pentalpha’s failure to indemnify Sunbeam for the SEB litigation and

settlement and Rival and Black & Decker food steamer lawsuits was admissible to

prove prior breach by Pentalpha.

D.    Trial

      1.      Sunbeam’s Case-in-Chief

      Trial began on 12 January 2004. In its case in chief on its indemnification

claims, Sunbeam called Steven Berreth, the former intellectual property counsel of

Sunbeam Corporation; John Sham, the CEO of Global-Tech and Pentalpha;

Donald Jackson, a former employee in Sunbeam’s accounting department; and

Peter Howell, a Director of Global-Tech.

      2.      Global-Tech’s Motion for Judgment as a Matter of Law

      Global-Tech moved for a directed verdict after Sunbeam had called all of its

witnesses. Global-Tech argued that Sunbeam had offered no evidence showing

that Global-Tech should be held directly liable for indemnification. The district

court denied Global-Tech’s motion:

              [W]ith a complicated structure like that I’m not going to grant that
              motion. We may revisit this issue again, but it’s very clear even from
              their own filed statement that they’re making it very hard for
              anybody to sue them and get jurisdiction. They’ve got all these

                                          14
              different companies. I don’t know how anybody dealing with them is
              supposed to know which company to deal with. In fact, they even
              sell the same product through different companies.
                     . . . I’m not letting anybody out at this time. Maybe later on,
              but not at this time.

R8 at 199. Pentalpha did not renew this motion at the close of all of the evidence.

      3.      Pentalpha’s Defense and Case-in-Chief

      In defense of Sunbeam’s indemnification claims, and in its case in chief on

its breach of contract claim, Pentalpha called seven witnesses, including George

Timchal, Sunbeam’s former Vice president of Procurement; John Sham; James

Nugent, Sunbeam’s Vice-President of Asian Sourcing Operations; David Wiggins,

Sunbeam’s Rule 30(b)(6) witness; and Glenn Newman, Pentalpha’s forensic

accountant.

              a.    Pentalpha’s Rebate Evidence

      Before Wiggins’s deposition was read, Sunbeam argued that Wiggins’s

testimony was inadmissible under the district court’s 15 December order and

urged the district court to prevent Pentalpha from calling him. In response,

Pentalpha contended that Wiggins’s testimony would (1) create an inference that

Sunbeam breached the October PSA in soliciting and accepting rebates from

Schedule A product vendors with the understanding that Sunbeam would give

them additional business in return and (2) rebut Sunbeam’s contention that it did



                                         15
not buy Schedule A products from Pentalpha because of Pentalpha’s failure to

create proper project plans or prior breach of the PSA. Sunbeam replied that

Wiggins’s testimony did not provide evidence that Sunbeam committed to buy

Schedule A products from another vendor. The court allowed the testimony

because “it ha[d] some bearing and under proper instructions the jury [would]

resolve it.” R10 at 12-13.

      Wiggins testified to the following facts concerning the rebate evidence. In

1997, Sunbeam solicited and received a rebate of $240,000 from Tsann Kuen.

The rebate was a volume rebate for purchases made in 1997 and had “no future

commitments [by Sunbeam or Tsann Kuen] tied to [it].” Id. at 44. However,

Wiggins stated that he did not believe, but did not know with certainty, whether

“there was any wink or nod between the person who negotiated [the rebate] on

behalf of Sunbeam and the person who negotiated it on behalf of Tsann Kuen that,

‘if you paid this rebate we are going to do our best to treat you right in the

future.’” Id. at 50-51.

      In March 1998, Tsann Kuen offered Sunbeam a one million dollar rebate in

response to a request from Sunbeam. Sunbeam later reversed the rebate. In

March 1998, Sunbeam also solicited a one million dollar rebate from Chiaphua

Industries, Ltd., another supplier. Wiggins stated that he believed that the rebate



                                          16
was given in connection with a defective product manufactured for Sunbeam by

Chiaphua. Additionally, Sunbeam unsuccessfully attempted to secure rebates

from other suppliers. For example, Sunbeam possibly attempted to secure a rebate

from Simatlex, another manufacturer.

      After a recess, Sunbeam renewed its objection to Wiggins’s testimony.

Arguing that Wiggins’s testimony revealed that “there was no double dipping” by

Sunbeam, that Sunbeam had decided that rebates were “bad business,” and that

there were no supply agreements or commitments associated with any of the

rebates, Sunbeam contended that his testimony was irrelevant. Id. at 81. The

district court declined to strike Wiggins’s testimony and stated that Sunbeam

could argue the relevance of Wiggins’s testimony to the jury.

             b.    Pentalpha’s Damages Evidence

      During discovery, Sunbeam produced data from its computer system (“the

computer printouts”) which, according to Sunbeam, showed all of its its purchases

of Schedule A Products for resale from vendors other than Pentalpha during the

term of the PSA. At trial, Pentalpha attempted to offer into evidence testimony

and documents which purportedly demonstrated that the computer printouts were

incomplete and underrepresented Sunbeam’s Schedule A purchases from other

vendors.



                                        17
      First, Pentalpha offered the expert testimony of Glenn Newman,

Pentalpha’s forensic accountant. According to Pentalpha, Newman “ha[d] the

expertise to analyze [the data provided by Sunbeam] and break it into parts and

compare it to other pieces of data and form an opinion with a reasonable degree of

professional certainty about whether or not that data which has been produced is

complete or incomplete.” R10 at 141. The district court refused to allow

Newman’s testimony. The court concluded that the jury could determine the

completeness of the data without Newman’s assistance. The court advised

Pentalpha’s counsel that he could “argue that [the data] is not complete and you

can bring in any witnesses you want – factual witnesses regarding the

completeness of it, but I am not going to let an expert testify to that.” Id. at 143.

      Second, Pentalpha offered the affidavit of Alan LeFevre, Sunbeam’s Chief

Financial Officer, marked as Trial Exhibit 156, and a chart, marked as Trial

Exhibit 182I. In the affidavit, LeFevre testified that he understood that, “from the

years 1998 to 2000, Sunbeam’s total domestic [h]ousehold manufacturing

purchases remain[ed] relatively steady.” R4-201, Ex. 156 at 1 ¶ 2. Trial Exhibit

182I compared the total number of household products purchased by Sunbeam,

according to data provided in LeFevre’s affidavit, with Sunbeam’s purchases of

Schedule A products, according to data in the computer printouts. R10 at 175;



                                           18
R4-201, Ex. 182I. Pentalpha’s counsel contended that he could reasonably argue

that the significant increase in Sunbeam’s purchases of Schedule A products from

1998 to 2000, as represented by the computer printouts, did not make sense when

viewed in light of Sunbeam’s relatively stable purchases of other household

appliances. The court stated that the conclusions Pentalpha wished to draw from

the graph and affidavit were “wildly speculative” and refused to admit the

evidence. R10 at 179.

      Third, Pentalpha offered two more graphs prepared by Newman. The first,

Trial Exhibit 182J, was a graphical representation of Sunbeam’s purchases for the

first five months of 1997, 1998, 1999, 2000, and 2001, based on the data in the

computer printouts. R4-201, Ex. 182J. Pentalpha’s counsel stated that the graph

helped suggest that the data provided by Sunbeam was incorrect because the data

showed that no purchases of Schedule A products were made in the first five

months of 1999. The court ruled that Exhbit 182J was inadmissable. It

concluded:

                     [W]ithout any further indication, if you have a witness from
             Sunbeam who is going to come in and say, “You know, we gave
             them phony figures, and I know that we are ordering during that
             period[] of time,” you might have some basis for it.
                     But without any testimony to the contrary – I mean, all of this
             deals with circumstantial evidence that the Eleventh Circuit has said
             on [a] number [of] occasions that when a witness comes in and
             testifies something is thus and so, you can’t draw circumstantial

                                         19
              evidence to the contrary.
                      I mean, I thought it was a rather astounding statement from the
              Court of Appeals . . . I even wrote an opinion saying that the Court of
              Appeals [] now . . . has inconsistent opinions with regard to whether
              it is an employee discrimination case or whether it is an SEC case.
              But I will assume that their last pronouncement is the one that they
              intend to follow, and that if somebody denies that that is true unless
              you have evidence to the contrary you can’t make circumstantial
              evidence to the contrary.

R10 at 182.

      The second, Trial Exhibit 182K, was a chart comparing the number of

Sunbeam vendors from 1 July 1997 to 8 May 1999 to the number of Sunbeam

vendors from 9 May 1999, when Sunbeam converted its computer system, to 9

August 1999. According to Pentalpha’s counsel at trial, the chart showed that the

number of vendors increased two or threefold during the thirty day period after 9

May 1999, which in turn suggested that Sunbeam’s data was incorrect. Id. at 183.

The district court refused to admit Trial Exhibit 182K because it was “not proper

evidence to establish [Pentalpha’s conclusion].” Id. at 183-84.

      4.      Sunbeam’s Motion for a Judgment as a Matter of Law

      At the close of Pentalpha’s case in chief, Sunbeam moved for a judgment as

a matter of law as to Pentalpha’s breach of contract claim. Sunbeam argued that

Pentalpha had presented no evidence by which a reasonable jury could conclude

that Sunbeam breached the PSA before Pentalpha. According to Sunbeam, the



                                          20
evidence showed that Pentalpha breached the PSA by (1) failing to bid on all the

Schedule A products, as required by paragraph 3.B in the October PSA, and

submit project plans; and (2) failing to indemnify Sunbeam for its food steamer

patent infringement expenses. In support of its indemnification argument,

Sunbeam cited the district court’s 17 December order which concluded that the

PSA incorporated manufacturing and distribution agreements requiring Pentalpha

to indemnify Sunbeam for those expenses. The district court denied Sunbeam’s

motion.

      5.    Pentalpha’s Closing Argument

      In his closing argument, counsel for Pentalpha argued:

            [W]ith respect to the hand mixers . . . . Sunbeam also breached the
            supply agreement by telling its existing supplier of the hand mixers,
            that’s the company in Asia called Tsann Kuen, that it could keep that
            existing business either through its conduct or through its words if it
            paid Sunbeam a $240,000 rebate
                   ....
                   Now, we need to put two and two together. Pentalpha never
            got a sample. Tsann Kuen paid a rebate and got some wink and nod
            agreement from Sunbeam. Would Tsann Kuen [have] paid a rebate
            just because Sunbeam are nice people? Doubt it. They are getting
            something going forward.
                   Then back in March of 1998, there [are] documents showing
            that Tsann Kuen paid another one million dollar rebate to Sunbeam.
            Mr. Nugent didn’t tell us that in his deposition, but the testimony of
            Sunbeam’s representative is really clear. These other vendors are
            paying these rebates because they think they are getting something in
            return. What they are getting is, is more business, and that starts with
            keeping their old business.

                                        21
                    Is there really any doubt that to obtain a rebate from Tsann
              Kuen Sunbeam promised Tsann Kuen that it could keep its existing
              hand mixer business.

R11 at 104-05. Later in his closing argument, Pentalpha’s counsel responded to

Sunbeam’s arguments that Pentalpha breached the October PSA in failing to bid

on certain Schedule A products. He explained that Pentalpha did not bid on the

toaster ovens, coffee markers, and air filters because it could not submit a

competitive bid. Next, he stated that Pentalpha did not bid on a certain model of

hand mixer and an ultrasonic humidifier because Sunbeam indicated to Pentalpha

that the product was obsolete. He then argued:

                    What was really going on was that Sunbeam was discouraging
              Pentalpha from bidding. If Sunbeam wanted a bid on the hand
              mixers it would have sent Pentalpha a sample of the hand mixers.
                    I guess it was too busy soliciting its rebate from its existing
              supplier of hand mixers, Tsann Kuen.

Id. at 117.

       In his rebuttal, Pentalpha’s counsel again mentioned the rebates:

                     Now, the only important event that [Sunbeam’s counsel] notes
              on his time line [of events] is the memorandum of Mr. Nugent
              saying, “You didn’t bid on this. Where is your project plan?”
              Communications. That’s it.
                     [Sunbeam’s counsel] does not attempt to demonstrate that
              Sunbeam did anything to perform the contract. Didn’t move any
              tooling. Didn’t try to move – didn’t try to move any other tooling.
              But, boy, was it good at hitting up its other suppliers for rebates.
              What would have happened if it told its existing suppliers that they
              were going to have to transfer their tooling to Pentalpha? You think

                                          22
             they would have gotten a rebate out of Tsann Kuen? Think they
             would have gotten a rebate out of Chiaphua?

Id. at 157-58.

      6.     The Verdict and Judgment

      On 16 January 2004, the jury returned its verdict. The jury awarded

Sunbeam $2,450,948.91 against Pentalpha and Global-Tech on its claims for

indemnification. R12 at 3. Additionally, the jury found that “Pentalpha and

Global-Tech [wer]e alter-egos of each other,” id.; “Sunbeam failed to perform its

material obligations under the terms of the supply agreement,” id.; Sunbeam’s

failure to perform its obligations was not excused, id. at 3-4; the parties did not

abandon the PSA, id. at 4; and Sunbeam did not prove by a preponderance of the

evidence that the 16 July 1998 memo constituted a termination of the October

PSA, id. The jury awarded Pentalpha damages of $6,600,000 against Sunbeam on

its breach of contract claim. Id.

      On 27 January 2004, Pentalpha moved for entry of judgment based upon

the jury’s verdict and prejudgment interest of $2,485,299, calculated from 1

January 1999. Sunbeam opposed Pentalpha’s interest calculation and argued that,

under Florida law, prejudgment interest could not be awarded without a “fixed

date of loss,” which was not provided by the jury’s verdict. Pentalpha replied that

Florida law allowed the district court to examine the evidence to determine the

                                          23
date of loss and award prejudgment interest accordingly. Pentalpha provided the

district court with four methods of determining when prejudgment interest should

begin.

         On 11 February 2004, the district court entered final judgment. It awarded

Sunbeam $979,744.90 in prejudgment interest and Pentalpha $32,909.59 in

interest. R3-166 at 5. The district court refused to award Pentalpha interest

before the 16 January 2004 verdict because it concluded that it could not ascertain

conclusively an exact date on which Pentalpha sustained its damages.

E.       Sunbeam’s Post-Trial Motions

         Following trial, Sunbeam renewed its motion for judgment as a matter of

law. Alternatively, Sunbeam moved for a new trial. The district court denied

Sunbeam’s motions.

F.       Claims on Appeal and Cross-Appeal

         On appeal, Sunbeam advances three main arguments. First, Sunbeam

argues that the district court erred in denying Sunbeam’s motion for judgment as a

matter of law because Pentalpha breached the PSA first by failing to indemnify

Sunbeam. Second, Sunbeam argues that the district court erred in denying

Sunbeam’s motion for judgment as a matter of law because Pentalpha’s 16 July

1998 memorandum to Sunbeam constituted either a breach of a dependent

covenant in the October PSA, which freed Pentalpha of its contractual obligations,
                                          24
or a binding election of the remedy of rescission which foreclosed Pentalpha from

suing for damages for breach. Third, Sunbeam argues that the district court erred

in denying its motion for a new trial because the district court erroneously

admitted rebate evidence in violation of its 15 December order.

      On cross-appeal, Pentalpha asserts four arguments. First, Pentalpha

contends that the district court erred in refusing to award Pentalpha pre-verdict

interest on its breach of contract award. Second, it argues that the district court

erred by excluding Pentalpha’s circumstantial evidence that Sunbeam had

purchased more products from other suppliers in breach of the PSA than

represented by Sunbeam’s computer printouts. Third, Pentalpha avers that the

district court erred in granting summary judgment on Pentalpha’s fraudulent

inducement claim because Pentalpha could have relied justifiably on Sunbeam’s

misrepresentations as to its financial condition. Finally, Pentalpha and Global-

Tech contend that the district court erred in denying Global-Tech’s motion for a

directed verdict because Sunbeam did not produce sufficient evidence to prove

that Global-Tech is Pentalpha’s alter ego.

                                 III. DISCUSSION

A.    Sunbeam’s Renewed Motion for Judgment as a Matter of Law

      We review de novo the district court’s denial of a motion for judgment as a

matter of law. Brochu v. City of Riviera Beach, 304 F.3d 1144, 1154 (11th Cir.
                                          25
2002). We view all facts in the light most favorable to the nonmovant, and we

recognize that “[i]t is the jury’s task– not ours–‘to weigh conflicting evidence and

inferences, and determine the credibility of witnesses.’” Id. (citation omitted).

Accordingly, we will not reverse the denial of a motion for judgment as a matter

of law unless “the evidence is so overwhelmingly in favor of the moving party

that a reasonable jury could not arrive at a contrary verdict.” Middlebrooks v.

Hillcrest Foods, Inc., 256 F.3d 1241, 1246 (11th Cir. 2001).

           1.    Prior Material Breach

           First, Sunbeam argues that it was entitled to judgment as a matter of law

because, as a matter of law, Sunbeam could not have breached the October PSA

first. Sunbeam contends that Pentalpha breached the PSA by failing to indemnify

Sunbeam for its legal fees arising from the Rival and Black & Decker lawsuits and

for its settlement with SEB.5 Sunbeam contends that this breach occurred on 5

February 1998,6 the date on which Sunbeam demanded that Pentalpha reimburse it


       5
        Sunbeam concedes that it purchased a Schedule A bread maker from a vendor other
than Pentalpha before 5 February 1998 but avers that this purchase would entitle Pentalpha to at
most $13,000 in lost profit damages.
       6
          Sunbeam’s brief did not specify clearly a particular date on which Pentalpha breached
its indemnification obligations. At oral argument, Sunbeam’s counsel argued that the breach
occurred on 5 February 1998 because (1) the parties stipulated that Sunbeam demanded
indemnification from Sunbeam on that date; (2) the jury determined that Sunbeam was entitled
to legal fees as of that date; (3) the parties do not dispute that Sunbeam was entitled to
indemnification; and (4) the district court calculated prejudgment interest beginning at 5
February 1998. We do not address Sunbeam’s argument. Even assuming arguendo that
Pentalpha breached the PSA on 5 February 1998, Sunbeam’s argument fails for the reasons
                                                26
for its legal fees from the Rival and Black & Decker lawsuits. In response,

Pentalpha argues that a reasonable jury could have concluded that Sunbeam

materially breached the PSA by 28 January 1998, the beginning of the Chinese

New Year holiday, by failing to transfer any tooling to Pentalpha.7

           Florida law states that “[w]hen a contract is breached by one of the parties,

the other party is released from any obligation to perform the contract.” Miller v.

Reinhart, 548 So.2d 1174, 1175 (Fla. Dist. Ct. App. 1989). Accordingly, if we

determine that, as a matter of law, Pentalpha breached the October PSA first, we

must conclude that Sunbeam was thereby released of its obligations to perform

under the agreement.

           After reviewing the trial record, we cannot conclude that the evidence

presented “[i]s so overwhelmingly in favor of [Sunbeam] that a reasonable jury

could not” have determined that Sunbeam breached the October PSA before 5

February 1998. See Middlebrooks, 256 F.3d at 1246. Paragraph 3.B of the

October PSA required Sunbeam to “strive to move as much tooling as possible



explained in this section.
       7
         At oral argument, Sunbeam responded that Sunbeam could not have breached the
October PSA by 5 February 1998 by failing to transfer tooling to Pentalpha because (1) the PSA
required Sunbeam to complete the transfer of tooling by 1 April 1998, not by the beginning of
the Chinese New Year; and (2) Sunbeam continued to recognize the PSA past the beginning of
the Chinese New Year. Because Sunbeam did not raise these arguments in its initial or reply
briefs, we will not consider them on appeal. See Bond v. Moore, 309 F.3d 770, 774 n.5 (11th
Cir. 2002).
                                              27
before the Chinese New Year holiday” on 26 January 1998. R201, Exh. 112 ¶

3.B. The PSA also explicitly provided that time was “of the essence.” Id. The

evidence presented at trial indicated that, despite these provisions, Sunbeam never

transferred tooling for the coffee makers, garment steamers, or rotisseries to

Pentalpha after Pentalpha submitted competitive bids on these products.

Additionally, as of the 26 January deadline, Sunbeam had not provided samples

for one product or responded to competitive bids on two others.8 At best, the

evidence presented by Sunbeam in its initial and reply briefs suggests that the jury

evaluated conflicting evidence in returning a verdict in favor of Pentalpha. It does

not, as is required for us to reverse the district court, compel a finding for

Sunbeam. See Middlebrooks, 256 F.3d at 1246. Accordingly, we conclude that

the district court did not err in denying Sunbeam’s renewed motion for judgment

as a matter of law.



       8
          In its reply brief, Sunbeam points out that Sham testified that he knew, when entering
the October PSA, that Sunbeam owned tooling for certain appliances, but not others; that before
signing the agreement, he made no attempt to determine which tooling was available from
Sunbeam “because the tooling cost is not that important . . . compared to . . . the business that we
are getting;” and that he knew that Pentalpha would be required to obtain any tooling that
Sunbeam did not own from other vendors or develop the tooling itself. Reply/Cross Answer
Brief for Appellants Sunbeam Corporation and Sunbeam Products, Inc. at 2 (citing R9 at 121-
22). Sunbeam argues that this testimony indicates that Sunbeam could not have committed a
prior breach of the October PSA by failing to transfer tooling. Given the provision of the
October PSA which required Sunbeam to “strive to move as much tooling as possible before the
Chinese New Year holiday,” R201, Exh. 112 ¶ 3.B, and Sham’s testimony that he had a
conversation about the ownership of the tooling after entering the October PSA, R9 at 120, 122,
we do not credit the relevance of the testimony highlighted by Sunbeam.
                                                 28
       2.    16 July 1998 Memorandum

      Second, Sunbeam argues that it is entitled to a judgment as a matter of law

because Pentalpha’s 16 July 1998 memorandum to Sunbeam (1) breached a

dependant covenant in the October PSA by reversing the one million dollar rebate,

and thereby relieved Sunbeam of its contractual obligations; and (2) constituted an

election of rescission by Pentalpha as the remedy for Sunbeam’s breach. In

response, Pentalpha contends that (1) the jury could have reasonably found that

Sunbeam committed a material breach of the October PSA by 26 January 1998,

thereby freeing Pentalpha of any obligation to further perform under the October

PSA; and (2) that Pentalpha did not, in the 16 July 1998 memorandum, elect to

accept return of the one million dollars in full satisfaction of its claims.

             a.     Breach of a Dependant Covenant

      Under Florida law, “[a] breach of a [dependent] covenant amounts to a

breach of the entire contract; it gives to the injured party the right to sue at law for

damages . . .” or to rescind the contract in equity. Steak House, Inc. v. Barnett, 65

So.2d 736, 738 (Fla. 1953). In a different context, we have noted that

             ‘[a] covenant is dependant where it goes to the whole consideration
             of the contract; where it is such an essential part of the bargain that
             the failure of it must be considered destroying the entire contract; or
             where it is such an indispensable part of what both parties intended
             that the contract would not have been made with the covenant
             omitted. . .’


                                           29
Hibiscus Assocs., Ltd. v. Bd. of Trustees of Policemen & Firemen Retirement

Sys. of City of Detroit, 50 F.3d 908, 916 (11th Cir. 1995) (citation omitted).

       In this case, regardless of whether the July 16 Memorandum and debit

memo can be deemed “to go[] to the whole consideration of the contract,”

Hibiscus Assocs., Ltd., 50 F.3d at 916, we agree with Pentalpha that the jury could

have reasonably found that Sunbeam materially breached the October PSA by 26

January 1998. See supra section II.A.1. Accordingly, Pentalpha was relieved of

any remaining obligations to perform under the October PSA, see id., and

Sunbeam’s argument fails.

              b.     Election of Remedies

       Florida’s enactment of the Uniform Commercial Code provides that,

“[u]nless the contrary intention clearly appears, expressions of ‘cancellation’ or

‘rescission’ of the contract or the like shall not be construed as a renunciation or

discharge of any claim in damages for antecedent breach.” F.S.A. § 672.720. The

purpose of this section, according to a comment to the Code, is to “safeguard a

person holding a right of action from any unintentional loss of rights by the ill-

advised use of such terms as ‘cancellation’, ‘rescission’, or the like . . . .” Id., cmt.

(“Purpose”). Accordingly, “unless the cancellation of a contract expressly

declares that it is ‘without reservation of rights’, or the like, it cannot be

considered to be a renunciation of this section.” Id. As this Comment indicates,
                                            30
this UCC provision abrogates any former election of remedies doctrine that would

have applied under these circumstances.9 Under F.S.A. § 672.720, an innocent

party to a breached contract can both cancel the contract and, so long as he does

not clearly indicate that he is waiving his right to assert breach of contract, claim

damages for the breach. See F.S.A. § 672.720; see also Roth Steel Prods. v.

Sharon Steel Corp., 705 F.2d 134, 151 n.36 (6th Cir. 1983) (applying UCC § 2-

720 to hold that plaintiffs’ cancellations did not operate as a waiver of their right

to assert damages for breach); National Cash Register Co. v. Unarco Indus., Inc.,

490 F.2d 285, 287 (7th Cir. 1974) (applying UCC § 2-720 and noting that

“[p]laintiff is surely correct in saying that in order for the language to be found a

waiver or renunciation [of any claim against defendant], such intention must

clearly appear”).10

           In this case, the district court, in discussing the jury instructions with

Pentalpha and Sunbeam, stated that F.S.A. § 672.720 governed Sunbeam’s

election of remedies claim. The district court then charged the jury that Sunbeam

could establish an election of remedies defense only by demonstrating that the


       9
         We are mindful that F.S.A. § 2-720 does not apply to a mutual rescission by the parties
to a contract. United States ex rel. Vulcan Materials v. Volpe Constr., 622 F.2d 880, 884 (5th
Cir. 1980). In this case, however, Sunbeam argues that Pentalpha’s alleged termination of the
contract was unilateral.
       10
         Although Sunbeam cites several cases which discuss the election of remedies doctrine
generally, it cites no case that indicates that F.S.A. § 672.720 does not apply here.
                                                31
memorandum and accompanying debit memo “constituted a clear expression on

the part of Pentalpha that it was terminating the Supply Agreement and accepting

the return of the one million dollar rebate it had previously paid to Sunbeam in

full satisfaction of any claims under the Supply Agreement.” R11 at 176. After

deliberations, the jury found that Sunbeam did not prove that Pentalpha clearly

elected the return of the one million dollars in satisfaction of its claims.

      We find that the district court correctly concluded that F.S.A. § 672.720

supercedes Florida’s election of remedies doctrine in this case. Moreover, there

exists sufficient evidence to support the jury’s verdict that the July 16

Memorandum did not constitute a clear expression that Pentalpha elected to

rescind the contract and waive its rights to assert a claim for breach. The July 16

Memorandum and accompanying debit memo indicate only that Pentalpha

believed that “the agreement ha[d] not been fulfilled by Sunbeam” and that it was

issuing a debit note to Sunbeam for the one million dollars. R4-20, Ex. 152 at 1,

4. It does not contain language that “expressly declares that [the memorandum] is

‘without reservation of rights’, or the like.” F.S.A. § 672.720, cmt. (“Purpose”).

Accordingly, the district court did not err in denying Sunbeam’s renewed motion

for judgment as a matter of law.

B.    Admission of Pentalpha’s Rebate Evidence

      Third, Sunbeam argues that it is entitled to a new trial because the district
                                           32
court allowed Pentalpha to introduce evidence concerning rebates Sunbeam

received from other manufacturers (“the rebate evidence”), allegedly in violation

of the district court’s 15 December evidentiary order. According to Sunbeam, the

rebate evidence could not support Pentalpha’s contention that Sunbeam breached

the October PSA by explicitly or implicitly promising other vendors that they

could continue to manufacture Schedule A products in exchange for giving

Sunbeam rebates. Sunbeam further avers that Pentalpha relied on the rebate

evidence to imply unfairly that Sunbeam had an improper or unscrupulous motive

in failing to perform under the October PSA. In response, Pentalpha argues that

the admission of rebate evidence conformed to the district court’s 15 December

order and was neither irrelevant nor unfairly prejudicial.

      We review a district court’s evidentiary ruling for abuse of discretion. Ad-

vantage Tel. Directory Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460,

1463 (11th Cir. 1994). Abuse of discretion exists if the district court committed a

clear error of judgment or applied an erroneous legal standard. Alexander v.

Fulton County, Ga., 207 F.3d 1303, 1326 (11th Cir. 2000) (en banc). If we find

error, we will not overturn the erroneous ruling and order a new trial unless the

objecting party has demonstrated that the ruling produced a substantial prejudicial

effect. Id.; Fed. R. Civ. P. 61 (erroneous evidentiary rulings should not be

reversed unless refusal to do so is “inconsistent with substantial justice”). To
                                          33
determine if a party’s substantial rights were affected, we analyze factors

including “the number of errors, the closeness of the factual disputes, the

prejudicial effect of the evidence, the instructions given, and whether counsel

intentionally elicited the evidence and focused on it during trial.” Ad-vantage Tel.

Directory Consultants, Inc., 37 F.3d at 1465 (citation omitted). In sum, we may

conclude that the party’s substantial rights were not affected so long as we can

“‘say, with fair assurance, . . . that the judgment was not substantially swayed by

the error.’” Id. (citation omitted).

      We conclude that the district court did not abuse its discretion in admitting

the rebate evidence. A party’s motive is irrelevant to a breach of contract claim

under Florida law, see Southern Bell Tel. & Tel. Co. v. Hanft, 436 So.2d 40, 42

(Fla. 1983) (motive or reasons for breach are irrelevant); see also J.J. Gumberg v.

Janis Servs., Inc., 847 So.2d 1048, 1049 (Fla. Dist. Ct. 2003) (per curiam) (proof

of valid contract, material breach, and damages required for breach of contract in

Florida), and in its 15 December order, the district court ruled that Pentalpha

could not introduce rebate evidence to prove Sunbeam’s motive in breaching the

October PSA. Consistent with Florida law, however, the district court’s order

allowed Pentalpha to introduce rebate evidence tending to show that Sunbeam

breached the October PSA or rebutting any evidence Sunbeam offered as to why it

did not perform the October PSA.
                                         34
        We conclude that the district court did not abuse its discretion in admitting

Wiggins’s testimony. The testimony is arguably relevant11 on either ground

allowed by the district court’s order and Florida law. Wiggins testified that he

could not say with certainty whether there were any “wink and nod” agreements

associated with the rebates from Sunbeam’s existing suppliers of Schedule A

products, R10 at 50-51, and that the suppliers were willing to give Sunbeam

rebates because they wanted more business from Sunbeam. From this testimony,

the jury could have inferred that the Sunbeam promised its suppliers that they

could keep their Schedule A business if they paid a rebate.

        Further, the rebate evidence tended to prove that Sunbeam failed to perform

under the October PSA for reasons other than deficiencies in Pentapha’s

performance. During Pentalpha’s reading of Nugent’s deposition testimony,

Sunbeam read into the record portions of Nugent’s testimony in which he

explained Sunbeam’s failure to purchase certain Schedule A products from

Pentalpha. For example, Nugent testified that Sunbeam did not purchase coffee

makers or garment steamers from Pentalpha, even though Pentalpha bid

successfully on those products, because Pentalpha never submitted an acceptable



       11
          Under the Federal Rules of Evidence, “all relevant evidence is admissible.” Fed. R.
Evid. 402. Rule 401 defines “relevant evidence” as that which “ha[s] any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without evidence.” Fed. R. Evid. 401.
                                               35
project plan for a tooling transfer. Nugent also testified that Sunbeam did not

purchase rotisseries before January or February of 1998 because it had current

outstanding orders that needed to be filled. Under the district court’s 15

December order, Pentalpha was thus then allowed to rebut the explanations

offered by Sunbeam.

      Even assuming the rebate evidence was irrelevant on both grounds allowed

by the district court’s order, Sunbeam cannot prove that it suffered a substantial

prejudicial effect from the district court’s ruling. First, Pentalpha offered

evidence beyond Wiggins’s testimony that Sunbeam materially breached the

October PSA with regard to each relevant Schedule A Product. See Maiz v.

Virani, 253 F.3d 641, 668 (11th Cir. 2001) (concluding that evidentiary error did

not affect substantial rights in part because verdict could be supported “without

considering the challenged testimony”); see also Ad-vantage Tel. Directory

Consultants, Inc., 37 F.3d at 1465 (weighing “closeness of evidence” in

determining effect of erroneous evidentiary ruling on party’s substantial rights).

For the hand mixers, supplied to Sunbeam by Tsann Kuen, Pentalpha offered

evidence that Sunbeam failed to provide Pentalpha with product samples. R9 at

60. For the rotisseries, supplied to Sunbeam by Chiaphua, Pentalpha offered

evidence that Sunbeam did not transfer any tooling in response to Pentalpha’s



                                          36
successful bid. Id. at 89. Thus, the verdict can be supported even without

considering Wiggins’s testimony. See Maiz, 253 F.3d at 668.

      Second, contrary to Sunbeam’s argument on appeal, Pentalpha’s counsel

appears to have elicited the evidence for the two purposes permitted by Florida

law and the district court’s 15 December order. See Ad-vantage Tel. Directory

Consultants, Inc., 37 F.3d at 1465 (noting that counsel’s purpose in eliciting

evidence is a factor in a substantial rights evaluation). In his closing argument, for

example, Pentalpha’s counsel argued that Sunbeam solicited rebates from Tsann

Kuen by promising, implicitly or explicitly, that Tsann Kuen could keep its

existing business of Schedule A products and that Sunbeam thereby breached the

October PSA. Sunbeam points to two specific sections in his closing argument in

which, Sunbeam contends, he improperly argued that Sunbeam had an

unscrupulous motive in breaching the October PSA. First, Sunbeam points out

that Pentalpha’s counsel argued:

                   What was really going on was that Sunbeam was
             discouraging Pentalpha from bidding. If Sunbeam wanted a bid on
             the hand mixers it would have sent Pentalpha a sample of the hand
             mixers.
                   I guess it was too busy soliciting its rebate from its existing
             supplier of hand mixers, Tsann Kuen.

Id. at 117. Viewed in context, the first paragraph appears to have been offered to

rebut Sunbeam’s evidence that it breached the October PSA because of


                                          37
deficiencies in Pentalpha’s performance. The last sentence, although arguably not

related to the purposes permitted by the district court’s order, is not clearly related

to an improper purpose either. The prejudicial nature of this remark is minimal, at

most.

        Second, Sunbeam cites a section of the closing in which Pentalpha’s

counsel stated:

                     Now, the only important event that [Sunbeam’s counsel] notes
              on his time line [of events] is the memorandum of Mr. Nugent
              saying, “You didn’t bid on this. Where is your project plan?”
              Communications. That’s it.
                     [Sunbeam’s counsel] does not attempt to demonstrate that
              Sunbeam did anything to perform the contract. Didn’t move any
              tooling. Didn’t try to move – didn’t try to move any other tooling.
              But, boy, was it good at hitting up its other suppliers for rebates.
              What would have happened if it told its existing suppliers that they
              were going to have to transfer their tooling to Pentalpha? You think
              they would have gotten a rebate out of Tsann Kuen? Think they
              would have gotten a rebate out of Chiaphua?

Id. at 157-58. In these paragraphs, Pentalpha’s counsel seemingly refers to the

memorandum from Nugent to Pentalpha sent on 24 December 1997. Sunbeam’s

counsel cited this memorandum in his closing argument apparently to argue that

Pentalpha had failed to submit the project plans required for Sunbeam to begin

transferring tooling. R9 at 135. Thus, Pentalpha’s counsel there employed the

rebate evidence to rebut Sunbeam’s argument that it did not purchase Schedule A

products from Pentalpha because of Pentalpha’s failure to fulfill its obligations.


                                           38
This purpose is permitted by the district court’s 15 December order.

      Because Pentalpha offered evidence beyond Wiggins’s testimony that

Sunbeam materially breached the October PSA with regard to each relevant

Schedule A Product, and Pentalpha’s counsel apparently elicited the rebate

evidence for purposes required by the district court’s 15 December order, we can

conclude “‘with fair assurance, . . . that the judgment was not substantially swayed

by [any] error’” in admitting Wiggins’s testimony. Ad-vantage Tel. Directory

Consultants, Inc., 37 F.3d at 1465 (citation omitted). Any error in admitting

Wiggins’s testimony thus did not affect Sunbeam’s substantial rights.

Accordingly, we decline to order a new trial because of the admission of this

testimony.

C.    Pentalpha’s Claim Regarding Prejudgment Interest

      On cross-appeal, Pentalpha first argues that the district court erred in failing

to award Pentalpha pre-verdict interest. The district court awarded interest from

the date of the verdict because “an exact date [could not] be ascertained by th[e]

Court as to Pentalpha’s damages.” R3-166 at 5. Noting that Florida courts award

prejudgment interest to compensate completely the prevailing party for its loss,

Pentalpha contends that the district court should have determined the date

Pentalpha incurred damages based on evidence in the record and awarded pre-



                                          39
verdict interest accordingly. In response, Sunbeam argues that Florida law allows

pre-verdict interest only if the verdict liquidates damages as of a fixed date, which

did not occur in this case.

      State law determines whether a successful litigant is entitled to prejudgment

interest. Venn v. St. Paul Fire & Marine Ins. Co., 99 F.3d 1058, 1066 (11th Cir.

1996). We review de novo the district court’s determination of the proper legal

standard under which to compute damages, and we reverse the district court’s

factual findings only if they are clearly erroneous. A.A. Profiles, Inc. v. City of

Fort Lauderdale, 253 F.3d 576, 581 (11th Cir. 2001).

      Florida’s seminal case concerning prejudgment interest is Argonaut Ins. Co.

v. May Plumbing Co., in which the Florida Supreme Court resolved a split in the

Florida District Courts of Appeal over the circumstances under which

prejudgment interest could be awarded. 474 So.2d 212 (Fla. 1985). In one line of

authority, represented by Chicago Ins. Co. v. Argonaut Ins. Co., Florida appellate

courts refused to award prejudgment interest in cases where, before trial, the

amount of damages was disputed by the parties. 451 So.2d 876, 877 (Fla. Dist.

Ct. App. 1984). Because of the dispute, the amount of damages could be

determined conclusively only by a fact finder at trial. Id. at 877 (noting that claim

of comparative negligence made damages uncertain before trial and that the



                                          40
“‘dispute was settled only by the jury’”) (citation omitted); accord McCoy v.

Rudd, 367 So.2d 1080, 1082 (Fla. Dist. Ct. App. 1979). Accordingly, the liable

party had no way to determine the amount of damages he owed before trial, and

he could not be found in default on a debt so as to be required to pay interest. See

Tampa Elec. Co. v. Nashville Coal Co., 214 F. Supp. 647, 657 (M.D. Tenn. 1963)

(applying Florida damages law). In the competing line of authority, represented

by Bergen Brunswig Corp. v. State Dep’t of Health and Rehabilitative Servs.,

Florida appellate courts awarded prejudgment interest in cases where the “verdict

ha[d] the effect of fixing damages as of a prior date.” 415 So.2d 765, 767 (Fla.

Dist. Ct. App. 1982); accord Tech Corp. v. Permutit Co., 321 So.2d 562, 563-64

(Fla. Dist. Ct. App. 1975). Under this rule, liable parties were subject to

prejudgment interest whether or not they contested the amount of damages.

Bergen Brunswig Corp., 415 So.2d at 767.

      The Florida Supreme Court resolved the conflict in favor of the line of

authority represented by Bergen Burnswig Corp. Adopting the “loss theory” of

prejudgment interest, the court concluded that prejudgment interest is “merely

another element of pecuniary damages.” Argonaut Ins. Co., 474 So.2d at 214-15.

The certainty of the amount of damages before trial does not affect the award, and

“[w]hen a verdict liquidates damages on a plaintiff’s out-of-pocket, pecuniary



                                          41
losses, [the prevailing party] is entitled, as a matter of law, to prejudgment interest

at the statutory rate from the date of that loss.” id. at 215.

       Notably, the Florida Supreme Court did not conclude in Argonaut Ins. Corp.

that every verdict liquidates a claim so as to allow an award of prejudgment

interest. Instead, it concluded that a claim would be subject to prejudgment

interest “when” it did so. Id. The issue we must decide here is what standard

Florida law dictates we apply to determine if a verdict liquidated a claim as to a

date certain.

       Sunbeam argues that the Florida Supreme Court provided the standard in

Argonaut Ins. Corp. when it stated:

                Once a verdict has liquidate[] the damages as of a date certain,
                computation of prejudgment interest is merely a mathematical
                computation. There is no ‘finding of fact’ needed. Thus, it is purely
                ministerial duty of the trial judge or clerk of the court to add the
                appropriate amount of interest to the principle amount of damages
                awarded in the verdict.

Id. at 215. According to Sunbeam, this language indicates that a verdict has not

liquidated a claim when the record does not conclusively support any one date of

loss, as choosing between the dates would constitute fact finding that goes beyond

“mere[]. . . mathematical computation.” Id. According to Pentalpha, our refusal

to grant prejudgment interest where the preponderance of the evidence supported

three alternative dates would undermine Florida’s purpose to compensate fully the


                                            42
prevailing party for its loss.12 Because we conclude that the dicta cited by

Sunbeam does not establish conclusively the standard to apply, we examine cases

in which the Florida District Courts of Appeal determined whether to award

damages where the jury verdict did not specify a certain date. See Flintkote Co. v.

Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982) (noting that, absent some

“persuasive indication” that the state supreme court would decide the issue

differently, federal courts must adhere to state intermediate courts’ decisions in

diversity cases if the state supreme court has not addressed an issue).

        Florida District Courts of Appeal applying Argonaut have held that

prejudgment interest cannot be awarded unless there is a pecuniary loss and a date

of that loss. See Glover Distrib. Co., Inc. v. F.T.D.K., Inc., 816 So.2d 1207, 1213

(Fla. Dist. Ct. App. 2002). “In other words, prejudgment interest attaches as an

incident of damages when it is ascertained that money ought to have been paid at a

particular time.” Florida Jurisprudence § 92 (2d ed. 2005) (citing Reilly v. Barrera,

       12
          Pentalpha also argues that the Florida Supreme Court expressly disavowed the standard
applied by the district court. Pentalpha notes that, in Argonaut Ins. Co., the Florida Supreme
Court explicitly rejected the rule that, “‘where the judgment is for damages, interest may not be
added to the principal award unless there can be a conclusive determination of an exact amount
due and a date from which interest can be computed.’” 474 So.2d at 214 (citation omitted).
Viewed out of context, this language seems to indicate that the Supreme Court determined that
prejudgment interest can be awarded from dates prior to the verdict even if there is no
“conclusive determination of an exact. . . date.” Id. As explained above, however, the Florida
Supreme Court was rejecting a rule that prejudgment interest could not be awarded where
“[b]oth liability and the amount of loss were disputed at trial,” which made the amount and date
inconclusive. Id. Viewed in context, then, this language simply reiterates that rejected rule and
does not indicate when a verdict liquidates damages, which is the crucial issue here.

                                                43
620 So.2d 1116, 1118 (Fla. Dist. Ct. App. 1993) (citation omtited)). Preverdict

interest may be awarded even if the jury did not specify a particular date of loss, so

long as a date is clear from the record. RDR Computer Consulting Corp. v.

Eurodirect, Inc., 884 So.2d 1053, 1055 (Fla. Dist. Ct. App. 2004); but see Neva,

Inc. v. Christian Duplications Int’l, Inc., 743 F. Supp. 1533, 1543 (M.D. Fla. 1990)

(concluding that damages were unliquidated because jury verdict did not fix

damages as of a date prior to the verdict). In breach of contract cases, Florida

courts have awarded prejudgment interest where the jury awarded damages of

precisely the amount asked for by the plaintiff through a specific date, the end of

the contract’s term, see RDR Computer Consulting Corp. at 1054-55, and where

the record indicated that “the parties’ contractual relationship was terminated by

formal notice prior to commencement of [litigation],” Bergen Brunswig Corp., 415

So.2d at 767. In a tort case involving damage to a farmer’s fields, a Florida court

held that the trial court erred in refusing to award prejudgment interest because the

date of loss could not be determined, where the record indicated that an accounting

report made the loss apparent to the plaintiff on a specific date. See Charles

Buzbee & Sons, Inc. v. Falkner, 585 So.2d 1190, 1191 (Fla. Dist. Ct. App. 1991).

In a case involving theft and conversion, a Florida court held that prejudgment

interest should have been awarded from the date of the theft, even though there



                                          44
was no date certain specified on the verdict form. Vining v. Martyn, 660 So.2d

1081, 1082 (Fla. Dist. Ct. App. 1995).

      In its order denying Pentalpha prejudgment interest, the district court

determined that an exact date of loss was obvious from the facts of the above cases,

whereas in this case, Pentalpha provided the court with a choice of dates from

which to award prejudgment interest. Citing Checkers Drive-In Rests., Inc. v.

Tampa Checkmate Food Serv., 805 So.2d 941 (Fla. Dist. Ct. App. 2001), and

Perdue Farms Inc. v. Hook, 777 So.2d 1047, 1055 (Fla. Dist. Ct. App. 2001), the

district court then concluded that this difference prevented it from awarding pre-

verdict interest. We disagree.

      First, Checkers Drive-In Rests., Inc., and Perdue Farms Inc., can be

distinguished from the case here. Checkers Drive-In Rest., Inc. involved damages

based on future anticipated profits. 805 So.2d at 945. Under Florida’s loss theory

of damages, the prevailing party could not be awarded prejudgment interest to

compensate him for a past loss because there was no past loss. Perdue Farms Inc.,

although more similar to the case before us, concerned a claim for

misappropriation and involved a record from which it was “impossible to

determine any date upon which [the plaintiff’s] ability to market his process was

lost by reason of the presence of [the defendant’s allegedly copied product] in the



                                         45
marketplace.” 777 So.2d at 1055 (emphasis added). Thus, Perdue can be

distinguished because in this case, the record conclusively supports at least one

date, the last day of the October PSA’s term, upon which Pentalpha suffered an

out-of-pocket loss. Further, unlike in this case, the plaintiff’s damage expert in

Perdue Farms Inc. had failed to provide the jury with a precise value of the

plaintiff’s allegedly misappropriated trade secret on any particular date. Id. at

1051. Finally, Perdue Farms Inc. involved misappropriation, a tort. Florida courts

generally do not allow prejudgment interest on tort claims because damages are

often too speculative to liquidate before final judgment. Lumbermens Mut. Cas.

Co. v. Percefull, 653 So.2d 389, 390 (Fla. 1995).

      Second, Florida law supports the proposition that prejudgment interest can

be awarded properly from the latest possible date of loss. See Pine Ridge at

Haverhill Condo. Assoc., Inc. v. Hovnanian of Palm Beach II, Inc., 629 So.2d 151,

151 (Fla. Dist. Ct. App. 1993) (per curiam) (in a case involving construction

defects to an association’s condominium complex , holding that “[t]he jury finding

. . . had the effect of fixing the damages at no later than the turnover date of the

condominium property to the association. . . .” and awarding prejudgment interest

from that date); see also Glover Distrib. Co., Inc., 816 So.2d at 1213 (affirming

trial court’s award of prejudgment interest because damages were liquidated “at



                                           46
least as of” a certain date, where liable party conceded that damages could not have

accrued beyond that date). The record conclusively indicates that the last date of

the term of the October PSA was 30 June 2001. Accordingly, Pentalpha suffered a

loss for Sunbeam’s breach of contract no later than 30 June 2001.

      Florida awards prejudgment interest to compensate the prevailing party for

its loss. Argonaut Ins Co., 474 So.2d at 215. We conclude that the verdict

liquidated Pentalpha’s damages as of 30 June 2001, the last date of the October

PSA’s term, and prejudgment interest should be awarded from that date.

D.    Exclusion of Pentalpha’s Evidence that Sunbeam Purchased More Schedule
      A Products than it Admitted

      Pentalpha next contends that the district court erred in excluding certain

evidence offered to prove the alleged incompleteness of the computer printouts

provided by Sunbeam which purportedly disclosed all of Sunbeam’s purchases of

Schedule A products from other vendors during the October PSA’s term.

Pentalpha argues that Sunbeam changed its computer system on 9 May 1999 and

that a programming error prevented Sunbeam from retrieving complete data before

that date. This exclusion is significant to Pentalpha because Pentalpha calculated

its damages by multiplying its lost profit per product by the number of units of

Schedule A products that Sunbeam purchased in breach of the PSA. If Pentalpha

could have introduced evidence indicating Sunbeam’s alleged mistake, says

                                         47
Pentalpha, it could have argued to the jury that the computer printouts reported

only some of Sunbeam’s purchases in breach of the PSA, and the jury could have

awarded Pentalpha more damages.

        To remedy the district court’s alleged error in excluding the evidence

concerning the inaccuracies in the computer printouts, Pentalpha requests in

supplemental briefing that we remand its breach of contract claim for a limited new

trial. In the limited new trial that Pentalpha proposes, Pentalpha would be allowed

to keep its contract damages award of $6.6 million, and the jury would determine

only the amount of additional damages, if any, Pentalpha deserves based on its

consideration of the excluded evidence. If we decline to grant this limited new

trial, however, Pentalpha wishes to withdraw its challenge entirely. In response,

Sunbeam contends that Pentalpha failed to preserve its “limited trial” argument,13



       13
           Sunbeam avers that Pentalpha failed to preserve its request for a new trial on account
of the alleged evidentiary error because it did not seek post-trial relief or ask the district court to
grant a limited new trial on this ground. In federal court, however, “‘the settled rule . . . is that a
party may assert on appeal any question that has been properly raised in the trial court. Parties
are not required to make a motion for a new trial challenging the supposed errors as a
prerequisite to appeal.’” Rand v. Nat’l Fin. Ins. Co., 304 F.3d 1049, 1052 (11th Cir. 2002) (per
curiam) (citation omitted). To preserve a challenge to an evidentiary ruling, a party need only
timely object to the alleged error and “state ‘the specific ground of objection, if the specific
ground was not apparent from the context.’” Wilson v. Attaway, 757 F.2d 1227, 1242 (11th Cir.
1985). Pentalpha has met that requirement here.
        Additionally, Sunbeam contends that Pentalpha’s argument in supplemental briefing is
improper because Pentalpha did not request the remedy of a limited new trial in its initial brief.
However, on 28 March 2005, we granted Pentalpha’s motion to file supplemental briefing to
address this issue. Sunbeam did not respond to Pentalpha’s motion to supplement and thus
cannot attempt to revisit the propriety of supplemental briefing now.

                                                   48
or, alternatively, that Pentalpha should be permitted to withdraw its argument

because it is not entitled to a limited new trial.

        Under Federal Rule of Civil Procedure 59(a), a court may grant a new trial

“on all or part of the issues” so long as “it clearly appears that the issue to be

retried is so distinct and separable from the others that a trial of it alone may be had

without injustice.” Federal Rule of Civil Procedure 59(a); Gasoline Prods. Co. v.

Champlin Refining Co., 283 U.S. 494, 500, 51 S. Ct. 513, 515 (1931).14

        Applying this standard, we conclude that Pentalpha has not established that

we may properly grant a new trial limited to additional damages here. Although

any additional award would be based on the same, underlying conduct as the

existing award of $6.6 million, we have no way of knowing from the jury’s verdict

how and in what ways the jury found Sunbeam liable. We can speculate as to the




       14
          We note that in all of the cases Pentalpha cites in support of its argument that we grant
a limited new trial for additional damages while preserving its original $6.6 million breach of
contract award, the issue in question was separate and distinct from the other issues in the case.
See Atkinson v. Dixie Greyhound Lines, 143 F.2d 477, 479-80 (5th Cir. 1944) (preserving actual
damages but granting limited new trial to determine punitive damages ); Rice v. Community
Health Ass’n, 203 F.3d 283, 290 (4th Cir. 2000) (preserving award for breach of contract
damages but ordering limited new trial to determine consequential damages “for loss of
identifiable professional opportunities” after concluding that questions were “distinct and
separable” because they involved different time frames and had distinct elements of proof)
(internal quotations omitted); Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 n.3, 23 (2d
Cir. 1996) (per curiam) (preserving awards for medical expenses and pain and suffering but
granting new trial to determine award for lost past and future earnings where jury had “answered
special interrogatories directed precisely to the issue in question”).

                                                 49
jury’s conclusions based on the damages evidence presented by Pentalpha,15 but we

cannot know for sure. At trial, the jury grappled with a complicated set of factual

and legal arguments in which each party contended that the other breached the

PSA at various points during the PSA’s term. Pentalpha requested $14.7 million in

damages on its breach of contract claim, but the jury returned a verdict for only

$6.6 million. The jury gave no indication of its method of calculating damages,

how its damages calculation related to Sunbeam’s liability, or any specific finding

as to the moment or moments in the PSA’s term on which Sunbeam breached the

PSA. The jury may have awarded damages for lost profits based on the entire term

of the PSA, parts of the term, or on certain Schedule A products but not others.

Accordingly, we cannot say with assurance that the issue of additional damages,

based on the excluded evidence spanning the entire term of the October PSA, is

sufficiently “distinct and separable” from the jury’s calculation of $6.6 million in

damages without the excluded evidence so that we may order a trial without




       15
          At trial, Pentalpha introduced an exhibit summarizing its alleged damages. This
exhibit indicates that from July 1997 to June 2001, Pentalpha suffered lost profits of $9,449,858
from Schedule A products. R4-201, Ex. 182GG. Included in this total are lost profits of
$6,600,735 for four particular Schedule A Products: $553,773 for the garment steamers,
$545,315 for the hand mixers, $663,904 for the rice cookers, and $4,837,743 for the ultrasonic
humidifiers. Id. On appeal, Pentalpha argues that the jury awarded Pentalpha lost profits for
these four products by taking Pentalpha’s figures and rounding them down to the nearest
thousand.

                                                50
risking injustice. See Gasoline Prods. Co., 283 U.S. at 500, 51 S. Ct. at 515.16 The

only relief Pentalpha would be entitled–a full new trial, or at least a new trial

limited to the issue of damages only–is a remedy it has specifically rejected.

Accordingly, we need not address the underlying merits of Pentalpha’s argument,

and we decline to reverse on account of the district court’s exclusion of the

additional damages evidence.

E.      Pentalpha’s Fraudulent Inducement Claim

        We review de novo the district court’s grant of summary judgment in favor

of Sunbeam on Pentalpha’s fraudulent inducement claim. Velten v. Regis B.

Lippert, Intercat, Inc., 985 F.2d 1515, 1519 (11th Cir. 1993). Under Florida law,

fraud in the inducement can be established if (1) there was a false statement

concerning a material fact; (2) the representor knew or should have known that the

representation was false; (3) the representor intended to induce another party to act

in reliance on the false statement; and (4) that the party acted in reliance on the

representation and was injured as a result. See Johnson v. Davis, 480 So. 2d 625,

627 (Fla. 1985). Additionally, the party’s reliance must have been justifiable.

Johnson Enters. of Jacksonville, Inc., v. FPL Group, Inc., 162 F.3d 1290, 1315



       16
          Because we conclude that the issue of additional damages cannot be separated from the
jury’s calculation of the $6.6 million award, we offer no view on the propriety of a “stop loss”
new trial in other circumstances.

                                                51
(11th Cir. 1998).

        In this case, Pentalpha argues that the district court erred in (1) reasoning

that because Pentalpha entered into the June PSAwithout relying on any alleged

misrepresentations by Sunbeam, that it must also have entered into the October

Supply Agreement without relying on any alledged misrepresentations;17 and (2)

concluding that Pentalpha could not have justifiably relied on misrepresentations

not contained in the October PSA, where the misrepresentations were consistent

with the Agreement. In response, Sunbeam contends that (1) both the June PSA

and the October PSA required Pentalpha to pay Sunbeam one million dollars; and

(2) Pentalpha was not justified in relying on the alleged misrepresentations because

they were not contained in the subsequent written October PSA and because the

October PSA was inconsistent with the alleged misrepresentations.

        Florida law consistently recognizes that “a basic tenet of contract law that

reliance on representations by a contracting party in a suit based on the contract is

unreasonable where the representations are not contained in the subsequent written

agreement between the parties.” Barnes v. Burger King Corp., 932 F.Supp. 1420,

       17
         Specifically, Pentalpha contends that the October PSA required Pentalpha to pay one
million dollars to Sunbeam, whereas the June PSA did not. Pentalpha argues that the Rider to
the June PSA which stated that “Pentalpha” would pay Sunbeam one million dollars bound
Pentalpha U.S., not Pentalpha. In support of this argument, Pentalpha contends that the June
PSA’s Rider was signed only by Lior, acting as President of Pentalpha U.S., that Lior did not
disclose the Rider to John Sham, and that Pentalpha voided the June PSA, with Sunbeam’s
consent, after learning of the Rider.

                                               52
 1428 (S.D. Fla. 1996); accord Johnson Enters. of Jacksonville, Inc., 162 F.3d at

 1315. Applying Florida law, courts have held that parties could not rely justifiably

 on representations that explicitly contradicted provisions of the contract. See

 Barnes, 932 F.Supp. at 1428. Courts have also held that a party could not rely

 justifiably on representations not contained in the contract where the party helped

 draft the agreement and relinquished opportunities to reduce the representations to

 writing. See Johnson Enters. of Jacksonville, 162 F.3d at 1315.18

         Even assuming arguendo that Pentalpha correctly argues that the October

 PSA imposed significant financial obligations on Pentalpha, whereas the June PSA

 did not, we conclude that, under Florida law, Pentalpha could not have relied

 justifiably on Sunbeam’s misrepresentations regarding its financial condition.

 Pentalpha’s CEO, John Sham, participated in the negotiation of the October PSA.

 There is no evidence that suggests he attempted to include a provision about



        18
          Pentalpha argues that Golden v. Mobil Oil Corp., 882 F.2d 490, 495 (11th Cir. 1989),
and Gilchrist Timber Co. v. ITT Rayonier, Inc., 127 F.3d 1390, 1395 (11th Cir. 1997), establish
that in Florida, a party can justifiably rely on fraudulent misrepresentations that are not contained
in the written agreement. Neither case is dispositive here. In Golden, we held that a district
court erred in granting a directed verdict for defendant on plaintiff’s fraud claim, where
defendant’s “offer of a three year lease instead of a trial franchise, . . . promise that [the plaintiff]
would have a ‘tremendous future’ with the company, and . . . referral to the proposed
relationship as a ‘marriage’” satisfied the first three prongs of the test for fraud. 882 F.2d at 495.
However, we did not address whether the plaintiff justifiably relied on the defendant’s
representations. Id. at 494 (omitting justifiable reliance in elements of fraud). In Gilchrist, we
concluded that a fact not included in the contract could be material for purposes of a fraudulent
inducement claim. 127 F.3d at 1395. We did not explicitly address justifiable reliance.

                                                    53
Sunbeam’s financial condition. In light of these facts, we conclude that the district

court did not err in concluding that, as a matter of law, Pentalpha could not have

relied justifiably on Sunbeam’s alleged misrepresentations. See Johnson Enters. of

Jacksonville, 162 F.3d at 1315.

F.    Denial of Judgment as a Matter of Law for Global-Tech

      Finally, Global-Tech contends that the district court erred in denying Global-

Tech’s motion for judgment as a matter of law at the close of Sunbeam’s case-in-

chief. Citing Johnson Enters. of Jacksonville, Inc., Global-Tech argues that

Sunbeam offered no evidence to support a finding that Global-Tech used Pentalpha

to engage in improper conduct. In response, Sunbeam asserts that Global-Tech

waived its argument by failing to renew its motion for a directed verdict at the

close of all of the evidence. Alternatively, Sunbeam contends that it made a prima

facie case of Global-Tech’s liability sufficient to submit the question to the jury.

      Under Federal Rule of Civil Procedure 50(b), a movant must file a directed

verdict motion at the close of all of the evidence in order to challenge the

sufficiency of the evidence on appeal. Fed. R. Civ. Pr. 50(b); Rand, 304 F.3d at

1051. We have declined to examine the sufficiency of the evidence supporting a

jury’s verdict where a defendant moved for a directed verdict at the close of the

plaintiff’s case but failed to renew the motion at the conclusion of all of the



                                           54
evidence. Coker v. Amoco Oil Co., 709 F.2d 1433, 1437 (11th Cir. 1983),

superceded by statute on other grounds; Special Promotions, Inc. v. Southwest

Photos, Ltd., 559 F.2d 430, 432 (5th Cir. 1977).19 In such cases, “our inquiry is

limited to whether there was any evidence to support the jury’s verdict, irrespective

of its sufficiency, or whether plain error was noted which, if not noticed, would



       19
           Citing Perceptron, Inc. v. Sensor Adaptive Machs., Inc., 221 F.3d 913, 918
n.3 (6th Cir. 2000), Global-Tech argues that it did not need to renew its motion at the close of all
of the evidence because testimony introduced after the motion related only to Pentalpha’s
counterclaim against Sunbeam and not to Pentalpha or Global-Tech’s defense of Sunbeam’s
indemnification claim.
         In related contexts, we have overlooked technical deviations from Rule 50(b)’s
requirements so long as the parties’ actions satisfied the purpose of the Rule, i.e., alerting the
court and opposing counsel of any insufficiencies before submitting the case to the jury. See
Rankin v. Evans, 133 F.3d 1425, 1432 (11th Cir. 1998) (listing cases). In Coker, however, we
declined to excuse the defendant’s failure to renew its motion at the close of all of the evidence
even though it presented only one witness who testified briefly. Coker, 709 F.2d at 1437-38.
Noting that “[Rule] 50(b) clearly requires a movant to file a directed verdict motion at the end of
all of the evidence in order to challenge the sufficiency of the evidence on appeal” we concluded
“[t]he length of a movant’s evidentiary presentation or demonstration, after the fact, that
compliance probably would have been futile does not satisfy the rule’s requirement.” Id. at
1437-38.
         In this case, our review of the record indicates that the defendants did offer evidence
relating to Global-Tech’s relationship with Pentalpha after Global-Tech’s motion for a directed
verdict. In a portion of Nugent’s deposition testimony read to the jury by Global-Tech’s
counsel, Nugent described his understanding of the relationship between Pentalpha, Wing Shing,
and Global-Tech. Nugent testified:
                  My understanding is Pentalpha and Wing Shing are practically synonymous,
                  same corporation. And Global-Tech is a – I’m not sure where they’re registered,
                  but a listed company on the New York Stock Exchange as a parent company of
                  Pentalpha Wing Shing. In Hong Kong, Wing Shing and Pentalpha, the names are
                  used interchangeably.
R9 at 167. Although this testimony has little probative value, it arguably constitutes evidence in
defense of Sunbeam’s alter ego claim. It tends to show that a representative of Sunbeam
understood that Global-Tech and Pentalpha were separate entities. Applying Coker, we thus
conclude that Global-Tech failed to satisfy Rule 50(b), and Pentalpha’s argument is without
merit. See Coker, 709 F.2d at 1437-38.

                                                  55
result in a ‘manifest miscarriage of justice.’” Wilson, 757 F.2d at 1237.

      As we have recognized, Florida law allows a party to pierce the corporate

veil and hold a parent corporation liable for its subsidiary’s actions if it can

demonstrate first, “that the subsidiary was a ‘mere instrumentality’ of the parent,”

and second, “that the parent engaged in ‘improper conduct’ through its

organization or use of the subsidiary.” Johnson Enters. of Jacksonville, Inc., 162

F.3d at 1320 (citing Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1117-21

(Fla. 1984)). A parent has engaged in the requisite “‘improper conduct’” only

where “‘the corporation was a mere device or sham to accomplish some ulterior

purpose . . . or where the purpose is to evade some statute or to accomplish fraud or

illegal purpose.’” Id. (citation omitted). Applying this standard, a Florida District

Court of Appeal indicated that improper conduct exists where a subsidiary

corporation was utilized to shield its parent from liability for a transaction that was,

in actuality, between the parent and an uninformed third party. USP Real Estate

Inv. Trust v. Disc. Auto Parts, Inc., 570 So.2d 386, 392-93 (Fla. Dist. Ct. App.

1990); cf. Riley v. Fatt, 47 So.2d 769, 773 (Fla. 1950) (refusing to pierce corporate

veil where plaintiff had not alleged or submitted proof that a corporation’s

“members fraudulently used the corporation as a means of evading liability with

respect to a transaction that was, in truth, personal and not corporate”).



                                           56
      In this case, Global-Tech does not dispute that Pentalpha was a “mere

instrumentality” of Global-Tech, and we must determine only whether there was

any evidence introduced to support a finding that Global-Tech engaged in

improper conduct through its organization or use of Pentalpha. See Wilson, 757

F.2d at 1237. We find that there was such evidence. Sunbeam argues that Global-

Tech’s corporate veil should be pierced because, after representing in public filings

that Global-Tech–not its subsidiary Pentalpha–had a long term supply agreement

with Sunbeam, and that Global-Tech–not its subsidiary Pentalpha–engaged in the

business of designing and manufacturing home appliances for Sunbeam, Global-

Tech asserted its separate corporate status in this action to avoid liability. To

support this argument, Sunbeam cites testimony of John Sham concerning

statements in Global-Tech’s Annual Reports. Sham’s testimony constitutes some

evidence of improper conduct by Global-Tech through its organizational structure,

which is all that is required under this standard of review. We thus conclude that

the district court did not commit plain error in failing to grant judgment as a matter

of law in favor of Global-Tech.

                                  IV. CONCLUSION

      On appeal, Sunbeam argues that the district court erred in refusing to grant it

judgment as a matter of law on Pentalpha’s breach of contract claims or order a



                                           57
new trial because of allegedly improperly admitted rebate evidence. On cross-

appeal, Pentalpha contends that the district court erred in denying Pentalpha pre-

verdict interest on its breach of contract award, in excluding certain evidence

which could have resulted in increased damages for Pentalpha, and in denying a

directed verdict for Global-Tech, its parent company. We conclude that the district

court did not commit error in denying Sunbeam’s motions for judgment as a matter

of law on Pentalpha’s breach of contract claim and for a new trial based on

improperly admitted rebate evidence. Additionally, we determine that the district

court committed error in denying Pentalpha pre-verdict interest on its breach of

contract claim and conclude that interest should have been awarded from 30 June

2001, the last date of the October PSA’s term. We also conclude that the district

court did not err in excluding Pentalpha’s evidence that Sunbeam’s damages

computer printouts were incomplete or in denying a directed verdict for Global-

Tech. Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for

proceedings consistent with this opinion.




                                            58
