Filed: Nov. 09, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 9, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-11357 CALEB ELLIOTT, Plaintiff–Appellant, versus DUSTIN DEAN DUSTY HARRIS, Individually; OWS, INC., doing business as OLD WEST STABLES, Defendants–Appellees. Appeal from the United States District Court for the Northern District of Texas Before GARWOOD, DENNIS, and OWEN, Circuit Judges. PER CURIAM:1 Plaintiff–appellant Caleb Elli
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 9, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-11357 CALEB ELLIOTT, Plaintiff–Appellant, versus DUSTIN DEAN DUSTY HARRIS, Individually; OWS, INC., doing business as OLD WEST STABLES, Defendants–Appellees. Appeal from the United States District Court for the Northern District of Texas Before GARWOOD, DENNIS, and OWEN, Circuit Judges. PER CURIAM:1 Plaintiff–appellant Caleb Ellio..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 9, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-11357
CALEB ELLIOTT,
Plaintiff–Appellant,
versus
DUSTIN DEAN DUSTY HARRIS, Individually;
OWS, INC., doing business as OLD WEST STABLES,
Defendants–Appellees.
Appeal from the United States District Court
for the Northern District of Texas
Before GARWOOD, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:1
Plaintiff–appellant Caleb Elliott (Elliott) appeals from the
district court’s final judgment entered on September 16, 2005, that
Elliott take nothing from defendants–appellants Dusty Harris
(Harris) and OWS, Inc., doing business as Old West Stables (OWS).
We affirm.
FACTS AND PROCEEDINGS BELOW
1
Per 5th Cir. R. 47.5, the court has decided that this
opinion should not be published and is not precedent except under
those limited circumstances set forth by 5th Cir. R. 47.5.4.
Appellant Elliott is the 15-year-old son of Dale and Ann
Elliott and is blind. The week of June 14, 2004, Ann Elliott
called OWS, a park riding concessionaire at Palo Duro Canyon State
Park, to reserve horses for renting on June 26, 2004. She explained
to the person taking the reservation that her son Elliott was blind
and that a lead rope would be needed for him to ride.
On June 26, 2004, the Elliott family arrived at OWS stables
and paid for the family’s horse ride. Dale Elliott mentioned to
Harris, an officer and part owner of OWS, that Elliott would need
a lead rope. Harris refused the request and refunded the payment.
Elliott filed suit against Harris on September 29, 2004, under
Title III of the Americans with Disabilities Act (ADA) and Texas
Human Resources Code Chapter 121, as well as for intentional
infliction of emotional distress. OWS was later added as a
defendant.
A jury trial was held September 13 and 14, 2005. The
defendants moved for, and the district court granted, judgment as
a matter of law on Elliott’s intentional infliction of emotional
distress claim. Elliott’s discrimination claims were submitted to
the jury, and the jury found for the defendants on all counts. The
court entered a take-nothing judgment on September 16, 2005.
DISCUSSION
Elliott’s sole argument on appeal is that the district court,
2
in its jury instructions,2 misstated the elements of proof for his
discrimination claim by limiting the jury’s consideration of the
applicability of the ADA (and the corresponding Texas Human
Resources Code Chapter 121) to Elliott’s proposed use of a lead
rope.3 At the charge conference, this objection was raised and
overruled; the court concluded that because the pretrial order
2
The district court instructed the jury that Elliott was
required to prove six facts to prevail on his ADA claim:
“(1) Plaintiff had a disability;
(2) Defendant operated a place of public
accommodation;
(3) Plaintiff requested the accommodation of a lead
rope to allow Plaintiff to ride without being able
to see the direction of the trail;
(4) The use of a lead rope on the trail at Palo Duro
Canyon State Park is a reasonable accommodation;
(5) Defendant was aware of Plaintiff’s disability at
the time of Plaintiff’s request; and
(6) Defendant failed to provide Plaintiff with a lead
rope.” (RE Tab 9, at 6–7.)
Jury Question number one asked:
“Do you find, by a preponderance of the evidence, that
Defendants DUSTIN DEAN ‘DUSTY’ HARRIS, individually,
and OWS, INC. d/b/a OLD WEST STABLES failed to provide
a reasonable accommodation under the AMERICANS WITH
DISABILITIES ACT as defined by the Court’s instructions
by failing to permit Plaintiff to use a lead rope on
their trail ride?”
The jury answered “no.”
Jury question number 4 asked:
“Do you find, by a preponderance of the evidence, that
providing Plaintiff CALEB ELLIOT a lead rope would have
been a reasonable accommodation in policies, practices
or procedures or auxiliary aids and services that was
necessary to allow Plaintiff the full use and enjoyment
of OLD WEST STABLES, as required by the TEXAS HUMAN
RESOURCES CODE?”
The jury answered “no.”
3
Elliott does not challenge the district court’s ruling on
his intentional infliction of emotional distress claim.
3
referenced only the requested use of a lead rope, any other
potential accommodations were not issues in the case. We review
the district court’s jury instructions for abuse of discretion.
Nat’l Hispanic Circus, Inc. v. Rex Trucking, Inc., 414 F.3d 546,
550 (5th Cir. 2005). The court’s legal conclusions are reviewed de
novo. Johnson v. Gambrinus Co./Spoetzl Brewery,
116 F.3d 1052,
1056 (5th Cir. 1997).
The joint pretrial order in this case, entered on August 31,
2005, did not refer to any potential accommodation other than the
use of a lead rope, which it referred to numerous times.
Certainly, a reasonable reading of the Pretrial Order is that this
was the only potential accommodation as to which there was any
factual or legal issue to be tried. “‘Once the [pretrial] order is
entered, it controls the scope and course of the trial.’” Valley
Ranch Dev. Co., Ltd. v. Fed. Deposit Ins. Corp., 960 F.2d 550, 554
(5th Cir. 1992) (quoting Flannery v. Carroll,
676 F.2d 126, 129
(5th Cir. 1982)); see also FED. R. CIV. P. 16(e). An issue omitted
from the order is waived.
Id. And the district court “may refuse
to give an instruction to the jury on an issue not [so] embodied in
the pretrial order.” CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY
KANE, 6A FEDERAL PRACTICE AND PROCEDURE § 1527, at 279 (2d ed. 1990).
Elliott argues that the pretrial order did not limit the
accommodation possibilities to use of a lead rope. This argument
requires an expansive reading of the order. As this court has
4
previously noted, “[d]istrict courts are encouraged to construe
pre-trial orders narrowly without fear of reversal.” Flannery, 676
F.2d at 129. Thus, “unless the court has abused its discretion, its
rulings concerning the order will not be disturbed on appeal.”
Id.
at 130. We find that the district court did not abuse its
discretion in construing the pretrial order to raise only the issue
of whether a lead rope is a reasonable accommodation.
Further, Elliott has not suggested any other modes of
accommodation on which the district court should have instructed
the jury. In a Title III4 case, the “plaintiff has the burden of
proving that a modification was requested and that the requested
modification is reasonable.” Johnson, 116 F.3d at 1059. Elliott
has not suggested–in either his main or reply brief–alternatives to
the lead rope, let alone alternatives that were requested.
Elliott asserts that he “need only request a modification that
4
Title III of the ADA states that “No individual shall be
discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.” 42 U.S.C. § 12182(a)
(2000). Discrimination includes:
“a failure to make reasonable modifications in
policies, practices, or procedures, when such
modifications are necessary to afford such goods,
services, facilities, privileges, advantages, or
accommodations to individuals with disabilities, unless
the entity can demonstrate that making such
modifications would fundamentally alter the nature of
such goods, services, facilities, privileges,
advantages, or accommodations.” 42 U.S.C. §
12182(b)(2)(A)(ii) (2000).
5
is reasonable ‘in the run of cases’” and that therefore he “did not
have to prove that the specific auxiliary aid of a lead rope would
be suitable for use on Defendants’ particular trail.” We agree
that Elliott only needed to show that his requested modification
was “generally reasonable.” Johnson, 116 F.3d at 1058. Thus, for
example, Elliott did not need to go into the specifics of how the
lead rope would be used. But he still needed to show the requested
modification. The only such modification Elliott refers to is the
use of a lead rope. Elliott does not argue any other modifications
that the district court should have asked the jury to consider.
Finally, Elliott also objects to the district court’s jury
instructions in relation to his Texas claim. While he states that
Texas Human Resources Code Chapter 121 is “the Texas analog to
Title III ADA and imposes similar requirements” and partially
quotes the Texas statute, Elliott does not cite any cases dealing
with the Texas statute in his briefs and relies exclusively on ADA
case law to make his arguments. Thus, we do not consider whether
his arguments on appeal might fare differently in regards to his
Texas discrimination claim. “Failure adequately to brief an issue
on appeal constitutes waiver of that argument.” Procter & Gamble
Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (citing
FED. R. APP. P. 28(a)(9)(A)).
CONCLUSION
6
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
7
