* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-60314

_____________________

LILJEBERG ENTERPRISES, INC.,

JOHN A. LILJEBERG, JR. and

ROBERT L. LILJEBERG, SR.,

Plaintiffs-AppellantsCross-Appellees,

versus

WAYNE DUCHKAR and HOSPITAL

MANAGEMENT CONSULTANTS, INC.,

Defendants-AppelleesCross-Appellants.

_______________________________________________________

Appeal from the United States District Court for

the Southern District of Mississippi

(1:92-CV-587)

_______________________________________________________

March 28, 1997

Before REAVLEY, KING and BARKSDALE, Circuit Judges.

PER CURIAM:*

In this diversity suit under Mississippi law, appellants

Liljeberg Enterprises, Inc., John Liljeberg and Robert Liljeberg

(Liljeberg) appeal a take nothing judgment entered against them

and in favor of Wayne Duchkar and his company, Hospital
2

Management Consultants, Inc. (collectively Duchkar). Duchkar has

filed a cross appeal. We affirm.

Liljeberg complains that the district court erred in denying

its motion for new trial, claiming that gross discovery

violations by Duchkar and the late appearance of affirmative

defenses denied it a fair trial. We review the district court’s

denial of a motion for new trial for abuse of discretion. Bailey

v. Daniel, 967 F.2d 178, 179-80 (5th Cir. 1992). Likewise, the

district court’s rulings on requests for discovery sanctions are

left to its sound discretion. Pressey v. Patterson, 898 F.2d

1018, 1020-21 (5th Cir. 1990).

Our review of the record reveals that the district court was

confronted with the following circumstances: (1) Duchkar’s

original counsel had repeatedly failed to comply with discovery

requests; (2) that counsel was incompetent and was in the process

of being disbarred; (3) Duchkar swore by affidavit that he was

unaware of his counsel’s failure to respond to discovery; (4)

once Duchkar retained new counsel, his new counsel endeavored to

resolve outstanding discovery matters; (5) prior to trial

Liljeberg was allowed to depose Duchkar, and Duchkar eventually

turned over numerous documents to Liljeberg; (6) many of

Duchkar’s records had been destroyed or misplaced after a flood

at his home; and (7) Liljeberg did not object to Duchkar’s motion

for leave to amend his answer. We also note that Liljeberg’s

discovery requests were, as a whole, very onerous. Its request

for production of documents had 238 categories of documents. 
3

We find no abuse of discretion in denying the motion for new

trial on grounds of discovery abuse and the late appearance of

affirmative defenses. It appears from the record that Duchkar

was not personally responsible for the failure to comply with

Liljeberg’s discovery requests. Liljeberg was allowed to depose

Duchkar prior to trial and had the opportunity to point out any

inconsistencies between the deposition and Duchkar’s defense at

trial. Liljeberg fails to detail to this court how further

discovery would have aided it at trial. Liljeberg did not object

to the motion for leave to amend the answer. Instead, Liljeberg

also sought and obtained (over Duchkar’s objection) leave to

amend its complaint at about the same time Duchkar sought leave

to amend his answer. After receipt of the amended answer and

prior to trial Liljeberg did not move to reopen discovery or for

a continuance. Further, the district court did enter a

discovery-related sanction of sorts, since it refused to grant 

Duchkar leave to assert his counterclaim. The court’s handling

of the discovery dispute and requests from both sides for leave

to amend are a far cry from an abuse of discretion. 

Liljeberg separately claims that the court erred in denying

its motion for new trial based on insufficient evidence. 

Liljeberg contends that Duchkar’s defense -- that the parties

agreed that Duchkar could pay off his debt through his services -

- is against the weight of the evidence. Duchkar argues that

Liljeberg did not move for a new trial on this ground, and cannot
4

raise it for the first time on appeal. The waiver issue aside,

Liljeberg’s argument is without merit.

A district court may grant a new trial if the verdict is

against the great weight of the evidence. EEOC v. Clear Lake

Dodge, 60 F.3d 1146, 1152 n.6 (5th Cir. 1995). However,

appellate review of the denial of a motion for new trial on this

ground is very limited. The district court abuses its discretion

in this context only if “there is an absolute absence of evidence

to support the jury’s verdict.” Roberts v. Wal-Mart Stores,

Inc., 7 F.3d 1256, 1259 (5th Cir. 1993). Liljeberg cannot meet

this no evidence test, since there was at least some testimony

supporting Duchkar’s defense, namely his own testimony.

Liljeberg also argues that Duchkar’s defense was really

accord and satisfaction. It claims that under Mississippi law,

accord and satisfaction must be proved with clear and convincing

evidence. Duchkar argues that his defense was not accord and

satisfaction, but a substitution or modification (with

consideration) of the existing executory contract. 

Regardless of who is right, Liljeberg did not object to the

jury charge on grounds that it failed to instruct the jury on the

clear and convincing standard of proof, nor did Liljeberg raise

this argument in its motion for new trial. Under FED. R. CIV. P.

51, “[n]o party may assign as error the giving or the failure to

give an instruction unless that party objects thereto before the

jury retires to consider its verdict, stating distinctly the

matter objected to and the grounds of the objection.” Liljeberg
5

should have objected to the jury charge if it believed a higher

burden of proof was required. 

Liljeberg complains that the district court refused to give

the jury its requested instruction on fraudulent inducement. We

find no error in refusing to give this instruction because this

claim fails as a matter of law. By entering a general verdict in

favor of Duchkar, the jury necessarily accepted his defense that,

after the parties entered into the original note and joint

venture agreement, they entered into a new agreement or

agreements allowing Duchkar to pay off the note through his

services. Whether Duchkar’s defense was really accord and

satisfaction as Liljeberg claims, or a modification or

substitution as Duchkar claims, the fraudulent inducement claim

is inconsistent with the defense that the jury found. “Where the

person defrauded after having knowledge of the fraud enters into

a new contract concerning the same subject matter, or an

agreement modifying the original contract, or renews the original

contract for an additional term, or asks favors, as, for example,

requesting an extension of time for performance, he will

ordinarily be regarded as having waived the fraud in the original

transaction.” Hines v. Hambrick, 49 So.2d 690, 694 (Miss. 1951)

(quoting 37 C.J.S. Fraud § 69). In this case, Liljeberg concedes

in its own brief that, as early as 1988, it had refused to sign

the final joint venture documents “[w]hen it became evident to

Liljeberg that Duchkar could not perform the promises he had

made.” John Liljeberg testified that he did not sign the final
6

documents in early 1988 because “we had begun to get the feeling

that everything was falling apart.” In other words, even if the

jury had found fraudulent inducement, its finding that Liljeberg

accepted a new agreement after discovery of the alleged fraud

means that the fraudulent inducement claim fails as a matter of

law.

Second, even if as Liljeberg claims there never was a new

agreement, Liljeberg failed to repudiate the original agreement

and demand rescission. Under Mississippi law, “[a] contract

obligation obtained by fraudulent representation is not void, but

voidable. Upon discovery thereof, the one defrauded must act

promptly and finally to repudiate the agreement; however, a

continuance to ratify the contract terms constitutes a waiver.” 

Allen v. Mac Tools, Inc., 671 So.2d 636, 641 (Miss. 1996)

(quoting Turner v. Wakefield, 481 So.2d 846, 848-49 (Miss.

1985)). Rather than promptly repudiating the agreement,

Liljeberg continued to accept payments on the note, and as late

as the 1995 trial of this matter, continued to seek the benefit

of its original bargain, by seeking damages for lost profits on

the joint ventures envisioned in the 1987 agreement.

By cross-appeal Duchkar argues that the district court erred

in denying his motion for a trial amendment to assert his

counterclaim. His counterclaim was that Liljeberg had failed to

pay him a bonus promised if the A.M.I. litigation ended favorably

for Liljeberg. 
7

FED. R. CIV. P. 15(b) allows amendments to conform to the

evidence as to issues “tried by express or implied consent of the

parties.” It permits the court to grant a trial amendment, and

the court “shall do so freely” even when a party objects, unless

the objecting party would be prejudiced. “Whether leave to amend

should be granted is entrusted to the sound discretion of the

district court, and that court’s ruling is reversible only for an

abuse of discretion.” Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139

(5th Cir. 1993).

We find no abuse of discretion. Duchkar did not seek leave

to assert the counterclaim until April of 1995, over two years

after the suit had been filed and only a few weeks before trial. 

Prior to trial the court denied leave to assert the counterclaim,

although it granted leave to raise new affirmative defenses. 

Liljeberg had been told by the court that the counterclaim would

not be entertained. Further, in light of the discovery problems

discussed above, the court had reason to conclude that Liljeberg

had not had an adequate opportunity to conduct discovery on the

counterclaim.

AFFIRMED.