                                                United States Court of Appeals
                                                         Fifth Circuit
                                                        F I L E D
                In the                                    May 4, 2006
United States Court of Appeals                       Charles R. Fulbruge III
        for the Fifth Circuit                                Clerk
           _______________

             m 05-30205
           _______________




           IN THE MATTER OF:

WHITAKER CONSTRUCTION COMPANY, INC.,

                               Debtor.

WHITAKER CONSTRUCTION COMPANY, INC.,

                               Plaintiff-Appellee-
                               Cross-Appellant,

               VERSUS

     CITY OF SHREVEPORT, ET AL.,

                               Defendants,

        CITY OF SHREVEPORT,

                               Defendant-Appellant-
                               Cross-Appellee.


       ***************
                                      ***************

                          WHITAKER CONSTRUCTION COMPANY, INC.,

                                                                   Plaintiff-Appellee-
                                                                   Cross-Appellant,

                                                  VERSUS

                                         CITY OF SHREVEPORT,

                                                                   Defendant-Appellant-
                                                                   Cross-Appellee.


                                      _________________________

                             Appeals from the United States District Court
                                for the Western District of Louisiana
                                         m 5:03-CV-1802
                                   _________________________




Before KING, SMITH, and BENAVIDES,                         dispute arising from the renovation of the
  Circuit Judges.                                          Independence Stadium sports facility. The
                                                           jury had found in the first set of interrogatories
PER CURIAM:*                                               that there was a contract with respect to sev-
                                                           eral contractual modifications known as
    The City of Shreveport (the “City”) appeals            Change Orders 1-6 but that the contract had
the denial of its motion for judgment as a mat-            not been breached by the city. It also found
ter of law (“j.m.l.”) following a jury verdict in          that there was no contract with respect to Pro-
favor of Whitaker Construction Company, Inc.               posed Change Orders PC51 and PC65. In the
(“Whitaker”), in a suit involving a construction           second set of interrogatories, it found that
                                                           Whitaker nonetheless was entitled to compen-
                                                           sation under unjust enrichment for the work
   *
     Pursuant to 5TH CIR. R. 47.5, the court has           described in PC51 and PC56, and it awarded
determined that this opinion should not be pub-            Whitaker $764,265.00. This amount was less
lished and is not precedent except under the limited       than that demanded by Whitaker on the two
circumstances set forth in 5TH CIR. R. 47.5.4.

                                                       2
proposed change orders and less than what               v. Avondale Indus., Inc., 975 F.2d 169,
Whitaker’s experts had suggested.                       173-74 (5th Cir. 1992). In attempting to
                                                        reconcile special verdicts, our constitutional
   The city argues that the bifurcated interrog-        mandate to maintain consistency requires us to
atories with respect to contract and quasi-             look beyond the face of the interrogatories to
contract claims confused the jury, that the             the court’s instructions. McVey v. Phillips
theory of unjust enrichment was inapplicable            Petroleum Co., 288 F.2d 53, 59 (5th Cir.
to this case, and that the verdict is unsup-            1961). In considering whether alleged incon-
ported by the evidence. Whitaker cross-ap-              sistent verdicts may be reconciled, we view the
peals on several grounds. Because we affirm,            evidence in the light most favorable to uphold-
we do not address the issues presented on               ing the jury’s decision by a finding of consis-
cross-appeal.                                           tency. Ellis v. Weasler Eng’g, Inc., 258 F. 3d
                                                        326, 343 (5th Cir. 2001); Hiltgen v. Sumrall,
                       I.                               47 F.3d 695, 701 (5th Cir. 1995).
   The city argues that the jury was confused
and the two jury verdicts are inconsistent be-              The instructions with respect to the first set
cause the question whether the city owed                of interrogatories clarify that the court did not
Whitaker money under the two proposed                   ask or instruct the jury on whether Whitaker
change orders (PC51 and PC65R) was an-                  was entitled to quasi-contractual damages in
swered in the negative in the first set of inter-       the first set of interrogatories. There is no
rogatories and in the affirmative in the second.        mention of quasi-contract and its legal require-
Question 13 in the first set of interrogatories         ments in the instructions to the first set of
asks, “Do you find that Whitaker Construction           interrogatories (or in the interrogatories).
Company, Inc. incurred damages as a result of           Rather, the instructions accompanying the first
the failure of the City of Shreveport to pay            set of interrogatories are unambiguous and ad-
amounts due under the contract balances or              dress only the issue of damages resulting from
proposed change orders?” The city argues                a breach of contract and additional tort dam-
that the jury’s “No” answer to this question            ages arising from such breach. Similarly, the
also answers the question, given in the second          instructions given in the second set of inter-
set of interrogatories, whether the city owed           rogatories are unambiguous, because they ad-
Whitaker any money under the equitable the-             dress only the issue of equitable remedies.
ory of quasi-contract.
                                                           Thus, the jury could not have been con-
   The city’s position that the two verdicts are        fused. The instructions “were sufficient to
inconsistent is frivolous. We review special            clear up any confusion which the written in-
interrogatories and jury charges for abuse of           terrogatory may have created.” Winter v.
discretion. EEOC v. Manville Sales Corp., 27            Brenner Tank, Inc., 926 F.2d 468, 471 (5th
F.3d 1089, 1096 (5th Cir. 1994). On appeal,             Cir. 1991).1
the charge must be considered as a whole, and
so long as “the jury is not misled, prejudiced,
or confused, and the charge is comprehensive               1
                                                              Furthermore, Question 13 unambiguously re-
and fundamentally accurate, it will be deemed           fers to tort damages resulting from a breach of con-
adequate and without reversible error.” Davis           tract, not to quasi-contractual damages. The ques-
                                                                                               (continued...)

                                                    3
                        II.                                 at a contrary conclusion.” Boeing Co. v. Ship-
    The city contends that the theory of unjust             man, 411 F.2d 365, 374 (5th Cir. 1969) (en
enrichment, an equitable or quasi-contractual               banc), overruled on other grounds by Gau-
remedy, was not applicable to the two pro-                  treaux v. Scurlock Marine, Inc., 107 F.3d 331
posed change orders because there was an-                   (5th Cir. 1997); Garcia v. City of Houston,
other remedy at law available to Whitaker,                  201 F.3d 672 (5th Cir. 2000). “[This court’s]
namely “its suit on the public contract.” This              sole function is to ascertain if there is a ratio-
claim is frivolous. The jury determined in the              nal basis in the record for the jury’s verdict.”
first set of interrogatories (Questions 7 and 10)           Helene Curtis Indus., Inc. v. Pruitt, 385 F.2d
that there was no contract with respect to the              841, 850 (5th Cir. 1967).
two proposed change orders. Because there
was no contract with respect to these two                      To prevail on a claim for unjust enrichment
change orders, Whitaker had no remedy at                    in Louisiana, the plaintiff must establish (1) an
law.2                                                       enrichment; (2) an impoverishment; (3) a con-
                                                            nection between the enrichment and the result-
                      III.                                  ing impoverishment; (4) an absence of “justifi-
   The city also challenges the sufficiency of              cation” or “cause” for the enrichment and im-
the evidence to support the verdict. The test               poverishment; and (5) that there is no other
used for reviewing a ruling on a j.m.l. is that             remedy at law.3 Contrary to the city’s asser-
“we must affirm the verdict unless the evi-                 tions, there was a rational basis in the record
dence viewed in the light most favorable to                 for the jury to find for Whitaker on each of
the jury’s verdict points so strongly and over-             these prongs.
whelmingly in favor of one party that the court
believes that reasonable men could not arrive                  The uncompensated work that Whitaker
                                                            performed as to PC51 and PC65 (as testified
                                                            to by Whitaker’s experts) constituted the basis
   1
     (...continued)                                         for its impoverishment and the city’s enrich-
tion asks whether Whitaker “incurred damages” as            ment and is the connection between the two.
a result of the City’s “failure . . . to pay” amounts       Further, there was no justification for the im-
due under the proposed change orders, not whether           poverishment or enrichment. Also, because
the city owed the amounts due under the proposed            the jury found that there was no contract with
change orders. The former asks whether the                  respect to the two proposed change orders,
breach of contract resulted in additional tort dam-         Whitaker has no remedy at law.
ages, and the latter asks whether there was a failure
to pay under contract or quasi contract. Because               The city avers nonetheless in its reply brief
these are two different questions, it is not incon-         that there was no impoverishment or enrich-
sistent to have two different answers.                      ment because it had already paid for the
   2
     The city also argues that allowing Whitaker to
maintain a cause of action under unjust enrichment
                                                               3
would circumvent the prohibition against the city’s              Gulfstream Servs., Inc. v. Hot Energy Servs.,
entering contracts on a cost-plus basis and would           Inc., 907 So. 2d 96, 101 (La. App. 1st Cir.), writ
“negate the public bid laws of this state.” The city        denied, 904 So. 2d 706 (La. 2005); Plaquemines
cites no caselaw in support, so this one-paragraph          Parish Comm’n v. Delta Dev. Co., 688 So. 2d
claim is waived for failure to brief.                       169, 176 (La. App. 4th Cir. 1997).

                                                        4
amounts asked under the two proposed change                      Even assuming that this claim was not
orders when it paid for Pay Application 19.                  waived, there was a rational basis to support
This argument is waived because it was not                   the finding that there was an impoverishment.
raised in the district court and also because it             McCullough stated that the claim of a number
was not raised in the city’s opening brief on                of the city’s witnesses that the amounts re-
appeal.                                                      quested on PC51 and PC65 had already been
                                                             paid on Pay Applications 1-19 was “absolutely
    In the memorandum accompanying the re-                   wrong.” Trial Tr. at 1116. The city’s witness-
newed motion for j.m.l., the city argued only                es had argued that the work on PC51 was per-
that there was no impoverishment and enrich-                 formed by three subcontractors and that the
ment, because the jury had determined (in the                amounts they were due had already been paid
answers to questions 2, 5 and 13 of the first                in full on Pay Application 19. But McCul-
set of interrogatories) that the city had paid in            lough explained that although the back-up at-
full with respect to the change orders and the               tachments for Pay Application 19 included the
proposed change orders. 4 But the city never                 totals for the three subcontractors, the actual
argued in its memorandum that there was no                   amounts requested on Pay Application 19
rational basis for a finding of impoverishment               were only amounts due under Change Orders
because the amounts claimed on the two pro-                  1 and 2, not the full amounts of the totals
posed change orders had already been paid on                 shown in the attachments. Id. at 1119–20.
Pay Application 19. Therefore, we will not                   Because the amounts due under Change Or-
consider that claim. See Little v. Liquid Air                ders 1 and 2 did not include the amounts due
Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994)                under the proposed change order PC51 and
(en banc) (noting that the court of appeals will             PC65 (which were subsequent and not ap-
not consider arguments that were not present-                proved), the amounts requested on Pay 19 did
ed to the district court).5                                  not reflect the full “totals” requested by the
                                                             subcontractors on the attached documentation.
                                                             Id.
   4
      This argument fails because, as explained,
Question 13 did not ask whether the city had paid                McCullough also testified that the fact that
in full with respect to the proposed change orders,          these subcontractors had been prudently paid
but whether any failure to pay or delay may have             in full by Whitaker does not mean that the city
resulted in additional tort damages.                         had paid Whitaker in full the amounts request-
   5
      In its opening brief on appeal, the city argues
that the testimony provided by Robert McCul-
                                                                5
lough, Whitaker’s expert, that Whitaker was owed                 (...continued)
$1,123,455 under the two proposed change orders,             reasons.
was “useless” in supporting the verdict because the
jury determined, in its answer to Question 13 of the             The city never argued that the amounts demand-
first set of jury interrogatories, that Whitaker was         ed on the proposed change orders where paid when
not entitled to compensation under the two pro-              Pay Application 19 was paid. In fact, Pay Appli-
posed change orders. This is basically the same              cation 19 is not mentioned in this section of the
argument the city made in the memorandum sup-                city’s opening brief. Therefore, the city has also
porting the motion for j.m.l.; it fails for the same         waived this argument for failure to brief it ade-
                                        (continued...)       quately on appeal.

                                                         5
ed by the subcontractors. Rather, the amounts              are not free to weigh conflicting evidence and
included on the two proposed change orders                 inferences, determine the credibility of wit-
had not already been paid by the city. See                 nesses, or substitute our judgment of the facts
17 R. at 14-15.6                                           for that of the jury.”).

   Because the evidence as a whole must be                    AFFIRMED.
viewed in light most favorable to the verdict,
“our sole function is to ascertain if there is a
rational basis in the record for the jury’s ver-
dict.” Helene Curtis Indus., Inc., 385 F.2d at
850. “[O]nly when there is a complete ab-
sence of probative facts to support the conclu-
sion reached does a reversible error appear.”
Martin v. Chesebrough-Pond’s, Inc., 614 F.
2d 498, 500 (5th Cir. 1980) (per curiam) (cita-
tions omitted).

   There is no such absence of probative facts.
The jurybelieved McCullough’s testimonyand
not that of the city’s witnesses. We cannot
reweigh the evidence and substitute our own
factfinding for the jury’s. Seven-Up Co. v.
Coca-Cola Co., 86 F.3d 1379, 1387 (5th Cir.
1996) (“In determining whether there is sub-
stantial evidence to create a jury question, we


   6
      Moreover, two of the city’s witnesses who tes-
tified that the amounts requested on the two pro-
posed change orders had already been paid also
testified that they did not have the expertise to
make that determination. Mr. Prevot, an architect
hired by the city to manage the project, testified
that although he could review whether Whitaker’s
charges were reasonable, he did not have the in-
formation whether the city had already paid for
them, because the city performed that auditing
function. Trial Tr. at 911. Mr. Antee, who
worked for the city, testified that he was a lawyer,
not an engineer or an architect. Thus, the jury
could have reasonably questioned his expertise in
making the determination whether the items in-
cluded on the proposed change orders had already
been included in prior change orders or paid in Pay
Application 19.

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