Filed: Dec. 01, 1997
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-41039 _ JAMES WAYNE, Plaintiff-Appellant, v. BODDEN INTERESTS INC, ET AL, Defendants, BODDEN INTERESTS INC; JODY P MCCORMICK, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Texas (C-95-CV-38) _ November 21, 1997 ON PETITION FOR REHEARING Before KING, DUHÉ, and WIENER, Circuit Judges. PER CURIAM:* Plaintiff-appellant James Wayne’s counsel petitioned this panel for a rehearing of
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-41039 _ JAMES WAYNE, Plaintiff-Appellant, v. BODDEN INTERESTS INC, ET AL, Defendants, BODDEN INTERESTS INC; JODY P MCCORMICK, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Texas (C-95-CV-38) _ November 21, 1997 ON PETITION FOR REHEARING Before KING, DUHÉ, and WIENER, Circuit Judges. PER CURIAM:* Plaintiff-appellant James Wayne’s counsel petitioned this panel for a rehearing of ..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-41039
_____________________
JAMES WAYNE,
Plaintiff-Appellant,
v.
BODDEN INTERESTS INC, ET AL,
Defendants,
BODDEN INTERESTS INC; JODY P MCCORMICK,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(C-95-CV-38)
_________________________________________________________________
November 21, 1997
ON PETITION FOR REHEARING
Before KING, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant James Wayne’s counsel petitioned this
panel for a rehearing of this case because, in their words, we
“have simply missed the point of this appeal.” In an abusive
petition, counsel upbraids this panel for focusing on the
sufficiency of the evidence in deciding this case. The
petitioner argues that we passed over questions of law that would
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
have affected the outcome of the case. Counsel now asks this
panel not to take their brief at face value and to focus on the
other legal arguments buried within their sufficiency of the
evidence arguments.2 The panel considered and rejected those
legal arguments.
We draw counsel’s attention to the following passages in his
brief:
[T]he trial court erred . . . because there [was] no
evidence or insufficient evidence to support the jury’s
finding . . . and that there was no evidence or
insufficient evidence to support the findings . . . .
. . . [T]here was no evidence to support the
jury’s finding . . . .
Appellant’s Brief at 9 (summary of the argument) (emphasis
added).
Plaintiff submits that a proper examination of the
evidence . . . reveals the jury’s finding in this
regard is not only unsupported by any evidence, but in
fact, the overwhelming evidence requires a finding to
the contrary.
Id. at 13 (emphasis added).
This status of the record establishes that there was no
evidence to support either the submission of Question
No. 2 to the jury, or the answer to it by the jury.
Id. at 14 (emphasis added).
[D]efendants completely failed to provide evidentiary
support of the nature that would factually support the
jury’s answer to Special Question 2.
Id. at 15 (emphasis added).
[I]t is clear that the verdict is contrary to reason
and the weight of the credible evidence . . . .
Id. at 16 (emphasis added).
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Counsel cites in their petition nine cases, five of which
they did not cite in their briefs on appeal despite all of them
being available during the briefing period.
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[T]here simply is no legally credible evidence to
support this finding in the evidence.
Id. at 17 (emphasis added).
Not only did Defendant not produce any evidence . . .,
but the undisputed evidence is to the contrary.
Id. at 18 (emphasis added).
[T]here is absolutely no evidence that the FDIC, as
lessor, set out to intentionally conceal the identity
of the owner . . . . [T]here is no evidence . . . that
would lead any reasonable person to conclude that the
FDIC committed fraud . . . . The jury’s findings in
this regard are based upon speculation, hunch, or mere
suspicion which certainly does not rise to the level of
competent evidence . . . .
Id. at 19-20 (emphasis added).
[T]he Defendants failed to present any evidence of
authority . . . .
Id. at 22 (emphasis added).
The Defendants’ “evidence” did not present a material
fact issue . . . .
Id. at 23 (emphasis added).
There is no evidence that the Defendant made
specific requests for repairs, and there is no evidence
that any specific repairs requested, if any[,] were not
made . . . . There is no evidence that the FDIC . . .
was aware of or had knowledge of any falsity . . . ,
nor is there any evidence that Mr. Murphy intended to
mislead . . . .
Id. at 24 (emphasis added).
There is no evidence that Plaintiff obstructed or
physically prevented Defendants’ representatives . . .
.
. . . [T]here is no evidence that the Plaintiff
would have refused a request by the Defendants to re-
enter . . . .
A reasonable and fair-minded jury simply could not
come to a conclusion, based upon the trial evidence,
that Plaintiff interfered with or prevented the
Defendants . . . . The jury’s finding . . . should
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have been disregarded by the trial court because there
was no credible evidence . . . .
Id. at 27-28 (emphasis added).
The answer of the jury . . . is not only unsupported by
the evidence, but is clearly contrary to the great
weight of all of the evidence.
Id. at 29 (emphasis added).
There was no evidence to support this finding by the
jury . . . . [T]he zero damages finding by the jury
was clearly erroneous and not supported by the facts
and evidence.
Id. at 29-30 (emphasis added).
[T]here was a complete absence of evidence to support
the jury’s findings.
Id. at 30 (emphasis added).
[T]here was no credible evidence presented by
Defendants to refute this evidence.
Id. at 32 (emphasis added).
[T]he trial court should have granted Plaintiff’s
Motion for New Trial because of a complete lack of
evidence to support the jury’s conclusion . . . .
Id. at 33 (emphasis added).
Counsel for the petitioner is advised that, in the future,
before they embark upon a wholly unprofessional tirade against a
court based upon the disposition of their client’s claims, they
would do well to reread their briefs with a view to identifying
the grounds upon which they asked the court to focus.
IT IS ORDERED that the petition for rehearing filed in the
above case is DENIED.
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