Great Plains Equipment, Inc. v. Koch Gathering Systems, Inc.

• Decision Date: 27 February 1995
• Docket Number: No. 93-9069,93-9069
• Citation: 45 F.3d 962
• Parties: GREAT PLAINS EQUIPMENT, INC., Plaintiff-Appellee, v. KOCH GATHERING SYSTEMS, INC., Defendant-Appellant. GREAT PLAINS PIPELINE CONSTRUCTION, INC., Plaintiff-Counter Defendant-Appellee, v. KOCH GATHERING SYSTEMS, INC., Defendant-Counter Plaintiff-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 962

45 F.3d 962

GREAT PLAINS EQUIPMENT, INC., Plaintiff-Appellee, v. KOCH GATHERING SYSTEMS, INC., Defendant-Appellant.

GREAT PLAINS PIPELINE CONSTRUCTION, INC., Plaintiff-Counter Defendant-Appellee, v. KOCH GATHERING SYSTEMS, INC., Defendant-Counter Plaintiff-Appellant.

No. 93-9069.

United States Court of Appeals Fifth Circuit.

Feb. 27, 1995.

David H. Luce, Tom Loftus, Wichita, KS, John P. LeVick, Jones, Flygare, Galey, Brown & Wharton, Lubbock, TX, for appellant.

Nolan Greak, Clifford, Field, Krier, Manning, Greak & Stone, P.C., Cecil Kuhne, Layton Zant Woodul, Sr., Crenshaw, Dupree & Milam, L.L.P., Lubbock, TX, for appellee.

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

Before HIGGINBOTHAM, SMITH and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge.

This case originated from two cases filed in Texas state court. Appellee Great Plains Equipment (GPE) filed suit against Appellant Koch Gathering Systems, Inc. (Koch) seeking damages for the destruction of two pieces of construction equipment based on theories of negligence. Appellee Great Plains Pipeline Construction, Inc. (GPP) filed the other case against Koch seeking damages for breach of contract. Koch removed both cases to federal court based on the parties' diversity of citizenship, and filed a counterclaim against GPP for liquidated damages for its failure to complete the pipeline on time. The district court consolidated the cases, which were then tried to a jury. The jury returned a verdict in favor of GPE and GPP on all claims. The reformed judgment awarded $180,000 plus prejudgment interest of $11,094.75 to GPE for the equipment, $228,324.94 plus prejudgment interest of $38,843.55 to GPP for the breach of contract, and attorney's fees for both Appellees against Koch.

THE BATSON CLAIM

A party to a civil suit can challenge another party's use of a peremptory strike that excludes a prospective juror on the basis of that juror's race. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). A party may challenge another's peremptory strike regardless of the race of the challenging party since the objection asserts the juror's equal protection rights. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). However, we will affirm the district court's ruling on a Batson challenge unless it is clearly erroneous, that is unless we are left with the definite and firm conviction that a mistake was committed. United States v. Roberts, 913 F.2d 211, 214 (5th Cir.1990), cert. denied, 500 U.S. 955, 111 S.Ct. 2264, 114 L.Ed.2d 716 (1991).

This circuit has developed a three-step process for evaluating Batson claims. First, the complaining party must make a prima facie showing that opposing counsel has exercised a peremptory challenge on the basis of race. Once this showing has been made, the burden shifts to the striking party Koch relies on three circumstances surrounding the challenged strike to establish a prima facie Batson violation in this case. First, appellees' counsel struck the only African-American juror on the venire panel. Second, Koch contends that there was a complete absence of any information developed during voir dire by either party or the court about the juror in question that distinguished him from any of the non-African-American jurors Appellees' counsel did not strike. Third, Koch's trial counsel, N. Sue Allen, is an African-American. Koch contends that Allen's race raises the possibility that Appellees' counsel struck the juror on account of his race, because he might have been more receptive to the presentation of Koch's counsel. We will assume, without deciding, that Koch established a prima facie Batson violation.

to articulate a race-neutral explanation for the strike. Thereafter, the court must determine whether the Batson claimant has proven purposeful discrimination. United States v. Bentley-Smith, 2 F.3d 1368, 1373 (5th Cir.1993).

The burden then shifted to Appellees to proffer a reason for the strike that is facially race neutral, clear, reasonably specific, and related to the case to be tried. United States v. Romero-Reyna, 867 F.2d 834, 837, aff'd on remand, 889 F.2d 559 (5th Cir.1989), cert. denied, 494 U.S. 1084, 110 S.Ct. 1818, 108 L.Ed.2d 948 (1990); United States v. Clemons, 941 F.2d 321, 323 (5th Cir.1991). Appellees' counsel responded to the Batson challenge by telling the court:

We had information that the gentleman was not paying his child support, and other information. We thought he might not be a good juror for our particular case.

After counsel proffered his reasons, the court responded, "Very well." Koch's attorney replied, "Thank you, Judge." And the trial went forward.

The challenging party then had the burden to show that the reason given was pretextual or otherwise inadequate. Koch made no attempt to attack the validity of the proffered reason at trial. On appeal, Koch maintains that the proffered reason was inadequate because it was based on information not in the record, and therefore might have been based on inaccurate information or even appellees' counsel's mendacity. Koch also argues that the trial court failed to rule on the challenge.

We find that, in fact, the court ruled against Koch on the Batson issue and that the court's ruling was not clearly erroneous. First, Koch did not carry its burden of establishing that the proffered reason was inadequate or pretextual in the trial court. Koch did not raise these issues at all.

Second, there is no authority for the proposition that we should uphold the district court's credibility assessment only if it is supported by evidence in the record. In fact we have specifically declined to adopt such a requirement, United States v. Cobb, 975 F.2d 152, 155 n. 3 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1596, 123 L.Ed.2d 160 (1993), because peremptory challenges can be based on anything except illegal discriminatory bias. Batson, 476 U.S. at 89-90, 106 S.Ct. at 1719.

THE RECORD

Koch urges two points of error on appeal that require this Court to review the sufficiency of the evidence. However, the record on appeal is incomplete. Much of the testimony at trial was read into the record from depositions of witnesses who did not appear in person. The depositions themselves are part of the record on appeal. However, there is nothing in the record that indicates which portions of the depositions the jury heard. The transcription of the trial merely states, "Whereupon, deposition excerpts were read in open court," each time a witness was called by deposition, without any reference to the pages or lines read. This court cannot speculate as to what was or was not done or said in the court below. Sitting as a reviewing court, we may not go behind the record. Smith v. United States, 343 F.2d 539, 541 (5th Cir.), cert. denied, 382 U.S. 861, 86 S.Ct. 122, 15 L.Ed.2d 99 (1965). Koch had the responsibility to provide all portions of the proceedings that bear on its points of If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion.

error attacking the sufficiency of the evidence. FED.R.APP.P. 10(b)(2) provides:

We have determined that there was sufficient evidence in the transcription of the proceedings to allow a reasonable factfinder to return the verdicts reached by the jury. If testimony in the untranscribed portions of the proceedings calls that conclusion into question, it cannot form the basis of reversal.

It is impossible for us to determine from the record why the reporter failed to include in the transcript the deposition portions offered or even references to line and page. We invite the district judge to review the procedures used in this case so as to avoid similar problems occurring in the future.

THE CONTRACT CLAIM

a. Sufficiency of the evidence.

GPP's claim arose out of a contract with Koch for the construction of an 81-mile segment of a crude oil pipeline. GPP and Koch entered into a contract on July 3, 1990 that required GPP to complete the pipeline by August 25, 1990. The contract obligated Koch to secure all necessary rights-of-way for the construction.

Construction began about July 16, 1990. On July 23, 1990 Witten, a Texas state inspector, shut down the work because GPP did not have a "right to be on the State's right-of-way." Koch contended that the necessary right-of-way permit had been secured, but Witten shut down the work either because there had been no pre-bid meeting, which was an unreasonable interpretation of the Texas rules, or in the alternative, because GPP violated Texas state rules concerning keeping the adjacent highway free of mud, and limiting the amount of ditch that was open at any one time. A different state inspector had been on the job site the week before and had not mentioned a right-of-way problem.

In addition to the delays caused by the disputes on the state right-of-way, GPP's crews were shut down toward the end of the project because some private right-of-way permits were not timely secured. About 19 miles from the end of the pipeline, a 8500 foot section in Frio County, Texas lacked a private right-of-way permit until August 13, 1990. Testimony also established that GPP did not receive some private right-of-way permits until August 29, four days after the deadline for completion under the terms of the contract.

At the close of GPP's case, Koch made a motion for judgment pursuant to FED.R.CIV.P. 50, arguing that the evidence was overwhelming that Koch was not responsible for the delays experienced by GPP in the construction of the pipeline. The district court denied Koch's motion and the jury returned a verdict for GPP on the breach of contract...