IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60046

Summary Calendar

JOHN WECKESSER; BARBARA WECKESSER, also known as Barbra

Weckesser,

Plaintiffs–Appellants

v.

CHICAGO BRIDGE AND IRON; L.G. BARCUS AND SONS,

INCORPORATED,

Defendants–Appellees

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 1:08-CV-357

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

John and Barbara Weckesser appeal the district court’s denials of their

motion for new trial and motion for reconsideration in their suit against Chicago

Bridge & Iron and L.G. Barcus & Sons (collectively, the “Appellees”) for private

nuisance on multiple grounds. Because we find that these grounds are either

not preserved or lack merit, we agree with the district court. Accordingly, we

United States Court of Appeals

Fifth Circuit

F I L E D

September 16, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 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 5TH CIR.

R. 47.5.4.

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AFFIRM the district court’s orders denying the Weckessers’ motions for new

trial and for reconsideration.

I. FACTUAL AND PROCEDURAL BACKGROUND

The City of Biloxi, Mississippi, contracted with Chicago Bridge & Iron

(“CBI”) to build a water tower between the Weckessers’ property and the railroad

tracks that run next to their property. CBI, in turn, subcontracted with L.G.

Barcus & Sons (“Barcus”) to install the auger piper foundation for the water

tower. According to the Weckessers’ allegations, this auger pipe foundation

installation damaged their property. Specifically, the Weckessers, proceeding

pro se, brought claims for negligence, gross negligence, private nuisance, and

emotional distress. 

This appeal concerns only the private nuisance claim because the district

court disposed of the other claims prior to the motions for new trial and

reconsideration. The district court permitted the private nuisance claim to go

to the jury, which returned a verdict in favor of the Appellees on October 19,

2010. Subsequently, the Weckessers filed two motions—a motion for new trial

on October 28, 2010, and a motion for reconsideration on April 27, 2011. The

district court treated the April 27 motion as a motion for reconsideration under

Federal Rule of Civil Procedure 60(b) as it would have been untimely under Rule

59(e). FED. R. CIV. P. 59(e). The Weckessers appealed.

II. STANDARDS OF REVIEW

The decision on a motion for new trial “is generally within the sound

discretion of the trial court.” Foradori v. Harris, 523 F.3d 477, 503–04 (5th Cir.

2008) (quoting Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir.

1982)). Therefore, “[w]e will reverse the trial court’s denial of a motion for a new

trial only when there is a clear showing of an abuse of discretion.” Id. at 506–07

(internal quotations omitted). This same abuse-of-discretion standard applies

to review of motions for reconsideration under Rule 60(b). Hesling v. CSX

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Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005) (quoting Edwards v. City of

Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc)).

A Rule 59(a) motion for new trial may be granted for “any reason for which

a new trial has heretofore been granted in an action at law in federal court.” 

FED. R. CIV. P. 59(a)(1). Though undefined by the Rule, “[a] new trial may be

granted, for example, if the district court finds the verdict is against the weight

of the evidence, the damages awarded are excessive, the trial was unfair, or

prejudicial error was committed in its course.” Smith v. Transworld Drilling

Co., 773 F.2d 610, 613 (5th Cir. 1985). Unlike a motion for new trial under Rule

59(a), however, Rule 60(b) only encompasses specifically enumerated grounds. 

Those grounds are: 

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence that, with reasonable diligence, could not have

been discovered in time to move for a new trial under Rule 59(b); (3)

fraud (whether previously called intrinsic or extrinsic),

misrepresentation, or misconduct by an opposing party; (4) the

judgment is void; (5) the judgment has been satisfied, released or

discharged; it is based on an earlier judgment that has been

reversed or vacated; or applying it prospectively is no longer

equitable; or (6) any other reason that justifies relief.

FED. R. CIV. P. 60(b). 

Although we “liberally construe” the filings of pro se litigants and “apply

less stringent standards to parties proceeding pro se than to parties represented

by counsel,” pro se appellants must still comply with the principles of appellate

procedure. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (citations omitted). 

“It is a bedrock principle of appellate review that claims raised for the first time

on appeal will not be considered.” Stewart Glass & Mirror v. U.S. Auto Glass

Discount Cntrs., Inc., 200 F.3d 307, 316–17 (5th Cir. 2000). The same is true for

claims that were raised but not properly presented below. St. Paul Fire &

Marine Ins. Co. v. Convalescent Servs., Inc., 193 F.3d 340 (5th Cir. 1999). These

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principles are only excepted where failure to consider the issues would result in

“grave injustice.” McClellon v. Lone Star Gas Co., 66 F.3d 98, 100 (5th Cir.

1995). 

III. DISCUSSION

A. Issue Preservation

The Weckessers raise ten grounds to justify a new trial: (1) difficulties

associated with the audio in the trial courtroom; (2) prejudice caused from the

unavailability of out-of-state witnesses when the trial date was changed; (3)

withholding by Appellees of photographs allegedly showing the damage to the

Weckessers’ property;(4) exclusion of photographs allegedly showing the damage

to Weckessers’ property for lack of authentication; (5) exclusion of satellite

images of their property and surrounding area for lack of authentication; (6)

admission of Mark White’s testimony; (7) bias of the district court against them;

(8) Appellees’ failure to mitigate damages; (9) Appellees’ failure to respond to the

Weckessers’ motions to compel; and (10) Appellees’ failure to comply with the

Federal Rules of Civil Procedure and the district court’s orders. The Appellees 1

contend that the Weckessers failed to preserve all of these grounds for this

appeal, and so the first issue is to determine which of these grounds were

properly preserved in the district court.

The Weckessers raised most of the grounds set forth in their appellate

brief in either the motion for new trial or the motion for reconsideration. They,

however, failed to raise to the district court the three grounds of: exclusion of

satellite images of their property and surrounding area for lack of

authentication; Appellees’ failure to mitigate damages; and Appellees’ failure to

comply with the Federal Rules and court orders. As those were not presented

The Weckessers’ brief itself divides these grounds into upwards of twenty grounds. 1

The Appellees read the brief as raising thirteen grounds. This Court has consolidated sections

that raise the same arguments into single grounds and found ten distinct grounds.

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to the district court, we will not consider them here. In their motion for new

trial, the Weckessers raised three of the grounds asserted here: difficulties

associated with the audio in the trial courtroom; prejudice caused from the

unavailability of out-of-state witnesses when the trial date was changed; and

withholding by Appellees of photographs allegedly showing the damage to the

Weckessers’ property. As all of those are grounds that would tend to make the

trial unfair to the Weckessers, those grounds are properly preserved and we will

consider them in turn below. The Weckessers raised the remaining four grounds

asserted here in their motion for reconsideration. Only one of these

grounds—the Appellees’ failure to respond to the Weckessers’ motions to

compel—can fit into one of Rule 60(b)’s categories, namely misconduct by an

opposing party, and it is the only one preserved by that motion. This leaves the

exclusion of photographs allegedly showing the damage to Weckessers’ property

for lack of authentication, the admission of Mark White’s testimony, and bias of

the district court against them as grounds not appropriately before this Court,

and they will not be considered. The four preserved grounds are considered 2

below.3

To be sure, Rule 60(b) does contain a catch-all provision, but this provision has been 2

narrowly construed to apply only where “extraordinary circumstances” are present. Hess v.

Cockrell, 281 F.3d 212, 216 (5th Cir. 2002). Such circumstances do not exist here to justify

sacrificing “the principle of finality” that undergirds Rule 60(b). Hesling, 396 F.3d at 638

(citing Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir. 1981)).

The Appellees urge that we dismiss the entirety of the Weckessers’ appeal due to the 3

Weckessers’ failure to comply with Federal Rule of Appellate Procedure 28(a). The Weckessers

did omit some sections in their initial brief to this Court required under the Rule, but they

corrected these errors after being apprised of them by the clerk’s office.

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B. Preserved Issues 

1. Difficulties Associated with the Audio in the Trial 

Courtroom

The Weckessers allege that throughout the trial, and specifically during

the testimony of White, difficulties with courtroom audio equipment caused

them to “miss out on 30–40 percent of the testimony.” “[F]or a litigant to

preserve an argument for appeal, it must ‘press and not merely intimate the

argument during the proceedings before the district court.’” RosedaleMissionary

Baptist Church v. New Orleans City, 641 F.3d 86, 89 (5th Cir. 2011) (quoting

FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994)). The district court noted,

however, that at no point during the two day trial did the Weckessers even raise

this issue with the court. In fact, the Weckessers admit the same in their brief

to this Court. In light of this, it does not appear that the district court abused

its discretion in denying the Weckessers new trial motion on this front.

2. Prejudice Caused from the Unavailability of Out-of-State

Witnesses When the Trial Date Was Changed

The next preserved ground of the Weckessers is that they were prejudiced

when the trial date was changed and they were unable to secure three out-ofstate witnesses. We note at the outset that “[t]he district court enjoys broad

discretion in controlling its own docket.” Teal v. Eagle Fleet, 933 F.2d 341, 346

(5th Cir. 1991). The district court set the trial for October 18, 2010, at the

August 13, 2010, pretrial conference. Thirteen days prior to the previously set

trial date, the district court entered an order postponing the trial date to October

25, 2010, due to a conflicting criminal trial. After the conflict was resolved on

October 13, the district court reset the trial for the original date of October 18.

The Weckessers argue that they could not secure the attendance of three

witnesses as a result of this switch—Pam Pollick, John Weckesser Jr., and Mark

Farris. Two of these witnesses’testimony would have been completely irrelevant

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to the issues in the trial. Since their testimony was irrelevant and would not 4

have been admitted, there can be no prejudice from the change in trial date on

account of the unavailability of these witnesses. See FED. R. EVID. 402. Pollick,

however, intended to testify about the damage caused to the Weckessers’

property, which on its face would have been relevant. Unfortunately, it does not

appear that the Weckessers raised the unavailability of Pollick to the district

court but rather only the unavailability of John Weckesser Jr. and Mark Farris. 

Therefore, that issue is not preserved and cannot be ruled on by this Court. 

Stewart Glass & Mirror, 200 F.3d at 316–17. In sum, there is no demonstrated

prejudice to the Weckessers as a result of the change in the trial date, and

therefore, the Weckessers cannot show any abuse of discretion on the part of the

district court on this issue.

3. Withholdingby Appellees of Photographs Allegedly Showing

the Damage to the Weckessers’ Property

The Weckessers complain that the Appellees withheld photographs that

showed damage to their property until two days before trial. Unlike in their

subsequent motion for reconsideration where the Weckessers also asserted error

based on improper exclusion of the photographs, nowhere in the motion for new

trial (on which basis this ground is preserved) do the Weckessers allege that the

district court made any improper evidentiary ruling on the photographs. As

stated above, we hold pro se filings to a lesser standard than those of parties

represented by counsel, but we cannot rule on an issue that was not

John Weckesser Jr. was to testify about his father John Weckesser Sr.’s expertise in 4

the construction business, which has no bearing on whether the Appellees damaged the

Weckessers property. FED.R.EVID.401. Mark Farris, Barbara Weckesser’s son, was to testify

as to his mother’s “anguish” and the Appellees’ unreasonable incivility to her in this matter.

Since the district court dismissed the emotional distress claims before trial and the other

evidence that Farris was to provide was intended to go to Appellees’ bad character, Farris’s

testimony was not relevant to the jury’s resolution of the issues in the Weckessers’ suit. FED.

R. EVID. 401, 404.

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appropriately before the district court. Gabel v. Lynaugh, 835 F.2d 124, 125 (5th

Cir. 1988) (“Generally speaking, we are a court of errors and appeals; and the

trial court cannot have erred as to matters which were not presented to it.”). 

Thus, we can only look at whether the district court abused its discretion in not

granting a new trial based on the alleged withholding of the photographs by the

Appellees.

According to the Appellees, they only obtained these photographs three

days before trial, and upon their receipt, they sent them to the Weckessers via

overnight delivery. Though Barcus’s counsel alluded to the photographs in his

opening statement, the Appellees never tried to enter the photographs into

evidence, and the jury did not see them. In fact, it was the Weckessers who tried

to admit them into evidence. Id. Since the jury never saw these photographs

and the issue of their admissibility is not properly before this Court, it cannot be

said that the district court abused its discretion by denying a new trial on this

ground.

4. Appellees’ Failure to Respond to the Weckessers’ Motions to

Compel

The Weckessers also take issue with the district court’s handling of

discovery with respectto disclosures regarding Sellers. Assuming, as the district

court did, that the Appellees did fail to respond to the district court’s order on

their motions to compel, the Weckessers cannot demonstrate that they suffered

any prejudice as a result of this. Appellees provided all the information they had

on Sellers, and the Weckessers “never argued at trial that [the Appellees]

prevented them from calling a witness.” Absent such a showing, we cannot say

that the district court abused its discretion in denying the Weckessers’ Rule

60(b) motion for reconsideration on this basis.

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IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of the

Weckessers’ motion for new trial and its denial of their motion for

reconsideration.

AFFIRMED.

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