*Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-41039

_____________________

JAMES WAYNE,

Plaintiff-Appellant,

v.

BODDEN INTERESTS INC, ET AL,

Defendants,

BODDEN INTERESTS INC; JODY P MCCORMICK,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(C-95-CV-38)

_________________________________________________________________

November 21, 1997

ON PETITION FOR REHEARING

Before KING, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant James Wayne’s counsel petitioned this

panel for a rehearing of this case because, in their words, we

“have simply missed the point of this appeal.” In an abusive

petition, counsel upbraids this panel for focusing on the

sufficiency of the evidence in deciding this case. The

petitioner argues that we passed over questions of law that would
 

2 Counsel cites in their petition nine cases, five of which

they did not cite in their briefs on appeal despite all of them

being available during the briefing period.

2

have affected the outcome of the case. Counsel now asks this

panel not to take their brief at face value and to focus on the

other legal arguments buried within their sufficiency of the

evidence arguments.2 The panel considered and rejected those

legal arguments.

We draw counsel’s attention to the following passages in his

brief:

[T]he trial court erred . . . because there [was] no

evidence or insufficient evidence to support the jury’s

finding . . . and that there was no evidence or

insufficient evidence to support the findings . . . .

. . . [T]here was no evidence to support the

jury’s finding . . . .

Appellant’s Brief at 9 (summary of the argument) (emphasis

added).

Plaintiff submits that a proper examination of the

evidence . . . reveals the jury’s finding in this

regard is not only unsupported by any evidence, but in

fact, the overwhelming evidence requires a finding to

the contrary.

Id. at 13 (emphasis added).

This status of the record establishes that there was no

evidence to support either the submission of Question

No. 2 to the jury, or the answer to it by the jury.

Id. at 14 (emphasis added).

[D]efendants completely failed to provide evidentiary

support of the nature that would factually support the

jury’s answer to Special Question 2.

Id. at 15 (emphasis added). 

[I]t is clear that the verdict is contrary to reason

and the weight of the credible evidence . . . .

Id. at 16 (emphasis added).
3

[T]here simply is no legally credible evidence to

support this finding in the evidence.

Id. at 17 (emphasis added).

Not only did Defendant not produce any evidence . . .,

but the undisputed evidence is to the contrary. 

Id. at 18 (emphasis added).

[T]here is absolutely no evidence that the FDIC, as

lessor, set out to intentionally conceal the identity

of the owner . . . . [T]here is no evidence . . . that

would lead any reasonable person to conclude that the

FDIC committed fraud . . . . The jury’s findings in

this regard are based upon speculation, hunch, or mere

suspicion which certainly does not rise to the level of

competent evidence . . . .

Id. at 19-20 (emphasis added).

[T]he Defendants failed to present any evidence of

authority . . . .

Id. at 22 (emphasis added).

The Defendants’ “evidence” did not present a material

fact issue . . . .

Id. at 23 (emphasis added).

There is no evidence that the Defendant made

specific requests for repairs, and there is no evidence

that any specific repairs requested, if any[,] were not

made . . . . There is no evidence that the FDIC . . .

was aware of or had knowledge of any falsity . . . ,

nor is there any evidence that Mr. Murphy intended to

mislead . . . .

Id. at 24 (emphasis added).

There is no evidence that Plaintiff obstructed or

physically prevented Defendants’ representatives . . .

.

. . . [T]here is no evidence that the Plaintiff

would have refused a request by the Defendants to reenter . . . .

A reasonable and fair-minded jury simply could not

come to a conclusion, based upon the trial evidence,

that Plaintiff interfered with or prevented the

Defendants . . . . The jury’s finding . . . should
4

have been disregarded by the trial court because there

was no credible evidence . . . .

Id. at 27-28 (emphasis added).

The answer of the jury . . . is not only unsupported by

the evidence, but is clearly contrary to the great

weight of all of the evidence.

Id. at 29 (emphasis added).

There was no evidence to support this finding by the

jury . . . . [T]he zero damages finding by the jury

was clearly erroneous and not supported by the facts

and evidence.

Id. at 29-30 (emphasis added).

[T]here was a complete absence of evidence to support

the jury’s findings.

Id. at 30 (emphasis added).

[T]here was no credible evidence presented by

Defendants to refute this evidence.

Id. at 32 (emphasis added).

[T]he trial court should have granted Plaintiff’s

Motion for New Trial because of a complete lack of

evidence to support the jury’s conclusion . . . .

Id. at 33 (emphasis added).

Counsel for the petitioner is advised that, in the future,

before they embark upon a wholly unprofessional tirade against a

court based upon the disposition of their client’s claims, they

would do well to reread their briefs with a view to identifying

the grounds upon which they asked the court to focus.

IT IS ORDERED that the petition for rehearing filed in the

above case is DENIED.