FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 March 15, 2004 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________________________

No. 03-11169

____________________________

D. C. Docket No. 00-00195 CV-AAA-1

CLUB CAR, INC.,

Plaintiff-Counter

Defendant-Appellee,

versus

CLUB CAR (QUEBEC) IMPORT, INC., 

Defendant-Counter

Claimant-Appellant,

MARTIN MURPHY,

Defendant-Appellant,

PIERRE CHAMPIGNY,

EQUIPMENTS PIERRE CHAMPIGNY, LTD.,

Counter-DefendantsAppellees,

INGERSOLL RAND CO., LTD.,

Counter-Defendant.
*

 Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by

designation. 

2

______________________________________

Appeal from the United States District Court

for the Southern District of Georgia

______________________________________

(March 15, 2004)

Before EDMONDSON, Chief Judge, BIRCH and FARRIS*

, Circuit Judges. 

FARRIS, Circuit Judge:

Club Car of Quebec (CCQ) and its president, Martin Murphy, appeal the

judgment against them on several claims arising out of Club Car Inc.’s termination

of CCQ as its distributor of golf carts. We affirm. 

Background

Under a series of written distribution agreements, CCQ, a Quebec

corporation, served as the Quebec distributor of golf carts manufactured by Club

Car, a Georgia corporation, from 1980 through 2000. In 1990 and 1991, CCQ

president Martin Murphy executed a personal guaranty to ensure payment of

CCQ’s debts. 

 During the 1990's Club Car and CCQ agreed that Club Car could sell used

carts in Quebec, but that CCQ would have a right of first refusal on those
3

products. If CCQ declined to purchase them, it would receive a commission on

each cart Club Car sold to another buyer. Disagreements later arose when Club

Car began selling used carts containing new parts to a competitor, Equipements

Pierre Champigny (EPC). This arrangement ended in 1997, but Club Car

continued selling used carts. 

In 1999, Club Car began charging CCQ a Quebec Provincial Sales Tax

(QST) for its products with the stated intent of remitting the taxes to the Quebec

Government. For various reasons, Club Car delayed paying the taxes until June of

2001. CCQ claims it suffered tax penalties as a result of this delay. 

In 2000, Club Car terminated its contract with CCQ and awarded the 

distributorship to EPC, whose president is Pierre Champigny. Later, Club Car

filed suit to recover more than $1.5 million in payments due from CCQ and from

Murphy under the personal guaranty. CCQ and Murphy filed three lengthy

counter claims against Club Car asserting, among other claims, breach of contract,

conspiracy to breach a contract, and conversion arising out of the distribution

agreement, as well as breach of fiduciary duty, violations of federal and state

RICO laws, and fraud arising out of Club Car’s mishandling of the QST taxes. 

CCQ later joined EPC and Champigny as counterclaim defendants, alleging
4

tortious interference with a business relationship and contract, and conspiracy to

breach a contract. 

On January 17, 2003, the trial court granted Club Car’s motion for partial

summary judgment, dismissing CCQ’s RICO and fraud claims, and its breach of

contract claim connected with the alleged used cart agreement. On January 31,

EPC and Champigny moved to apply Quebec law to CCQ’s claims against them. 

On February 3, CCQ moved to amend the pretrial order, agreeing to limit its

claims against Club Car to breach of contract, conspiracy to breach a contract,

breach of fiduciary duty, and promissory estoppel, and to limit its claims against

Champigny and EPC to conspiracy to breach a contract and tortious interference

with a business relationship and contract. On February 4, the trial court accepted

CCQ’s limitation of claims and granted EPC and Champigny’s request to apply

Quebec law. 

After a five-day trial, a jury awarded Club Car $1,557,360 (Canadian) on its

claims against CCQ and Murphy. The jury awarded CCQ $100,000 (Canadian) on

its counterclaims against Club Car, but nothing on its claims against EPC and

Champigny. The jury did not award attorney fees to either Club Car or CCQ. 

After trial, the trial court granted Club Car’s motion for judgment as a matter of

law and awarded Club Car attorney fees under the distribution contract. 
1Martin Murphy joins in all of CCQ’s claims that would result in an offset of the jury’s

award to Club Car under his personal guaranty. 

5

DISCUSSION

1. Damages Testimony.

1

CCQ challenges rulings excluding testimony on the alleged damages

connected with its various counter claims. It first contends that the trial court

abused its discretion in striking the expert testimony of its accountant, Peter Ryan,

on lost profits under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.

Ct. 2786, 125 L. Ed. 2d 469 (1993). We review such rulings for abuse of

discretion, Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir. 1997), and will

reverse only if an erroneous ruling created a “substantial prejudicial effect.” 

Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272, 1305 (11th Cir. 1999)

(citations omitted). 

Expert testimony is admissible if (1) the expert is qualified to testify on the

topic at issue, (2) the methodology used by the expert is sufficiently reliable, and

(3) the testimony will assist the trier of fact. ER 703; Quiet Tech. DC-8 v.

Hurel-Dubois UK, Ltd., 326 F.3d 1333, 1340-41 (11th Cir. 2003). To ensure that

a proper foundation is made, the trial court must screen expert testimony to

determine if it is relevant and reliable. Daubert, 509 U.S. at 589. Expert
6

testimony must be excluded if the reasoning or methodology underlying the

opinion is scientifically invalid, or if the methodology cannot properly be applied

to the facts. Id. at 592. 

Ryan testified that CCQ’s damages in the form of lost profits exceeded $10

million. But, as the trial court found, that estimate was based on gross sales and

gross profit figures. Ryan admitted he had not factored in expenses CCQ would

normally incur in generating income and sales. To recover lost profit damages in

Georgia, “one must show the probable gain with great specificity as well as

expenses incurred in realizing such profits. In short, the gross amount minus

expenses equals the amount of recovery.” Shaw v. Ruiz, 207 Ga. App. 299, 428

S.E.2d 98, 103 (1993) (citations omitted). Ryan failed to follow this rule. The

trial court reasonably concluded his lost profit calculation was based on flawed

methodology that was unaccepted in the accounting community. See Daubert, 509

U.S. at 593-94 (degree to which experts in the field accept technique relevant to

admissibility). The court did not abuse its discretion in striking the testimony. 

CCQ argues the Daubert objection was untimely because it was not raised

until trial. A Daubert objection not raised before trial may be rejected as untimely. 

Quiet Tech., 326 F.3d at 1350. But a trial court has broad discretion in

determining how to perform its gatekeeper function, and nothing prohibits it from
7

hearing a Daubert motion during trial. See Goebel v. Denver and Rio Grande

Western R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000)(trial court may hold

Daubert hearing “when asked to rule on a motion in limine, on an objection during

trial, or on a post-trial motion. . . .”); see also Kumho Tire Co. v. Carmichael, 526

U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (“the trial judge must

have considerable leeway” in determining whether expert testimony is reliable). 

The trial court permitted extensive voir dire and cross examination, then heard

lengthy argument on Ryan’s methods. The court adequately developed the record

necessary to exercise sound discretion, and did not err in holding the Daubert

hearing during trial. CCQ argues the trial court’s ruling was based on improper

evidence, pointing to the attempt by EPC’s counsel to submit an excerpt from a

handbook on damages. CCQ claims this tainted the court’s ruling because the

excerpt was not properly served on the parties. This contention is without merit. 

The excerpt was not “evidence” but legal authority in support of EPC’s argument. 

Moreover, the trial court indicated it had not even seen the excerpt when it made

its ruling. 

CCQ next complains that the trial court confused the jury in striking Ryan’s

lost-profit testimony as follows: 
8

Members of the jury, with respect to Mr. Ryan’s testimony as to

damages, when he says that he did not take into consideration the

expenses involved and merely used the gross amount, his opinion as

to the loss on the Defendant’s counterclaim is stricken. You are not

to consider that. 

CCQ claims the instruction failed to distinguish between lost profit and other

damages, thereby misleading the jury into disregarding all of Ryan’s testimony. 

Since CCQ failed to object to the instruction, reversal is required only if it can

show plain error. Fed. R. Civ. P. 51; Ford ex rel. Estate of Ford v. Garcia, 289

F.3d 1283, 1287-88 (11th Cir. 2002). Although not a model of clarity, the

instruction did refer to Ryan’s conclusions that failed to account for CCQ’s

expenses. The instruction was not so misleading as to clearly prejudice CCQ. 

Ford, 289 F.3d at 1288.

Finally, the trial court did not commit reversible error in sustaining Club

Car’s objection to Ryan’s testimony on losses CCQ allegedly suffered from Club

Car’s handling of QST taxes. CCQ vice president Anita Murphy had already

testified that CCQ incurred more than $200,000 in fines and expenses due to Club

Car’s failure to remit QST to the Quebec Government. Ryan’s testimony was

cumulative and its exclusion was harmless. Piamba Cortes, 177 F.3d at 1305. 

2. Jury Instructions. 
9

CCQ claims the trial court abused its discretion in the “process and

substance” of instructing the jury, focusing mainly on the relationship between

Quebec law and its claims. It first argues that the trial court’s “untimely” decision

to apply Quebec law to its claims against EPC and Chamigny “spawned

confusion” and prejudice. This argument is without merit. To avoid unfair

surprise, a party must give reasonable notice, through its pleadings or otherwise,

of its intent to rely on foreign law. Fed R. Civ. P. 44.1; DP Aviation v. Smiths

Industries Aero. & Def. Sys., 268 F.3d 829, 846 (9th Cir. 2001). EPC gave CCQ

such notice at least twice, starting two weeks before trial. Moreover, in granting

EPC’s request, the court did not “change” the law; it simply applied wellestablished choice-of-law principles to claims that CCQ, a Quebec party, had

against other Quebec parties. CCQ received reasonable notice. DP Aviation, 268

F.3d at 846. 

Nor did the trial court err in denying CCQ’s request to amend the pretrial

order a second time so that it could reassert claims for defamation and bad faith

business negotiations under Quebec law. “[F]or pretrial procedures to continue as

viable mechanisms of court efficiency, appellate courts must exercise minimal

interference with trial court discretion in matters such as the modification of its

[pretrial] orders.” Jacobs v. Agency Rent-A-Car, Inc., 145 F.3d 1430, 1432 (11th
10

Cir. 1998) (quoting Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir.

1979)). CCQ had agreed to drop those claims before trial in order to streamline its

lengthy list of counter claims. The court did not abuse its discretion in refusing to

amend the pretrial order again after trial had begun. 

We also find no reversible error in the trial court’s refusal to give CCQ’s

proposed Quebec law instructions on its breach of fiduciary duty and conspiracy

claims against Club Car. For the most part, the instructions CCQ proposed merely

added the following statements to the Georgia version of the law: 

Every person has a duty to abide by the rules of conduct which lie

upon him, according to the circumstances, usage or law, so as not to

cause injury to another. 

Where he is endowed with reason and fails in his duty, he is

responsible for any injury he causes to another person by such fault

and is liable to reparation for the injury, whether it be bodily, moral,

or material in nature.

This added little to the instructions given, which already stated that Club Car had a

legal duty to refrain from conspiring to breach its contracts, and a duty to fulfill its

fiduciary obligations by using reasonable care in handling QST funds collected

from CCQ. Assuming Quebec law applied to the claims, any error in refusing to

give CCQ’s proposed instructions is harmless since they would not have altered

the thrust of what the jury was told. See Carter v. DecisionOne Corp., 122 F.3d

997, 1005 (11th Cir. 1997) (instructional error does not require reversal unless we
2CCQ also claims the court erroneously instructed the jury that “all tortious conduct by

Club Car and Champigny. . . had to occur in the state of Georgia” for the jury to award damages. 

The court gave no such instruction. It did instruct the jury that punitive damages could only be

based upon conduct occurring in Georgia. 

11

are “left with a substantial and ineradicable doubt as to whether the jury was

properly guided in its deliberations.”) (quoting Johnson v. Bryant, 671 F.2d 1276,

1280 (11th Cir. 1982)).

 CCQ also claims, with little analysis or citation to relevant authority, that

the trial court gave various flawed Quebec law instructions. But CCQ fails to

show how, considered as a whole, the instructions misstated the law or misled the

jury. Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1569 (11th Cir.

1991).2

 

Nor did the trial court violate Fed R. Civ. P. 51 by failing to hold a proper

charge conference or allow CCQ sufficient time to review and object to proposed

instructions. Before closing arguments, the trial court held a hearing at which all

parties argued the instructions. Although the court abbreviated the hearing, it gave

the parties an additional opportunity to object and propose new instructions after

the jury was charged. The proceedings were consistent with Fed. R. Civ. P. 51.
3Under Ga. Code Ann. § 16-14-4(a), Georgia’s RICO statute: 

[i]t is unlawful for any person, through a pattern of racketeering activity or

proceeds derived therefrom, to acquire or maintain, directly or indirectly, any

interest in or control of any enterprise, real property, or personal property of any

nature, including money.

12

3. QST Claims

CCQ argues that the trial court erred in dismissing on summary judgment its

state RICO and fraud claims connected with Club Car’s handling of the QST it

collected. We review summary judgment rulings de novo, viewing all facts and

reasonable inferences in the light most favorable to the nonmoving party. Tullius

v. Albright, 240 F.3d 1317, 1319 (11th Cir. 2001). Summary judgment is proper

“if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “If the record presents factual issues, the court must

not decide them; it must deny the motion and proceed to trial.” Clemons v.

Dougherty County, 684 F.2d 1365, 1369 (11th Cir. 1982).

To establish a pattern of racketeering activity under Georgia’s RICO statute, 

CCQ needed to prove two related predicate acts that violated state or federal law. 

Ga. Cod. Ann. § 16-14-3(8), (9); Roth v. Connor, 235 Ga. App. 866, 510 S.E.2d

550, 557 (1998).3 CCQ alleged that Club Car committed mail fraud, which
13

requires proof of a specific intent to defraud or deceive. 18 U.S.C. § 1341; United

States v. Hasner, 340 F.3d 1261, 1269 (11th Cir. 2003). CCQ’s common law

fraud claim has a similar scienter element. Empire Distr. Inc. v. Hub Motors, 240

Ga. App. 568, 524 S.E.2d 264, 265 (1999). 

In support of summary judgment, Club Car presented evidence that it began

collecting QST on the advice of its customs auditor in the Spring of 1999. Club

Car’s accountant explained the delay in remitting the tax by averring that: (1)

shortly after Club Car began collecting QST, she was notified she could not remit

the tax without a Quebec Provincial tax identification number; (2) she was not

diligent in applying for the number because she was overworked and having

personal problems; (3) the Quebec government rejected a defective application

submitted in the Fall of 2000; (4) she resubmitted a corrected application in

December 2000; and (5) an identification number was issued to Club Car in May

2001. All taxes were paid in June 2001, before CCQ filed its counterclaim

alleging fraud. 

In response, CCQ was required to come forward with “specific facts

showing that there [was] a genuine issue for trial.” Fed. R. Civ. P. 56(e). Instead,

CCQ asserts only that the delayed payment raised an inference of fraudulent

intent, and refers to what it claims are invoices containing false tax numbers
14

submitted by Club Car. But the delay was explained by Club Car’s affidavits. 

Moreover, CCQ does not identify the invoices that allegedly contain false

numbers. There were invoices containing a tax number associated with the

financing entity for the transaction, which was listed as “buyer” on the invoices. 

CCQ fails to show how listing the tax number of a clearly-identified party

evidences fraudulent intent. At best, this is nothing more than a scintilla of

evidence and is insufficient to defeat summary judgment. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). 

Contrary to CCQ’s claim, the affidavit of Anita Murphy, which asserted that

Club Car had falsified tax numbers and was unauthorized to collect QST, does not

establish a question of fact as to intent. The trial court correctly disregarded this

averment as barred by the hearsay rule because Murphy had attempted to relay

what she claimed Quebec government officials had told her. Inadmissible hearsay

generally cannot be considered on a motion for summary judgment. Macuba v.

Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999). 

CCQ also asserts that summary judgment was improperly granted because

the trial court had erroneously denied CCQ’s request to depose certain Club Car

employees on the QST issue. CCQ fails to explain how the discovery rulings were

erroneous or how the witnesses would have supported its claims. See Flanigan’s
4CCQ tests the limits of Fed. R. App. P. 28(9)(A) throughout its briefs.

15

Enterprises, Inc. v. Fulton County, 242 F.3d 976, 987 n.16 (11th Cir. 2001)

(party’s failure to elaborate on or provide any citation of authority in support

argument constitutes waiver) (citation omitted); see also Fed. R. App. P.

28(9)(A).4

CCQ next contends that the trial court erred in excluding the trial testimony 

of Lynda Cappadoccia of the Quebec government on the QST issue. The trial

court made no such ruling. Instead, a magistrate denied CCQ’s pretrial request to

take Cappadoccia’s videotaped deposition for trial, a ruling that CCQ failed to

appeal to the district court. See Farrow v. West, 320 F.3d 1235, 1248-49 n.21

(11th Cir. 2003) (failure to appeal magistrate's nondispositive order to the district

court precludes party from raising issue on appeal to the circuit court). 

Finally, CCQ argues that the trial court abused its discretion in excluding as

hearsay Anita Murphy’s testimony that Quebec tax officials “had learned” that

Club Car used false tax numbers and was unauthorized to collect QST. These

were “out of court statements offered to prove the truth of the matter asserted.” 

Fed. R. Evid. 801(c). The trial court properly excluded them. See United States v.

NationsBank of Fla. N.A., 53 F.3d 1548, 1554 (11th Cir. 1995) (trial court has

broad discretion in determining admissibility of evidence). 
16

4. Personal Jurisdiction: Murphy.

Martin Murphy argues that the district court lacked personal jurisdiction

because he is a resident of Quebec without sufficient minimum contacts with

Georgia. The Georgia long-arm statute provides for personal jurisdiction over a

nonresident defendant who “[t]ransacts any business within this state.” Ga. Code

Ann. § 9-10-91(1). The statute confers jurisdiction to the “maximum extent

permitted by due process.” SES Indus., Inc. v. Intertrade Pack. Mach. Co., 236

Ga. App. 418, 512 S.E.2d 316, 318 (1999). Due process requires that a defendant

have sufficient minimum contact with the forum state to provide “fair warning that

a particular activity may subject him to the jurisdiction of a foreign sovereign.” 

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 85 L. Ed. 2d

528 (1985) (citation omitted). In determining whether sufficient minimum

contacts exist, we look to whether: (1) the defendant has acted so as to avail

himself of the law of the forum state; (2) the claim is related to those acts; and (3)

the exercise of jurisdiction does not violate notions of fair play and substantial

justice. SES Indus., 512 S.E.2d at 318.

A nonresident individual cannot be subject to personal jurisdiction based

solely upon acts in Georgia taken in his or her corporate capacity. Southern

Electronics Distrib. v. Anderson, 232 Ga. App. 648, 502 S.E.2d 257, 260 (1998). 
17

Murphy’s contacts with Georgia went beyond his visits to the state as CCQ

president. Murphy engaged in negotiations with Club Car for the underlying

distribution agreements as well as the personal guaranty. As the trial court found,

Murphy was more than a passive participant in CCQ’s dealings in Georgia. As

principal and primary shareholder of CCQ, Murphy enjoyed the substantial

financial benefit from the distribution agreement, which he induced Club Car to

enter by personally guaranteeing CCQ’s debts. Notably, the distributorship

agreement and the personal guaranty contract, in effect for many years, provided

for their enforcement in the state of Georgia, under Georgia law. These

circumstances establish that Murphy acted to avail himself of Georgia law, the

claim is related to those acts, and it was fair for Georgia to assert jurisdiction over

him. See White House v. Winkler, 202 Ga. App. 603, 415 S. E. 2d 185 (1992). 

The trial court correctly found that Murphy had sufficient minimum contacts with

Georgia. 

5. Attorney Fee Award-Validity of Personal Guaranty

Finally, CCQ and Murphy challenge rulings awarding attorney fees to Club

Car and rejecting Murphy’s claims that the personal guaranty contract was

unenforceable. Both issues arose in rulings on motions for judgment as a matter

of law entered after the initial judgment was entered and the initial notice of
5Murphy’s challenge to personal jurisdiction is not similarly-barred because he raised the

issue in at least two pretrial motions to dismiss. “The appeal from a final judgment draws in

question all prior non-final orders and rulings which produced the judgment.” Barfield v.

Brierton, 883 F.2d 923, 930 (11th Cir. 1989). 

18

appeal was filed. In light of this, CCQ and Murphy were required to amend their

notice of appeal to designate the rulings and amended judgment affected by those

rulings. Fed. R. App. P. 4(a)(4)(B)(ii). They amended their notice, but failed to

designate the rulings and judgment they now challenge. 

 Fed. R. App. P. 3(c) requires a notice of appeal to “designate the judgment,

order or part thereof appealed from.” We have jurisdiction to review only those

judgments or orders specified–expressly or impliedly–in the notice of appeal. 

Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1374-75 (11th Cir. 1983). Where a

notice of appeal specifies a particular judgment or ruling, we infer that others are

not part of the appeal. Id. The failure to designate the post-trial rulings on

attorney fees and the personal guaranty precludes CCQ and Murphy from

challenging them in this appeal.5

AFFIRMED.