### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 o f t h e ir 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 th e s e gr o u nds are either not preserved or la c k merit, we agree with the district court. Accordingly, we U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 1 6, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-60046 Document: 00511604897 Page: 1 Date Filed: 09/16/2011No. 11-60046

A F FIRM the district court’s orders denying the Weckessers’ motions f o r n e w trial and for reconsideration.

I. FACTUAL AND PROCEDURAL BACKGROUND The City of Biloxi, Mississippi, contracted with Chicago Bridge & Iron (“CBI”) to build a w at e r tow er between the Weckessers’ property and the railroad tracks that run next to their p roperty. CBI, in turn, subcontracted with L.G. Barcus & Sons (“Barcus”) to install the auger piper fou n d a t i o n f or the water tower. According to t h e W e ckessers’ allegations, this auger pipe foundation installation damaged their property. Specifically, the Weckessers , p roceeding
pro se, brought claims for n e gligence, 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 p r iv a t e nuisance claim to go to the jury, which returned a verdict in favor of the Appe l l e e s o n 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). F E D

. R. C IV

. P. 59(e). The Weckessers appealed. II. STANDARDS OF REVIEW The decis i on 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 abu s e-of-discretion standard applies to review of motions for reconsideration unde r R u l e 60(b). Hesling v. CSX

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Transp., Inc. , 396 F.3d 632, 638 (5 t h 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 grant e d in an action at law in federal court.” F E D

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. P. 59(a)(1). Though undefined by the Rule, “[a] new trial may b e granted, for example, if the district court finds the verdict is against the weight of the evidence, the damages awarded are excessive, the tr i a l w a s unfair, or prejudicial error was committed in its course.” Smith v. Transwor l d D r i l l ing 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) f r a u d (w h e ther previously called intrinsic o r e x t r i n s i c) , misrepresentation, or misconduct by an opposing party; (4) t h e judgment is void; (5) the judgment has been satis f ied, released or discharged; it is based on an earl i e r j u d gment that has been reversed or v acated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.
F E D

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. 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. A u t o Glass Discount Cntrs., Inc. , 200 F.3d 307, 316–17 (5th Cir. 2000). The same is true for claims that were r a i s e d 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. 3 d 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 c ourtroom; (2) prejudice caused from the unavailability of out-of-state witnesses when the trial date was c h a n ged; (3) withholding by Appellees o f p h o t ographs allegedly showing the damage to the We ck e s s e r s ’ p ro p e rty ; (4) e xclu s ion of photographs allegedly showin g th e d a m a ge to Weckessers’ property f or lack of authentication; (5) exclusion of satellite i mages of their property and surrounding area for lack of authentica t i o n ; ( 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; a n d (10) Appellees’ failure to comply with the Federal Rules of Civil Procedure and the district court’s orders. The Appellees 1 contend that th e W e c k e ssers failed to preserve all of these grounds for this appeal, and so the first issu e i s t o determine which of these grounds were properly preserved in the district court. The Weckessers raised most of the gr o u n d s 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 cour t t h e t hree 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 ord e r s . A s t hose were not presented

The We c k e s s ers ’ brie f its elf divid es thes e ground s into upw ard s of tw enty ground s. 1 The App elle es read the brie f as rais ing thir tee n ground s. This Court has cons olid ated se cti ons thatr ais e t he sam e a rgum ents in to sin gle ground s and fou nd ten dis tinc t ground s. 4 Case: 11-60046 Document: 00511604897 Page: 4 Date Filed: 09/16/2011No. 11-60046

to the district court, we will not consider them here. In their motion for new trial, the Weckessers raised three of the grounds assert e d 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

w i th h o l ding 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 reconsidera t i o n . Only one of these grounds—the Ap p e l l e e s ’ 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 pres e rv ed grounds are considered 2 below. 3

To be sur e, Rule 60(b ) doe s contain a cat ch- all pr ovis ion, but this pr ovis ion has been

2
narr ow ly c ons tru ed to app ly o nly w here“ extr aord inary cir cum st ance s” ar e p res ent. He ss v. Cockrel l , 281 F.3d 212, 216 (5t h Cir. 2002)

. Such cir cum st ance s do not exis t he r e t o just ify sac rif i c i ng “th e pr incip le of fina lity” that unde rgird s Rule 60(b ). He sl ing , 396 F.3d at 638 (c itin g Sev en Elv es, Inc. v . Esken az i , 635 F.2d396 , 401 (5t h Cir

. 1981) ). The App elle es urge that we dis mi ss the enti ret y of the Wec ke ss ers ’ app eal due to the 3 Wec ke ss ers ’ fai lure to com ply wi th Fede ral Rule of App ellat e Proc edure 2 8 (a)

. The Wec ke ss ers did om it so me se cti ons in thei r init ial brie f to this Court requ ired unde r the Rule, b u t they cor rec tedt hes e e rro rs af terbe ing ap pr ise d of them by the cler k’ s off ice. 5 Case: 11-60046 Document: 00511604897 Page: 5 Date Filed: 09/16/2011No. 11-60046

B. Preserved Issues 1. D i f

f i c u l t i e s A s s o c i at e d w i t h t h e Au d i o i n t h e T r i a l Courtroom The Weckessers allege that throughout the trial, and specifically during the testimony of White, difficulties w i t h c o urtroom audio equipment caused them to “miss out on 30–40 percent of the testimony.” “ [ F] o r a l itigant to preserve an argument for appeal, it must ‘press and not merely intimate the argument during the proceedings before the district court

. ’” Ro s e da le M issionary Ba p tist Church v. New Orleans City , 641 F.3d 86, 89 (5th Cir. 2011) (quoting FDIC v. Mijalis , 15 F.3d 1314, 1327 (5th Cir. 1 9 9 4) )

. 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. P rejudice Caused from the Unavailability of Out-of-Stat e Witnesses When the Trial Date Was Changed The next preserved ground of the Weckessers is that they were prejudiced when th e trial date was changed and they were unable to secure three out-ofstate witnesses. We no t e a t 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). T h e d istrict 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 2 5 , 2 010, due to a conflicting criminal trial. After the conflict was resolv e d o n 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 witne s s e s ’ t e s ti m o ny would have been completely irrelevant

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to the issues in the trial. Since their test i m o n y 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 F E D

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. 402. Pollick, however, intended to testify about the damage caused to the We c k e s s e r s’ property, which on its face would have been relevant. Unfortunately, it does not appe ar 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. Wit h h o l d i n g b y Ap p e l l e e s o f P h otographs Allegedly Showing the Damage to the Weckessers’ Property The Weckessers complain that the Appellees withheld photographs that showed da mage to their property until two days before trial. Unlike in their subsequent motion for reconsideration where the Weckessers also assert e d e rror 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 photogr aphs. As

s t a t e d 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 Wec ke ss er Jr. wa s to tes tif y about his fat her John Wec ke ss er Sr.’s expe rti se in 4 the cons tru cti on bus ines s, wh ich has no bear ing on wh ethe r the App el l e e s dam aged the Wec ke ss ers pr ope rty. F E D

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. 401. Mar k Farr is, Barbar a Wec ke ss er’ s so n, wa s to tes tif y as tohis mo ther ’s “anguis h” and theAppel lees ’ unrea so nable inc ivilit y to her in this matt er. Si n c e the dis tri ct cour t dis mi ss ed the em otio nal dis tre ss clai ms bef ore tri al and the othe r evide nce that Farr is wa s to pr ovide wa s inte n d ed to go to App elle es ’ bad char act er, Farr is’ s tes tim ony wa s not rele vant to the jury’s res olut ion of the iss ues in the Wec ke ss ers ’ sui t. F E D

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. 401, 404. 7 Case: 11-60046 Document: 00511604897 Page: 7 Date Filed: 09/16/2011No. 11-60046

appropriately before the district court. Gabel v. Lynaugh , 835 F.2d 124, 125 (5th Cir. 1988) (“Generally speaking, we are a c o u r t of errors and appeals; and the t rial 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 o b tained 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 ne v e r t ried to enter the photographs into evidence, and the jury did not see them. In fact, it was the Weckessers who tried t o admit them into evidence. Id

. Since the jury never saw these pho t o gr a p h s 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 T h e Weckessers also take issue with the district court’s handling o f discovery with r e s p e ct to di s closures regarding Sellers. Assuming, as the district court did, that the Ap p e llees 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 a t 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 t h e W e ckessers’ Rule 60(b) motion for reconsideration on this basis.

8 Case: 11-60046 Document: 00511604897 Page: 8 Date Filed: 09/16/2011No. 11-60046 IV. CONCLUSION For the foregoing reasons, w e A F F I RM the district court’s denial of the Weckessers’ motion for new trial and i t s d e nial of their motion for reconsideration. AFFIRMED.

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