                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 August 4, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                          FOR THE TENTH CIRCUIT


    PATRICK A. TURNER,

          Plaintiff/Counter-Claim-
          Defendant–Appellee/Cross-
          Appellant,

    v.                                           Nos. 07-6031 & 08-6097
                                               (D.C. No. 5:04-CV-00793-W)
    A. PASSMORE & SONS INC.,                           (W.D. Okla.)

          Defendant/Counter-Claimant–
          Appellant/Cross-Appellee,

    and

    JIM A. PASSMORE, individually and
    his official capacity as agent of
    defendant,

          Defendant/Counter-Claimant.




                           ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Defendant A. Passmore & Sons, Inc. (“APSI”) appeals from a jury verdict

awarding damages in the amount of $200,000 to its former employee, plaintiff

Patrick A. Turner. 1 Mr. Turner cross-appeals, asking us to reverse the district

court’s decision denying his post-judgment motion for attorneys’ fees, costs, and

prejudgment interest. Exercising jurisdiction over these appeals under 28 U.S.C.

§ 1291, we affirm in part, reverse in part, and remand for further proceedings.

                          I. APSI’s Appeal (No. 07-6031)

                             A. Relevant Background

      APSI, a trucking company in Altus, Oklahoma, hired Mr. Turner to be its

general manger under an employment agreement dated August 28, 2003

(“Agreement”). Mr. Turner began work in September 2003 but left shortly after

in February 2004. In June 2004, he filed this lawsuit against APSI in federal

district court, asserting a myriad of claims arising out of the parties’ brief

employment relationship. 2 The only claim relevant to this appeal, however, is

Count I, in which initially he charged APSI with breach of contract for

terminating him in violation of the Agreement. In support of this claim,


1
      Mr. Turner’s claims against APSI’s founder, Jim A. Passmore, were
resolved prior to trial and are not before us in this appeal.
2
     Federal jurisdiction was premised on 28 U.S.C. § 1331 and § 1332, as
Mr. Turner included some federal claims, not relevant here, and also alleged
complete diversity of citizenship.

                                          -2-
Mr. Turner alleged that APSI failed to timely pay him his Fourth Quarter 2003

bonus as required under the Agreement, and that this failure constituted a material

breach of the Agreement and a termination of his employment. In June 2005,

APSI successfully moved to dismiss the breach of contract claim on the basis that

the Agreement did not alter the parties’ at-will employment relationship under

Oklahoma law.

      Mr. Turner filed a First Amended Complaint (“FAC”) in January 2006.

The allegations in the FAC were substantially similar to those in the original

complaint, but Mr. Turner changed the name of Count I from “Breach of

Contract” to “Unjust Enrichment.” As in the original complaint, he alleged that

APSI “refused to pay [him] money for work he had already completed pursuant to

[the] terms of the Contract.” Aplt. App. at 54. APSI promptly filed a motion for

summary judgment, seeking dismissal of the unjust enrichment claim. APSI

argued that Mr. Turner’s renamed Count I was simply an underhanded attempt to

reallege his breach of contract claim based on wrongful termination, which the

court had already rejected. By order dated March 1, 2006, the district court

rejected APSI’s argument and denied its request to dismiss Count I, the unjust

enrichment claim. It held Mr. Turner had properly alleged that he had provided

services to APSI, for which APSI had refused to compensate him.

      On June 30, 2006, APSI filed a second motion for summary judgment,

seeking dismissal of the unjust enrichment claim, and also seeking to invalidate

                                         -3-
the Agreement’s liquidated damages provision (“Section Five”) as an

unenforceable penalty under Oklahoma law. The district court denied this motion

on August 16, 2006. With respect to the unjust enrichment claim, it held that

“Turner’s use of the phrase ‘Unjust Enrichment’ as the caption for Count I [did]

not constrain the Court’s treatment of [the claim] or its examination of the

allegations supporting the same.” Id. at 216 n.8. The court went on to note that it

would construe Mr. Turner’s claims so as to do substantial justice and stressed

that “[t]he defendants . . .[had] had sufficient notice of this imprecisely-named

cause of action and the allegations giving rise to it.” Id. Those allegations, the

court held, included Mr. Turner’s claim that APSI had failed to timely pay him

his Fourth Quarter bonus for the year 2003. It clarified that despite the parties’

at-will employment relationship, Mr. Turner could “nevertheless recover those

amounts, if any, that had accrued prior to the date of his departure,” including

“his Fourth Quarter 2003 bonus, if [he] [could] establish his entitlement to the

same.” Id. at 217 (citation omitted). The court reserved judgment as to APSI’s

challenge to Section Five pending a more thorough examination of the facts at

trial.

         On September 14, 2006, the jury returned a verdict in favor of Mr. Turner

on Count I and awarded him $200,000 in damages. Pressing the same arguments

as before, APSI moved for judgment as a matter of law under Rule 50 of the




                                          -4-
Federal Rules of Civil Procedure. The district court denied its motion and entered

judgment on the jury verdict in favor of Mr. Turner. This appeal followed.

                                  B. Discussion

      We review de novo the denial of a motion for judgment as a matter of law

under Rule 50, making all reasonable inferences in favor of the non-moving party,

in this case Mr. Turner. Smith v. United States, 555 F.3d 1158, 1162 (10th Cir.

2009). “Judgment as a matter of law is appropriate only if the evidence points but

one way and is susceptible to no reasonable inferences which may support the

opposing party’s position.” Loughridge v. Chiles Power Supply Co., 431 F.3d

1268, 1280 (10th Cir. 2005) (internal quotation marks omitted).

      APSI challenges the district court’s decision to allow Mr. Turner’s unjust

enrichment claim to go to the jury as well as its enforcement of Section Five.

Employing a shotgun approach with respect to its first argument, APSI contends

that Count I of the FAC should have been thrown out for a variety of reasons. It

argues, for example, that Mr. Turner had an adequate remedy at law; that he

should not have been allowed to pursue two theories based on the same set of

facts; and that Count I was actually a breach of contract claim masquerading as

unjust enrichment. None of these arguments are persuasive. The record plainly

reveals that regardless of how he titled the cause of action, Mr. Turner alleged

and proved at trial that APSI committed a material breach of their Agreement by




                                        -5-
failing to pay him his Fourth Quarter bonus for the year 2003. 3 The breach of

contract claim in Mr. Turner’s original complaint sought redress for this breach,

but also for APSI’s alleged wrongful termination of his employment. The district

court dismissed the latter aspect of the breach of contract claim under the

employment-at-will doctrine. Perhaps unwisely, Mr. Turner elected to reallege

his bonus claim under a theory of unjust enrichment. However, as we have

previously observed, the federal rules are “intended to promote the objective of

deciding cases on their merits rather than in terms of the relative pleading skills

of counsel.” Green Country Food Mkt., Inc. v. Bottling Group, LLC, 371 F.3d

1275, 1280 (10th Cir. 2004) (internal quotation marks omitted). And with this

purpose in mind, the district court sent the so-called unjust enrichment claim to

the jury, noting that APSI had been on notice from the inception of the case of its

alleged misconduct and the contractual basis underlying Mr. Turner’s claim for

relief. For the same reason, we reject any notion that APSI was somehow

prejudiced by the amendment of Mr. Turner’s complaint or the jury’s

consideration of the unjust enrichment claim.



3
       We know this because the jury returned a verdict in Mr. Turner’s favor on
the unjust enrichment claim. Pursuant to Jury Instruction No. 12, it could not
have done so unless Mr. Turner “prove[d] by the greater weight of the evidence
the following essential elements: (1) that he was entitled to the incentive
compensation or bonus under the terms of the parties’ employment agreement;
and (2) that [APSI] wrongfully failed to pay [him] the amount to which he was
entitled.” Aplt. Supp. App. at 25.

                                         -6-
      We also agree with Mr. Turner that the district court’s judgment was

mandated by Rule 54(c), which provides that a final judgment other than a default

judgment “should grant the relief to which each party is entitled, even if the party

has not demanded that relief in its pleadings.” Again, this rule stresses the

“federal rules’ simplification of procedure and rejection of formalism.” Reynolds

v. Slaughter, 541 F.2d 254, 256 (10th Cir. 1976) (rejecting defendants’ assertion

that plaintiff elected irrevocably to sue only for breach of contract and affirming

trial court’s grant of restitution as consistent with proof under Rule 54(c)).

      We also reject APSI’s challenge to the district court’s ruling concerning

Section Five of the Agreement, the liquidated damages clause. Section Five

required APSI, upon breaching the Agreement, to pay Mr. Turner “his monthly

base compensation, and all previously used benefits, incentives . . . and

perquisites for a period of 12 months as though he were employed.” Aplt. App. at

31. The district court determined as a matter of Oklahoma law that this provision

did not constitute an unenforceable penalty:

      Turner, who had the burden of establishing [the enforceability of
      Section 5], had proven by the greater weight of the evidence that the
      damages caused by a breach of the Agreement would be difficult to
      estimate accurately, that the parties intended to provide for damages
      rather than for a penalty and that the amounts set forth in Section 5
      were a reasonable pre-breach estimate of Turner’s probable loss.

Id. at 289 (citation omitted). It therefore concluded that if Mr. Turner could

prove a material breach by APSI, he would be entitled to the damages set forth in


                                          -7-
Section Five, and it later found no basis to overturn the jury’s verdict. APSI has

failed to persuade us that the district court’s legal rulings on this issue were

incorrect under Oklahoma law or that the evidence before the jury pointed but one

way and was susceptible to no reasonable inferences in support of Mr. Turner’s

position. Loughridge, 431 F.3d at 1280. We therefore conclude that the district

court correctly denied APSI’s motion for judgment as a matter of law on this

issue.

                      II. Turner’s Cross-Appeal (No. 08-6097)

                                    A. Timeliness

         In his own post-judgment motion, Mr. Turner requested an award of

attorneys’ fees, costs, and prejudgment interest under the Agreement. The district

court denied the motion, concluding that the jury had considered these amounts in

calculating his damages award. Mr. Turner’s cross-appeal seeks a review of this

decision. First, however, we must examine our authority to consider the

cross-appeal since Mr. Turner seemingly failed to file his notice of cross-appeal

within the time limits set forth in Rule 4 of the Federal Rules of Appellate

Procedure. See Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Sch.,

565 F.3d 1232, 1250 (10th Cir. 2009) (reaffirming “our independent duty to

examine our own jurisdiction”) (internal quotation marks omitted)).

         The district court entered its order denying the post-judgment motions on

January 16, 2007. APSI filed a timely notice of appeal on February 9. Under

                                          -8-
Rule 4(a)(3), Mr. Turner had fourteen days from that date, until February 23, to

file a notice of cross-appeal as of right. Under Rule 4(a)(5), he had an additional

thirty days, until March 25, to request an extension of that time period upon a

showing of excusable neglect or good cause. But Mr. Turner, a reservist in the

United States Army, was recalled to active duty and sent to Iraq in January 2007.

And it is undisputed that he did not file his notice of cross-appeal, or seek an

extension of the time period in which to do so, until April 23, 2008, about three

months after his return. This was over a year past the deadlines set forth in Rule

4. He argues, however, that his notice of cross-appeal should be considered

timely under the Servicemembers Civil Relief Act (“SCRA” or “Act”), 50 U.S.C.

app. §§ 501-96, and a stay order that we issued under the Act.

                                   i. Jurisdiction

      This court has long considered the time limit prescribed in Rule 4(a)(3) for

asserting a cross-appeal to be mandatory and jurisdictional. E.g., Savage v.

Cache Valley Dairy Ass’n, 737 F.2d 887, 889 (10th Cir. 1984); cf. Woodruff v.

Covington, 389 F.3d 1117, 1120 (10th Cir. 2004) (stating that “[t]he time limits of

Rule 4 are prerequisites to our jurisdiction” in considering whether notice of

cross-appeal was timely under Rule 4(a)(3) (internal quotation marks and brackets

omitted)). In a string of recent cases, however, the Supreme Court has

admonished against the casual labeling of all inflexible deadlines as

“jurisdictional.” See Kontrick v. Ryan, 540 U.S. 443, 456 (2004) (holding that

                                          -9-
Bankruptcy Rule 4004 is not jurisdictional but an “inflexible claim-processing

rule” that is forfeited if not timely raised); Eberhart v. United States, 546 U.S. 12,

16 (2005) (per curiam) (holding the same with respect to Federal Rules of

Criminal Procedure 33 and 45). “Clarity would be facilitated,” the Court urged in

Kontrick, if litigants and courts alike would refrain from labeling all

claim-processing rules as “jurisdictional,” explaining that the term is appropriate

to describe only “prescriptions delineating the classes of cases . . . and the

persons . . . falling within a court’s adjudicatory authority.” 540 U.S. at 455;

see also id. at 454 (holding that “the filing deadlines prescribed in Bankruptcy

Rules 4004 and 9006(b)(3) are claim-processing rules that do not delineate what

cases bankruptcy courts are competent to adjudicate”).

      In Bowles v. Russell, 551 U.S. 205, 127 S. Ct. 2360 (2007), the Court

expanded on the distinction between court-promulgated rules and limits enacted

by Congress, stressing the jurisdictional significance of the latter. The Court held

the district court had acted beyond its jurisdiction in that case by extending the

petitioner’s time period for filing an appeal by seventeen days when Congress had

authorized district courts to extend the filing period by only fourteen days. The

Court explained,

      Like the initial 30-day period for filing a notice of appeal, the limit
      on how long a district court may reopen that period is set forth in
      a statute, 28 U.S.C. § 2107(c). Because Congress specifically
      limited the amount of time by which district courts can extend the
      notice-of-appeal period in § 2107(c), that limitation is more than

                                         -10-
      a simple “claim-processing rule.” As we have long held, when an
      appeal has not been prosecuted in the manner directed, within the
      time limited by the acts of Congress, it must be dismissed for want
      of jurisdiction.

Bowles, 127 S. Ct. at 2366 (internal quotation marks omitted). As the Court

noted, and as this court had already held in Alva v. Teen Help, 469 F.3d 946, 948

(10th Cir. 2006), the thirty-day limit for filing a notice of appeal under Rule

4(a)(1) derives from statute and is therefore not merely an inflexible

claim-processing rule, but a prerequisite to appellate jurisdiction.

      By contrast, no federal statute prescribes the time period for filing a notice

of cross-appeal. Therefore, the fourteen-day period set forth in Rule 4(a)(3)

would appear to be a claim-processing rule, which does not delineate a class of

cases that this court is competent to adjudicate. See Kontrick, 540 U.S. at 452,

454 (explaining that “[o]nly Congress may determine a lower federal court’s

subject-matter jurisdiction” and concluding that filing deadlines prescribed in

certain court-promulgated bankruptcy rules “do not delineate what cases

bankruptcy courts are competent to adjudicate”); see also United States v.

Mitchell, 518 F.3d 740, 744 (10th Cir. 2008) (holding that Rule 4(b)(1) is a

claim-processing rule and not jurisdictional). We therefore conclude that

Mr. Turner’s failure to file a timely notice of cross-appeal does not create a

jurisdictional impediment to this court’s consideration.




                                         -11-
      Nonetheless, the Supreme Court requires judicial compliance with

claim-processing rules when they are properly invoked by an adverse party.

See Eberhart, 546 U.S. at 17 (holding that “district courts must observe the clear

limits of the Rules of Criminal Procedure when they are properly invoked”);

Mitchell, 518 F.3d at 744 (holding that “the time bar in Rule 4(b) must be

enforced by this court when properly invoked by the government”). The Second

Circuit has applied this mandate to dismiss a cross-appeal filed just one day late,

holding that the adverse party’s challenge to the cross-appeal on timeliness

grounds compelled a strict application of Rule 4(a)(3) under Eberhart. In re

Johns-Manville Corp., 476 F.3d 118, 120-24 (2d Cir. 2007). In this case, APSI

invoked the time bar of Rule 4(a)(3) on April 28, 2008, when it filed an objection

in the district court to Mr. Turner’s motion for an extension of time to file his

notice of cross-appeal. Accordingly, unless the notice of cross-appeal can be

considered timely by virtue of the SCRA and this court’s stay, dismissal of the

cross-appeal would appear to be mandatory. Eberhart, 546 U.S. at 18. We

therefore turn to Mr. Turner’s arguments under the Act.

                                   ii. The SCRA

      Two sections of the Act are arguably applicable, § 522 and § 526.

Section 522 provides that a court may, on its own motion, and must at the

servicemember’s request, stay any proceeding in which a servicemember is a

party, under certain conditions. Section 526 is a tolling provision that appears to

                                         -12-
be triggered automatically when a servicemember is called to active duty. We

address both provisions, beginning with the latter (i.e., § 526).

      a. Section 526

      Section 526 provides in relevant part:

      (a) Tolling of statutes of limitation during military service

      The period of a servicemember’s military service may not be
      included in computing any period limited by law, regulation, or order
      for the bringing of any action or proceeding in a court, or in any
      board, bureau, commission, department, or other agency of a State
      (or political subdivision of a State) or the United States by or against
      the servicemember or the servicemember’s heirs, executors,
      administrators, or assigns.

50 U.S.C. app. § 526(a). It is debatable whether this section even applies under

the circumstances of this case, since Mr. Turner is not seeking to toll a statute of

limitation but a deadline in a pending action that was timely filed. But assuming

it does apply, § 526 cannot save Mr. Turner’s notice of cross-appeal from being

late. It is undisputed that he was discharged from active duty no later than

January 29, 2008, when he so advised this court. Accordingly, Mr. Turner’s

“period of military service” and its attendant tolling ended on that date, and the

fourteen-day-time-period to file a notice of cross-appeal began to run. The

fourteen days expired on February 12, 2008, and the additional thirty days

allowed for an extension under Rule 4(a)(5) expired on March 13, 2008.

Mr. Turner did not move for an extension of time until April 23, 2008. His

argument under § 526 is therefore unavailing.

                                         -13-
      b. Section 522

      Section 522 provides in relevant part:

      (b) Stay of proceedings

             (1) Authority for stay

             At any stage before final judgment in a civil action or
             proceeding in which a servicemember described in subsection
             (a) is a party, the court may on its own motion and shall, upon
             application by the servicemember, stay the action for a period
             of not less than 90 days . . . .

50 U.S.C. app. § 522(b). Mr. Turner successfully petitioned this court for a stay

of APSI’s appeal on March 15, 2007. This was after his fourteen-day period to

file a notice of cross-appeal as of right had expired, but only twenty days into the

additional thirty days allotted under Rule 4(a)(5) for seeking an extension of time.

Our stay was in effect until April 21, 2008. Accordingly, if we do not count the

period of the stay in calculating Mr. Turner’s cross-appeal deadline, he still had

ten days from April 21, 2008, or until May 1, 2008, to file a motion under Rule

4(a)(5). Since he filed such a motion on April 23, 2008, it would be considered

timely. This of course depends on construing the stay order as having suspended

Mr. Turner’s filing deadlines under Rule 4(a)(5). We can do so for the reasons

discussed above. That is, because the filing deadline applicable to a notice of

cross-appeal, unlike a notice of appeal, is not jurisdictional, but is set forth in a

claim-processing rule, we have discretion to set it aside. In this case, justice is

best served by construing this court’s stay order as having suspended all deadlines

                                          -14-
applicable to the appeal, including the cross-appeal deadline. 4 Thus, Mr. Turner’s

clock recommenced on April 21, 2008, when the stay was lifted, and his notice of

cross-appeal filed two days later was timely.

      Of course, our determination that the notice of cross-appeal was timely

leaves APSI without a proper challenge under Rule 4, and renders the Court’s

admonition in Eberhart, that claim-processing rules be strictly enforced when

properly invoked, inapplicable to the facts of this case. We therefore proceed to

the merits of Mr. Turner’s cross-appeal.

                                    B. Merits

      Mr. Turner claims he is entitled to his attorneys’ fees, costs, and

prejudgment interest under the Agreement, and accuses the district court of

impermissibly basing its denial of these damages on a speculative finding that the

jury included them in its damages award. 5 We review the district court’s

resolution of this issue for an abuse of discretion. Specialty Beverages, L.L.C. v.

Pabst Brewing Co., 537 F.3d 1165, 1183 (10th Cir. 2008). But “we review de

4
       This result is most in harmony with the Act’s purpose of “provid[ing] for
the temporary suspension of judicial and administrative proceedings and
transactions that may adversely affect the civil rights of servicemembers during
their military service.” 50 U.S.C. app. § 502(2).
5
       Quite apart from the Agreement, Mr. Turner also claims he is entitled to his
attorneys’ fees under Oklahoma law, see 12 Okla. Stat. tit. 12, § 936, but since he
failed to make this argument to the district court, we decline to consider it on
appeal. See Rosewood Servs., Inc., v. Sunflower Diversified Servs., Inc., 413 F.3d
1163, 1167 (10th Cir. 2005) (holding argument not asserted before district court
is waived on appeal).

                                        -15-
novo any statutory interpretation or other legal analysis underlying the district

court’s decision and review for clear error any supporting findings of fact.” Id.

(internal quotation marks omitted).

      Section Sixteen of the Agreement provided that APSI would be held liable

for attorneys’ fees and costs incurred by Mr. Turner in order to enforce the

Agreement. Aplt. App. at 33. In Section Six, APSI agreed to pay interest on any

amount that it owed Mr. Turner at a rate of 1.5% per month. Id. at 31. The

district court denied Mr. Turner’s request for these amounts, however, because it

concluded that “such items were presented to, and arguably considered by, the

jury” in calculating Mr. Turner’s $200,000 damages award. Id. at 290. We

conclude that this finding of fact is clearly erroneous and must be vacated to the

extent that it relates to Mr. Turner’s request for attorneys’ fees and costs. On the

other hand, we conclude that the district court did not clearly err in denying

Mr. Turner’s request for interest.

      The jury found, in a simple verdict form, that APSI was liable on

Mr. Turner’s claim for unjust enrichment and awarded damages on this claim in

the amount of $200,000. The jury did not answer special interrogatories or

otherwise indicate how it arrived at this amount. Accordingly, we must presume

it calculated the award based on the Agreement—particularly, Section Five.

Regarding Section Five, the district court specifically instructed:




                                         -16-
      If you find that Turner has proven by the greater weight of the
      evidence that the failure to pay the bonus was a material breach of
      the parties’ agreement, then you must decide the amount of
      compensation as outlined in Section 5 to which Turner is entitled.

Aplt. Supp. App. at 29 (Jury Instruction 13A); see Questar Pipeline Co. v.

Grynberg, 201 F.3d 1277, 1287 (10th Cir. 2000) (holding that absent a reason to

conclude otherwise, “[j]uries are presumed to follow the court’s instructions”).

      Section Five of the Agreement set forth how Mr. Turner would be

compensated in the event of a material breach by APSI, providing, in relevant

part, that APSI would pay Mr. Turner his monthly base compensation, plus

certain benefits, incentives, and perquisites, for a period of twelve months. In a

pre-trial report filed in February 2005, Mr. Turner claimed that these damages

equaled approximately $170,000. Aplt. App. at 37. At that point in time, he

claimed an additional $30,000 in interest, for a total of $200,000, not including

attorney’s fees. This is the amount the jury ultimately awarded.

      As for the interest, notably the entire Agreement was admitted into

evidence, including the interest provision. And the jury heard extensive

testimony concerning the timing of APSI’s alleged breach, which would have

been the accrual date for any interest liability. During his closing, Mr. Turner’s

counsel urged the jury to consider the Agreement’s interest provision in arriving

at an award. In light of this, we conclude that the district court’s finding that

the jury’s award included an interest component was, at least arguably, correct.


                                         -17-
More to the point, in our view the district court did not clearly err in making

this finding.

      On the other hand, there appears to be no sound basis for the court’s

identical assumption concerning attorneys’ fees. Significantly, in contrast to

prejudgment interest, the jury was not presented with any evidence of what

Mr. Turner’s attorneys’ fees were in this case. Thus, if it had included an

attorneys’ fees award, the amount of that award would have been based on sheer

speculation and could not have stood in any event. See, e.g., Scott v. Anchor

Motor Freight , Inc., 496 F.2d 276, 282 (6th Cir. 1974) (reversing as speculative

portion of award representing attorneys’ fees because of a complete lack of

evidence as to proper amount).

      The district court’s assumption that the jury considered attorneys’ fees

in its calculation appears to be based on a few instances where attorneys’ fees

were mentioned during the course of the trial. At one point during Mr. Turner’s

cross-examination, APSI’s lawyer asked him whether he had proposed the

contractual provision relating to legal fees. Aplee. Supp. App. at 161. At another

point, Mr. Turner testified that the attorneys’ fees provision was the subject of

intense negotiation between him and Jim Passmore. Aplt. Supp. App. at 9. And

during his closing, Mr. Turner’s counsel argued that damages, including legal fees




                                         -18-
and costs, added up to $303,257. 6 Id. at 11. These stray comments did not

constitute evidence from which the jury could calculate the amount expended by

Mr. Turner to prosecute this lawsuit, and there is nothing to indicate that the jury

was charged with making this calculation. The district court therefore abused its

discretion in denying Mr. Turner’s request for attorneys’ fees and costs based on

an unfounded assumption. Cf. Gierlinger v. Gleason, 160 F.3d 858, 874-75

(2d Cir. 1998) (holding that district court abused its discretion in presuming jury

award included prejudgment interest because prejudgment interest was never

mentioned). On the other hand, as we noted above, the jurors did have before

them the necessary information to calculate prejudgment interest under the

Agreement, and we cannot say that the district court’s finding that they included

prejudgment interest in their award was clearly erroneous. We therefore leave

undisturbed the portion of its order denying Mr. Turner’s request for prejudgment

interest but reverse its denial of attorneys’ fees and costs, and we remand for the

calculation and award of these amounts.




6
       He also stated that it was “within the jury’s power to leave that subject to
later presentation to the court.” Id.

                                         -19-
                                III. Conclusion

      In appeal No. 07-6031, we AFFIRM the district court’s order denying

APSI’s motion for judgment as a matter of law. In appeal No. 08-6097, we

AFFIRM the district court’s denial of prejudgment interest, but we REVERSE

its denial of attorneys’ fees and costs and REMAND for further proceedings

consistent with this Order and Judgment.


                                                  Entered for the Court



                                                  Jerome A. Holmes
                                                  Circuit Judge




                                      -20-
