* Pursuant to Local Rule 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-60263

___________________

CALDAS & SONS, INC., ANGELO CALDAS,

Plaintiffs-Appellants,

versus

BEN H WILLINGHAM, JR., CORIM AGRI, INC., CORIM, INC.,

CARL W. STOWE,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

DC-90-CV-40-B

_________________________________________________________________

July 22, 1996

Before GARWOOD, HIGGINBOTHAM and BENAVIDES, Circuit Judges.

PER CURIAM * :

Plaintiffs-Appellants appeal the district court's granting of

Defendants-Appellees' motion for judgment as a matter of law after

a jury trial resulted in a verdict an d award of compensatory and

punitive damages in favor of Plaintiffs-Appellants. The court

concluded that no reasonable juro r could arrive at a verdict

contrary to the finding that the relationship between the parties

was one of an arm's length seller-purchaser and not o f an agentprincipal. In granting the motion, the court held that two pieces1 The background facts and procedural history of this case

are summarized in our decision on the first appeal of the instant

action. Caldas & Sons, Inc. v. Willingham , 17 F.3d 123 (5th Cir.

1994).

2 The court granted summary judgment in favor of DefendantsAppellees o n the claims for RICO violations, breach of fiduciary

duty as purchasing agent, breach of contract, fraud, and conspiracy

to commit fraud.

2 of evidence supporting Plaintiffs-Appellants' claims should have

been excluded. We reverse and remand.

I.

This case arises from the sale of approximately 1,000 acres of

Mississippi Delta farm la nd from Defendant-Appellee Corim, Inc.

("Corim") to the purchaser, Plaintiff-Appellant Caldas & Sons, Inc.

("Caldas & So ns"). Defendant-Appellee Ben H. Willingham is a

principal of the seller, Corim, and Plaintiff-Appellant Angelo

Caldas is a principal of the purchasing company, Caldas & Sons. 1

In January 1990, Plaintiffs-Appellants filed their original

complaint against Defendants-Appellees seeking compensatory and

punitive damages for alleged RICO violations, breach of fiduciary

duties, breach of contract, fraud, intentional misrepresentation,

deceit and trickery, legal malpractice, and c onspiracy. In

September 1990, the case was consolidated with another arising out

of the same set of transactions.

A motion for summar y judgment was filed by DefendantsAppellees, which the district court granted. 2 All remaining claims

against Defendants-Appellees were dismissed by stipulation of the

parties. Plaintiffs-Appellants appealed the summary judgment. On

a ppeal, we reversed and remanded, holding that under the3

cir cumstances of this case, the existence of a duty by Corim to

Caldas & Sons was a question for the trier of fact. W illingham

, 17

F.3d at 129.

On re mand, the case proceed to jury trial. On January 19,

1995, t he jury returned a verdict in favor of PlaintiffsAppellants, awarding $100,000 in compensatory damages, $75,000 in

punitive dama g es against Willingham, and $125,000 in punitive

damages against Corim. The district court entered judgment on the

verdict on January 20, 1995.

On January 30, 1995, Defendants-Appellees filed a motion for

new trial and renewed motion for judgment as a matter of law. On

April 20, 1995, the district court granted Defendants-Appellees'

motion for judgment as a matter of law, holding that PlaintiffsAppellants had not proved the existence of an agency relationship

between Caldas & Sons and Corim. In reaching this conclusion, the

court determined that the contradictory testimony of PlaintiffsAppellants' expert, Dr. Denn is Tosh ("Dr. Tosh"), and a hearsay

June 13, 1984 letter from Rolf Schlegel ("Schlegel") to Angelo

Caldas should have been excluded from t he evidence presented at

trial. The court further stated that even though the motion for

new trial was mooted by the granting of judgment as a matter of

law, "a motion for new trial would have been granted of necessity"

because of Tosh's testimony alone. Plaintiffs-Appellants

subsequently filed their notice of appeal.

II.

We review the district court's granting of a motion for4

judgment as a matter of law de no vo , applying the same legal

standard as the district cour t. O mnitech International, Inc. v.

Clorox Co.

, 11 F.3d 1316, 1322-23 (5th Cir.), cert. denied

,

___U.S.___, 115 S.Ct. 71, 130 L.Ed.2d 26 (1994) (citing Roberts v.

Wal-Mart Stores, Inc.

, 7 F.3d 1256, 1259 (5th Cir. 1993)). "If the

evidence at trial points so strongly and overwhelmingly in the

movant's favor th at reasonable jurors could not reach a contrary

conclusion, this court will conclude that the motion should have

been granted." I d. (internal citations omitted ). If, however,

there is evidence of such quality and weight that reasonable jurors

might reach a different conclusion, then the motion should have

been denied. Robertson v. Bell Helicopter Textron, Inc. , 32 F.3d

948, 951 (5th Cir. 1994), cert. denied

, ___U.S.___, 115 S.Ct. 1110,

130 L.Ed.2d 1075 (1995).

In its order granting the motion for judgment as a matter of

law, the district court concluded that two pieces of evidence were

improperly admitted at trial: Dr. Tosh's testimony and the 1984

letter from Schlegel to Angelo Caldas. In the first appeal of

summary judgment in this case, this Cou rt held that PlaintiffsAppellants submitted evidence that created a genuine issue of

material fact of an agency relationship between Corim and Caldas &

Sons sufficient to present to a jury. W illingham

, 17 F.3d at 129.

The Court's conclusion was based, in part, on the 1984 letter from

Schlegel to Angelo Caldas. Id. at 128. Defendants-Appellees argue,

as the district court held, that the 1984 letter is hearsay because

it was offered for the truth of t he matter asserted. We find,3 Indeed, we reversed the district court's summary judgment

in the first appeal in this case finding that the evidence,

including the 1984 letter from Schlegel to Angelo Caldas, created

genuine issues of material fact that an agency relationship existed

between Corim and Caldas & Sons. Willingham , 17 F.3d at 129.

5 however, that the 1984 letter from Schlegel to Angelo Caldas was

offered to show only that the statements contained in the letter

w ere made to Caldas & Sons. A reasonable juror could disbelieve

every statement in the 1984 letter and still conclude that Schlegel

was attempting to create an agency relationship. Additionally, the

1984 letter from Schlegel to Angelo Caldas is not hearsay, and the

district court erred in ruling post- verdict that it should have

been excluded. When the 1984 letter is considered along with the

testimo nial evidence at trial regarding Schlegel's actions and

communications with Caldas & Sons as an agent of Corim, PlaintiffsAppellants' e vidence supports the jury's verdict. 3 Thus, we

conclude that the district court erred in granting Defendan tsAppellees' motion for judgment as a matter of law.

The district court's order granting judgment as a matter of

law also addressed Defendants-Appellees' motion for new trial. The

court's order states:

Even though defendants' motion for new trial is mooted by

the granting of the motion for judgment as a matter of

law, it is apparent that independent of the granting of

the motion for judgment as a matter of law in favor of

the defendants, a motion for new trial would have been

granted of necessity because of the contradictory

testimony of Dr. Tosh alone.

Defendants-Appellees argue that the district court alternatively

granted them a new trial, Plaintiffs-Appellants waived any argument

to reverse the new trial, and the court did not abuse its4 The district court held that Dr. Tosh's testimony was an

unfair surprise because it contradicted his deposition testimony.

We note that although the district court would be justified in

excluding Dr. Tosh's testimony at trial, its admission is not

automatically grounds for a new trial. A new trial may be granted

when an expert's testimony results in prejudicial surprise

"inconsistent with substantial justice." Genmoora Corp. v. Moore

Business Forms, Inc. , 939 F.2d 1149, 1156 (5th Cir. 1991) (citing

Conway v. Chemical Leaman Tank Lines, Inc.

, 687 F.2d 108, 111-12

(5th Cir. 1982)). See also F ED

. R. C IV

. P. 61. We have limited

reversible error for unfair surpr ise "to situations where a

complete ly new issue is suddenly raised or a previously

unidentified expert witness is suddenly called to testify." Conway

v. Chemical Leaman Tank Lines, Inc. , 687 F.2d 108, 112 (5th Cir.

1982).

6 discretion in ordering a new trial. Review of the district court's

order reveals that the language used in addressing the motion for

new trial is not mandatory, and that the court affirmatively states

that the motion for new trial is mooted by the granting of

Defendants-Appellees' motion for judgment as a matter of law.

Having itself declared that the motion for new trial was mooted, it

is not clear whether the district court impliedly denied or

conditionally granted the motion for new trial. In any event, any

consideration of the motion for new trial was burdened by the

erroneous view that Defendants-Appellees were entitled to judgment

as a matter of law, and that the 1984 letter from Schlegel to

Angelo Caldas should have been excluded. Accordingly, we reverse

and remand to the district court. 4

III.

For the reasons articulated above, we REVERSE the district

court's judgment granting Defendants-Appellees' motion for judgment

as a matte r of law and REMAND to the district court's for

consideration of Defendants-Appellees' motion for new trial in7

light of our decision in this appeal.