Filed: Mar. 16, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 16, 2011 No. 09-16273 JOHN LEY _ CLERK D. C. Docket No. 07-22120-CV-CMM FISK ELECTRIC COMPANY, Plaintiff-Appellee Cross-Appellant, versus SOLO CONSTRUCTION CORPORATION, LIBERTY MUTUAL INSURANCE COMPANY, Defendants-Appellants Cross-Appellees. _ Appeals from the United States District Court for the Southern District of Florida _ (March 16, 2011) Before EDMONDSON, PRY
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 16, 2011 No. 09-16273 JOHN LEY _ CLERK D. C. Docket No. 07-22120-CV-CMM FISK ELECTRIC COMPANY, Plaintiff-Appellee Cross-Appellant, versus SOLO CONSTRUCTION CORPORATION, LIBERTY MUTUAL INSURANCE COMPANY, Defendants-Appellants Cross-Appellees. _ Appeals from the United States District Court for the Southern District of Florida _ (March 16, 2011) Before EDMONDSON, PRYO..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 16, 2011
No. 09-16273
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-22120-CV-CMM
FISK ELECTRIC COMPANY,
Plaintiff-Appellee
Cross-Appellant,
versus
SOLO CONSTRUCTION CORPORATION,
LIBERTY MUTUAL INSURANCE COMPANY,
Defendants-Appellants
Cross-Appellees.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(March 16, 2011)
Before EDMONDSON, PRYOR, and BARKSDALE,* Circuit Judges.
*
Honorable Rhesa H. Barksdale, United States Circuit Judge for the Fifth Circuit, sitting
by designation.
PER CURIAM:
This case presents issues from a construction contract dispute.
Plaintiff/Appellee Fisk Electric Co. (“Fisk”) prevailed on its breach of contract
claims following a jury trial. The jury awarded Plaintiff $964,976 against
Defendant/Appellant Solo Construction Corp. (“Solo”) and $410,989 against
Defendant/Appellant Liberty Mutual Insurance Co. (“Liberty Mutual”).
Following the trial, Plaintiff moved to modify the jury’s verdict and to enter
judgment making both defendants jointly and severally liable for the entire award.
Defendants moved for a new trial, alleging error in the district court’s evidentiary
rulings. The district court denied both motions, and this appeal and cross-appeal
resulted. No reversible error has been shown; we affirm.
I. BACKGROUND
Solo entered into a contract with the Miami-Dade Aviation Department
(“Department”) to supply labor and services for an expansion project at Miami
Dade International Airport. Solo served as the general contractor and hired
Plaintiff as a subcontractor. The contract between Plaintiff and Solo included a
2
pay-when-paid provision that stated Solo would pay Plaintiff when the Department
paid Solo. Liberty Mutual provided Solo with a surety bond for the project.
Plaintiff initiated this suit to recover unpaid contract balances and additional
expenses incurred due to construction delays. Plaintiff alleged that Solo breached
their contract and that both Solo and Liberty Mutual breached the terms of the
surety bond.
While this suit was pending, Plaintiff participated in mediation with Solo
and the Department to resolve outstanding contract claims among Plaintiff, Solo,
and the Department. As a result of the mediation, the Department negotiated a
settlement and paid Solo. Plaintiff understood that Solo would pay Plaintiff after
receiving the payment from the Department, but Plaintiff did not get paid.
Defendants later filed answers raising as an affirmative defense the pay-
when-paid clause. Before trial, Solo moved to exclude all evidence about the
mediation between the parties. The district court denied the motion. The district
court stated that Solo -- by raising the pay-when-paid clause as an affirmative
defense and arguing that Solo was never paid by the Department on Plaintiff’s
claims -- had opened the door to admission of evidence that the mediation resulted
in the Department’s paying Solo.
The case went to trial. At trial, a Fisk executive testified that mediation had
3
taken place and resulted in a payment to Solo. The Fisk executive also testified
that he understood Fisk would be paid following the Department’s payment to Solo
and that the mediation settlement between the Department and Solo was intended
to encompass Fisk’s claims.
The jury determined that Solo breached its contract with Plaintiff and found
that Liberty Mutual breached the terms of its payment bond. It awarded Plaintiff
$964,976 against Solo and $410,989 against Liberty Mutual.1
Both sides later made post-trial motions: Plaintiff moved to modify the
verdict to make Defendants jointly and severally liable for the total amount of
damages: more than $1.3 million. Defendants moved for a new trial, contending
error in the admission of testimony about the mediation and contending that the
testimony tainted the jury’s verdict. The district court denied the motions; both
1
The verdict form read this way:
1. Do you find that Solo Construction Corporation breached its contract with Fisk Electric
Company? Yes __ No __
If your answer to this question is yes, please answer question No. 2.
2. What do you find is the amount of damages sustained by Fisk Electric Company as a
result of Solo Construction Corporation’s breach of contract?
3. Do you find that Liberty Mutual Insurance Company breached the terms of the payment
bond? Yes __ No __
If your answer to this question is yes, please answer question No. 4.
4. What do you find is the amount of damages sustained by Fisk Electric Company as a
result of Liberty Mutual Company’s breach of its payment bond?
The jury marked “yes” to the first and third questions and wrote in the amount of damages for
the second and fourth questions.
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parties appeal.
II. DISCUSSION
A. Plaintiff’s Motion to Modify the Jury’s Verdict
Plaintiff asserts that the jury’s award of $964,976 against Solo and $410,989
against Liberty Mutual indicates the jury’s intent to grant Plaintiff the full relief
sought: $1,375,965.2 Plaintiff then argues that, given that the jury intended to
award Plaintiff full relief, Florida law and the terms of the payment bond mandate
that the verdict should be modified to make each defendant jointly and severally
liable for the total award.
Plaintiff’s speculations about the jury’s intent might be correct. But we do
not need to resolve this question because Plaintiff did not raise an objection to the
verdict before agreeing to the jury’s dismissal. Plaintiff’s “failure to raise its
objection before the jury was discharged waived the right to contest the verdicts on
the basis of alleged inconsistency.” Mason v. Ford Motor Co., 307 F.3d 1271,
2
Plaintiff sought to recover $410,989 owed on the subcontract and $964,976 for added
costs incurred in maintaining airfield lighting due to delays in construction, for a total of
$1,375,965.
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1275-76 (11th Cir. 2002).
Had Plaintiff objected at the time the verdict was rendered, the district court
could have examined the jury’s verdict to resolve any potential inconsistencies.
Instead, Plaintiff consented to the jury’s dismissal and waited until a post-trial
motion to raise the issue. Appellate review is not the appropriate time to resolve
alleged inconsistences: we cannot be reasonably sure at this late date exactly what
the jury intended when rendering its verdict. Any party wishing to clarify the jury’s
basis for its verdict was free to do so while the jury was still empaneled; the failure
to object waived the ability later to seek review of alleged inconsistencies. See id.
Plaintiff’s requested relief -- increasing the award against each of the
defendants to a greater amount than the jury awarded against either individual
defendant -- also limits our review. Plaintiff relies on United Aluma Glass v.
Bratton Corp.,
8 F.3d 756 (11th Cir. 1993) (“United Aluma”) to support its claim
that this Court should modify the jury’s verdict. United Aluma is too different to
guide the outcome in this case.3 United Aluma might have allowed Plaintiff relief
3
The United Aluma sureties -- per the jury verdict -- escaped liability altogether despite a
breach by the defendant contractors (the surety’s principals) and an award of damages against
the principals. United Aluma, 8 F.3d at 757. We decided that the surety as a matter of law was
liable for the sum for which the principal had been found liable.
Id. at 759. In the present case,
the jury determined the surety and contractor were each liable for a specific and different sum.
While the United Aluma plaintiff sought to amend the verdict to make the sureties liable to the
same extent as the principals, Plaintiff here moved in the District Court for something different:
to impose a greater amount of damages on both principal and surety than the jury awarded
against either one.
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through a motion for an amendment to make Liberty Mutual jointly and severally
liable for the same sum that the jury awarded against its principal Solo: $964,976.
But we need not decide that question today because Plaintiff never moved for that
relief in the District Court or even argued for it here.4 The District Court committed
no reversible error by failing to grant relief not asked for: that is, amending the
verdict to make Liberty Mutual jointly and severally liable for the same sum
awarded against Solo.5
B. Defendants’ Motion for a New Trial
Defendants argue that the admission of evidence on the parties’ mediation
proceedings violated Florida law and Federal Rule of Evidence 408 and tainted the
jury’s verdict.
This step is different from anything in United Aluma. Such a result could well raise
difficult questions about whether we had impermissibly granted additur. See Dimick v. Schiedt,
55 S. Ct. 296, 301 (1935).
4
In Plaintiff’s motion before the district court, it requested that “judgment be entered
upon the verdict against [Solo] and [Liberty], jointly and severally, in the principal amount of
$1,375,965.” Nowhere did Plaintiff request any alternative relief.
5
Plaintiff also cites Fla. Stat. § 255.05, for the proposition that “[u]nder Florida law, . . .
a payment bond surety is liable for the debts of its principal.” Nothing in § 255.05 requires that
Defendants be held jointly and severally liable. Instead, the statute merely states that a “claimant
shall have a right of action against the contractor and surety for the amount due him or her.” Fla.
Stat. § 255.05(1)(a).
7
Federal Rule of Evidence 408(a) excludes evidence of settlement
negotiations when offered to prove “liability for, invalidity of, or amount of a
claim that was disputed as to validity or amount” or when offered for certain
impeachment purposes. Introduction for other purposes is permissible. Fed. R.
Evid. 408(b).
In the present case, Plaintiff introduced testimony establishing that
mediation took place and resulted in a payment to Solo. This evidence was
presented for the purpose of establishing that the pay-when-paid provision in
Plaintiff’s own contract with Solo had been satisfied. This testimony falls within
the permissible “other purposes” for which evidence properly may be offered
under Rule 408. Defendants’ raising of the pay-when-paid clause as an affirmative
defense invited evidence rebutting that defense.6 See Bearint ex rel. Bearint v.
Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1349 (11th Cir. 2004); Morro v. City of
Birmingham,
117 F.3d 508, 517 (11th Cir. 1997). Testimony about mediation
proceedings was pertinent to rebutting Solo’s claim that it had not received
6
Settlement agreements and related communications also may be admitted for the
“purpose of resolving a factual dispute about the meaning of the settlement agreements’ terms.”
Westchester Specialty Ins. Servs., Inc. v. U.S. Fire Ins. Co., 119 F.3d 1505, 1512 (11th Cir.
1997). To the extent Plaintiff sought to present evidence to establish the intent behind the
settlement agreement, Rule 408 does not bar its admission.
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payment from the Department.7
III. CONCLUSION
No party has demonstrated reversible error on appeal; the judgment of the
district court is affirmed.
AFFIRMED.
7
We generally apply federal evidentiary rules in diversity cases. See Flury v. Daimler
Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). But state substantive law may provide
additional protection for evidence beyond what the federal evidentiary rules provide. See, e.g.,
Ungerleider v. Gordon,
214 F.3d 1279 (11th Cir. 2000). But we see no error in the district
court’s application of the Florida Mediation Confidentiality and Privilege Act and affirm.
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