The Gil Ramirez Group, LLC v. Marshall, 031519 FED5, 17-20542
| Opinion Judge | LESLIE H. SOUTHWICK, Circuit Judge: |
| Party Name | THE GIL RAMIREZ GROUP, L.L.C.; GIL RAMIREZ, JR., Plaintiffs - Appellees v. LAWRENCE MARSHALL; MARSHALL & ASSOCIATES; JOYCE MOSS CLAY; JM CLAY AND ASSOCIATES; FORT BEND MECHANICAL, LIMITED; FBM MANAGEMENT, L.L.C.; DAVID L. MEDFORD, Defendants - Appellants |
| Judge Panel | Before WIENER, SOUTHWICK, and COSTA, Circuit Judges. |
| Case Date | March 15, 2019 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fifth Circuit |
Appeals from the United States District Court for the Southern District of Texas USDCNo.4:10-CV-4872
Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge: [*]
The plaintiff is a contractor who claimed a school district employee accepted bribes in exchange for contracts and thereby harmed the plaintiffs business. The plaintiff prevailed at trial. The defendants appeal the denial of their motions for judgment as a matter of law or a new trial. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
This case previously reached us after a summary judgment, which led to a partial reversal and remand. Our opinion detailed the factual background. Gil Ramirez Grp., L.L.C. v. Hous. Indep. Sch. Dist. (Gil Ramirez I), 786 F.3d 400 (5th Cir. 2015). We import here a shorter statement of the case from the district court's opinion on remand: This case involves multiple claims for relief based on an alleged bribery scheme to procure construction contracts. In 2010, Plaintiffs Gil Ramirez Jr. and The Gil Ramirez Group, LLC ("GRG") filed this action against Houston Independent School District ("HISD" or "the District"), former trustee Lawrence Marshall and his consulting company, alleged coconspirator Joyce Moss Clay and her consulting company, and two of GRG's competitors and their respective owners.
. . . .
The alleged bribery scheme at the heart of this action concerns HISD's job-order contract ("JOC") program . . . GRG alleges in particular a pay-to-play scheme in which . . . vendors hired Joyce Moss Clay and her company . . . as a consultant; Ms. Clay then paid Mr. Marshall a portion of the consulting fee; and Mr. Marshall provided favorable treatment to those who hired Ms. Clay. Defendants RHJ-JOC ("RHJ") and Fort Bend Mechanical ("FBM"), two companies competing for and ultimately awarded JOC contracts, hired Ms. Clay. Plaintiff contends that Mr. Ramirez's refusal to participate in this scheme harmed GRG's business, both in the reduction in assignments under [its] 2008 JOC contract, and in GRG's nonselection as vendor for the 2010 JOC program.
. . . .
[After six years of litigation the district court] held a 14-day trial that included live and deposition testimony from 28 witnesses. The jury found Defendants liable for tortious interference with prospective business relations, civil conspiracy, and RICO violations, and awarded actual and exemplary damages.
The district court entered a final judgment providing that the Gil Ramirez Group ("GRG") would recover $676, 667 in actual damages from all defendants, jointly and severally. It further awarded GRG punitive damages as follows: $1, 400, 000 from Lawrence Marshall and his company Marshall and Associates ("Marshall" or the "Marshall Defendants"); $500, 000 from Joyce Moss Clay and her company JM Clay and Associates (the "Clay Defendants"); and $500, 000 from David Medford, Fort Bend Mechanical, Ltd., and FBM Management, L.L.C. (the "Medford Defendants").1
The district court denied the defendants' motions for judgment as a matter of law or for a new trial. The defendants timely appealed.
DISCUSSION
I. RICO Arguments
The defendants devoted much of their briefing to the jury's verdict on the plaintiffs' RICO claim. The jury awarded damages to GRG on both its tortious interference and its RICO claims. The district court then applied "Texas's one satisfaction rule, which requires the prevailing party to elect between the alternative claims for purposes of recovery." Malvino v. Delluniversita, 840 F.3d 223, 233 (5th Cir. 2016). GRG elected to recover solely on the tortious interference claim. So long as "the election of remedies theory applies in this case, the issue of whether" the unelected award "was proper is moot." Am. Rice, Inc. v. Producers Rice Mill,
Inc., 518 F.3d 321, 341 (5th Cir. 2008).
Since we see no basis to disturb the jury's tortious interference award, the various RICO-specific arguments pressed by the defendants are moot.
II. Motion for Judgment as a Matter of Law
The Marshall Defendants moved for judgment as a matter of law at the close of evidence and timely renewed the motion after the verdict. Judgment as a matter of law is proper when "there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue." Flowers v. S. Reg'l Physician Servs. Inc., 247 F.3d 229, 235 (5th Cir. 2001) (quoting Ford v. Cimarron Ins. Co., 230 F.3d 828, 830 (5th Cir. 2000)).
Our standard of review is de novo but "with respect to a jury verdict is especially deferential." Id. (quoting Brown v. Bryon Cnty., Okla., 219 F.3d 450, 456 (5th Cir. 2000)). Because of the significant role of juries, a "judgment as a matter of law should not be granted unless the facts and inferences point 'so strongly and overwhelmingly in the movant's favor that reasonable jurors could not reach a contrary conclusion.'" Id. (quoting Omnitech Int'l, Inc. v. Clorox Co., 11 F.3d 1316, 1322 (5th Cir. 1994)).
The Clay Defendants timely moved to join in Marshall's motion for judgment as a matter of law and later in his renewed motion for judgment as a matter of law, or in the alternative, a new trial. Continuing with their efforts to embrace the other party's filings, the Clay Defendants filed a Rule 28(i) letter in this court to adopt Marshall's brief "in so far as the arguments are consistent and applicable to the parties." It is improper, though, for an appellant to "adopt by reference fact-specific challenges" to a verdict. United States v. Morgan, 117 F.3d 849, 853 (5th Cir. 1997). The Clay Defendants' effort to adopt Marshall's statutory defenses or the challenges to the sufficiency of the evidence fail, but we find to be valid the adoption of Marshall's legal arguments concerning impossibility, his evidentiary objections, and his challenge to the jury instructions. See United States v. Alix, 86 F.3d 429, 434 n.2 (5th Cir. 1996).
Determining what issues the Medford Defendants properly brought to us takes a few steps. They neither made their own motion nor did they join Marshall's motion for judgment as a matter of law at the close of evidence. The Medford Defendants also failed to "avail themselves of Federal Rule of Civil Procedure 50(b)" after the verdict. Ortiz v. Jordan, 562 U.S. 180, 189 (2011). "Absent such a motion . . . an appellate court is 'powerless' to review the sufficiency of the evidence after trial." Id. (quoting Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 405 (2006)).
The Medford Defendants did move to join Marshall's Rule 50(b) motion, but it was untimely because the need to file within 28 days "after entry of judgment is jurisdictional, and may not be extended." U.S. Leather, Inc. v. H & W P'ship, 60 F.3d 222, 225 (5th Cir. 1995). Accordingly, we "are without power to review" their arguments on appeal related to the sufficiency of the evidence for the jury's verdict on proximate cause and damages. McLendon v. Big Lots Stores, Inc., 749 F.3d 373, 375 n.2 (5th Cir. 2014).
A. Statutory Defenses
Marshall asserts statutory defenses that are available only to those acting as employees of the school district.[2] We held in the prior appeal, though, that Marshall was not acting as an employee and was not entitled to immunity under either the Texas Tort Claims Act (TTCA) or the Texas Education Code. Gil Ramirez I, 786 F.3d at 415-17.
The part of our prior decision that Marshall challenges is when we held that even though the Texas Education Code's definition of employee explicitly applied to school board trustees like him, the associated immunity was limited to an act "incident to or within the scope of the duties of the employee's position of employment and that involves the exercise of judgment or discretion on the part of the employee." Id. at 417 (emphasis omitted) (quoting Tex. Edu. Code. § 22.0511). We concluded that "bribery and peddling influence are not within the scope of a trustee's duty." Id.
Marshall urges us to set aside our prior decision. This circuit, though, has a "firm rule that one panel cannot disregard the precedent set by a prior panel even though it perceives error in the precedent." United States v. 162.20 Acres of Land, More or Less, Situated in Clay Cnty., Miss., 733 F.2d 377, 379 (5th Cir. 1984). This "rule is no less immutable when the matter determined by the prior panel is the interpretation of state law" and it is "no less binding on subsequent panels than are prior interpretations of federal law." F.D.I.C. v. Abraham, 137 F.3d 264, 268 (5th Cir. 1998).
We are nonetheless required to change our prior interpretation of state law when a "subsequent state court decision or statutory amendment . . . makes this Court's prior decision clearly wrong." Broussard v. S. Pac. Transp. Co., 665 F.2d 1387, 1389 (5th Cir. 1982) (en banc) (parentheses omitted). The phrase "clearly wrong" means "at a minimum, a contrary ruling squarely on point is required." Abraham, 137 F.3d at 269.
Marshall relies on a 2017 Texas Supreme Court opinion to say this court in the 2015 appeal was clearly wrong to conclude that immunity would not apply when the school employee was involved in bribery and peddling influence. See Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017). We will take a look. In that case, a college professor sued a colleague for defamation after being passed over for a deanship and a professorship,...
To continue reading
Request your trial