1 United States Court of Appeals,

Fifth Circuit.

No. 93-9069.

GREAT PLAINS EQUIPMENT, INC., Plaintiff-Appellee,

v.

KOCH GATHERING SYSTEMS, INC., Defendant-Appellant.

GREAT PLAINS PIPELINE CONSTRUCTION, INC., Plaintiff-Counter

Defendant-Appellee,

v.

KOCH GATHERING SYSTEMS, INC., Defendant-Counter PlaintiffAppellant.

Feb. 27, 1995.

Appeal from the United St ates District Court for the Northern

District of Texas.

Before HIGGINBOTHAM, SMITH and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge.

This case o riginated from two cases filed in Texas state

court. Appellee Great Plains Equipment (GPE) filed suit against

Appellant Koch Gathering Systems, Inc. (Koch) seeking damages for

the destruction of two pieces of construction equipment based on

theories of negligence. Appellee Great Plains Pipeline

Construction, Inc. (GPP) filed the other case against Koch seeking

damages for breach of contract. Koch removed both cases to federal

court based on the parties' diversity of citizenship, and filed a

counterclaim against GPP for liquidated damages for its failure to

complete the pipeline on time. The district court consolidated the

cases, which were then tried to a jury. The jury returned a

ver dict in favor of GPE and GPP on all claims. The reformed2

judgment awarded $180,000 plus prejudgment interest of $11,094.75

to GPE for the equipment, $228,324.94 plus prejudgment interest of

$38,843.55 to GPP for the breach of contract, and attorney's fees

for both Appellees against Koch.

THE BATSON

CLAIM

A party to a civil suit can challenge another party's use of

a peremptory strike that excludes a prospective juror on the basis

of that juror's race. E dmonson v. Leesville Concrete Co., 500 U.S.

614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); Batson v. Kentucky,

476 U.S. 79, 106 S.Ct . 1712, 90 L.Ed.2d 69 (1986). A party may

challenge another's peremptory strike regardless of the race of the

challenging party since the obje ction asserts the juror's equal

protection rights. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364,

113 L.Ed.2d 411 (1991). However, we will affirm the district

court's ruling on a Batson challenge u nless it is clearly

erroneous, that is un less we are left with the definite and firm

conviction that a mistake was committed. U nited States v. Roberts,

913 F.2d 211, 214 (5th Cir.1990), cert. denied, 500 U.S. 955, 111

S.Ct. 2264, 114 L.Ed.2d 716 (1991).

This circuit has developed a three-step process for

evaluating Batson claims. First, the complaining party must make

a prima facie showing that opposing counsel has exercised a

peremptory challenge on the basis of race. Once this showing has

been made, the burden shifts to the striking party to articulate a

race-neut ral explanation for the strike. Thereafter, the court

must determine whether the B atson claimant has proven purpose ful3

discrimination. U nited States v. Bentley-Smith, 2 F.3d 1368, 1373

(5th Cir.1993).

Koch relies on three circumstances surrounding the challenged

strike to establish a prima facie Batson violation in this case.

First, appellees' counsel struck the only African-American juror on

the venire panel. Second, Koch contends that there was a complete

absence of any information developed during v oir dire by either

party or the court about the juror in question that distinguished

him from any of the non-African-American jurors Appellees' counsel

did not strike. Third, Koch's trial counsel, N. Sue Allen, is an

African-American. Koch contends that Allen's race raises the

possibility that Appellees' counsel struck the juror on account of

his race, because he might have been more receptive to the

presentation of Koch's counsel. We will assume, without deciding,

that Koch established a prima facie Batson violation.

The burden then shifted to Appellees to proffer a reason for

the strike that is facially race neutral, clear, r easonably

specific, and related to the case to be tried. U nited States v.

Romero-Reyna, 867 F.2d 834, 837, aff'd on remand, 889 F.2d 559 (5th

Cir.1989), cert. denied, 494 U.S. 1084, 110 S.Ct. 1818, 108 L.Ed.2d

948 (1990) ; United States v. Clemons, 941 F.2d 321, 323 (5th

Cir.1991). Appellees' counsel responded to the B atson challenge by

telling the court:

We had information that the gentleman was not paying his

child support, and other information. We thought he might not

be a good juror for our particular case.

After counsel proffered his reasons, the court responded,4

"Very well." Koch's attorney replied, "Thank you, Judge." And the

trial went forward.

The challenging party then had the burden to show that the

reason given was pretextual or otherwise inadequate. Koch made no

attempt to attack the validity of the proffered reason at trial.

On appeal, Koch maintains that the proffered reason was inadequate

because it was based on information not in the record, and

therefore might have been based on inaccurate information or even

appellees' counsel's mend acity. Koch also argues that the trial

court failed to rule on the challenge.

We find that, in fact, the court ruled against Koch on the

Batson issue and that the court's ruling was not clearly erroneous.

First, Koch did not carry its burden of establishing that the

proffered reason was inadequate or pretextual in the trial court.

Koch did not raise these issues at all.

Second, there is no authority for the proposition that we

should uphold the district court's credibility assessment only if

it is supported by evidence in the record. In fact we have

specifically declined to adopt such a requirement, United States v.

Cobb, 975 F.2d 152, 155 n. 3 (5th Cir.1992), cert. denied,

--- U.S.

----, 113 S.Ct. 1596, 123 L.Ed.2d 160 (1993), because peremptory

challenges can be based on anything except illegal discriminatory

bias. Batson, 476 U.S. at 89-90, 106 S.Ct. at 1719.

THE RECORD

Koch urges two points o f error on appeal that require this

Court to review the sufficiency of the evidence. However, the5

record on appeal is incomplete. Much of the testimony at trial was

read into the record from depositions of witnesses who did not

appear in person. The depositions themselves are part of the

record on appeal. However, there is nothing in the record that

indicates which portions of the depositions the jury heard. The

transcription of the trial merely states, "Wh ereupon, deposition

excerpts were read in open court," each time a witness was called

by deposition, without any reference to the pages or lines read.

This court cannot speculate as to what was or was not done or said

in the court below. Sitting as a reviewing court, we may not go

behind the record. S mith v. United States, 343 F.2d 539, 541 (5th

Cir.), cert. denied, 382 U.S. 861, 86 S.Ct. 122, 15 L.Ed.2d 99

(1965). Koch had the responsibility to provide all portions of the

proceedings that be ar on its points of error attacking the

sufficiency of the evidence. F ED .R.A PP .P. 10(b)(2) provides:

If the appellant intends to urge on appeal that a finding or

conclusion is unsupported by the evidence or is contrary to

the evidence, the appellant shall include in the record a

tra nscript of all evidence relevant to such finding or

conclusion.

We have determined that there was sufficient evidence in the

transcription of the proceedings to allow a reasonable factfinder

to return the verdicts reached by the jury. If testimony in the

untranscribed portions o f the proceedings calls that conclusion

into question, it cannot form the basis of reversal.

It is impossible for us to determine from the record why the

reporter failed to inclu de in the transcript the deposition

portions offered or even references to line and page. We invite6

the district judge to review the procedures used in this case so as

to avoid similar problems occurring in the future.

THE CONTRACT CLAIM

a. Sufficiency of the evidence.

GPP's claim arose out of a contract with Koch for the

construction of an 81-mile segment of a crude oil pipeline. GPP

and Koch entered into a contract on July 3, 1990 that required GPP

to complete the pipeline by August 25, 1990. The contract

obligated Koch to secure all necessary rights-of-way for the

construction.

Construction began about July 16, 1990. On July 23, 1990

Witten, a Texas state inspector, shut down the work because GPP did

not have a "right to be on the State's right-of-way." Koch

contended that the necessary right-of-way permit had been secured,

but Witten shut down the work either because ther e had been no

pre-bid meeting, whic h was an unreasonable interpretation of the

Texas rules, or in the alternative, because GPP violated Texas

state rules concerning keepin g the adjacent highway free of mud,

and limiting the amount of ditch that was open at any one time. A

different state inspector had been on the job site the week before

and had not mentioned a right-of-way problem.

In addition to the delays caused by the disputes on the state

right-of-way, GPP's crews were shut down toward the end of the

project because some private right-of-way permits were not timely

secured. About 19 miles from the end of the pipeline, a 8500 foot

section in Frio County, Texas lacked a private right-of-way permit7

until August 13, 1990. Testimony also established that GPP did not

receive some private right-of-way permit s until August 29, four

days after the deadline for completion under the terms of the

contract.

At the close of GPP's case, Ko ch made a motion for judgment

pursuant to F ED .R.C IV .P. 50, ar guing that the evidence was

overwhelming that Koch was not responsible for the delays

experienced by GPP in the construction of the pipeline. The

district court denied Koch's motion and the jury returned a verdict

for GPP on the breach of contract claim.

Koch argues on appeal that there was insufficient evidence to

create a fact question for the jury on the issue of whether GPP's

delays were caused by Koch. After viewing the evidence in the

light most favorable to GPP and drawing all reasonable inferences

in its favor, we must determine whether the facts and inferences

point so strongly in favor of Koch that no reasonable jury could

return a verdict for GPP. S tockstill v. Shell Oil Co., 3 F.3d 868,

870 (5th Cir.1993), cert. denied,

--- U.S. ----, 114 S.Ct. 1307,

127 L.Ed.2d 658 (1994).

Question number 5 on the verdict form asked:

Did Koch Gathering Syst ems, Inc. fail to timely provide to

Great Plains Pipeline Construction, Inc. the right-of-ways on the state highway or private property necessary to construct

the pipeline in question?

The jury answered, "Yes." The evidence strongly supports that

answer. The next question asked:

What sum of money, if any, if paid now in cash, would fairly

and reasonably compensate Great Plains Pipeline Construction,

Inc. for the additional costs it incurred, if any, resulting8

from such failure, if any, on the part of Koch Gathering

Systems, Inc.?

The jury answered, "$228,324 .94." This answer appears to

include compensation for delays which resulted from the shut downs

on both the state and private rights-of-way. Under Texas law,

which controls this diversity case, in order for a contractor to

rec over damages for losses due to delay of its work under a

contract, it must prove that the defendant "was responsible for the

act or omission which caused the delay or hindrance." S hintech

Inc. v. Group Constructors, Inc., 688 S.W.2d 144, 148

(Tex.Civ.App.1985). Koch argues that it was not responsible for

the delay on the st ate right-of-way, and thus for the portion of

the damages attributable to that delay. Koch asks us to hold, as

a matter of law, that the shut down was caused by GPP's violations

of state regulations, such as allowing mud to accumulate on the

highway and opening too much ditch at one time. Koch argues in the

alternative that if Witten shut down the work based on the failure

to have a pre-bid meeting, that failure did not amount to a breach

of Koch's contractual duty to secure rights-of-way. The contract

language in question provides:

[Koch] shall secure necessary permits from proper regulating

bodies for the laying of the line to be constructed

hereunder[.]

Koch does not dispute that it had a contractual duty to secure

the necessary rights-of-way. Koch also acknowledges that there was

a conflict in the evidence as to what m otivated the state's shut

downs, and that the jury could have reasonably believed that the

state shut construction down because there was no pre-bid meeting.9

However, Koch contends that, having received what it refers to as

a right-of-way permit from the state, it fulfilled its contractual

obligation, and failure to participate in a pre-bid meeting was not

a breach of the contract. Koch's theory of the case was that

Witten's pre-bid meeting requirement was not part of the ordinary

permit process but a capricious and unreasonable requirement that

he was not empowered to impose under state regulation.

The record does not conclusively su pport Koch's view of the

evidence. From the limited and conflicting testimony in the

record, a reasonable jury could have concluded that Koch failed to

secure a "necessary permit[ ] from [a] regulating body," and that

that breach resulted in the shut down on the state right-of-way.

We therefore reject Koch's contention that there was insufficient

evidence on this point.

b. Parol evidence.

Koch next complains that t he district court permitted

testimony, ov er Koch's objection, that prior to entering the

written contrac t Koch promised that there would be no special

restrictions on GPP in working on the state right-of-way. Koch

argues that since this alleged prior oral agreement was not made

part of the contract, introduction of it violated the parol

evidence rule. Koch, as the party asserting error, has the burden

of proving that its substantial right was affected by an erroneous

ruling. S mith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th

Cir.1990). The jury specifically found that the GPP's damages were

the result of Koch's failure to provide rights-of-way necessary to10

construct the pipeline. Evidence that Koch promised "no special

restrictions" and then breached that promise, while inadmissible,

did not affect Koch's substantial right, as it was irrelevant to

the issue that the jury was called on to decide.

PROPERTY DAMAGE CLAIM

Two pieces of construction equipment which were owned by GPE

and rented to GPP for use in the pipeline project were destroyed in

a fire on one of Koch's facilities. Koch does not contest

liability for the damages. It also concedes that the value of the

equipment after the fire was $-0-, and the ma rket value of one

item, a small ditcher referred to as a J-40, was $20,000. The

dispute on appeal centers on the market value of the large trencher

("the 247") before the fire.

The evidence established that approximately two months before

the fire, GPE located the 247 in question on the yard of a company

that had gone out of business. The machine was in like-new

condition with only 300 hours on it; it still had factory paint on

the buckets indicative of minimal use. GPE was able to make an

extremely advantageous purchase of the equipment by paying only

$45,000 for it. The Koch job accounted for approximately 300

additional hours on the 247. The advantageous purchase by GPE is

further evidenced by the fact that Koch's expert witness on values

opined that it had a reasonable cash value at the time of the fire

of $85,000.

The president of GPE, Clark Besack, also testified regarding

value of the 247. An owner of property under Texas law may express11

an opinion on the value of the property. However, Mr. Besack was

better positioned to provide credible opinion evidence to the jury

than one who simply was the owner of a piece of equipment. In the

eight years he served as president of GPE, he had purchased over

$6,000,000 worth of such equip ment. Mr. Besack's testimony

referenced two other pieces of equipment, one that he characterized

as "pretty equivalent" was priced at $250,000, and one that was

"comparable" to the 247 was $165,000. He arrived at his opinion of

comparability by balancing the fact that it was a little bit

heavier but had more hours on it. Comparables may be used as a

basis for opinions on fair market value. What one happened to pay

for a replacement piece of equipment may not, since the replacement

may or may not be comparable to the equipment being replaced.

Koch contends first, that the district court erred in

admitting evidence of the replacement cost of the property and

second, that there was no evidence to support the jury's verdict

awarding GPE $180,000 for the total property damage claim.

Whether Koch preserved the point of er ror regarding

admissibility is a close question. A relevancy objection was

overruled to the question inquiring about what Mr. Besack did to

replace the equipment. Mr. Besack then recited what he looked at,

the efforts he made to locate other equipment, what he considered

and how he finally found a piece that he considered to be

comparable. When the question was asked whether he had an opinion

as to the value of the di tcher he lost in the fire, there was no

objection to either question or answer.12

Koch asserts here that Mr. Besack's opinion that the 247 was

worth $165,000 was actually an opinion relating to replacement

value as opposed to cash ma rket value and under the holding in

Bla ckmon v. Mixson, 755 S.W.2d 179 (Tex.App.—Dallas 1988), was

inadmissible and amounts to no evidence. We disagree. B lackmon

holds that while an owner can testify about the market value of his

property, his testimony concerning t he replacement value of his

property is not evidence of market value. Therefore, if

replacement value of the property is the only evidence in the

record, there is no evide n ce of market value. I d. at 182.

Blackmon does not hold that evidence of replacement value is

inadmissible, or that admission of such evidence requires reversal.

Finally, Koch made no motion for judgment as a matter of law

on the property damage question. Where a party has failed to

preserve the issu e of sufficiency of the evidence for appellate

review by moving for judgment as a matter of law (formerly directed

verdict) in the trial court, our inquiry is limited to whether

there was any evidence to support the jury's verdict, irrespective

of its sufficiency. W ellborn v. Sears, Roebuck & Co., 970 F.2d

1420, 1424 (5th Cir.1992). There was ample evidence in the record

on which the jury could base its decision that the value of the

lost equipment was $180,000 by assigning $20,000 for the J-40 and

$160,000 for the 247.

CONCLUSION

For the fore going reasons, we AFFIRM the district court's

judgment in all respects.13