                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-27-2003

S&S Ser Corp v. Rogers
Precedential or Non-Precedential: Non-Precedential

Docket 02-1458




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Recommended Citation
"S&S Ser Corp v. Rogers" (2003). 2003 Decisions. Paper 858.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/858


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                                                    NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                 ________

                    NO. 02-1458
                     _________

         S&S SERVICES CORPORATION,
                           Appellant

                          v.

          LAURENCETEEN ROGERS
                   a/k/a
      LAURENCETEEN ROGERS CHAPMAN
                _________

            On Appeal from the District Court
                   of the Virgin Islands
         (District Court Civil No. 91-cv-00207)
      District Judge: Honorable Thomas K. Moore
                       __________

             Argued November 14, 2002

Before: SCIRICA, ALITO, and RENDELL, Circuit Judges

               (Filed: January 27, 2003)


                               Robert L. King, Esq. [ARGUED]
                               Law Offices of Robert L. King
                               Windward Passage Hotel
                               P. O. Box 9768, Veterans Drive
                               Charlotte Amalie, St. Thomas
                               USVI 00801
                               Counsel for Appellant




                               Jacqueline A. Drew, Esq.   [ARGUED]
                                                          Law Offices of Jacqueline A. Drew
                                                          P. O. Box 303155
                                                          Charlotte Amalie, St. Thomas
                                                          USVI 00801
                                                          Counsel for Appellee
                                                  __________

                                      OPINION OF THE COURT

                                                  __________

RENDELL, Circuit Judge.

        S&S Services, Inc. appeals from an order entered in the District Court on January

23, 2002, denying its motions for a new trial and for judgment as a matter of law following

a jury trial in August of 2001. We will affirm.

        As we write solely for the parties, we will repeat the facts only very briefly. In early

1991, S&S principal Siewdath Sookram agreed to sell to Laurenceteen Rogers a parcel of

land that S&S was developing in St. Thomas. A written contract was executed, and Rogers

made a down payment for the property in the amount of $100,000, but soon thereafter a

dispute broke out between the parties. In July of 1991, S&S filed suit against Rogers

essentially claiming that she had taken wrongful possession of the parcel, and Rogers, in

turn, filed a number of counterclaims relating to alleged defects in S&S’s construction on

the property.

        The case proceeded to trial ten years later, and in August of 2001 a Virgin Islands

jury found that Rogers was not liable to S&S but that S&S had breached its contract with

Rogers, and ultimately returned a verdict in Rogers’s favor in the amount of $200,000. On



                                                       2
September 12, 2001, S&S filed a motion for judgment as a matter of law pursuant to Fed.

R. Civ. P. 50(b), with regard to both its claims and Rogers’s counterclaims, as well as an

alternative motion seeking a new trial pursuant to Fed. R. Civ. P. 59. In January of 2002,

the District Court denied those motions, holding that they were both untimely filed and

moreover that the Rule 50(b) motion was waived because S&S had not provided any

evidence that it had previously made a motion pursuant to Fed. R. Civ. P. 50(a). This timely

appeal followed.

        S&S presents three issues on appeal: (1) whether the District Court erred in

dismissing S&S’s post-trial motions as untimely and waived; (2) whether it is entitled to

judgment as a matter of law under Rule 50; and (3) if it is not entitled to judgment as a

matter of law, whether it is entitled to a new trial pursuant to Rule 59.1 We have

jurisdiction under 28 U.S.C. § 1291.2

  1
     S&S also argues that the District Court should have granted its motion for summary
judgment on certain of Rogers’s counterclaims. Because the case proceeded to trial,
however, our review is relevantly limited to the District Court’s denial of S&S’s Rule 50
motion. See Hopp v. City of Pittsburgh, 194 F.3d 434, 439 n.3 (3d Cir. 1999); see also,
e.g., Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 532-33 (3d Cir. 1976) (holding that a
motion denying summary judgment will not be reviewed on appeal from a jury verdict
where sufficient evidence supports the jury’s verdict), overruled on other grounds by
Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981); Wright, Miller & Cooper, Federal
Practice and Procedure § 3914.28 (“If an erroneous denial of summary judgment is
followed by trial . . . the denial should not be reversed if sufficient evidence was introduced
at trial.”).
  2
     Neither party addresses the jurisdiction of the trial court. In its decision dated January
14, 1999, the District Court suggested that it was exercising federal diversity jurisdiction,
pursuant to 28 U.S.C. § 1332. We note, however, that there is no conclusive indication in
the record that these parties are in fact diverse. Nevertheless, it appears that the District
Court had original jurisdiction over this action as essentially a territorial court of the

                                                     3
        We note initially that the District Court was mistaken in refusing to reach the merits

of S&S’s post-trial motions because it viewed them as untimely. Even Rogers concedes

that S&S’s motions were in fact timely filed. The District Court’s order of judgment was

filed August 31, 2001. Pursuant to Fed. R. Civ. P. 6(a), S&S had until September 17, 2001

to file its post-judgment motions, and timely filed them on September 12, 2001.3 The

District Court’s determination that S&S’s Rule 50(b) motion was waived was similarly in

error, as S&S in fact properly made a Rule 50(a) motion both in favor of its claims and

against Rogers’s counterclaims.4

        Notwithstanding the District Court’s procedural errors, the record before us is such

that we can address the merits and we see no reason to disturb the jury’s verdict. We

consider first S&S’s claim for judgment as a matter of law under Rule 50(b), over which

our review is plenary. See, e.g., Warren v. Reading School District, 278 F.3d 163, 168 (3d

Cir. 2002); Trabal v. Wells Fargo Armored Service Corp., 269 F.3d 243, 249 (3d Cir.



Virgin Islands, because the suit was filed in June of 1991, before the October 1, 1991,
amendment to the Virgin Islands Code that divested the court of that jurisdiction. See 4 V.I.
Code Ann. § 76; Newfound Mgt. Corp. v. Lewis, 131 F.3d 108, 119 n.9 (3d Cir. 1997)
(stating that the District Court of the Virgin Islands generally retains original jurisdiction
over actions filed before October 1, 1991).
  3
     Had the District Court been correct that S&S’s motions were not timely filed, we would
have been without jurisdiction. See Fed. R. Civ. P. 4 (requiring the filing of a Notice of
Appeal within thirty days of the entry of judgment, but tolling requirement for the timely
filing of certain post-judgment motions).
  4
    S&S apparently did, however, waive its argument with regard to Rogers’s generalized
breach of contract counterclaim seeking general damages – including, as S&S conceded,
the $100,000 Rogers paid as a down payment on the parcel.

                                                     4
2001). Accordingly, we apply the same standard as the District Court, examining whether

when “viewing the evidence in the light most favorable to the nonmovant and giving it the

advantage of every fair and reasonable inference, there is insufficient evidence from which

a jury reasonably could find liability.” Warren, 278 F.3d at 168 (quoting Fultz v. Dunn, 165

F.3d 215, 218 (3d Cir. 1998)). Reversal is only appropriate where “the record is critically

deficient of that minimum quantity of evidence from which a jury might reasonably afford

relief.” Trabal, 269 F.3d at 249 (quoting Powell v. J.T. Posey Co., 766 F.2d 131, 133-34

(3d Cir. 1985); see also Hopp v. City of Pittsburgh, 194 F.3d 434, 439 (3d Cir. 1999)

(same). Because sufficiency of the evidence is a purely legal question and our review,

accordingly, is de novo, it is appropriate to reach the merits even though we are without the

benefit of a district court opinion.

        S&S argues that there was insufficient evidence to support either the jury’s verdict

against S&S on their claim of intentional deprivation or the jury’s verdict in favor of

Rogers on her breach of contract counterclaim. We do not agree. With regard to S&S’s

claim, the evidence introduced at trial could support the conclusion that Rogers’s actions,

while certainly self-interested, did not constitute an intentional deprivation of S&S’s

property interest under Restatement (Second) of Torts § 871. We reach a similar

conclusion with regard to the jury’s verdict in favor of Rogers on her counterclaim. The

actual existence of a contract was well supported by the evidence presented at trial, and,

viewing the evidence in the light most favorable to Rogers, the jury could reasonably have

found that S&S’s inadequate performance was in breach of that contract. Finally, there was

                                                     5
sufficient evidence to support the jury’s finding of damages; S&S essentially admitted that

it was obligated to return Rogers’s substantial down payment, and at trial Rogers introduced

evidence as to expenses incurred and lost earnings.

        We are also unpersuaded by S&S’s arguments that a new trial is warranted.5 S&S

alleges three separate trial errors. First, it argues that the District Court erred in taking

judicial notice of Rogers’s equitable interest in the property. We can find no error; it is

hornbook law that a valid, enforceable contract for the purchase of land does in fact give the

purchaser an equitable interest. See, e.g., 4 Richard R. Powell, Powell on Real Property §

37-137[1][d] (1997) (stating that the purchaser is “recognized as holding equitable (as

contrasted to legal) title to the property”). Second, S&S complains that the jury

instructions were critically defective in failing to instruct the jury adequately with regard to

certain stipulated, judicially noticed, and otherwise settled facts. Taken as a whole,

however, it is clear that the jury instructions “properly apprised the jury of the issues and

the applicable law.” Hurley v. Atlantic City Police Dept., 174 F.3d 95, 115 (3d Cir. 1999)

(quoting Dressler v. Busch Entertainment Corp., 143 F.3d 778, 780 (3d Cir. 1998).

Finally, S&S argues that the District Court erred in responding to certain questions posed




  5
    Typically we would not reach the merits of a Rule 59 motion where the District Court
has not previously considered them. See Interstate Commerce Comm’n v. Carpenter, 648
F.2d 919, 921 (3d Cir. 1981) (per curiam); see also Olefins Trading, Inc. v. Han Yang Chem
Corp., 9 F.3d 282, 290 (3d Cir. 1993); United States v. Contents of Accounts Nos.
3034504504 and 144-07143 at Merrill, Lynch, Pierce, Fenner and Smith, Inc., 971 F.2d
974, 988 (3d Cir. 1992). We do so here only because S&S’s claims are wholly without
legal merit.

                                                       6
by the jury during deliberation. We conclude that any error was harmless as a matter of

law. Although S&S asserts that the District Court’s response to the jury “had a direct

bearing on the critical fact issue of whether S&S Services, Inc. had sufficiently mitigated

damages,” that issue was wholly irrelevant – the jury determined that S&S was simply not

entitled to relief and thus never reached the question of S&S’s damages.

        Accordingly, the orders of the District Court will be AFFIRMED.




                                                     7
_________________________

TO THE CLERK OF COURT:

      Please file the foregoing Not Precedential Opinion.




                                                          /s/ Marjorie O. Rendell
                                                      Circuit Judge




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