Case: 17-30261      Document: 00514158741         Page: 1    Date Filed: 09/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals

                                    No. 17-30261
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                         September 15, 2017
                                                                              Lyle W. Cayce
ALVIN KIE; PECOLA KIE,                                                             Clerk


              Plaintiffs - Appellants

v.

TORY WILLIAMS; WERNER ENTERPRISES, INCORPORATED,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:15-CV-2304


Before REAVLEY, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       This action concerns a June 4, 2014, automobile collision near the
intersection of U.S. Highway 80 and Louisiana Highway 17 in Richland Parish,
Louisiana. Plaintiffs-Appellants Alvin Kie and his wife, Pecola Kie, alleged
that Mr. Kie was stopped at a red light at that intersection in his pickup truck
waiting to make a left-hand turn when Defendant-Appellee Troy Williams—



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-30261
who was driving an eighteen-wheel tractor-trailer owned by his employer,
Defendant-Appellee Werner Enterprises, Inc.—negligently changed lanes and
struck his vehicle. The Defendants contended that Williams maintained control
of his vehicle in his lane and that the accident was due to Mr. Kie failing to
keep his own vehicle in his own lane. After a five-day trial, a jury ultimately
disagreed with the Kies’ allegations and found that Williams was faultless in
the collision. The Kies then filed a motion to alter or amend the judgment and
a motion for a new trial, which the district court denied. The Kies appeal both
the judgment and the denial of the post-judgment motions. We affirm.
                                         I
      The Kies’ first argument in favor of reversal is that the jury’s verdict was
against the overwhelming weight of the evidence. “Although neither party
provides the applicable standard of review for this issue, we must apply the
appropriate legal standard of review . . . .” Stover v. Hattiesburg Pub. Sch. Dist.,

, 995 n.4 (5th Cir. 2008); see also United States v. Vontsteen, 

, 1091 (5th Cir. 1992) (en banc). When a case is tried to a jury, a
challenge to the sufficiency of the evidence must be raised in a Federal Rule of
Civil Procedure 50(a) motion for judgment as a matter of law before the case is
submitted to the jury. Seibert v. Jackson County, 

, 434–35 (5th
Cir. 2017). When a party fails to raise a Rule 50 motion, “we consider the
sufficiency of the evidence under a plain error standard, reversing ‘only if the
judgment complained of results in a manifest miscarriage of justice.’” 

(footnote and internal quotation marks omitted) (quoting United
States ex rel. Wallace v. Flintco, Inc., 

, 963–64 (5th Cir. 1998)).
      Our review of the record reveals that while the Kies moved for judgment
as a matter of law at the close of evidence on two of the Defendants’ affirmative
defenses, they failed to move on the issue of the sufficiency of the evidence before
the case was submitted to the jury. As a result, we must consider the Kies’
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challenge to the sufficiency of the evidence under the plain error standard. See
Dilworth v. Cont’l Constr. Co., 282 F. App’x 330, 333 (5th Cir. 2008) (per curiam).
“On plain error review ‘the question before this Court is not whether there was
substantial evidence to support the jury verdict, but whether there was any
evidence to support the jury verdict.’” 

(quoting McCann
v. Tex. City Ref’g, Inc., 

, 673 (5th Cir. 1993)). “If any evidence
supports the jury verdict, the verdict will be upheld.” 

).
      We need look no further for that evidence than the testimony of the
accident’s investigating officer, Derrick Whitney. Officer Whitney, who is
trained in accident reconstruction, testified that he has investigated hundreds
of accidents during his approximately fifteen-year career as a police officer.
Officer Whitney arrived at the scene of the accident one minute after receiving
the call and remained there until the end of his investigation. He looked for
witnesses when he arrived but saw none, and no witnesses contacted him either
during his investigation or thereafter, including the purported eyewitnesses
proffered by the Kies.
      Officer Whitney obtained written statements from Mr. Kie, Williams,
Undra Sharp (Mr. Kie’s passenger), and Tommy Morgan (Williams’s supervisor
and the passenger in the tractor-trailer). He took photographs of the two
vehicles and the scene of the accident.
      The statement Officer Whitney took from Mr. Kie reflected that the
initial point of impact was with the pickup truck’s right side-view mirror.
Officer Whitney testified that he observed that the mirror of Mr. Kie’s pickup
truck was folded in towards the door, a fact consistent with the indication that
the pickup truck was, at the time of the collision, moving forward at a rate faster
than that of the tractor-trailer. He photographed scuff marks on the side of the
Defendants’ truck which matched the height of Mr. Kie’s side-view mirror, but
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                                  No. 17-30261
he saw no scraping along the side of Mr. Kie’s vehicle. And he testified that he
saw taillight debris from Mr. Kie’s pickup truck between the right and left
lanes of U.S. Highway 80 in front of the intersection’s white stop line.
      Officer Whitney’s testimony bolsters the Defendants’ theory that Mr. Kie
crossed into Williams’s lane, traveling at a rate faster than Williams’s rate of
travel at the moment of impact. This testimony is evidence that supports the
jury’s verdict that Williams was not at fault. Thus, the district court did not
plainly err in entering judgment consistent with that verdict.
                                        II
      Next, we generally review a decision on a motion to alter or amend
judgment for abuse of discretion. Lake Eugenie Land & Dev., Inc. v. BP
Exploration & Prod., Inc. (In re Deepwater Horizon), 

, 577 (5th
Cir. 2016) (per curiam). “A motion to alter or amend the judgment under Rule
59(e) ‘must clearly establish either a manifest error of law or fact or must
present newly discovered evidence’ and ‘cannot be used to raise arguments
which could, and should, have been made before the judgment issued.’”
Maxmed Healthcare, Inc. v. Price, 

, 340 (5th Cir. 2017) (internal
punctuation marks omitted) (quoting Rosenblatt v. United Way, 

,
419 (5th Cir. 2010)).
      The Kies’ motion establishes none of these grounds. It seeks merely to re-
raise and rehash the Kies’ own interpretation of the evidence—an interpretation
that had already been considered, and rejected, by the jury. As such, the district
court did not abuse its discretion in denying the motion.
                                       III
      Finally, we review the denial of a motion for a new trial for abuse of
discretion. McCaig v. Wells Fargo Bank (Tex.), N.A., 

, 472 (5th Cir.
2015). “The district court abuses its discretion by denying a new trial only when
there is an absolute absence of evidence to support the jury’s verdict.” Streamline
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                                 No. 17-30261
Prod. Sys., Inc. v. Streamline Mfg., Inc., 

, 450 (5th Cir. 2017)
(citation and internal quotation marks omitted). Applying this standard, the
district court’s denial of the Kies’ motion for new trial must be upheld, because
we have already found that there was evidence to support the jury’s verdict.
                                   *   *    *
      Based on the foregoing, we AFFIRM the judgment of the district court.




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