Whitaker Const Co v. City of Shreveport

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

-- 1 of 6 --

2
* * * * * * * * * * * * * * *
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,
Circuit Judges.
PER CURIAM:*
The City of Shreveport (the “City”) appeals
the denial of its motion for judgment as a mat-
ter of law (“j.m.l.”) following a jury verdict in
favor of Whitaker Construction Company, Inc.
(“Whitaker”), in a suit involving a construction
dispute arising from the renovation of the
Independence Stadium sports facility. The
jury had found in the first set of interrogatories
that there was a contract with respect to sev-
eral contractual modifications known as
Change Orders 1-6 but that the contract had
not been breached by the city. It also found
that there was no contract with respect to Pro-
posed Change Orders PC51 and PC65. In the
second set of interrogatories, it found that
Whitaker nonetheless was entitled to compen-
sation under unjust enrichment for the work
described in PC51 and PC56, and it awarded
Whitaker $764,265.00. This amount was less
than that demanded by Whitaker on the two
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

-- 2 of 6 --

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

-- 3 of 6 --

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

-- 4 of 6 --

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

-- 5 of 6 --

6
ed by the subcontractors. Rather, the amounts
included on the two proposed change orders
had not already been paid by the city. See
17 R. at 14-15.6
Because the evidence as a whole must be
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
are not free to weigh conflicting evidence and
inferences, determine the credibility of wit-
nesses, or substitute our judgment of the facts
for that of the jury.”).
AFFIRMED.
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.

-- 6 of 6 --