* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________ 95-60384

_________________

LARRY SMITH,

plaintiff-appellant

v.

FLAGSTAR ENTERPRISES, INC.,

D/B/A/ HARDEE’S,

defendant-appellee

_______________________________________

Appeal from the United States District Court

for Northern Mississippi, Eastern Division

________________________________________

April 18, 1996

Before Judges WIENER, PARKER, and DENNIS, Circuit Judges.

PER CURIAM *

This diversity action involves Larry Smiths claims of negligence and gross negligence against

Hardee’s restaurant in Columbus, Mississippi, for burns he suffered when a large cup of hot coffee

was spilled in his lap by the cashier at the drive-through window. A jury awarded Smith $25,000 in

compensatory damages and $1.00 in punitive damages. We affirm.

On appeal, Smith claims the district court abused its discretion by not awarding him attorney’s

fees based on the jury award of punitive damages, that the court erred by allowing Hardee’s to crossexamine him about non-payment of income tax based on information contained in a log book Smith

used to justify his claim for damages, that the district court erred by not allowing prior incident

reports of coffee spills at Hardee’s into evidence, and that both damages awards were inadequate.

In addition there was a question of whether Smith’s appeal was t imely filed and thus, whether this

Court has jurisdiction to hear this appeal.The record reflects that Smith t imely filed a Moti on for New Trial pursuant to Fed. R. Civ P.

59. Then, pursuant to FRAP 4(a)(4)(E), the record shows that Smith’s appeal was properly filed by

the thirtieth day after the date of filing of the district court’s final order denying Smith’s motion for

a new trial. Therefore, jurisdiction is proper.

Further review of the record shows the district court properly exercised its discretion to deny

attorney’s fees. In view of the minimum amount of punitive damages awarded to Smith by the jury,

we find the district court’s denial of attorney’s fees is not an abuse of its discretion. Also we find no

error in the district c o urt ’s decisio n not to admit into evidence other incidents of coffee spills at

Hardee’s restaurants as none of the spills occurred at the Columbia location. Finally, t h e

standard for this Court’s review of a jury verdict is whether the record contains any competent and

substantial evidence fairly tending to support the verdict. S tewart v. Thigpen

, 730 F.2d 1002, 1007

(5th Cir.1984). The record in this case does not offer evidence that compels a different verdict. The

jury was presented with ample t est imo ny as to the nature and extent of Smith’s injuries and the

expenses incurred by Smith to hire replacement workers during his convalescence. Furthermore, the

jury reached its determination of punitive damages only after receiving detailed jury instructions

specifically describing the criteria necessary for the jury to award Smith punitive damages. In both

the awards of compensatory damages and punitive damages, we find there to be competent and

substantial evidence to support the verdict. Accordingly, we affi rm the deci si on of the district court.