597 F.2d 997 (5th Cir. 1979), 76-4126, Sorrels v. Texas Bank and Trust Co. of Jacksonville, Tex.

Docket Nº:76-4126.
Citation:597 F.2d 997
Party Name:Kenneth D. SORRELS and Central Arkansas Livestock Sales, Plaintiffs-Appellees, v. TEXAS BANK AND TRUST COMPANY OF JACKSONVILLE, TEXAS, et al., Defendants-Appellants.
Case Date:July 02, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 997

597 F.2d 997 (5th Cir. 1979)

Kenneth D. SORRELS and Central Arkansas Livestock Sales,

Plaintiffs-Appellees,

v.

TEXAS BANK AND TRUST COMPANY OF JACKSONVILLE, TEXAS, et al.,

Defendants-Appellants.

No. 76-4126.

United States Court of Appeals, Fifth Circuit

July 2, 1979

Page 998

Emerson Stone, Jr., Jacksonville, Tex., Brian E. Berwick, Austin, Tex., for defendants-appellants.

Charles H. Clark, Tyler, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before JONES, CLARK and GEE, Circuit Judges.

GEE, Circuit Judge:

This is a diversity case based on fraudulent misrepresentations. Defendants-appellants are Texas Bank and Trust Company of Jacksonville, Texas, and its president, E. R. Gregg. Plaintiffs-appellees are the Sorrels Cattle Company, an Arkansas cattle-trading partnership of Kenneth Sorrels and Sherman Durham, and Central Arkansas Livestock Sales (CALS), an Arkansas auction barn partnership of Sherman Durham and others. Texas Bank was the inventory lender for K. R. Grantham, a Texas cattle trader, and Gregg personally supervised his account.

On February 15, March 7, and March 14, 1973, Grantham purchased cattle from CALS, paying with checks in the respective amounts of $4,000, $10,000, and $13,853.56. On March 6 and March 12, Grantham purchased cattle from Sorrels, paying with checks in the respective amounts of $7,015.31 and $11,459.92. The $4,000 check cleared without problem, but plaintiffs subsequently learned that the other four checks had been dishonored. Plaintiffs contacted bank president Gregg about the dishonored checks, no sooner than March 17,

Page 999

but no later than March 19. 1 Although there was a conflict in the evidence the jury found that Gregg fraudulently misrepresented Grantham's credit standing to the plaintiffs, causing them to forego any legal remedies then available with respect to the cattle sales. The $10,000 check was eventually honored, but the remaining three checks totalling $32,328.79 were not. The jury found that plaintiffs had been damaged to the extent of the full face value of the three dishonored checks. 2 Joint and several judgment in that amount together with interest, was entered against the bank, Gregg, and Grantham. 3

The bank and Gregg appeal, alleging two grounds of error, both related to the issue of actual damages. 4 First, defendants urge that the district court erred in denying their alternative motions for a judgment notwithstanding the verdict or a new trial, contending that the evidence was insufficient to support the jury's implied finding that plaintiffs had any viable legal remedies available at the time of the fraudulent misrepresentations. Second, defendants claim that the district judge abused his discretion in denying their motion for a new trial, contending that the damages were excessive because the evidence was insufficient to support the jury's implied finding that any legal remedies then available would have resulted in 100 percent recovery for plaintiffs. For reasons set forth below, we reverse and remand for a new trial on the issue of damages.

With respect to defendants' first contention we note, as defendants conceded at oral argument, that we are foreclosed from reviewing the sufficiency of the evidence on the issue of damages because defendants failed to make a proper motion for a directed verdict in accordance with Fed.R.Civ.P. 50(b). E. g., Little v. Bankers Life & Casualty Co., 426 F.2d 509, 510 (5th Cir. 1970). 5 Defendants' failure to comply with Rule 50 does not totally dispose of this issue, however, because defendants moved in the alternative for a new trial on the same ground. Therefore, we must inquire whether the trial judge abused his discretion by overruling the motion for a new trial. Little v. Bankers Life & Casualty Co., supra. Ordinarily, we are reluctant to find that a trial judge abused his discretion in a situation such as this unless there is a complete absence of evidence to support the jury verdict on the belatedly challenged issue. E. g., Hoover, Inc. v. McCullough Industries, Inc., 380 F.2d 798, 801 (5th Cir. 1967); Pruett v. Marshall, 283 F.2d 436 (5th Cir. 1960).

The question of whether there is any evidence to support the jury award of damages depends of course upon the theory on which the plaintiffs chose to...

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