*The Honorable John B. Jones, Senior United States District Judge for the

District of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-4157

___________

AmerUs Leasing, Inc., doing business as *

Maytag Financial Services Corporation, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Amkor International Corporation; Nana *

Korsah; Ken Korsah; Ama Korsah, * [UNPUBLISHED]

* 

Appellants. *

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Submitted: June 16, 1999

 Filed: August 18, 1999

___________

Before LOKEN and MAGILL, Circuit Judges, and JONES,* District Judge.

___________

PER CURIAM.

AmerUs Leasing, Inc. (AmerUs) sued Amkor International Corporation (Amkor)

and Nana, Ken, and Ama Korsah (collectively "the Korsahs") for breach of lease

agreements and loan guaranties, respectively. A jury found in favor of AmerUs on its

breach of lease claims, but against it on its breach of guaranty claims. The magistrate
1The Honorable Ross A. Walters, United States Magistrate Judge for the

Southern District of Iowa, sitting by consent of the parties pursuant to 28 U.S.C. §

636(c).

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judge1 subsequently granted AmerUs's post-trial motion for judgment as a matter of law

against the Korsahs on its guaranty claims. Amkor and the Korsahs appeal. We affirm.

I.

Amkor entered into two financing lease agreements with AmerUs for commercial

Maytag washers and dryers that were to be used in coin operated laundromats. The

Korsahs signed guaranties providing that they would pay amounts due under the leases

if Amkor defaulted on its obligations.

From the start of operations, Amkor had trouble satisfying its payment

obligations under the leases. In fact, testimony at trial revealed that Amkor never made

any timely payments to AmerUs under the leases. See Trial Tr. at 301-02. Amkor's

untimely payments were exacerbated by AmerUs's diversion of some lease payments

to pay for insurance premiums on the leased equipment.

After approximately one and one-half years of receiving late lease payments,

AmerUs sent Amkor and the Korsahs notice of acceleration and demand for payment

on February 13, 1996. The notices asserted that Amkor was in default of its obligations

under the leases and demanded immediate payment of $336,448. Amkor disputed

AmerUs's assertion that it was in default and objected to the amount allegedly owed.

Amkor eventually ceased making payments on the leases, and the Korsahs refused to

satisfy Amkor's alleged liability.

AmerUs brought the present suit against Amkor for breach of the leases and

against the Korsahs for breach of the guaranties. The case was tried before a jury, with
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a magistrate judge presiding by consent of the parties. At the close of all evidence,

Amkor, the Korsahs, and AmerUs moved for judgment as a matter of law pursuant to

Rule 50(a) of the Federal Rules of Civil Procedure. The magistrate judge denied all of

the motions and submitted the case to the jury. The jury returned a verdict in favor of

AmerUs on the breach of lease claims, but found in favor of the Korsahs on the breach

of guaranty claims. AmerUs then renewed its motion for judgment as a matter of law

against the Korsahs, pursuant to Rule 50(b), which the magistrate judge granted.

Amkor and the Korsahs appeal from these adverse rulings.

II.

The Korsahs argue that the magistrate judge erred in granting AmerUs's postverdict motion for judgment as a matter of law because the motion improperly relied

on grounds not raised in the pre-verdict motion and because the magistrate judge

applied the wrong standard when reviewing the evidence. We disagree with both

arguments.

In its pre-verdict motion, AmerUs argued that the evidence showed that Amkor

had defaulted on its obligations under the leases and that the Korsahs had defaulted on

their obligations to pay these liabilities under the guaranties. In its post-verdict motion,

AmerUs argued that there was no basis in the evidence for the jury or the court not to

find the Korsahs liable for the guaranties, especially in light of the jury's determination

that Amkor was liable for breach of the leases.

The Korsahs argue that AmerUs improperly relied on an argument in its postverdict motion that was not raised in its pre-verdict motion. Specifically, the Korsahs

contend that AmerUs impermissibly relied on and prevailed under the theory that the

jury's verdicts were inconsistent even though it did not present such a theory in its preverdict motion. As the Korsahs correctly recognize, "[a] post-trial motion for judgment

may not advance additional grounds that were not raised in the pre-verdict motion.
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However, technical precision is not necessary in stating grounds for the motion so long

as the trial court is aware of the movant's position." Rockport Pharmacy, Inc. v. Digital

Simplistics, Inc., 53 F.3d 195, 197 (8th Cir. 1995) (citations and quotations omitted).

In this case, and contrary to the Korsahs' contention, the magistrate judge did not grant

judgment as a matter of law to AmerUs on the basis of inconsistent verdicts. Instead,

the magistrate judge treated the post-verdict motion as simply reiterating AmerUs's preverdict argument that the evidence supported its motion for judgment as a matter of law

against the Korsahs. The magistrate judge explicitly recognized that AmerUs preserved

this argument by raising it in its pre-verdict motion. We find no error in the magistrate

judge's treatment of this issue. We believe that the magistrate judge properly construed

the post-verdict motion and limited his consideration of it to the argument made in

AmerUs's pre-verdict motion. We, therefore, hold that the magistrate judge did not err

in concluding that the argument made in the post-verdict motion was properly

preserved by the pre-verdict motion.

On the merits, the Korsahs argue that the magistrate judge erred in concluding

that AmerUs was entitled to judgment as a matter of law. When reviewing a lower

court's decision to grant judgment as a matter of law, we assume that the non-moving

party's evidence is true and draw all reasonable inferences from the evidence in the light

most favorable to the non-movant. See Toombs v. Bell, 915 F.2d 345, 347 (8th Cir.

1990). Judgment as a matter of law is only appropriate if all the evidence favors the

moving party and is not susceptible of reasonable inferences that would favor the nonmovant. See id.

After reviewing the evidence presented in this case, we agree with the magistrate

judge's conclusion that the evidence, viewed in the light most favorable to the Korsahs,

supports a finding of liability on the guaranties. The evidence shows that Amkor

defaulted on its obligations under the leases. After this default, AmerUs declared a

default and demanded payment from the Korsahs under the guaranties, which explicitly

provide that the Korsahs are obligated to pay Amkor's unsatisfied obligations under the
2The magistrate judge also conditionally granted AmerUs a new trial in the event

this court reversed the grant of judgment as a matter of law. Because we conclude that

the magistrate judge properly granted judgment as a matter of law, we need not address

whether his order conditionally granting a new trial was proper.

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leases. Notwithstanding the Korsahs' obligations in the guaranties, they failed to satisfy

Amkor's liabilities to AmerUs. We conclude that the evidence only supports a finding

that the Korsahs are liable for their obligations under the guaranties, and the magistrate

judge correctly concluded that AmerUs was entitled to judgment as a matter of law on

these claims.2

Amkor argues that the magistrate judge erred in denying its pre-verdict motion

for judgment as a matter of law because AmerUs did not provide evidence establishing

breach of the leases and did not provide adequate proof of damages. Applying the

standard discussed above, we conclude that the evidence, viewed in the light most

favorable to AmerUs, is clearly sufficient to support a finding of default by Amkor and

the jury's assessment of damages. Therefore, the magistrate judge properly refused to

grant Amkor's pre-verdict motion for judgment as a matter of law.

Finally, the appellants contend that the magistrate judge abused his discretion by

denying their motion for a continuance the day before trial was scheduled to

commence. "It is a well settled point of law that a grant of continuance is within the

sound discretion of the trial court, and that court's determination will not be overturned

absent an abuse of discretion." Watson v. Miears, 772 F.2d 433, 437 (8th Cir. 1985).

Continuances are not generally favored and should be granted only when the movant

has shown a compelling reason. See United States v. Cotroneo, 89 F.3d 510, 514 (8th

Cir. 1996). A trial court should balance the following factors when deciding whether

to grant a continuance: the nature of the case; the diligence of the party requesting the

continuance; the opposing party's conduct; the effect of delay upon both parties; and

the asserted need for a continuance. See United States v. Pruett, 788 F.2d 1395, 1396
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(8th Cir. 1986).

The appellants moved for a continuance the day before trial was scheduled to

commence. Their motion asserted that Ken and Nana Korsah would not be able to

attend trial. Ken Korsah apparently required medical treatment, and Nana Korsah had

left the country to pursue employment. The motion makes no reference to the other

guarantor, Ama Korsah, so presumably she was able to attend trial. Although Nana

apparently knew for quite some time that his employer would require him to begin work

before the start of trial, the appellants did not file a motion for continuance until the eve

of trial. Furthermore, the motion did not request a specific period of time for the

continuance and gave no indication when either Ken or Nana could be expected to

appear. In light of these circumstances and the extreme tardiness of the motion, we

conclude that the magistrate judge did not abuse his discretion in refusing to continue

the trial.

III.

For the foregoing reasons, the orders of the magistrate judge are affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.