Team Contractors v. Waypoint NOLA

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-30704

TEAM CONTRACTORS, L.L.C.,

Plaintiff - Appellee

v.

WAYPOINT NOLA, L.L.C.,

Defendant - Appellant

Appeal from the United States District Court
for the Eastern District of Louisiana

Before CLEMENT, SOUTHWICK, and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
A general contractor sued the construction project’s architects and
engineers for negligence and the project owner for breach of contract. At the
end of the first trial, the general contractor prevailed against the engineers
and architects but not against the owner. Due to a finding that the initial
verdict had an irreconcilable conflict, a second trial was held just on the breach
of contract claim. The jury reached a verdict for the general contractor, and
the owner appealed. Two members of our panel find there was no
irreconcilable conflict in the verdict; a different pair of judges joins this
opinion’s analysis that the general contractor’s failure to object before the
discharge of the jury waived any possible conflict. We VACATE the district
United States Court of Appeals
Fifth Circuit
FILED
September 22, 2020

Lyle W. Cayce
Clerk
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court’s judgment and REMAND for the district court to reinstate the original
verdict and to consider attorneys’ fees.

FACTUAL AND PROCEDURAL BACKGROUND
This contract dispute arises out of the construction of the Hyatt House,
which is a New Orleans hotel. In September 2014, Waypoint NOLA, L.L.C.,
the owner of the project, entered into a construction contract with its general
contractor, Team Contractors, L.L.C. Waypoint entered into an architectural
contract with Hogan Campis Architects (“HCA”), and HCA retained KLG,
L.L.C., as the project’s engineer. During construction, the parties learned that
KLG’s plumbing and mechanical systems did not comply with code
requirements. Because of this, the construction drawings were revised
through change orders. These changes created more work for Team, increased
its costs, and delayed completion of the entire project.
In February 2016, Team filed suit against Waypoint, HCA, and KLG for
costs and damages Team incurred as a result of the changes and delays. Team
brought claims of negligence and breach of contract against Waypoint and
claims of negligence against HCA and KLG. On July 10, 2017, Waypoint paid
Team $1,023,514.09. Team did not bring a negligence claim against Waypoint
at trial.
There were two jury trials. The first spanned two weeks from February
26 to March 9, 2018. After deliberations, jurors answered “no” to question 6
on their verdict form: “Has it been shown by a preponderance of the evidence
that Waypoint breached the contract?” Because of that negative answer, jurors
followed their instruction not to answer question 7: “Did the breach of the
contract by Waypoint cause damage to Team?”
Question 8 of the verdict form asked for the amount of damages that
should be awarded to Team, divided into damages categories, but it did not
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provide for jurors to specify which defendant was responsible for any category.
The jury completed that part of the form by awarding $565,979.99 in damages
to Team. Question 9 of the form required assigning “percentages of
responsibility for the damages entered in Question 8.” HCA was assigned 30
percent, KLG 60 percent, Waypoint and Waypoint’s project manager Steve
Laski, 5 percent each, and none to Team. In response to Question 10, the jury
found there should be no damages awarded to Team for unapproved change
orders or contractual interest. After Question 10, the verdict form stated: “If
the total amount you entered is zero, and you assigned more than zero percent
responsibility to Waypoint in Question 9, proceed to Question 11.” The jury
responded to Question 11, indicating that Waypoint was not entitled to
contractual defenses, reducing Team’s recovery from Waypoint.
When the jury presented its verdict with answers to written questions
on March 9, the district judge asked the jury to retire to the jury room. In the
jury’s absence, the judge asked counsel: “Does everybody agree that we don’t
need to ask the jury anything?” Nothing was suggested by counsel. The jury
was called back, then dismissed with the judge’s thanks. The judge then asked
counsel if there were any other matters that required her attention. There
were none, and the court adjourned.
On March 19, 2018, the district court entered judgment in favor of Team
against defendants HCA and KLG for $509,381.99 on Team’s negligence
claims, equal to 90 percent of the damages awarded in Question 8 of the verdict
form. Judgment was entered in favor of Waypoint, and against Team, on
Team’s breach of contract claim against Waypoint.
On April 2, 2018, almost a month after the dismissal of the jury, Team
moved to amend the judgment as to the breach of contract claim, the only
portion of the judgment in favor of Waypoint. The district court converted
Team’s motion into a motion for new trial, then granted the motion based on
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irreconcilability of the verdict. The district court vacated the judgment for
Waypoint on Team’s breach of contract claim. The second trial on that claim
lasted from April 15 to 17, 2019. That jury found in favor of Team on its claim
against Waypoint and awarded $59,746.43 plus interest. Waypoint appealed.

DISCUSSION
Waypoint raises several arguments challenging the results of the second
trial, but its attention is initially on the point that the district court erred in
even granting a new trial. That predicate question will be the focus of our
analysis. The answer potentially turns on whether the first jury entered a
special verdict or a general verdict with written questions.
Another issue, equally relevant but not a predicate for our approach, is
whether answers were actually inconsistent. We earlier identified the source
of the ostensible inconsistency. To summarize, the only claim against
Waypoint was for breach of contract. Jurors ch ecked “no” in responding to
whether Waypoint had committed a breach. A few sections later on the verdict
form, jurors were to assign “percentages of responsibility for the damages.”
They assigned 10 percent total to Waypoint and one of its employees. There is
an inconsistency, but a district court first, then also the appellate court, must
reconcile answers on a verdict form when there is a basis to do so. The
concurring opinion suggests the reconciliation is that jurors found Waypoint
not liable financially but found it shared responsibility in actual causation by
the 10 percent allocation.
A test that established limits to a court’s effort to reconcile juror answers
was expressed in the authority cited in the concurring opinion. It required the
explanation to be logical and probable:
This court has stated that the test to be applied in reconciling
apparent conflicts between the jury’s answers is whether the
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answers may fairly be said to represent a logical and probable
decision on the relevant issues as submitted, even though the form
of the issue or alternative selective answers prescribed by the
judge may have been the likely cause of the difficulty and largely
produced the apparent conflict.
Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir. 1973).
Further, we are to consider if “there is a view of the case that makes the
jury’s answers to special interrogatories consistent”; if so, “they must be
resolved that way.” Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd.,
369 U.S. 355, 364 (1962) (emphasis added). Thus, it is not some hypothetical
case we examine but the actual case that is on appeal. Further, we should
“look beyond the face of the [answers to] interrogatories to the court’s
instructions as well.” Alverez v. J. Ray McDermott & Co., 674 F.2d 1037, 1040
(5th Cir. 1982). These rules indicate that reconciliation is not unbounded. It
is controlled by what was before jurors that could justify the answers they gave.
What follows analyzes a different issue: regardless of whether there were
inconsistencies, was the new trial properly granted? Our analysis is in three
parts. (I) What form of verdict did the first jury enter after the first trial? (II) If
some inconsistency in the verdict existed, what procedure needed to be followed
to address that? Our resolution of those issues requires us to address one more.
(III) What should be done about attorneys’ fees?

I. Special verdicts and general verdicts with answers to written questions
There are two options when a federal court asks jurors to express fact
findings on the case. One is for special verdicts:
(1) In General. The court may require a jury to return only a
special verdict in the form of a special written finding on each issue
of fact. The court may do so by:
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(A) submitting written questions susceptible of a categorical
or other brief answer;
(B) submitting written forms of the special findings that
might properly be made under the pleadings and evidence;
or
(C) using any other method that the court considers
appropriate.
F
ED. R. CIV. P. 49(a)(1). The court then takes those answers, applies the
relevant law, and decides what the proper result is for the parties.
The other option is for “General Verdict[s] with Answers to Written
Questions.” F
ED. R. CIV. P. 49(b)(1).
1
Its distinction from special verdicts is
that jurors must go beyond mere fact finding. We will discuss that later.
The verdict category determines how inconsistencies among the answers
must be raised. Rule 49(a) does not identify options when the written findings
for special verdicts are inconsistent, but caselaw does. The requirement
relevant here is that even if an irreconcilable conflict is not recognized by court
or counsel until after the jury has been discharged, the district court “has no
authority to enter judgment based upon those answers,” and a new trial must
be held. Moss v. Princip, 913 F.3d 508, 521 (5th Cir. 2019) (quoting Brunner
v. Maritime Overseas Corp., 779 F.2d 296, 297–98 (5th Cir. 1986)).
Rule 49(b) on general verdicts with written questions identifies three
scenarios about consistency. F
ED. R. CIV. P. 49(b)(2)–(4). Important on this
appeal is not which one of those three might be involved. Instead, we are
concerned with the timing of a claim of inconsistency under Rule 49(b). We
have held that “objections to alleged inconsistencies between a general verdict
and answers to verdict questions are waived if a party fails to object when the

1
Rule 49(b) had referred to a “written interrogatory,” a phrase used in some of the
cases we discuss. 9
JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 49.02[1] (3d ed.
2019). In 2007, that phrase was replaced with “written question,” a change that was “stylistic
only.” F
ED. R. CIV. P. 49 advisory committee’s note to 2007 amendment.
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jury announces the verdict, while the jury is still empaneled.” Montano v.
Orange Cnty., 842 F.3d 865, 881–82 (5th Cir. 2016). Raising the objection
before jurors are discharged allows jurors to deliberate further. Once the jury
is discharged, any actual inconsistencies cannot be corrected, but there is a
general verdict indicating who won that allows the district court to enter a
judgment.
Our summary reveals the importance of classifying the first jury’s
verdict. With special verdicts, there is no fallback general verdict expressed
on the jury form. There can be no waiver by late raising of the issue of
inconsistency because the jury has not resolved what is necessary for the court
to enter judgment. On the other hand, if there is a general verdict with written
questions, arguments about inconsistency are waived by not raising them until
after the jurors are discharged. This court recently expressly made the
distinction: “While waiver would not apply had the jury given a special verdict,
the verdict in this instance was general,” and thus waiver applies. Id. at 882.
To understand the difference between the two forms of Rule 49 verdicts,
we start with a dictionary definition of a general verdict: “[a] verdict by which
the jury finds in favor of one party or the other, as opposed to resolving specific
fact questions.” B
LACK’S LAW DICTIONARY 1592 (8th ed. 2004). We gave a
similar explanation a little more than forty years ago when we described how
a general verdict is reached: “After receiving the court’s instructions, the jury
weighs the facts in light of the court’s instructions and renders a verdict for
the plaintiff or the defendant.” Guidry v. Kem Mfg. Co., 598 F.2d 402, 405 (5th
Cir. 1979). Among many specific examples is this one: “Based upon the general
verdict that ‘We, the jury, find for the defendants, each and every one, against
the plaintiff,’ the District Court entered a judgment for the defendants.”
Dement v. Olin-Mathieson Chem. Corp., 282 F.2d 76, 78 (5th Cir. 1960).
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Rule 49(b) adds to the traditional form of a general verdict by requiring
jurors also to answer specific questions: “The court may submit to the jury
forms for a general verdict, together with written questions.” F
ED. R. CIV. P.
49(b)(1) (emphasis added). The rest of this part of the Rule requires the district
court to give jurors “the instructions and explanations necessary to enable the
jury to render a general verdict and answer the questions in writing, and must
direct the jury to do both.” Id. (emphasis added). Clearly, then, Rule 49(b)
contemplates there will be questions to answer and also a general verdict to
complete. The reason for our focus on the answers to the questions being
separate, at least in the contemplation of Rule 49(b), from the general verdict
will become clear later.
In the recent Montano opinion that discussed the relevance of waiver as
to each verdict form, the court concluded that it was reviewing a general
verdict with answers to written questions, but it never quoted the verdict form.
Montano, 842 F.3d at 882. We examined the Montano record to locate that
verdict form and understand how Montano fits into our precedential caselaw.
We find that the Montano verdict form did not require jurors ever to state
simply who won: “We find for the plaintiff,” or “We find for the defendant,” with
quantified damages if appropriate. The verdict form started this way:
Do you find, from a preponderance of the evidence, that Defendant
Orange County had a custom of holding incoherent pre-trial
detainees suspected of being intoxicated [in a specific factual
manner], and that this custom was not reasonably related to a
legitimate governmental objective, that Sheriff Keith Merritt
knew or should have known about the custom and was deliberately
indifferent, and that this custom was the moving force leading to
inadequate medical care?
Next were three questions that required separate jury answers as to how the
plaintiff was affected by the defendants’ unconstitutional acts: did the custom
described in the first question “proximately cause[] mental anguish,” “physical
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pain,” or “death?” Several more questions were similar in format, and the final
section of the form contained questions about the amount of any monetary
award.
At the Montano charge conference, the district court stated that the
verdict was “the complete opposite of the old general verdict.” Even so, the
district court held that the verdict was a general one, presumably a new kind,
when it denied the defendant’s motions seeking to set the verdict aside for
inconsistencies. That court’s guidance for classifying the verdict came from
another Texas district court opinion. See Giddy Up, LLC v. Prism Graphics,
Inc., No. 3:06-CV-0948-B, 2008 WL 656504, at *3 (N.D. Tex. Mar. 12, 2008).
The Giddy Up court, in turn, relied primarily on an Eleventh Circuit opinion.
Giddy Up, 2008 WL 656504, at *3 (citing Mason v. Ford Motor Co., Inc., 307
F.3d 1271, 1274–75 (11th Cir. 2002)).
The question before the Eleventh Circuit in classifying that verdict was
different from the one here. In Mason, the court had to decide if a standard
general verdict could be expressed twice by jurors, once for a negligence claim
and a second time for a defective-design claim. Mason, 307 F.3d at 1272 & n.1.
The court held there could be two general verdicts; what controlled in deciding
whether a general or a special verdict has been reached by jurors was whether
stated law had to be applied to the facts or whether only fact findings were
made. Mason, 307 F.3d at 1275.
Among the opinions Mason cited was one from the Sixth Circuit, holding
that with special verdicts, jurors do not apply law to their findings:
Where special verdicts are involved, the jury’s sole function is to
determine the facts; therefore, neither an instruction on the law
nor a summary concerning their role in relation to the law was
necessary. If the written questions submitted to the jury were
truly special verdicts, no instruction on the law, and certainly not
one as detailed would have been given to the jury. The record
plainly shows that the jury was instructed on the law in order to
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reach a verdict. The record also shows that written questions were
submitted only for the issue of negligent misrepresentation. Both
of these actions contradict essential elements of special verdict
procedure.
Portage II v. Bryant Petrol. Corp., 899 F.2d 1514, 1521 (6th Cir. 1990). The
discussion of the verdict form by that court does not suggest jurors ever made
a single statement of who won. Instead, jurors answered separate questions
on separate causes of action regarding whether the defendant was liable under
different theories of liability based on their instructions of law. Id. at 1518–
19. Then, they allocated comparative fault and establish the amount of
damages. Id.
Mason also cited a Second Circuit opinion for a similar holding:
The charge to the present jury required that it consider the
necessary legal principles given to it by the trial court and make
determinations of ultimate liability. In such case, the answers to
the questions submitted to the jury are not special verdicts, despite
the use of those words in the title appended to the form, and Rule
49(a) therefore does not apply.
Lavoie v. Pac. Press & Shear Co., 975 F.2d 48, 54 (2d Cir. 1992). There, jurors
apparently were required, in addition to answering factual-legal questions, to
give a traditional general verdict in the form of “whether defendant was liable
to plaintiff under each of the four alternative theories and for what amount.”
Id. at 53. The Second Circuit concluded the multiplicity of general verdicts did
not prevent Rule 49(b) from applying, for the reasons we have quoted.
An explanation of special verdicts in a federal practice treatise supports
that the dispositive distinction between special verdicts and general verdicts
with answers to questions is whether jurors are to apply jury instructions
about the law to their fact findings:
A special verdict is returned in lieu of a general verdict and
contains factual findings on all of the material issues in the case.
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Pursuant to Rule 49(a), the jury returns its special verdict in
the form of written answers to separate questions concerning
specific factual issues. The trial court then applies the law to those
answers and enters judgment accordingly. By removing from the
jury the consideration or application of the law (which a general
verdict requires through application of the court’s instruction), the
special verdict avoids those two sources of possible error in the
general verdict.
9
JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 49.02[2](b) (3d ed.
2019).
These authorities articulate a workable rule for identifying a general
verdict with written questions. The classification depends on whether jurors
must apply the explanations given to them on the law to their fact findings and
thereby indicate a final result. Perhaps this approach is the result of verdict
forms not completely fitting either category. A special verdict is to be stated
“in the form of a special written finding on each issue of fact.” F
ED. R. CIV. P.
49(a)(1). For general verdicts, Rule 49(b) says that the form should allow jurors
both to state who won and answer questions that require applying law to the
facts. If the form satisfies Rule 49(b) except for not stating that the jury finds
for one party, it can still be a general verdict. Such a verdict form would not
fully comply with Rule 49(b), but it would be an even worse fit for Rule 49(a).
2

We did not explain in Montano why that verdict would be a general
verdict, but we explicitly held it was. Montano, 842 F.3d at 882. We did have
the argument in the appellee’s brief that it was a general verdict because “the
verdict form did not preserve for the trial judge the determination of who
should prevail based on the jury’s fact finding.” Obviously, the Montano court
also had the district court’s analysis. We conclude now that in Montano, we
accepted that the absence of the traditional “who won” general verdict

2
A verdict form may not fit perfectly within either category. See Turyna v. Martam
Constr. Co., 83 F.3d 178, 181–82 (7th. Cir. 1996).
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language is not dispositive if the questions answered by jurors are those
needed for a general verdict.
We have one final piece of analysis before applying this law. The
Eleventh Circuit in Mason stated that a 1982 Fifth Circuit opinion was
inconsistent with its reasoning. Mason, 307 F.3d at 1275 & n.6 (analyzing
Mercer v. Long Mfg. N.C., Inc., 665 F.2d 61, 65 (5th Cir. 1982)). The district
court in Giddy Up also identified Mercer as inconsistent with its ruling. Giddy
Up, 2008 WL 656504, at *3 n.1. Under this circuit’s rule of orderliness, each
panel deciding an appeal is bound by Fifth Circuit precedents (as district courts
surely are for other reasons). See Stokes v. Sw. Airlines, 887 F.3d 199, 204 (5th
Cir. 2018). If Montano conflicted with a prior circuit precedent, the older
opinion controls. See Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4
(5th Cir. 2000). Since Mercer predated Montano, it cannot be ignored.
Our review of Mercer reveals, though, that the issue there was not the
same as we face. As in the Eleventh Circuit’s Mason opinion, the jury had to
express its findings in the form of multiple general verdicts:
VERDICT
We, the Jury, find as follows:
AS TO BREACH OF WARRANTY:
We, the Jury, find for the Plaintiff, Bill Mercer Yes.
We, the Jury, find for the Defendant, Long Mfg. N.C., Inc. ____.
Mercer, 665 F.2d at 64 n.8.
The form also had dual options for the additional separate claims of
deceptive trade practices and for strict liability — meaning there were three
claims for which the jury was to find for one party or the other. Id. Jurors
were told to assess damages “only if you found for Plaintiff on one of the above,”
and to state: “We, the Jury, assess damages for Plaintiff, Bill Mercer against
Defendant, Long Mfg., N.C., Inc. in the amount of ___”; that blank on the form
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was completed with a handwritten “$17,000.” Id. The law to be applied as to
each of those claims would have been explained in jury instructions.
In Mercer, we stated that the case had been submitted to the jury “in the
form of a general charge [i.e., the instructions] with special verdict consisting
of four interrogatories under F.
R. CIV. P. 49(a).” Id. at 64.
3
The problem for
the Mercer court was whether there could be multiple general verdicts, one for
each claim against the same defendant. The court gave two reasons for saying
the form was a special verdict: “No general verdict was rendered by the jury,
and the District Court entered judgment only after applying the treble damage
provisions of the DTPA,
[4]
both factors pointing against finding a submission
under F.
R. CIV. P. 49(b).” Mercer, 665 F.2d at 65.
We conclude that Mercer controls only those situations in which a verdict
against one party on different claims is expressed in the manner used at the
trial in that case, i.e., in a form similar to multiple general verdicts. That is
also what Mason concerned, and it correctly saw Mercer as reaching a different
result. Mason, 307 F.3d at 1275 & n.6. Our discussion of Mercer is a good
point to segue into a review of the two principal authorities on which the
district court relied to hold a special verdict was reached on Waypoint. One
was a nonprecedential opinion quite similar to Mercer, in that the verdict form
was divided into three separate categories of possible ways in which the
defendant breached the contract. Wayelinq, Inc. v. JDS Lightwave Prods. Grp.,
Inc., 289 F. App’x 755, 757 (5th Cir. 2008). There was no analysis of why this

3
The rehearing opinion held there was no waiver of an inconsistency for failure to
object before the jury was discharged when the inconsistency was with answers to questions
on a special verdict form under Rule 49(a). Mercer v. Long Mfg. N.C., Inc., 671 F.2d 946, 947–
48 (5th Cir. 1982).
4
The acronym is for the Texas Deceptive Trade Practices-Consumer Protection Act, a
statute that provides for treble damages in circumstances that were found to exist in Mercer.
Id. at 64 & n.9 (citing 1973 Tex. Gen. Laws, ch. 143, § 1, at 322).
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was a special verdict, just a simple declaration that it was. Id. at 761. The
district court here immediately after citing Wayelinq referred to Mercer in a
footnote and seemed to suggest it was a similar case: “The Fifth Circuit has
even found a verdict that required the jury to make separate findings as to
liability for breach of warranty, deceptive trade practices, and strict liability to
be a special verdict form. Mercer, 665 F.2d at 64 n.8.”
The other opinion on which the district court relied never asked jurors a
separate question on liability. McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298,
307 (5th Cir. 1993). A representative question was this: “Did the negligence,
if any, of those named below proximately cause the injury in question? Answer
‘Yes’ or ‘No’ for each of the following.” Id. The verdict form then had a blank
for jurors to write “yes” or “no” as to Anheuser-Busch, Inc. and then for Harold
McDaniel. Id. Another question asked for fault to be allocated to the two
parties we just named and also to a railroad. Id. It is difficult to categorize
that verdict form, but it is not helpful in categorizing the one in this case.
Therefore, neither opinion relied on by the district court to hold that a
special verdict was entered in the present case directly supports that
conclusion. We examine in detail the verdict form that was used in the first
trial, then apply what we have concluded about the applicable law.
The relevant part of the form was the breach of contract claim because it
was the one claim against Waypoint that was retried:
SECTION II - TEAM’S BREACH OF CONTRACT CLAIM
AGAINST WAYPOINT
6. Has it been shown by a preponderance of the evidence that
Waypoint breached the contract?
___ YES ___ NO
If NO proceed to Question 8; if YES proceed to Question 7.
7. Did the breach of the contract by Waypoint cause damage to
Team?
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___ YES ___ NO
Proceed to Question 8.
Jurors answered “NO” to Question 6, then skipped Question 7.
This part of the verdict form required jurors to state an answer by
combining their fact finding with the judge’s instructions on interpreting
Waypoint’s obligations under the contract. Upon receiving this verdict, the
district judge did not need to apply the law regarding contract breaches; jurors
already had. Further, breach of contract was the only claim against Waypoint.
The jury left nothing for the district judge to do as to this defendant other than
resolving any arguments as to defects in the verdict, and finding none, to enter
judgment. Jurors had resolved the case against Waypoint, not simply made
fact findings.
Unlike in Mercer, then, in the present case there were not multiple
verdicts to resolve one defendant’s liability under different claims. Conversely,
unlike in the present case, Mercer did not involve different verdicts for different
defendants. Therefore, that opinion does not control on how those different
jury decisions are expressed. Multiple questions about liability are necessary
on a general verdict form when there are multiple defendants.
There is still more to the current case’s verdict form that we need to
discuss. Though the negative answer to Question 6, asking whether Waypoint
breached the contract, fully resolved the case against Waypoint, that answer
would not have sufficed had the jury decided there was a breach. The jury then
would have needed to answer Question 7 and state whether the breach caused
damage to Team. The jury here properly left that answer blank, but
affirmative answers to both Questions 6 and 7 would have made relevant two
questions we mentioned earlier. Question 8 asked for the amount of damages
that should be awarded to Team. The jury answered with $565,979.99. The
alleged inconsistency in the verdict arises from what the jury did next. It
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completed Question 9 of the form by assigning “percentages of responsibility
for the damages entered in Question 8.” Among other allocations, the jury
assigned 5 percent of the fault to Waypoint and the same to Waypoint’s project
manager, Steve Laski. We need to analyze if those findings affect whether this
was a general verdict as to Waypoint.
The first point is that when the instructions and verdict form were being
finalized, the district court anticipated that jurors might find Waypoint had
not breached the contract but still assign some percentage to that defendant
when allocating fault to others. At that time, the court concluded that such
allocation would not create liability for Waypoint.
We’ve been discussing the jury verdict form and the jury
instructions, and we have just had an agreement by the parties
that the plaintiff is bringing only [a] breach of contract claim
against Waypoint. If the jury finds that there is negligence, but no
breach of contract, and they assign a percentage of fault to
Waypoint, Waypoint will not be liable for that percentage of
recovery, but that percentage will reduce the amount that the
other parties are responsible for.
Later, in a post-trial hearing in which the jury’s answers were put on
trial, the district court discussed this earlier evaluation of how to handle this
very situation. Nonetheless, in the subsequent order granting a partial new
trial, the court held that allocating Waypoint fault was inconsistent with the
jury’s finding That Waypoint had not breached the contract.
In an alternate world in which Waypoint was found to have breached the
contract and damaged Team, the questions after numbers 6 and 7 might be
relevant in categorizing the Waypoint verdict. The jury’s actual answers,
though, meant that Waypoint had no liability because, as the district court
explained when the verdict form was being finalized, allocations of fault later
on the form would have no effect on Waypoint. We hold that after the verdict
was announced, the allocations of fault remained irrelevant.
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We hold that if the answers to written questions require jurors to apply
the instructed law to their fact-findings, thereby fully explaining who prevails
on all claims against a single defendant, and if relevant, the amount of any
monetary award, that is sufficient for a Rule 49(b) verdict. We conclude that
also is the meaning of our Montano precedent. Though in this case the jurors
were not given, as Rule 49(b) states, “forms for a general verdict” and also for
answers to written questions, jurors applied their instructions on the law to
their fact finding and found there had been no breach of contract. That result
fully resolved the claim against Waypoint. The general verdict is incomplete
in Rule 49(b) terms, but it is sufficient.

II. Waiver
Any “objections to alleged inconsistencies between a general verdict and
answers to verdict questions are waived if a party fails to object when the jury
announces the verdict, while the jury is still empaneled.” Montano, 842 F.3d
at 881–82. “While waiver would not apply had the jury given a special verdict,
the verdict in this instance was general.” Id. at 882. This rule is consistent
with “[m]ost of the federal courts that have addressed the issue. . . . [A] party’s
failure to object to an inconsistency between the response to a special
interrogatory and the general verdict waives the right to further deliberation
by the jury or to the grant of a new trial motion.” 9B C
HARLES ALAN WRIGHT,
ARTHUR R. MILLER, FED. PRAC. & PROC. § 2513 (3d ed. 2020).
Despite an opportunity to do so, Team did not object to the first verdict
on an inconsistency ground while the jury was still empaneled, so Team waived
any such objection.
We must proceed further, though, because this is not an appeal from
proceedings that followed a district court’s grant of a late motion filed under
Rule 49(b). Instead, Team filed a Rule 59(e) motion to amend the judgment so
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that Waypoint would be assessed 10 percent of the liability in light of jurors’
allocation of that percentage of fault to the company and one of its employees.
The district court sua sponte converted the motion to one for a new trial under
Rule 49(a) for special verdicts, decided that this verdict was a special one, and
granted a new trial as to Team’s claim against Waypoint because of
inconsistencies in the answers.
Though Team had waived the issue of inconsistency and could not have
succeeded on appeal in having us set the original verdict and judgment aside,
this procedural history causes us to contemplate the possibility that a district
court could have authority to grant a new trial after the jury has been
discharged because of the court’s perception that answers to questions and a
general verdict were inconsistent.
5

We need go no further than recognizing a possible distinction because
the district court’s order reveals the court was using the caselaw we have
discussed. It determined that the jury rendered a special verdict under Rule
49(a), and therefore there was no issue of possible inconsistencies in the verdict
having been waived. The district court went further, though, and concluded
that even if this were a general verdict under Rule 49(b), “Team’s right to object
has not been waived.” The court compared two Fifth Circuit opinions involving
general verdicts with answers to written questions. One held that a district
court may not enter a judgment on a general verdict for which there were
inconsistent answers to questions, but there was no issue raised of a late

5
There is little to guide us for whether a district court has authority to grant a new
trial due to inconsistency in a Rule 49(b) verdict after the parties have lost the right to use
that rule. Another circuit dealt with the issue. Only the writing judge concluded that the
setting aside of the verdict by the district court needed to be reversed because of the party’s
waiver. Diamond Shamrock Corp. v. Zinke & Trumbo, Ltd., 791 F.2d 1416, 1423 (10th Cir.
1986). The two concurring judges did not rely on waiver but found the answers in the verdict
were reconcilable. Id. at 1426, 1431 (McKay, J., concurring), 1431 (Tacha, J., concurring).
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objection and thus no analysis of that point. Blackwell v. Cities Serv. Oil Co.,
532 F.2d 1006, 1008 (5th Cir. 1976). The other said that absent a timely
objection to a general verdict with inconsistent answers, the argument was
waived. Stancill v. McKenzie Tank Lines, Inc., 497 F.2d 529, 534–35 (5th Cir.
1974). The district court, perhaps understandably finding this court’s
precedents to present some difficulties, then made its own conclusion about
what the law should be in light of the absence of waiver language in Rule 49(b)
itself. With respect, there is nothing in Blackwell or Stancill to alter what we
have already held. Waiver of inconsistencies in answers applies to general
verdicts. This was a general verdict.
It is evident the district court was seeking to fit its decision within the
existing Fifth Circuit rules on granting a party’s motion for a new trial due to
inconsistencies in answers on a verdict form, an effort that included analyzing
whether the inconsistency had been waived. We conclude that Team waived
any argument to have the verdict set aside.

III. Attorneys’ fees for substantially prevailing party
Article 15.3.2 of the contract stated: “In the event of any litigation arising
under this Agreement, should one party substantially prevail with respect to
the matters being litigated, the non-prevailing party shall pay the prevailing
party’s costs and expenses of such litigation, including attorneys’ and experts’
fees.”
After the first trial, at which Team prevailed on its negligence claims
against HCA and KLG but not on its breach of contract claim against
Waypoint, Waypoint filed a motion to determine attorneys’ fees and costs.
Though the issue was briefed by the parties, the district court did not issue an
opinion as to attorneys’ fees. Instead, in its order granting a new trial, it denied
Waypoint’s motion as moot. Before the second trial, though, Waypoint filed a
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motion for partial summary judgment on attorneys’ fees. The district court
denied the motion, concluding that it could not determine whether Team had
“substantially prevailed with respect to the matters being litigated” because
the new jury had not yet heard evidence or reached a verdict on whether
Waypoint breached the contract.
After the second trial, the district court ordered further briefing on the
issue of attorneys’ fees. The court determined that Team was the
“substantially prevailing party” under the contract because the jury (1) found
that Waypoint breached and (2) awarded damages to Team. Thus, the only
district court ruling on who was the “substantially prevailing party,” and the
parties’ arguments on appeal, are premised on the conducting of a second trial.
The district court never addressed which party is the “substantially
prevailing party” under the contract in light of the results of the first trial. We
decline to address this issue for the first time on appeal and remand to the
district court to make a decision as to these fees.
* * *
The judgment of the district court is VACATED and the cause is
REMANDED with instructions for the district court to reinstate the judgment
resulting from the verdict reached by the jury in the first trial. The district
court should also consider attorneys’ fees.
Judge HIGGINSON joins this opinion.

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EDITH BROWN CLEMENT, Circuit Judge, concurring:
The district court found that the jury’s verdict was irreconcilably
inconsistent. That finding was wrong. The verdict was reconcilable, and the
court should have entered judgment accordingly. Instead, it ordered a new
trial. That nullified a valid verdict in contravention of the Seventh
Amendment. I therefore concur in the judgment, but would vacate and remand
because the verdict was reconcilable.
“The Seventh Amendment requires that if there is a view of the case
which makes the jury’s answers consistent, the court must adopt that view and
enter judgment accordingly.” Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir.
1973) (citing Atl. & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 364
(1962)). This is so whether the verdict is special or general. See Arnold v.
Panhandle & Santa Fe Ry. Co., 353 U.S. 360, 361 (1957) (reversing lower court
because the alleged conflict between the general verdict and the special
findings was reconcilable). We therefore need not decide what type of verdict
we have here. The outcome is the same either way.
The district court believed that the jury’s verdict was irreconcilably
inconsistent because the jury found that Waypoint didn’t breach the contract
yet was 10% responsible for Team’s damages. There’s no inherent
inconsistency in these findings. For the verdict to be irreconcilable, the
inconsistency must be inescapable. It isn’t.
On the verdict form, the jury found that Waypoint didn’t breach the
contract and then—as instructed based on that finding—left blank the
question about whether the alleged breach caused damages to Team. Two
questions later, the jury was instructed to “[a]ssign percentages of
responsibility for the damages entered in Question 8.” The jury answered that
Waypoint was 10% responsible for Team’s damages. That answer creates the
alleged inconsistency. The district court didn’t explain why this created an
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irreconcilable conflict. Presumably, it thought that the jury found Waypoint
not in breach of the contract yet liable for damages. But that conflates
responsibility with liability.
The instructions said to assign responsibility, not liability, and said
nothing about what the jury should consider when assigning responsibility.
The jury could have thought that Waypoint’s actions partly caused Team to
incur expenses, but found Waypoint not liable because these actions weren’t a
breach of contract. We therefore can’t assume that a responsibility finding
entails a liability finding.
We likewise can’t assume that the jury based this finding on negligence
by Waypoint. That Waypoint caused some of Team’s damages doesn’t mean
that Waypoint caused them by breaching a duty owed to Team. The district
court might have thought that the verdict was inconsistent because there was
no evidence of negligence, but a defendant need not be negligent to cause
damages. Indeed, he need not have done anything wrong at all. Damages
happen. They aren’t always caused by wrongful conduct.
One plausible view of this verdict is that the jury thought that Waypoint
caused Team to suffer damages but did so without breaching the contract or
any other duty owed to Team. Under that view, Waypoint was causally
responsible for some of Team’s damages yet not liable for them. Because that
view renders the verdict consistent, we must adopt it. To do otherwise would
“result[] in a collision with the Seventh Amendment.” Atl. & Gulf Stevedores,
369 U.S. at 364 (citing Arnold, 353 U.S. at 360–61). The district court did
otherwise. I would vacate and remand on that ground.
Judge HIGGINSON joins this opinion.

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