United States Court of Appeals,

Fifth Circuit.

No. 91–7010

Summary Calendar.

Marie BLACK, Individually and as representative of Randy A. Black, Pam Black Gum, Kitty

Black, adults, and William A. Black and Tammy Black, minors, the sole and only heirs at law of

Romie Black, Plaintiffs–Appellants,

v.

J.I. CASE COMPANY, INC., Defendant Appellee.

Oct. 1, 1992.

Appeal from the United States District Court for the Northern District of Mississippi.

Before JONES, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:

In this Mississippi diversity case arising from the accidental death of Romie Black (Decedent),

his successors, Plaintiffs–Appellants herein (collectively, the Blacks), appeal the adverse jury verdict

absolving Defendant–Appellee J.I. Case Company, Inc. (Case) of liability. Finding that the district

court committed no reversible error, we affirm.

I

FACTS

Decedent, an experienced backhoe operator, ordered a new backhoe from one of Case's retail

stores. As an accommodation, Case's store operator allowed Decedent to borrow an older model

Case backhoe pending delivery of the new one. A few days later while Decedent was using the

borrowed machine to clear small trees and debris on sloping land, the backhoe rolled over. Decedent,

who was not wearing a safety belt, struck his head on one of the support posts of the backhoe's

"Ro llover Protection System" (ROPS). He died shortly thereafter from injuries sustained in t he

accident.1 See 28 U.S.C. §§ 1332, 1441 (1988).

2 411 F.2d 365 (5th Cir.1969).

3 LeBoeuf v. K–Mart Corp., 888 F.2d 330, 332 (5th Cir.1989) (quoting Boeing Co., 411 F.2d

at 374).

4 See Young v. City of New Orleans, 751 F.2d 794, 797 (5th Cir.1985). The Blacks sued Case in Mis sissippi state court for Decedent's wrongful death, and Case

timely removed the action to federal court. 1 The jury exonerated Case from liability in the death of

Decedent, and a final judgment was entered to that effect. The Blacks have appealed to us from that

judgment.

II

STANDARD OF REVIEW

In reviewing a jury's findings of fact, we appl y the standard set out i

n B oeing Co. v.

Shipman 2 : "[A] jury verdict will not be overturned unless the "facts and inferences point so strongly

and overwhelmingly in favor of one party that the court believes that reasonable [jurors] could not

arrive at a contrary verdict.' " 3 In reviewing the evidentiary rulings of the judge who presides at a jury

trial we apply the abuse of discretion standard, with considerable deference. 4

III

ANALYSIS

On appeal the Blacks quarrel extensively with the factual findings of the jury, but also proffer

six claims of legal error by the district court. The Blacks assert that the district court erred by:

A. Refusing to grant partial summary judgment on liabilit y in favor of the Blacks after they

showed that, as a matter of law, Case had (1) breached t h e implied warranty of

merchantability, (2) failed to warn Decedent of the dangers inherent in the backhoe,

and (3) failed to inspect the backhoe;

B. Refusing to grant a directed verdict;

C. Allowing Case to amend the pre-trial order to allege that the accident was caused by the5 Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir.1990); Locricchio v. Legal Servs. Corp.,

833 F.2d 1352, 1358–59 (9th Cir.1987); Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573

(Fed.Cir.1986), cert. dismissed, 479 U.S. 1072, 107 S.Ct. 1262, 94 L.Ed.2d 124 (1987); see also

Holley v. Northrop Worldw ide Aircraft Servs., 835 F.2d 1375, 1377–78 (11th Cir.1988)

(restricting appeals of denied summary judgment motions if sufficient evidence was adduced for

the case to go to the jury or if the evidence had been supplemented or changed in some manner

favorable to the party who had opposed the motion for summary judgment); cf. Walther v. Lone

Star Gas Co., 952 F.2d 119, 122–23 (5th Cir.1992) (holding that, in the context of the Age

Discrimination in Employment Act, after a trial on the merits, "a reviewing appellate court need

not address the sufficiency of plaintiffs prima facie case, and may proceed directly to the ultimate

question of whether plaintiff has produced sufficient evidence for a jury [finding]").

sole negligence of Decedent;

D. Refusing to allow testimony regarding the position of the backhoe's boom at the time of

the accident;

E. Instructing the jury regarding Decedent's misuse of the backhoe; and

F. Refusing to allow the jury to consider awarding punitive damages.

We now address, seriatim, the Blacks' foregoing assignments of error.

A. Denial of Partial Summary Judgment

The Blacks insist that there were no genuine issues of material fact regarding liabilit y so that

the district court's denial of their motion for partial summary judgment was error. But, as denial of

a motion for summary judgment is interlocutory, no appeal lay at the time the motion was denied.

Consequently, the Blacks now seek review of the denial of their motion, which was unappe a lable

when the order was issued.

The Blacks cite no authority for their proposition that an interlocutor y order denying

summary judgment, unappealable at the time it was issued and filed, nevertheless becomes appealable

following rendition of a

final judgment on the merits adverse to the movant. Neither does our

independent research reveal controlling authority in this circuit on that point. Therefore, we adopt

the rule of the Sixth, Ninth, and Federal Circuits that a denial of a motion for summary judgment,

interlocutory and therefore unappealable at the time rendered, is not subject to review on appeal of

the final judgment entered following completion of the trial. 5 Like t hose circuits, we hold that6 Epperly, 896 F.2d at 1016. Like the Sixth Circuit, we find cases which state that

"interlocutory orders merge into the final judgment and may be presented on appeal of that final

judgment, but we find no case which deals specifically with the appealability of a denial of

summary judgment after a full trial on the merits." Id. at 1016 n. 1. Therefore, we follow these

circuits and reject this appeal.

7 Dickinson v. Auto Center Mfg. Co., 733 F.2d 1092, 1102 (5th Cir.1983).

8 Fed.R.Civ.P. 50(a).

9 See, e.g., Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978). In the absence

of a motion for a directed verdict, we only inquire whether there was any evidence to support the

jury's verdict, regardless of the sufficiency. Id. at 297.

10 See Dickinson, 733 F.2d at 1102. "[w]here summary judgment is denied and the movant subsequently lo ses aft er a full trial on the

merits, the denial of summary judgment may not be appealed." 6

B. Denial of Directed Verdict

The Blacks a lso ask us to reverse the district court's denial of their motion for a directed

verdict, but this is just a request for us to review the sufficiency of the evidence. The district court

should grant a motion for a directed verdict if, and only if, "there is a lack of substantial evidence to

support a jury verdict." 7 Or, in the words of the newly revised Federal Rules of Civil Procedure, a

motion for judgment as a matter of law sh o uld be granted when "there is no legally sufficient

evidentiary basis for a reasonable jury to have found for [the nonmoving] party." 8 On appeal, we will

review the sufficiency of the evidence, but only if the appellant has raised the sufficiency issue in the

district court by moving for a directed verdict. 9 When we say that we are reviewing a motion for a

directed verdict, then, we are actually just reviewing the sufficiency of the evidence. 10 In other words,

reviewing a deni al o f a mo t ion for a directed verdict made at the end of trial and reviewing the

sufficiency of the evidence are one and the same thing.

In the instant case, the evidence is sufficient to support the jury verdict. In grounding their

merits challenge to the sufficiency of the evidence in the contention that three key facts—the

seat-locking mechanism on the borrowed backhoe was broken either before or during the rollover;11 Miss.Code Ann. § 75–2–314(2)(c) (1972).

any operator of that backhoe would have struck his or her head on one of the posts of the ROPS in

the event of a rollover; and the seat-locking mechanism was repaired after the accident in which

D ecedent was fatally injured—were "undisputed," the Blacks argue that such "undisputed facts "

entitled them to a directed verdict at the close of the evidence. They insist that, as a matter of law,

those facts c o nclusively demonstrate a breach of the implied warranty of merchantability. We

disagree, finding that such assertions by the Blacks miss the mark in several respects.

First, even if we assume for the sake of argument that those facts are "undisputed," they still

do not enti

t le t he Blacks to a directed verdict under Mississippi law. Section 75–2–314 of the

Mississippi Code defines merchantable goods as those "fit for the ordinary purposes for which such

goods are used." 11 In arguing that the subject facts demonstrate, as a matter of law, that the

borrowed backhoe was unfit and thus unmerchantable, the Blacks completely misapprehend the

relationship between these facts and the Mississippi law of merchantability. The "facts" that the seat

was broken and t hat the operator would strike his or her head simply do not demonstrate a per se

breach of the implied warranty of merchantability. At best they are evidence to be considered and

weighed, along with all other admissible evidence, as proof of such a breach.

Mo re impo rtant to our analysis here, however, is the realization that these facts were no t

undisputed but were very much in dispute at the time of the Blacks' motion for directed verdict, just

as they had been at the time of the Blacks' motion for partial summary judgment. The Blacks simply

mischaracterize the facts as "undisputed." Thus, even if we were to review separately the trial court's

denial of the Blacks' motion for a directed verdict, we would find no error in that denial which

allowed the question of liability to go to the jury on such disputed facts.

C. Amendment to the Pretrial Order

The Blacks insist that the district court erred in allowing Case to amend the pretrial order on12 Wallin v. Fuller, 476 F.2d 1204, 1209 (5th Cir.1973).

13 Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 609 (5th Cir.1989).

14 Sherman v. United States, 462 F.2d 577 (5th Cir.1972) (citing Central Distrib., Inc. v.

M.E.T., Inc., 403 F.2d 943, 946 (5th Cir.1968)). the first day of the trial. The pretrial order listed, as one of the contested issues of fact, "whether a

proximate, contributing cause of the accident was the negligence of the decedent in the operati on of

the backhoe in any of the particulars claimed by the defendant." The court allowed Case to amend

on the first day of trial to allege that Decedent's own negligence was the sole and proximate cause

of his death. The Blacks assert that t his change in the pretrial order made the action "a different

lawsuit at trial than was anticipated by [the Blacks]."

The decision "whether to permit amendment of the pretrial order in the course of the trial is

generally a matter within the discretion of the trial judge, and the appellate court will intervene only

if the trial judge acted arbitrarily." 12 Generally, pretrial orders should be modified "only to prevent

manifest injustice." 13 We have stated, however, that "in the interest of justice and sound judicial

administration, an amendment of a pretrial order should be permitted where no substantial injury will

be occasioned to the opposing party, the refusal to allow the amendment might result in injustice to

the movant, and the inconvenience to the court is slight." 14

Applying this reasoning to the instant case, we are satisfied that the district court did not err

in allowing the pretrial order to be amended—i.e., the district court did not abuse its discretion. We

do not agree with the Blacks' assertion that the amendment dramatically changed the character of the

lawsuit. The Blacks obviously anticipated the need to counter Case's assertions of Decedent 's

comparative negligence, and they must have been aware that Case's theory of the lawsuit, which was

later accepted by the jury, was that the accident was entirely the Decedent's fault. We do not find that

allowing the amendment to the pretrial order caused "substantial injury" to the Blacks' presentation

of their case to the jury, and we therefore reject the assertion of reversible error by the district court15 Young v. City of New Orleans, 751 F.2d at 797 (citing Bennett v. City of Slidell, 697 F.2d

657, 662 (5th Cir.1983)); see How ard v. City of Greenw ood, 783 F.2d 1311, 1313 n. 2 (5th

Cir.1986). in allowing the amendment.

D. Refusal to Admit Testimony on Boom Shift

The Blacks next assert as error the trial court's refusal to admit testimony to the effect that

the backhoe's boom shifted, thereby creating instability and causing it to roll over. In their brief to

this court, the Blacks failed to address our standard of review of a trial court's ruling on admissibilit y

of such evidence. This court will no t "dist urb a district court's ruling, disallowing the witness's

testimony, absent a showing of clear abuse of the broad discretion vested in the district court on this

issue." 15 The Blacks make no effort to inform us how the district court's refusal to admit the

questioned testimony constituted an abuse of discretion. Instead, they merely complain in the abstract

about the potential effect that the subject testimony could have had on the outcom e of the case if that

testimony had been heard by the jury. Without substantial support, such a complaint is pure

conjecture and therefore insufficient to overcome the broad discretion allowed the district court in

such evidentiary rulings. The court's refusal to admit testimony about a shift in the backhoe's boom

was not an abuse of discretion.

E. Jury Instructions Regarding Misuse of the Backhoe

The Blacks complain stridently about the district court's ins t ruction to the jury regarding

Decedent's alleged misuse of the backhoe. As we understand their counsel's brief, this complaint is

not the usual objection to the wording of an instruction. Rather, the Blacks quarrel with the court's

giving the jury any instruction whatsoever concerning even the slightest possibility tha t Decedent

might have operated the backhoe negligently. Candidly, we are at a loss to understand counsel's

objection and can only conclude that he is confused about how the trial process works. Certainly the

trial court instructed the jury regarding Case's allegations and evidence that the Decedent misused the

backhoe; that was, after all, the gravamen of the defense's theory of how and why the accident16 Fed.R.Civ.P. 51.

occurred. Case's pre-trial order lists Decedent's misuse of the backhoe as one of the assertions Case

intended to prove.

More to the point, however, is our inability to find anywhere in the record of this case that

the Blacks preserved this claim of error. Neither does the Blacks' reply brief point out the location

in the record of any such objection, even though the very existence of such an objection was expressly

questioned in Case's brief to this court. The Blacks must know that we will not consider on appeal

any allegation of error regarding a jury instruction unless the aggrieved party has properly preserved

its right to complain by making a timely objection to such instruction in the trial court. 16

F. Punitive Damages

Finally, the Blacks assert t hat the district court erred in refusing to instruct the jury as to

recovery of punitive damages. In light of our rejection of all other assignments of error by the Blacks,

and our affirmation of the jury's verdict and the final judgment rendered in accordance therewith, the

issue of punitive damages is moot.

IV

CONCLUSION

As the Blacks failed to prevail before the jury on the merits of their case, we are not

constrained to review the trial court's interlocutory denial of the Blacks' motion for partial summary

judgment. In adopting this position, we join the three circuits above identified. In like manner, we

do not review the district court's denial of the Blacks' motion for directed verdict separately and apart

from our review, on the merits, of the sufficiency of the evidence to support the jury's verdict. And,

for the reasons set forth above, we find no merit in any of the remaining points raised by the Blacks

and complained of by them as reversible errors of law on the part of the trial court. Finally, finding

no reversible error in the jury's determinations of fact, and concluding that the facts thus found by thejury are supported by the evidence, we affirm the jury's verdict and the district court's final judgment

based thereon.

AFFIRMED.