*District Judge of the Southern District of Texas, sitting by

designation.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-11360

_______________________

THE UNITED STATES OF AMERICA For the 

Use of MARSHALL E. WALLACE d/b/a

WALLACE CONSTRUCTION COMPANY, ET AL.,

Plaintiffs,

MARSHALL E. WALLACE, doing business as Wallace

Construction Company,

Plaintiff - Counter Defendant

Appellee-Cross-Appellant,

versus

FLINTCO INC.; AMERICAN HOME ASSURANCE CO.,

Defendants-Counter-Claimants Third Party Plaintiffs

Appellants-Cross-Appellees,

versus

VICTORE INSURANCE COMPANY,

Third-Party Defendant-Appellee-Cross-Appellant.

_________________________________________________________________

Appeals from the United States District Court

for the Northern District of Texas

________________________________________________________________

June 29, 1998

Before KING and JONES, Circuit Judges, and WERLEIN*, District

Judge. 

By EWING WERLEIN, JR., District Judge:
2

This case presents cross-appeals by a contractor and a

subcontractor, and their respective bond sureties, from an Amended

Judgment entered after a two-week jury trial. After a careful

review of the trial proceedings, we conclude that those portions of

the Amended Judgment of the district court that award costs to both

sides against their respective adversaries, should be VACATED and

REMANDED for further proceedings, and that the Amended Judgment, as

reformed herein for clarification, should otherwise be AFFIRMED.

Background

The United States Army Corps of Engineers ("Corps”) engaged

Flintco, Inc. ("Flintco"), a general contractor, to build an

enlisted dormitory at Sheppard Air Force Base, Texas, ("the

Project"). Flintco, in turn, subcontracted with Marshall E.

Wallace d/b/a Wallace Construction Company ("Wallace") for Wallace

to perform dirt and paving work on the Project. Flintco and

American Home Assurance Co. ("AHAC"), Flintco’s surety, furnished

a payment bond pursuant to the Miller Act, 40 U.S.C. § 270a;

Wallace and Victore Insurance Co. ("Victore"), Wallace's surety,

furnished private payment and performance bonds.

Wallace began work on the Project in March 1992. In July

1992, August 1992, and January 1993, Wallace submitted change

orders No. 1, No. 2, and No. 3, respectively, for additional
3

compensation. Each was approved, and pursuant to each, Wallace was

compensated. 

In July 1993, the Corps issued a directive that the compaction

of the subgrade of the parking lots be increased from 90% to 95%

density. Wallace began this work before submitting a claim to the

Corps, through Flintco, for additional compensation. Wallace later

submitted the claim, but before the claim was fully processed,

Wallace ceased work on the Project and left the Project site on

December 23, 1993, leaving his own subcontractors unpaid to the

extent of approximately $101,000. Flintco contracted with another

dirt and paving subcontractor to complete the unfinished work. 

In April 1994, Wallace submitted a "Request for Equitable

Adjustment" in which he sought $ 215,292.50 in compensation for the

increased compaction. The Corps responded with an award of only

$7,000.00. Wallace later submitted an amended claim which was

denied.

Wallace filed this suit against Flintco and AHAC for breach of

contract and for quantum meruit. Wallace alleged that Flintco, the

Corps, and other subcontractors interfered with his work on the

Project, and caused him "productivity impact" damages. Flintco and

AHAC counterclaimed against Wallace for breach of the subcontract,

and filed a third party action against Victore on the performance

and payment bonds.

A two-week jury trial resulted in a special verdict for

Wallace on all questions submitted. Among other things, the jury
 

1 The correct terminology under Rule 50(b) is now “renewed

motion for judgment as a matter of law,” although, as will be seen,

Flintco and AHAC did not initially file a Rule 50(a) motion for

judgment as a matter of law.

4

found that Flintco breached its contract with Wallace; that Wallace

was entitled to a quantum meruit recovery; that Wallace had

fulfilled all contractual conditions precedent to filing suit

against Flintco and AHAC; and that Flintco and AHAC had breached

the Miller Act bond by failing to pay Wallace. Conversely, the

jury also found that Wallace had not breached his contract with

Flintco; that Wallace was not negligent in performing his work;

that Wallace had not waived his claims against Flintco; that

Flintco had not fulfilled all contractual conditions precedent to

filing suit against Wallace and Victore; that Flintco did not

acquire from Wallace’s subcontractor creditors their claims against

Victore; and that Wallace and Victore did not breach their

obligations to Flintco under the payment bond. The jury awarded

$197,777.00 to Wallace and awarded nothing to Flintco.

Wallace moved for entry of judgment; and Flintco and AHAC

filed a “Motion for Judgment Notwithstanding the Verdict” under

Fed. R. Civ. P. 50(b).1 The trial court granted in part Flintco’s

and AHAC’s Rule 50(b) motion, holding as a matter of law that they

were entitled to recover from Wallace and Victore approximately

$101,000 that they had paid to Wallace’s subcontractors whom

Wallace had not paid when he ceased work on the Project. The trial
 

2 This aspect of the Amended Judgment was based on

Wallace's election to recover on his quantum meruit theory rather

than for breach of contract.

 

3 It appears that the trial court did not intend for this

three-numbered segment of the Amended Judgment and the first three5

court ultimately signed an Amended Judgment, which is summarized as

follows:

! Judgment for Wallace against Flintco on Wallace's

state law quantum meruit claim for:

“1. Actual damages in the amount of $197,777.00;

“2. Pre-judgment interest thereon in the amount of

$62,681.85;

“3. Post-judgment interest on all amounts awarded

in item numbers one and two above at the

currently prevailing rate pursuant to 28

U.S.C. § 1961 of 5.90% per annum, compounded

daily, from the date of this judgment until

paid.”

R. Vol. 13 at 3776-77 (footnotes omitted).

! A take nothing Judgment on Wallace's claim for

breach of contract against Flintco;2

! Judgment for Wallace and against Flintco and AHAC,

jointly and severally, on Wallace's Miller Act payment

bond claim for:

“1. Actual damages in the amount of $197,777.00;

“2. Pre-judgment interest thereon in the amount of

$62,681.85;

“3. Post-judgment interest on all amounts awarded

in item numbers one and two above at the

currently prevailing rate pursuant to 28

U.S.C. § 1961 of 5.90% per annum, compounded

daily, from the date of this judgment until

paid.”

Id. at 3777.3
numbered segment of the Amended Judgment, first quoted above, to be

a double recovery for Wallace, and the parties have not argued a

contrary understanding. The Amended Judgment is intended to make

one award to Wallace in the amount of $197,777.00, plus prejudgment

interest of $62,681.85 and post-judgment interest, but adjudged

against Flintco on two grounds -- on quantum meruit, in the first

segment, and on the Miller Act payment bond, in the second segment.

The joint and several liability of Flintco’s surety, AHAC, for that

full sum arises only from its obligation on the Miller Act payment

bond, in the second segment. For clarification, and to avoid any

ambiguity about Wallace’s entitlement to recover only one sum of

$197,777.00, plus interest, the Amended Judgment will be reformed

to consolidate these two decretal segments.

The Amended Judgment also orders that post-judgment interest

be compounded daily. This is plain error; post-judgment interest

is “computed daily to the date of payment” but “compounded

annually.” 28 U.S.C. § 1961(b) (emphasis added).

6

! A take nothing judgment on Flintco and AHAC's breach

of contract claim against Wallace;

! Judgment for Flintco and AHAC and against Wallace

and Victore, jointly and severally, on their third-party

payment bond claim in the amount of $101,187.30, plus

pre-judgment interest in the amount of $30,834.13, and

post-judgment interest at a rate of 5.90%; 

! A take nothing Judgment on Flintco and AHAC's third

party performance bond claim against Victore; 

! $73,778.43 in costs recoverable by Flintco and AHAC

from Wallace and Victore, jointly and severally; 

! $90,091.00 in costs recoverable by Wallace from

Flintco and AHAC, jointly and severally;

! $256,338.00 in attorneys’ fees recoverable by

Wallace from Flintco; and 

! $183,425.78 in attorneys’ fees recoverable by

Flintco from Wallace.

It is this Amended Judgment that is the subject of the cross

appeals in almost every respect.
7
 

4 The correct terminology under Rule 50(a) is now “motion

for judgment as a matter of law." See McCann v. Texas City Ref.,

Inc., 984 F.2d 667, 670 n.3 (5th Cir. 1993).

8

Analysis

I. Quantum Meruit and Miller Act Claims

Flintco and AHAC first challenge the sufficiency of the

evidence to support a judgment for Wallace on his quantum meruit

and Miller Act claims because the Flintco-Wallace subcontract

contained a "no damages for delay" clause. In response, Wallace

contends that Flintco failed to move for a “directed verdict”4 at

the close of the evidence and thereby waived its right to appellate

review of the sufficiency of the evidence. Wallace therefore

contends that this Court must review Flintco’s and AHAC’s arguments

as if they are presented for the first time on appeal, under the

plain error standard.

A. Standard of Review

Challenges to the sufficiency of the evidence must be raised

in a Fed. R. Civ. P. 50(a) motion for judgment as a matter of law

before submission of the case to the jury. If the trial court does

not grant a motion for judgment as a matter of law made after the

close of all the evidence, then the movant may renew its request

for judgment as a matter of law after the entry of judgment. Fed.
9

R. Civ. P. 50(b). A party that fails to move for judgment as a

matter of law under Rule 50(a) on the basis of insufficient

evidence at the conclusion of all of the evidence waives its right

to file a renewed post-verdict Rule 50(b) motion, and also waives

its right to challenge the sufficiency of the evidence on appeal.

Bay Colony, Ltd. v. Trendmaker, Inc., 121 F.3d 998, 1003 (5th Cir.

1997) ("Generally, a party who fails to renew his motion for

directed verdict at the close of all the evidence waives his right

to challenge the sufficiency of the evidence."); Polanco v. City of

Austin, Tex., 78 F.3d 968, 974 (5th Cir. 1996) ("Where the

defendant failed to timely move for judgment as a matter of law, we

will consider the issue as waived by the defendant and will treat

the issue as being raised for the first time on appeal."); Allied

Bank-West, N.A. v. Stein, 996 F.2d 111, 114-115 (5th Cir. 1993) (a

district court cannot consider a Rule 50(b) motion for judgment as

a matter of law unless the movant has first sought a directed

verdict).

The Rule serves two purposes: 

to enable the trial court to re-examine the sufficiency

of the evidence as a matter of law if, after verdict, the

court must address a motion for judgment as a matter of

law, and to alert the opposing party to the insufficiency

of his case before being submitted to the jury.

MacArthur v. University of Tex. Health Ctr. at Tyler, 45 F.3d 890,

897 (5th Cir. 1995). Rule 50(b) is to be examined and applied "`in

the light of the accomplishment of [its] particular purpose[s] as

well as in the general context of securing a fair trial for all
10

concerned in the quest for truth.’" Bay Colony, 121 F.3d at 1003

(quoting McCann, 984 F.2d at 671 (alterations in original)). 

In certain cases in which a party has failed to meet the

technical requirements of Rule 50(a) but has still satisfied the

Rule's purposes, non-compliance has been excused. See, e.g., id.

at 1003-04 (defendant's motion for directed verdict at the close of

plaintiff's case-in-chief, which asserted that there was no

evidence or insufficient evidence for the issue to go to the jury,

and defendant's subsequent objections, on the same grounds, to the

proposed jury charge, satisfied the purposes of Rule 50(b));

Polanco, 78 F.3d at 974-75 (defendant's motion for judgment as a

matter of law at the close of plaintiff's case, which was taken

under advisement by the court and followed by the presentation of

thirteen defense witnesses and no rebuttal witnesses, alerted

plaintiff and the court to defendant's challenge to the sufficiency

of plaintiff's proof). Although Rule 50's requirements have been

liberally construed in this circuit, Hinojosa v. City of Terrell,

Tex., 834 F.2d 1223, 1228 (5th Cir. 1988), cert. denied, 493 U.S.

822, 110 S. Ct. 80 (1989), "[e]ven with a liberal interpretation

[of Rule 50(b)], . . . this circuit has never completely

disregarded the requirement that the defendant must move for

judgment as a matter of law at the close of all the evidence."

Polanco, 78 F.3d at 974.
 

5 The exchange occurred as follows: 

Mr. Sessions stated, "Your Honor, I believe it's at this time

traditionally when we present certain motions to the Court.

I believe the Court has already indicated -- " 

The trial court interjected, "We can do that at lunch time."

Mr. Sessions responded, "That'll be fine. We'll go forward

with it," and proceeded to call Flintco's first witness. R.

Vol. 21 at 706, lines 5-11.

11

Flintco did not do so. It neither moved for judgment as a

matter of law under Rule 50(a) at the close of Wallace's case or at

the close of all the evidence. Moreover, Flintco did not

challenge the sufficiency of the evidence in connection with or as

a basis for making objections to the court’s jury charge.

Nonetheless, Flintco contends that the purposes of the Rule were

satisfied by its attempt to comply with the Rule's requirements, by

the trial court’s perceived understanding of Flintco’s unstated

insufficiency points and disinclination to hear the motions until

after a verdict was received, and by Flintco’s general objections

to certain issues being submitted to the jury. The Court

disagrees, although the argument requires a careful review of the

record.

At the close of Wallace's evidence, Mr. Sessions, Flintco's

counsel, stated his desire to present "certain motions," to which

the trial court replied that motions could be presented at the

lunch recess. R. Vol. 21 at 706, lines 5-11.5 During a recess

later that morning, but before the lunch recess, the trial court
 

6 Specifically, the trial court stated, "There's been a

change in plans. What I told you we were going to do at lunch

time, we'll do a little after and take a break about then. I'll

just let you know as we go." R. Vol. 21 at 783, lines 1-4.

 

7 Wallace presented no witnesses in rebuttal.

 

8 Specifically, the trial court stated, "I know that although

it was not formally made because I cut everyone off or cut you off,

Mr. Sessions, any type of motion practice anyone may have with

regard to claims by the opponents can all be taken up post verdict.

There's no point in me deciding something if I don't have to decide

it. The Jury decides it for me. But -- well, that speaks for

itself." R. Vol. 22 at 947, lines 15-22.

12

informed counsel that such matters would be considered instead

during a recess "a little after" lunch. Id. at 783, lines 1-4.6

During the same exchange, the trial court commented, "I suspect I'm

going to have a motion here that I told Mr. Sessions would be

deferred so I have some legal decisions to make here on the current

state of this record . . . ." Id. at 787, lines 10-13. During the

recesses and the hearings outside the presence of the jury that

followed, Flintco addressed a number of matters with the court but

never reminded the court of Flintco’s previously-indicated desire

to present “certain motions,” and never moved for judgment as a

matter of law based on the evidence at the close of Plaintiff’s

case-in-chief. 

At the close of Defendants’ evidence7 and before submission of

the case to the jury, the Court observed that motions had not been

"formally made" because the Court had "cut [] off" Mr. Sessions.

R. Vol. 22 at 947, lines 15-17. The Court then stated that motions

could be made post-verdict.8 R. Vol. 22 at 947, lines 17-22; R.
13

Vol. 23 at 996, lines 2-4, 14-23. Flintco did not object to the

trial court’s deferral of the parties’ “motion practice,” and again

did not orally attempt to present a motion for judgment as a matter

of law. Moreover, Flintco did not file a written motion for

judgment as a matter of law.

The next morning during a lengthy jury charge hearing held

outside of the presence of the jury, Flintco objected to certain

instructions and portions of the proposed charge, including

portions addressing its liability under quantum meruit and the

Miller Act. The court sustained some of the objections and

modified the instructions. Flintco made no objection to the

proposed charge, however, on grounds pertaining to the sufficiency

of the evidence. R. Vol. 23 at 973-983, 985-987. In particular,

Flintco made no objection that there was insufficient evidence to

warrant submission of liability issues on Wallace’s breach of

contract, quantum meruit, and Miller Act claims or submission of

damages questions related to those claims. 

After hearing the parties' objections to the proposed jury

charge and making certain changes in the charge, the trial court

commented,

One other thing so that -- so that you aren't blind sided

or no one is blind sided, and I'm saying this to let you

know so that it's on the record, and I have not

formulated any final opinions one way or another, but

after sitting here for two weeks and listening to this

case and looking at everything again, I want to let you

know that there was no motion -- you can make all this

post-verdict, but I, as a matter of law, am concerned
14

about two things. And one is that -- is the partial

summary judgment Mr. Sessions filed against Victore about

conditions precedent about the materials and whether that

was triggered or not. And we can talk about that later

and revisit that issue, but I'm even more concerned about

the damage -- the aspect of damages that the Plaintiff

proved and whether or not as a matter of law that a

reasonable fact finder could could [sic] find -- find

that.

I'm just putting you on notice now so you won't think

it's something I haven't been thinking about all along,

but there are motions, but I am going to go ahead and get

the jury verdict.

Id. at 995-996. 

In sum, when Plaintiff rested his case-in-chief, Flintco’s

counsel observed that “it’s at this time traditionally when we

present certain motions to the court.” R. Vol. 21 at 706, lines 5-

7. That was the one and only allusion ever made by defense counsel

of a desire to make a motion for judgment as a matter of law under

Rule 50(a). At the close of all of the evidence and before

submission of the case to the jury, Flintco never filed a written

Rule 50(a) motion; never asked to make an oral Rule 50(a) motion;

never objected to the trial court’s statement that “any type of

motion practice . . . can all be taken up post-verdict”; never

stated the grounds that would form the basis of a motion for

judgment as a matter of law if one were to be made, either in

writing or orally; never insisted upon its right either to file or

orally to make a Rule 50(a) motion even though the court chose not

to rule upon it until after a verdict; and never voiced objections
15

to the submission of liability and damage questions on grounds of

insufficiency of evidence.

Flintco argues that the purposes of Rules 50(a) and (b) were

served by the trial court’s above-quoted comment that he was

“concerned” about “the aspect of damages that the Plaintiff proved

and whether or not as a matter of law that a reasonable factfinder

could find -- find that.” R. Vol. 23 at 996, lines 9-13. Flintco

argues that the judge’s comment relates solely to the insufficiency

of Plaintiff’s evidence as a matter of law and that the purposes of

Rule 50 were thereby served. Flintco, however, did not follow up

the trial court’s comment with a Rule 50(a) motion. Nor did

Flintco state on the record what would be the basis of such a

motion had one been made. Under Rule 50(a), a movant is required

to “specify the judgment sought and the law and the facts on which

the moving party is entitled to the judgment.” Fed. R. Civ. P.

50(a)(2). Flintco never did this. 

It is not enough for a party to rely upon “concerns”

volunteered by a trial judge as a substitute for making a Rule

50(a) motion. Not even a court of appeals, in holding that there

was sufficient evidence to send to the jury a question on gross

negligence and reversing the case for retrial on that issue, can

excuse the defendant from making a Rule 50(a) motion before the

case is submitted to the jury in the new trial. This is what

happened in Sims’ Crane Serv., Inc. v. Ideal Steel Prods., Inc.,

800 F.2d 1553 (11th Cir. 1986). On retrial, the defendant did not
16

make a motion for directed verdict on the gross negligence issue

because the court of appeals had previously ruled that the evidence

was sufficient to require its submission and because defendant

viewed the court of appeals’ decision as having declared the law of

the case. Id. at 1557. After the new verdict was returned for

plaintiff, the trial court granted a judgment notwithstanding the

verdict. On appeal from this judgment, the Eleventh Circuit Court

of Appeals held that the failure of defendant to have made a Rule

50(a) motion limited the court’s review to a determination of plain

error. Id. The appellate court wrote that although defendant’s

reasons for having not made a Rule 50(a) motion were

persuasive to some extent, we note that counsel sometimes

must take certain required, albeit formalistic, steps to

preserve the rights of their client and to perfect the

record for post-verdict proceedings.

Objections, proffers, and motions are frequently

required in trials even when it may seem certain to the

pertinent lawyer that the trial judge’s view is that such

efforts ought not to prevail. Of course, almost nothing

is really certain in litigation; `[i]ndeed, it is always

probable that something improbable will happen.’ Warren

v. Purtell, 63 Ga. 428, 430 (1879) (Bleckley, J.). Thus,

it is hard to know when some act would have been truly

useless. In any event, orderly and definite procedural

steps are necessary to sharpen the issues before the

court and to avoid misunderstanding. While it is true

that this Circuit has not been strict about motions for

directed verdicts, we cannot depart completely from Rule

50(b).

Id. In the instant case, Flintco, in arguing now that it should be

excused for not having made the motion because of the trial court’s

volunteered declaration of its “concerns” about the evidence, has
17

a far less cogent excuse than that given by the defendant in Sims’

Crane. The Eleventh Circuit summarized the law as follows:

A lawyer who never moves for directed verdict, given the

wording of Rule 50(b) and the clear case law regarding

the effect of such a decision -- regardless of the

reasons for such a decision, must realize that a

subsequent motion for jnov can be granted only if plain

error can be proven.

Id.; see also McCann, 984 F.2d at 672 (“While it is true that this

Circuit approaches such questions [about compliance with Rule

50(b)] with a `liberal spirit,’ we are not willing to rewrite the

Federal Rules of Civil Procedure.”) (internal citation omitted). 

Because Flintco made no Rule 50(a) motion and did not specify

what judgment was sought and the law and the facts that would

entitle Flintco to such a judgment, we conclude that the second

purpose of Rule 50 -- to alert Wallace to the specific grounds for

an anticipated challenge to the sufficiency of its proof and to

allow Wallace the opportunity to move to cure any such deficiency

-- was not served. In that the purposes of Rule 50 were not met,

non-compliance with the Rule cannot be excused. McCann, 984 F.2d

at 671 ("In each case where we have excused noncompliance with Rule

50(b), this Court has concluded that the purposes of the rule had

been satisfied.") (emphasis in original); see, e.g., Guilbeau v.

W.W. Henry Co., 85 F.3d 1149, 1160 (5th Cir. 1996) (the purpose of

Rule 50(a)'s requirement that a motion for judgment as a matter of

law specify the law and the facts upon which the moving party
18

relies “is to assure the responding party an opportunity to cure

any deficiency in that party's proof that may have been overlooked

until called to the party's attention by a late motion for

judgment") (citing Fed. R. Civ. P. 50 advisory committee's note

(1991 amendment)), cert. denied, ___ U.S. ___, 117 S. Ct. 766

(1997); Hinojosa, 834 F.2d at 1228 (“In this case [defendant] did

not at any time move for a directed verdict in his favor . . . ,

nor did he object to the submission of any of the interrogatories

pertaining to these claims on the ground that the claims were

unsupported by the evidence. . . . [Defendant thus] failed to

alert [plaintiff], prior to submission of the case to the jury, to

the possibility that insufficient evidence was presented . . . .").

Because of Flintco’s non-compliance with Rule 50(a), we must

consider Flintco's objections to the sufficiency of Wallace's

evidence on its quantum meruit and Miller Act claims as though they

were raised for the first time on appeal. Polanco, 78 F.3d at 974.

"It is the unwavering rule in this Circuit that issues raised for

the first time on appeal are reviewed only for plain error. In

other words, this Court will reverse only if the judgment

complained of results in a `manifest miscarriage of justice.'"

McCann, 984 F.2d at 673 (internal citation omitted). On plain

error review "the question before this Court is not whether there

was substantial evidence to support the jury verdict, but whether

there was any evidence to support the jury verdict." Id.
19

(emphasis in original). If any evidence supports the jury verdict,

the verdict will be upheld. Polanco, 78 F.3d at 974.

B. Discussion

Flintco challenges the sufficiency of the evidence to support

the jury verdict on Wallace's quantum meruit and Miller Act claims.

Flintco specifically argues that Wallace's damages are precluded by

the "no damages for delay" clause in the parties' subcontract, that

there is insufficient evidence to support the amount of damages

awarded by the jury, and insufficient evidence of the actual "out

of pocket expenses" Wallace incurred in support of a verdict on the

Miller Act claim. Because our review is under the plain error

standard, the jury verdict in Wallace's favor on its quantum meruit

and Miller Act claims will be upheld unless there is no evidence to

support the jury's verdict on those claims. 
20

1. There is some evidence that Wallace's damages fall

outside of the "no damages for delay" clause in the

parties' subcontract.

The "no damages for delay" clause at issue provided:

In the event delays in the performance of this

Subcontract are occasioned by FLINTCO, Owner, Architect

or some other subcontractor, an extension of time for the

completion of this Subcontract shall be granted for a

period of time equal to the delay caused to

Subcontractor. Such extension of time shall be in lieu

and in full satisfaction of any and all claims whatsoever

of Subcontractor against Owner, Architect, FLINTCO or

other subcontractor causing such delay.

R. Excerpt 5D to Appellant’s Brief at ¶ 11. Clauses such as this

have been upheld under Texas law, and have been found to bar damage

claims that are based on delay. United States ex rel. Straus Sys.,

Inc. v. Associated Indem. Co., 969 F.2d 83, 85 (5th Cir. 1992)

(applying Texas law to "no damages for delay" clause); City of

Houston v. R.F. Ball Constr. Co., 570 S.W.2d 75, 77 (Tex. Civ.

App.--Houston [14th Dist.] 1978, writ ref'd n.r.e.). "No damages

for delay" clauses will be strictly construed and enforced unless

the delay at issue (1) was not contemplated by the parties; (2) was

so long as to justify abandonment of the contract; (3) was caused

by fraud, misrepresentation, or bad faith; or (4) was caused by

actual interference with the performance required under the

contract. R.F. Ball, 570 S.W.2d at 77 & n.1. 

Wallace argues that his complaint is not one of delay within

the meaning of the “no damages for delay” clause, but is for
21

Flintco’s active interference and hindrance of Wallace’s

performance. Indeed, a leading Texas decision on this subject

upheld damages, notwithstanding a “no damages for delay” clause,

where the defendant was found to have committed the following acts

and omissions:

(1) Failure to plan development and construction of whole

project; (2) Failure to furnish master progress schedule;

(3) Failure to coordinate work of various prime

contractors; (4) Failure to proceed with underground

utilities contract until August 1, 1952; (5) Failure to

proceed with the sidewalks contract until July 1, 1953;

(6) Failure to expedite flow of information; (7) Failure

to decide on type of water heaters; (8) Failure to

deliver water heaters; (9) Arbitrary and capricious

requirements of Architects; (10) Instructions to asphalt

tile sub-contracts; (11) Refusal to accept the buildings

within reasonable time after August 25, 1953.

Housing Auth. of Dallas v. Hubbell, 325 S.W.2d 880, 890 (Tex. Civ.

App.--Dallas 1959, writ ref’d n.r.e.). The Court explained:

[T]he `no-damage-for-delay’ provision did not give Owner

a license to cause delays `willfully’ by `unreasoning

action’, `without due consideration’ and in `disregard of

the rights of other parties’, nor did the provision grant

Owner immunity from damages if delays were caused by

Owner under such circumstances.

Id. at 891.

In the instant case, there is evidence from Rodney Wallace, Ed

Wallace, and Donald McDonald that Flintco, and the other

subcontractors on the site over which Flintco had control,

disrupted and actively interfered with Wallace's performance under

the subcontract. That disruption and active interference consisted

of (1) Flintco's failure properly to coordinate and sequence the
 

9 Flintco relies on Black Lake Pipe Co. v. Union Constr. Co.,

Inc., 538 S.W.2d 80, 86 (Tex. 1976) to argue that Wallace cannot

recover in quantum meruit because the damages it claims are covered

by the parties’ contract. Black Lake Pipe, however, does not

22

work done by all the subcontractors on the job; (2) Flintco's

direction of Wallace to small, piecemeal jobs on the site; (3)

Flintco's failure to ensure that its other subcontractors removed

their materials and debris from the areas in which Wallace had to

work; (4) Flintco's improper surveying and staking of an area

around two of the buildings on the project that required Wallace to

regrade areas it believed had been completed to specifications; (5)

Flintco's failure to locate timely and remove physical obstacles

(power poles and a gas line) from the areas in which Wallace had to

work; and (6) Flintco's failure to ensure that the work Wallace had

completed was not adversely affected by the other subcontractors on

the site. This disruption and interference, according to the

testimony of Rodney Wallace, Ed Wallace, and Donald McDonald,

caused Wallace to suffer productivity impacts, resulting in

increased labor costs, increased equipment costs, and increased

overhead expenses. Because the record contains some evidence that

the actions of Flintco constituted active interference with

Wallace's performance and that Flintco breached the contract, and

because Texas law recognizes that a “no damages for delay” clause

does not preclude a contractor from recovering damages when the

delay is caused by active interference with the contractor’s

performance,9 there is no plain error in the Court’s submission of
preclude Wallace from obtaining a quantum meruit recovery. When a

general contractor actively interferes with its subcontractor’s

performance, the subcontractor may “treat the contract as rescinded

and recover under quantum meruit the full value of the work done.”

McCracken Constr. Co. v. Urrutia, 518 S.W.2d 618, 621-22 (Tex. Civ.

App.--El Paso 1974, no writ); see also United States ex rel. Aucoin

Elec. Supply Co. v. Safeco Ins. Co. of Am., 555 F.2d 535, 542 (5th

Cir. 1977) (when general contractor prevents performance,

subcontractor may recover in quantum meruit); Citizens Nat’l Bank

v. Vitt, 367 F.2d 541, 546 (5th Cir. 1966) (“`Once a subcontractor

has established a breach of contract by the prime, he can recover

the value of the work he has done or the service he has rendered.

In other words, he is entitled to a quantum meruit.’”) (quoting

McBride and Wachtel, Government Contracts 49-185, § 49.150(4));

Kleiner v. Eubank, 358 S.W.2d 902, 905 (Tex. Civ. App.--Austin

1962, writ ref’d n.r.e.). In this case, the jury found in response

to Jury Question No. 1 that Flintco had breached the parties’

contract. Given that finding of a breach by Flintco, Wallace was

entitled to “treat the contract as rescinded and recover under

quantum meruit the full value of the work done.” Kleiner, 358

S.W.2d at 905.

23

questions and the jury’s findings on Flintco’s liability and

Wallace's damages. 

2. There is some evidence to support the amount of damages

awarded to Wallace by the jury on the quantum meruit

claim.

Damages must be proven to a reasonable certainty, but

mathematical precision is not required. 

All that the law requires is that the best evidence of

which a case is susceptible be produced, and if from such

evidence the amount of damages caused by the defendant

can be inferred or estimated by the jury with reasonable

certainty, then the amount of such damages is for the

jury.

Bildon Farms, Inc. v. Ward County Water Improvement Dist. No. 2,

415 S.W.2d 890, 897 (Tex. 1967); see also South Builders, Inc. v.
24

Brown, 449 S.W.2d 542, 548 (Tex. Civ. App--Eastland 1969, writ

ref'd n.r.e.) (a subcontractor suing a general contractor for

breach of the subcontract is required to prove his damages in such

detail that the jury can make an estimate of the damages with

reasonable certainty). In reviewing whether damages have been

proven to a reasonable certainty, all evidence is to be considered

in the light most favorable to the party that was awarded damages.

Thompson and Wallace of Memphis, Inc. v. Falconwood Corp., 100 F.3d

429, 435 (5th Cir. 1996). 

Donald McDonald, Wallace's damages expert, testified without

objection to his estimate of quantum meruit damages in the amount

of $297,643.88. R. Vol. 17 at 149-151, 156. The estimate appears

not to have been based on the reasonable value of the work

performed but instead, like his estimate of contract damages, on

man and machine hour averages. This methodology has been accepted

in calculating damages in construction cases. See U.S. Indus.,

Inc. v. Blake Constr. Co., Inc., 671 F.2d 539, 547 (D.C. Cir.

1982); see also Servidone Constr. Corp. v. United States, 931 F.2d

860, 861-62 (Fed. Cir. 1991) (modifying the total cost method to

account for bid inaccuracies was a proper method of calculating

damages); Neal & Co., Inc. v. United States, 36 Fed. Cl. 600, 638

(Fed. Cl. 1996), aff’d, 121 F.3d 683 (Fed. Cir. 1997) (allowing

modified total cost method of calculating damages). We have found

no precedent, however, specifically approving the use of this
25

methodology to prove quantum meruit damages. Nonetheless, given

our inability to review the sufficiency of the evidence and the

fact that there is some evidence of quantum meruit damages in the

approximate amount of $297,000, the jury's award of $197,777.00 to

Wallace on its quantum meruit claim does not constitute plain

error.
26

3. There is some evidence to support the judgment awarding

damages to Wallace on the Miller Act claim.

Under the Miller Act, 40 U.S.C. § 270b, only out-of-pocket

costs of delay are recoverable. In awarding Miller Act damages,

the district court must be assured that the subcontractor did not

cause the delay and then "carefully limit the recovery to <costs

actually expended in furnishing the labor or material in the

prosecution of the work provided for in the contract.’" United

States ex rel. Lochridge-Priest, Inc. v. Con-Real Support Group,

Inc., 950 F.2d 284, 287 (5th Cir. 1992) (quoting United States ex

rel. T.M.S. Mechanical Contractors, Inc. v. Millers Mut. Fire Ins.

Co. v. The Craftsmen, Inc., 942 F.2d 946, 952 (5th Cir. 1991))

(emphasis in original). 

The Miller Act claim was submitted to the jury as follows: 

QUESTION NO. 14:

INSTRUCTIONS:

AHAC issued a Miller Act bond to the Army Corps of

Engineers on behalf of Flintco in order to protect anyone

who furnishes labor and material for the construction, to

insure that they will be paid. A person is entitled to

payment under the Miller Act bond if he has furnished

labor or materials which, in good faith, were believed to

be necessary and furnished, or incorporated into the

project, for the work to be performed under the

construction contract, and if he has not been paid in

full for that work within 90 days after the last day on

which the labor was done or the materials were furnished.

Generally, where a subcontractor is entitled to recover

from a general contractor for breach of contract or

quantum meruit, the subcontractor may recover from the

general contractor, as principal, and its surety under

the Miller Act bond.
27

In this case, the Army Corps of Engineers required

Flintco to furnish bonds guaranteeing that should Flintco

fail to pay its project bills or complete the contract

work, a bonding company or surety would do so. The

Miller Act imposed upon Flintco an obligation to furnish

to the Army Corps of Engineers separate payment and

performance bonds to guarantee the contract in question.

These two bonds were executed by Flintco and its contract

surety, AHAC, in favor of the Army Corps of Engineers.

QUESTION:

Do you find from a preponderance of the evidence

that Flintco and American Home Assurance Company breached

the Miller Act bond by failing to pay Wallace

Construction Company?

ANSWER: yes 

(yes or no)

R. Vol. 11 at 3070. A separate damage question on the Miller Act

claim was not submitted. Neither party made a request for a

separate damage question or objected to its omission.

Consequently, the trial court determined that damages on the Miller

Act claim were the same as those found by the jury in response to

Jury Question No. 6:

QUESTION NO. 6: 

. . . what sum of money, if any, if paid now in

cash, would fairly compensate Wallace Construction

Company for labor, material, or services that they

provided Flintco which remain unpaid by Flintco, if any?

ANSWER: $197,777.00 

R. Vol. 11 at 3068.

On appeal, Flintco and AHAC challenge the damage award on the

Miller Act claim on the basis that Wallace presented no evidence of
28

the actual labor, material and equipment costs it had expended and

for which it had not been paid. Neither Wallace nor AHAC made this

objection before submission of the case to the jury. Thus, the

award of damages to Wallace on its Miller Act claim is reviewed

only for plain error to determine whether “there is any evidence to

support the amount of damages” awarded to Wallace. Resolution

Trust Corp. v. Cramer, 6 F.3d 1102, 1107-08 (5th Cir. 1993)

(emphasis in original); see also House of Koscot Dev. Corp. v.

American Line Cosmetics, Inc., 468 F.2d 64, 68 n.5 (5th Cir. 1972)

(When sufficiency of the evidence is not preserved for review, “we

may inquire whether there was any evidence supporting the issue of

damages to the jury, even though we may not question the

sufficiency of such evidence as we do find.”); United States v.

33.5 Acres of Land, 789 F.2d 1396, 1400-1401 (9th Cir. 1986)

(upholding on plain error review a damage award that was $36,000

less than the expert’s damage calculation).

Expert testimony was received from Donald McDonald. Based

upon his review of numerous records and logs, including among

others Wallace's certified payroll records, Wallace's daily records

that showed the use of the equipment on the project, and the

Corps’s cost rates for equipment, McDonald found that Wallace had

suffered net damages in the total amount of approximately $297,000.

There is evidence that at least to some extent McDonald considered

sums actually expended by Wallace. To engage in a detailed
29

analysis of all of the elements considered by McDonald, such as

Wallace’s costs of labor, equipment, and material, would require a

review of the sufficiency of the evidence, which we cannot do. In

this review only for plain error, we observe that McDonald included

in his estimate at least some elements that are properly

recoverable under the Miller Act, that the district court granted

judgment in favor of Wallace on his Miller Act payment bond claim

in an amount which was approximately $100,000 less than the net

damage figure to which McDonald testified, and that Flintco and

AHAC have failed to demonstrate that any improper elements of

damages included in McDonald’s estimate of damages, if entirely

disregarded, would leave the trial court’s judgment on damages

without any support in the evidence. We find that the trial court

did not commit plain error by entering judgment in Wallace’s favor

in the amount of $197,777.00 on the Miller Act claim. 

II. Flintco’s Claim that Wallace Breached the Subcontract

Flintco’s final argument is that the trial court erred in

sustaining the jury’s finding that Wallace had not breached the

subcontract by abandoning the work. Flintco contends that it had

proved beyond a preponderance of the evidence, and as a matter of

law, that Wallace had so breached the contract, and that the trial

court erred by failing to disregard the jury’s answers that Wallace

had not breached its contract with Flintco, and that Flintco was

entitled to no recovery of damages from Wallace.
30

A. Standard of Review

Unlike the preceding points where Wallace had the burden of

proof and Flintco attempted to challenge the sufficiency of the

evidence to support findings favorable to Wallace, on this point --

that of proving that Wallace breached the subcontract -- Flintco

had the burden of proof. A claimant who bears the burden of proof

and who believes that he is entitled to judgment as a matter of

law, is also obliged to move for judgment as a matter of law before

the case is submitted to the jury. Fed. R. Civ. P. 50(a); see,

e.g., Bender v. Brumley, 1 F.3d 271, 275 (5th Cir. 1993)

(plaintiff's failure to move for directed verdict on his federal

claims at the close of all evidence limited the court of appeals to

a review of whether any evidence supported the jury verdict);

Illinois Cent. Gulf R.R. Co. v. International Paper Co., 889 F.2d

536, 541 (5th Cir. 1989) (given the plaintiff's failure to move for

directed verdict at the close of evidence, the court of appeals

could only review the evidence to support the jury verdict for

plain error); Coughlin v. Capitol Cement Co., 571 F.2d 290, 297

(5th Cir. 1978) (absent motion for directed verdict, appellate

court cannot review jury verdict for sufficiency of the evidence);

Rawls v. Daughters of Charity, 491 F.2d 141, 147 (5th Cir.) (same),

cert. denied, 419 U.S. 1032, 95 S. Ct. 513 (1974); Parker v.

American Oil Co., 327 F.2d 987, 988 (5th Cir. 1964) (same); McCarty
 

10 9A Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 2539 (2d ed. 1995) ("The availability of the

alternative motion for a new trial is beneficial also to the party

who has lost a verdict and who would be entitled to judgment as a

matter of law save for some procedural blunder. For example, the

evidence may be wholly insufficient to support the verdict but the

trial court cannot order judgment as a matter of law under Rule

50(b) if the party neglected to move for judgment at the close of

all the evidence or if the party did not properly renew the motion

after the unfavorable verdict was returned.").

31

v. Pheasant Run, Inc., 826 F.2d 1554, 1555-56 (7th Cir. 1987)

(motion for directed verdict is a prerequisite to judgment

notwithstanding the verdict). If a party with the burden of proof

has conclusively established all of the elements of its claim with

evidence that the jury cannot reject, that party must move for

judgment as a matter of law under Rule 50(a) at the close of all

evidence in order to preserve its ability, in the event that the

jury finds to the contrary, to move for judgment as a matter of law

under Rule 50(b). See id. Otherwise, the claimant must depend on

the plain error standard for review or move for a new trial under

Rule 59.10

At the close of all evidence on its breach of contract claim

against Wallace, Flintco did not move under Rule 50(a) for judgment

as a matter of law. Given Flintco's failure to make such a motion,

and because no exception to the requirement has been shown to

apply, Flintco waived its right to file a renewed motion for

judgment as a matter of law under Rule 50(b). Therefore, the plain

error standard of review applies.
32

B. Discussion

Wallace introduced evidence that it was Flintco that first

breached the subcontract by requiring Wallace to perform work for

which he was not paid. Wallace also offered evidence of numerous

acts and omissions by Flintco that Wallace relied upon for proof of

Flintco’s active interference with Wallace’s performance. Under

Texas law, if one party to a contract breaches, there is no

obligation for the non-breaching party to continue performance.

See O'Shea v. International Bus. Machs. Corp., 578 S.W.2d 844, 846

(Tex. Civ. App.--Houston [1st Dist.] 1979, writ ref'd n.r.e.) ("As

a general rule, performance is excused when a party to a contract

prevents the other party from performing."); L. H. Land Painting

Co., Inc. v. S & P Constr., Inc., 516 S.W.2d 14, 16 (Tex. Civ.

App.--Fort Worth 1974, writ dism'd) ("The law is that if one party

to a contract is prevented by the acts of the other party to the

contract from performing such contract, then the party so prevented

from performing is excused from further performance of the

contract."); see also D.E.W., Inc. V. Depco Forms, Inc., 827

S.W.2d 379, 382 (Tex. App.--San Antonio 1992, no writ) ("[A] party

who is in default or breach cannot maintain a suit for breach of

contract."). Given that there is some evidence of record that

Flintco first breached the subcontract, there is no plain error

associated with the jury verdict against Flintco on its claim that

Wallace breached the contract. 
33

III. Wallace’s and Victore’s Payment Bond Liability to Flintco

Wallace’s and Victore’s first three points on their crossappeal against Flintco and AHAC relate to the trial court’s

disregarding the jury answers and entering judgment for Flintco and

AHAC for recovery of $101,187.30, plus prejudgment interest, on

their payment bond claim. Flintco and AHAC had alleged that

Wallace and its surety, Victore, breached their duties under the

payment bond which was issued to insure payment of Wallace’s

suppliers. When Wallace stopped work and, along with Victore,

failed to pay those suppliers, Flintco and AHAC did so and sought

to recover the sums that they had paid to Wallace’s suppliers on

behalf of Wallace and Victore.

A. Standard of Review

Again, Flintco and AHAC are claimants and, in order to

preserve their right to file a Rule 50(b) renewed motion for

judgment as a matter of law, were required to have filed a Rule

50(a) motion for judgment as a matter of law before submission of

the case to the jury. They did not do so, and therefore the plain

error standard of review applies. Likewise, the trial court could

grant Flintco’s motion for judgment as a matter of law only if it

found plain error in the jury verdict. Sims' Crane, 800 F.2d at

1557 ("A lawyer who never moves for directed verdict, given the

wording of Rule 50(b) and the clear case law regarding the effect
34

of such a decision--regardless of the reasons for such a decision,

must realize that a subsequent motion for jnov can be granted only

if plain error can be proven."). In the absence of plain error,

the trial court could not consider Flintco's Rule 50(b) motion.

Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950, 956-57 (5th

Cir. 1993); McCann, 984 F.2d at 670-73. Accordingly, we review the

trial court's ruling on Flintco’s and AHAC's payment bond claim to

determine whether that ruling was required to cure plain error in

the jury verdict. 
35

B. Discussion

The jury findings on Flintco’s and AHAC's payment bond claim

were as follows:

QUESTION NO. 15:

Did Flintco acquire from Wallace Construction

Company's project creditors claims against Victore

Insurance Company?

ANSWER: No. 

(Yes or No)

QUESTION NO. 16:

Do you find from a preponderance of the evidence

that Wallace and Victore breached their obligations to

Flintco under the payment bond issued by Victore?

ANSWER: No. 

(Yes or No)

QUESTION NO. 17:

What amount of money, if paid now in cash, would

fairly and reasonably compensate Flintco for its damages

proximately caused by Wallace's and Victore's breach of

the payment bond, if any?

ANSWER: $ None 

R. Vol. 11 at 3071-3073. In disregarding the foregoing jury

findings on the payment bond claim, the trial court wrote in its

“Order Partially Disregarding Jury Verdict”:
36

Flintco and AHAC reurge their arguments contained in

their August 25, 1995 Motion for Summary Judgment, or in

the Alternative, for Partial Summary Judgment, which

addressed whether Victore breached its Miller Act payment

bond. The Court denied this motion before trial, on

November 2, 1995, in order to allow the parties to more

fully uncover and develop the facts relating to this

claim. At trial, Flintco proved by a substantial

preponderance of the evidence and as a matter of law that

it was entitled to recover sums justly due from Victore,

Wallace's bonding company, for breach of its Miller Act

payment bond when Wallace failed to pay its materialmen

and suppliers. Under the terms of the payment bond, it

was undisputed that Flintco needed only show, and did

show, that Wallace was supposed to, but did not pay the

five materialmen and suppliers in question in full within

ninety days after Wallace abandoned the Project. The

evidence was that Flintco stepped in and paid five of

Wallace's materialmen and suppliers a total of

$101,187.30 in claims unpaid by Wallace, Victore's

principal. In exchange for paying Wallace's unpaid

bills, Flintco received an assignment from each creditor

of all their claims against Wallace and Victore. In

other words, Wallace defaulted to its creditors and

Flintco paid the claims itself. Instead of reimbursing

Flintco for Wallace's bills which Flintco paid per the

terms of the payment bond, Victore refused to recognize

its liability to Wallace's creditors and their assignee.

R. Vol. 13 at 3665-3666 (footnotes omitted). The trial court’s

statement of the evidence is accurate, and a review of the trial

record reflects nothing to controvert the overwhelming evidence in

support of Flintco’s and AHAC's payment bond claim. Because there

is no evidence to support the jury's verdict on Question Nos. 15-

17, the jury's findings on those questions constitute plain error.

The assignability arguments advanced by Victore as to why it

should not be held liable on the payment bond claim were also

thoroughly and correctly addressed by the trial court in connection

with its grant of judgment as a matter of law to Flintco and AHAC
 

11 On Victore’s assignability issues, the trial court correctly

reasoned and concluded:

Victore paradoxically argued that (1) the assignment did

not cover claims against Victore since Victore was not

mentioned by name; and (2) the assignment released

Victore even though it was not mentioned by name.

Victore's first contention, that Flintco did not acquire

any claims against it from Wallace's unpaid suppliers but

only acquired claims against Wallace, is legally

incorrect. Flintco acquired claims from the creditors it

paid against Victore and Wallace, even though not

specifically mentioned, because Victore's obligations

were co-extensive with those of Wallace. This point

seems too obvious to merit comment since construction

financiers routinely rely upon assignments naming

contractors only, and since Victore's unsupported legal

contention/objection is wholly impracticable.

Accordingly, since the assignments of claims against

Wallace transferred to Flintco the derivative right to

pursue payment under Victore's payment bond, Victore's

first contention fails.

Victore's second contention, that Wallace's unpaid

suppliers' assignment to Flintco released Victore even

though it was not mentioned by name, is equally

incorrect. According to Victore, the provision in the

assignment that releases Flintco "and any other

party(ies) or surety(ies) from which Claimant might seek

payment for materials and/or labor supplied to Wallace

. . . " operates to excuse Victore from paying anyone,

whether as original obligee or assignee. Texas law,

however, adheres to the "unity of release" rule which

considers a party released "only if the release refers to

him by name or with such descriptive particularity that

his identity or connection with the tortious event cannot

be doubted." Randall v. Dallas Power & Light Co., 745

S.W.2d 397, 401 (Tex. App.--Dallas 1987), rev'd on other

grounds, 752 S.W.2d 4 (Tex. 1988) (emphasis in original)

(citing Duncan v. Cessna Aircraft Co., 665 S.W.2d 414

(Tex. 1984). Under this rule, "[t]he reference in a

release to 'all other persons, firms, or corporations

liable, or who might be claimed to be liable, does not

supply the descriptive particularity necessary to

specifically identify an otherwise unnamed or

unidentified tortfeasor." Banowsky v. State Farm Mut.

37

on their payment bond claim.11 Wallace and Victore argue that the
Auto. Ins. Co., 876 S.W.2d 509, 513 (Tex. App.--Amarillo

1994, no writ) (citing Duncan, 665 S.W.2d at 419-20).

Since the language now relied upon by Victore is

virtually identical to that rejected by the court in

Banowsky, it is clear that Victore is not "released."

R. Vol. 13 at 3666-3668 (footnotes omitted).

38

amounts Flintco paid to Wallace's materialmen and suppliers were

offset by the jury in assessing Wallace's Miller Act and quantum

meruit damages. This argument is also without merit. The jury

instructions did not ask for or require any such offset, and this

Court cannot impute to the jury’s answers to Question Nos. 15, 16,

and 17, a conjectural explanation for answers which on their face

have no support in the evidence and that are plainly in error.

Moreover, the jury specifically was instructed not to "increase or

reduce the amount of damages, if any, in one question because of

the instructions regarding or your answers to any other questions

about damages, and do not speculate about what a party's ultimate

recovery may or may not be." R. Vol. 11 at 3066. We presume that

the jury followed these instructions. 

Because there is no evidence to support the jury verdict on

Question Nos. 15, 16, and 17, the verdict on Flintco’s and AHAC’s

payment bond claim was plain error that affected substantial rights

and required correction when the judgment was entered. The trial

court cured that plain error with its grant of judgment to Flintco

and AHAC on their payment bond claim, and its judgment on this

point is upheld under the plain error standard of review.
39
40

IV. Attorney’s Fees and Costs

Finally, Wallace argues that the trial court abused its

discretion by awarding attorney’s fees and costs to Flintco. In

its Amended Judgment the district court awarded to each side a

recovery from the other side of the full amount of its attorney’s

fees and costs, without any segregation by the parties of the

portions of their attorney’s fees and costs that were attributable

to the issues upon which they had prevailed. According to Wallace,

because Flintco and AHAC prevailed only on the payment bond claim,

Flintco should not have been awarded attorney's fees or costs.

Wallace maintains that the district court at the very least erred

in failing to segregate and to limit the awards of attorney’s fees

and costs only to those incurred on the payment bond claim upon

which Flintco and AHAC prevailed. Under Texas law, when a

case involves more than one claim, ordinarily attorney’s fees can

be awarded only for necessary legal expenses incurred in connection

with the claims upon which the recovery of fees is authorized.

Bank One, Texas, N.A. v. Taylor, 970 F.2d 16, 35 (5th Cir. 1992),

cert. denied, 508 U.S. 906, 113 S. Ct. 2331 (1993). Wallace,

however, did not object at any time to Flintco’s failure to

segregate its requested attorney’s fees or to the award of

attorney’s fees to Flintco. This Court generally refuses to

consider issues not raised below unless the issue presents a pure

question of law or an issue which, if ignored, would result in a
41

miscarriage of justice. Deshotels v. SHRM Catering Servs., Inc.,

842 F.2d 116, 120 (5th Cir. 1988) (citing Volkswagen of America,

Inc. v. Robertson, 713 F.2d 1151, 1166 (5th Cir. 1983)). Likewise,

a new argument raised for the first time on appeal, even if it

concerns an issue considered by the trial court, will not be

addressed unless it meets the plain error standard. Forbush v.

J.C. Penney Co., 98 F.3d 817, 822 (5th Cir. 1996) (new argument on

appeal regarding award of attorney’s fees rejected as not meeting

plain error standard). The rule applicable here, as regards

Wallace’s complaint on appeal about the award of attorney’s fees to

Flintco and AHAC, is as it was stated in Powell v. Old Southern

Life Ins. Co., 780 F.2d 1265, 1268 (5th Cir. 1986):

[N]o issue concerning the amount of fees due or the

method of calculating the award was raised in the

district court, and we do not consider issues not raised

below unless they present a pure question of law or a

refusal to do so would “result in a miscarriage of

justice.” 

(quoting Volkswagen of America, Inc., 713 F.2d at 1166). Flintco

and AHAC prevailed on a portion of the litigation and, in

particular, upon their successful motion for judgment as a matter

of law notwithstanding an adverse jury verdict on Flintco’s and

AHAC’s payment bond claim. Upon this record, and given Wallace’s

waiver of the fee segregation issue in the trial court, we affirm

the district court’s determination on attorney’s fees.
 

12 In his Motion for Entry of Judgment based on the Jury

Verdict, Wallace requested attorney’s fees and costs. Flintco, in

its Motion for Judgment Notwithstanding the Verdict, also requested

attorney’s fees and costs. Flintco did not oppose Wallace’s

request to recover his attorney’s fees and costs and, remarkably

enough, Wallace did not argue against Flintco’s request to recover

its attorney’s fees and costs. In the Order Partially Disregarding

the Jury Verdict, the district court awarded costs of $71,546.50 to

Flintco and AHAC, and $90,091.00 in costs to Wallace. In his

Motion to Alter and Amend, Wallace argued that it was error to

award costs to Flintco and AHAC when the costs incurred by them

were not related to the one claim (the payment bond claim) upon

which they ultimately prevailed. Flintco did not object in the

trial court to the costs awarded to Wallace. Despite Wallace’s

costs argument, the Amended Judgment included cross-awards of costs

to Flintco and AHAC in the total sum of $73,778.43 and to Wallace

in the total sum of $90,091.00.

42

Wallace did object in the trial court that Flintco and AHAC

were not entitled to recover costs because the costs sought by them

were not incurred in connection with the claim upon which Flintco

and AHAC were successful.12 Wallace especially complained that

$40,415 of the $73,778 in costs awarded to Flintco and AHAC were

for expert witness fees although Flintco’s and AHAC’s expert did

not testify regarding the payment bond claim on which Flintco and

AHAC prevailed. In this appeal Wallace argues that the trial

court’s award of $73,778.43 in costs to Flintco and AHAC, including

$40,415.68 for fees for an expert witness who offered no evidence

on the one claim on which Flintco and AHAC prevailed, constitutes

an abuse of discretion. Flintco and AHAC argue that the award was

within the trial court’s broad discretion, but also point out that

of the $90,091 in costs awarded to Wallace, $76,610 was for his

expert’s fees.
 

13 Such an award may be viewed as impermissibly shifting the

costs incurred by Flintco and AHAC on claims on which they did not

prevail to Wallace and AHAC. See Hall v. State Farm Fire & Cas.

Co., 937 F.2d 210, 216 (5th Cir. 1991)(“A trial court has wide

discretion with regard to the costs in a case and may order each

party to bear his own costs. The judge cannot, however, order the

prevailing party to share, or shoulder all of, the costs of a

nonprevailing party unless the costs serve as a sanction.”). 

43

As set forth above, Flintco and AHAC prevailed only on the

payment bond claim, and Flintco and AHAC incurred no expert witness

fees in prosecuting that claim. We agree that the trial court

abused its discretion when it included $40,415.68 in expert witness

fees as part of the costs that it awarded to Flintco and AHAC.13

Wallace’s complaint on this point, however, requires us to

observe a more fundamental error of law, namely, that the crossawards of costs include amounts for expert witness fees in excess

of the amounts allowed by 28 U.S.C. § 1821. Flintco and AHAC

claimed and were awarded expert witness fees in the sum of $40,415

and Wallace and Victore claimed and were awarded expert witness

fees in the sum of $76,610. Both sides sought recoveries of those

expert witness fees in the trial court by relying upon Copper

Liquor Inc. v. Adolph Coors, Co., 684 F.2d 1087, 1100 (5th Cir.

1982), which had held that expert witness fees in excess of that

provided for by 28 U.S.C. § 1821 may be awarded in “exceptional

circumstances” such as when the “expert testimony was necessary or

helpful to a presentation of civil rights claims, or indispensable

to the determination of the case.” That holding of Copper Liquor

was directly overruled by International Woodworkers of Am. v.
 

14 Costs in excess of that allowed by § 1821 may be awarded

under the exceptions announced in Alyeska Pipeline Serv. Co. v.

Wilderness Soc’y, 421 U.S. 240, 95 S. Ct. 1612 (1975) when:

(1) the trustee of a fund or property, or a party in

interest, preserved or recovered the fund for the benefit

of others in addition to himself;

(2) a party acted in wilful disobedience of a court

order; or

(3) the losing party had acted in bad faith,

vexatiously, wantonly, or for oppressive reasons.

International Woodworkers, 790 F.2d at 1177.

44

Champion Int’l Corp., 790 F.2d 1174, 1175-76 (5th Cir. 1986) (en

banc), aff’d sub nom Crawford Fitting Co. v. J.T. Gibbons, Inc.,

482 U.S. 437, 107 S. Ct. 2494 (1987). In International

Woodworkers, this Circuit held that “the fees of non-courtappointed expert witnesses are taxable by federal courts in nondiversity cases only in the amount specified by § 1821, except that

fees in excess of that amount may be taxed when expressly

authorized by Congress, or when one of the three narrow equitable

exceptions recognized by Alyeska applies.” Id. at 1181. None of

the Alyeska exceptions14 applies to this case. 

Because expert witness fees in excess of those provided for by

28 U.S.C. § 1821 may not be awarded as costs in a nondiversity case

such as this, International Woodworkers, 790 F.2d at 1175, and

because neither side in this dispute limited its claims for costs

to those amounts allowed by § 1821, the cross-awards of costs in

this case constitute plain error. 
45

To reverse Flintco’s and AHAC’s erroneous recovery of $40,415

in expert witness fees but to leave standing Wallace’s erroneous

recovery of $76,610 in expert witness fees would amount to a

manifest miscarriage of justice. Moreover, since the district

court must reconsider the taxation of costs on remand, in a case

such as this -- where each party has prevailed on a portion of the

case -- the district court should have before it the entire costs

issue. Otherwise, the district court would effectively be deprived

of its broad discretion to consider the total costs that are

properly taxable and the competing arguments of the parties as to

how those costs should be fairly borne. Because the cross-awards

of taxable costs that were adjudged here are both unusual and

intertwined, and because the awards are infected with erroneous

inclusions of expert witness fees in excess of what is permitted

under § 1821, we conclude that a manifest miscarriage of justice

can be avoided on this issue only by setting aside the cross-awards

of costs and remanding the costs issue for further proceedings by

the district court. 

Conclusion

For the foregoing reasons, we REVERSE and VACATE those

portions of the Amended Judgment that adjudge cross-recoveries of

costs by Flintco and AHAC from Wallace and Victore, and by Wallace

from Flintco and AHAC, and we REMAND this case to the district

court for further proceedings consistent with this opinion on the
46

taxation of costs; we REFORM the Amended Judgment to consolidate

the two segments discussed above in footnote 3, as follows: 

It is ORDERED and ADJUDGED that Marshall E.

Wallace, d/b/a Wallace Construction Company, shall

recover from Flintco, Inc. and American Home

Assurance Co., jointly and severally: 

1. Actual damages in the amount of

$197,777.00;

2. Pre-judgment interest thereon in the amount of

$62,681.85;

3. Post-judgment interest on all amounts

awarded in item numbers one and two above

at the currently prevailing rate pursuant

to 28 U.S.C. § 1961 of 5.90% per annum,

compounded annually, from the date of

this judgment until paid;

we REFORM all awards of post-judgment interest in the Amended

Judgment to provide that post-judgment interest shall be compounded

annually; and the Amended Judgment is otherwise AFFIRMED.