IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

LINDA C. PEACOCK, ) 

 Plaintiff, ) 

v. ) CIVIL ACTION NO. 05-00377-KD-C 

BURNEY H. MERRILL, et al., ) 

 Defendants. ) 

ORDER

This matter is before the Court on the Plaintiff’s motion for new trial filed 

pursuant to Rule 59 of the Federal Rules of Civil Procedure (doc. 709). After considering 

the motion and Defendants’ response thereto (doc. 712) in light of the evidence and 

arguments presented at trial, the Court finds that Plaintiff is not entitled to relief. 

Background

 This case proceeded to jury trial in March 2010 after a lengthy pretrial period. 

The central dispute at trial was whether the Plaintiff, Linda Peacock, or the Defendants, 

Burney H. Merrill, J. Collier Merrill and Willis C. Merrill (“the Merrills”) were the 

lawful owners of a 15% interest in a group of closely-held companies collectively known 

as “Floragon.” Peacock sought a declaratory judgment on that issue and also asserted 

various legal causes of action against the Merrills for interference with her alleged 

ownership rights. At trial, Peacock sought to prove that that she purchased the 15% 

ownership interest in Floragon from her former husband, Marion Uter, in 2002. In 

defense against Peacock’s claim, the Merrills presented evidence that the disputed 15% 

interest was not Uter’s to sell because Uter never actually fulfilled his contract to 

Case 1:05-cv-00377-KD-C Document 716 Filed 05/19/10 Page 1 of 8
2 

purchase that interest from them. Ultimately, the jury was asked to decide (by way of 

special interrogatories) whether Peacock had proved these essential facts: (1) that Uter 

owned a 15% interest in the Floragon companies at the time he allegedly transferred them 

to Peacock and (2) if so, whether Peacock actually acquired Uter’s interest. Because the 

jury answered the first question in the negative, it did not reach the second. The Court 

concurred with the jury’s verdict and entered a judgment in favor of the Merrills on all 

claims, including the declaratory judgment. Peacock filed a timely motion for new trial 

pursuant to Fed. R. Civ. P. 59. 

Standard of Review

 A motion for new trial should be granted under Rule 59(e) if “the verdict is 

against the clear weight of the evidence or will result in a miscarriage of justice.” 

Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001). 

“The only grounds for granting a motion for new trial are newly-discovered evidence or 

manifest errors of law or fact.” In re Kelloggi, 197 F.3d 1116, 1119 (11th Cir. 1999) 

(applying bankruptcy rule identical to Fed. R. Civ. P 59(e)). A judge may not substitute 

her judgment for that of the jury; therefore, “’new trials should not be granted on 

evidentiary grounds unless, at a minimum, the verdict is against the great-not merely the 

greater-weight of the evidence.’” Id. (quoting Hewitt v. B.F. Goodrich Co., 732 F.2d 

1554, 1556 (11th Cir. 1984)). Furthermore, a motion for new trial is not a forum to 

relitigate old matters or to present arguments or evidence that could have been presented 

at trial. Michael Linet, Inc v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 

Case 1:05-cv-00377-KD-C Document 716 Filed 05/19/10 Page 2 of 8
3 

2005). With these principles in mind, the Court turns to the grounds raised by the 

Peacock in support of her motion for new trial. 1

Issues Raised

 Peacock raises questions of evidentiary sufficiency and legal error in support of 

her motion for a new trial. She argues that the verdict was against the great weight of the 

evidence because any of the following evidence, standing alone, conclusively establishes 

Uter’s 15% ownership interest: (1) a merger clause contained one of several written 

contracts known as the pooling agreements; (2) the Merrills’ verified tax declarations 

(because they contradicted the Merrills’ trial testimony); and (3) various evidence that 

showed Uter had legal or equitable title, or both, to 15% of Floragon stock. Peacock also 

argues that the following legal rulings were erroneous and entitle her to a new trial: (1) 

the Court’s denial of her Batson challenge at jury selection and (2) the Court’s refusal to 

admit evidence under the business records exception to the hearsay rule. Each of these 

issues is addressed below. 

Legal Analysis

The Merger Clause & the Pooling Agreements

 At trial, the parties introduced into evidence a series of written documents, 

collectively known as “the pooling agreements.” One of those contained the following 

merger clause: 

This Agreement, and the Stock Purchase Agreement referenced herein, 

constitutes the sole and entire agreement and understanding between the 

                                                       

1 Peacock did not obtain a trial transcript to support her motion for new trial, a tactic that seems to 

have facilitated some rather tenuous claims.  Having no need to cite to the record, Peacock relies on a 

recitation of the evidence quite favorable to her and on objections she failed to raise at trial.  To 

support their opposition to Peacock’s Batson claim, the Merrills have submitted a transcript of jury 

selection.  The Court must rely on its trial notes and memory to address the remainder of the issues 

presented. 

Case 1:05-cv-00377-KD-C Document 716 Filed 05/19/10 Page 3 of 8
4 

parties hereto as to the subject matter hereof and supersedes all prior 

discussion, agreements and understandings of every kind and nature 

between them as to such subject matter. 

(Doc. 709-1¶ 15.) Peacock argues that this merger clause, in conjunction with other 

evidence, entitles her to a new trial. 

“[A] merger clause is a highly persuasive statement that the parties intended the 

agreement to be totally integrated and generally works to prevent a party from 

introducing parol evidence to vary or contradict the written terms.” Jenkins v. Eckerd 

Corp., 913 So. 2d 43, 52 (Fla. Dist. App. 2005). However, the parol evidence Peacock 

now seeks to exclude--evidence regarding a 1999 oral agreement between the Merrills 

and Marion Uter (“the Uter/Merrill agreement”)—is unrelated to the subject of the 

pooling agreement.2

 Since the Uter/Merrill agreement does not vary the terms of the 

pooling agreement, evidence of the earlier agreement was properly admitted and 

considered. The evidence also cannot be excluded from consideration for a more 

fundamental reason—Peacock failed to raise on objection at trial based on the 

merger clause.  See Michael Linet, 408 F.3d at 763 (movant cannot rely on arguments 

that could have been presented at trial). 

Even if Peacock could negate evidence of the Uter/Merrill agreement, that would 

not establish Uter’s ownership—certainly not by the great weight of the evidence. 

Therefore, Peacock goes a step further, citing the pooling agreements as evidence to 

establish that Uter was a 15% owner. Her argument is as follows: (1) Uter signed the 

pooling agreements as an owner; (2) The remaining owners, who also signed the pooling 

agreement, collectively owned 85%; (3) Therefore, Uter must own 15%. If determining 

                                                       

2 According to trial testimony, the pooling agreements were intended to reallocate certain stock and 

ownership interests in the Floragon companies in exchange for an infusion of capital by the Merrills, but 

the reallocation did not include the stock involved in the Uter/Merrill agreement

Case 1:05-cv-00377-KD-C Document 716 Filed 05/19/10 Page 4 of 8
5 

ownership were that simple, a large portion of the trial would have been unnecessary. 

Suffice it to say, Peacock’s argument is unpersuasive. 

The IRS Forms

Similar to the previous claim, this weight-of-evidence argument requires complete 

disregard of substantial portions of the Merrills’ testimony. The Merrills testified that 

Uter was never an owner, that he had only a contract to purchase a 15% interest in 

Floragon and that he was treated as an owner as long as he was under contract to 

purchase. When it became clear that Uter could not fulfill his financial obligation under 

the contract, he no longer had ownership status. Peacock insists that the Merrills’ 

testimony denying Uter’s ownership interest cannot be considered because it is 

contradicted by verified IRS forms, signed by the Merrills under penalty of perjury. 

Peacock’s claim is based on a faulty premise, i.e., that statements made under penalty of 

perjury somehow override a witness’s trial testimony. The Merrills’ testimony could 

have been, and was, challenged by their previous verified statements. However, 

apparently the jury believed the Merrills’ testimony at trial. 

Legal Title/Equitable Title

Peacock asserts that the great weight of evidence establishes that she had either 

legal title or equitable title to 15% of the Floragon companies. This claim is meritless. 

Peacock’s separation of “legal title” and “equitable title”, and the evidence related to 

each, is a distinction without a difference.3

 At trial, the ownership issue was broadly 

framed. The jury was asked to decide whether Marion Uter had a 15% ownership interest 

                                                       

3 On summary judgment, the Court rejected the Merrills’ argument that the Peacock could not 

recover because she never acquired legal title, i.e., stock certificates, holding “that lack of a stock 

certificate does not defeat a party’s claim of ownership in a corporation.”  (Sum. Jdgt. Ord., Doc. 595, 

at 19.)    

Case 1:05-cv-00377-KD-C Document 716 Filed 05/19/10 Page 5 of 8
6 

in Floragon in March 2002 (the date he allegedly sold it to Peacock), and it found that he 

did not. Thus, Peacock’s evidence of Uter’s ownership—whether legal ownership or 

equitable ownership—was rejected by the jury.4

 No matter how Peacock categorizes the 

evidence favorable to her, it is not of sufficient weight to override the jury’s verdict. 

The Batson Ruling

Peacock contends that she is entitled to a new trial because the Court erred in 

denying her Batson challenge. At jury selection, Peacock’s counsel raised a Batson

objection5 to the Merrills’ use of their peremptory challenges. The basis for the objection 

was that “all the strikes by the defendant were African American jurors.” (Jury Selection 

Tr., Doc. 713-1, 7-8.) When given further opportunity to make a prima facie case, 

counsel added: “[W]e don’t see that any of the 3 jurors struck answered any questions 

during the voir dire examination that would give cause for striking them or answered any 

questions. And they all are African American.” Id. The Court found that Peacock had 

failed to make a prima facie showing that the Merrills had exercised their peremptory 

strikes in a racially discriminatory manner and denied the objection. In her motion for 

new trial, Peacock renews her argument that the Merrills’ use of all three of their strikes 

on African-American jurors creates a prima facie case of discrimination. 

Peacock’s argument has no more validity now than it did at trial. The Eleventh 

Circuit has held: 

While it is true that striking a black venireperson for racial reasons 

violates the Constitution, it is not true that all peremptory strikes of black 

                                                       

4 As discussed above, supra at  5, the Merrills presented evidence that Uter never completed his 

agreed‐upon purchase of the 15% interest in Floragon. 

5 In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court  held that a prosecutor’s race‐based 

exercise of peremptory challenges is unconstitutional.  The Court subsequently extended Batson to 

civil cases, holding that the race‐based exclusion of civil jurors “violates a prospective juror’s equal 

protection rights.”  Edmondson v. Leesville Concrete Co., Inc.,  500 U.S. 614, 628‐29 (1991).  

Case 1:05-cv-00377-KD-C Document 716 Filed 05/19/10 Page 6 of 8
7 

venirepersons are for racial reasons. In making out a prima facie case, “the 

defendant must point to more than the bare fact of the removal of certain 

venirepersons and the absence of an obvious valid reason for the 

removal.” 

United States v. Allison, 908 F.2d 1531, 1537-38 (11th Cir. 1990) (quoting United States 

v. Young-Bey, 893 F.2d 178, 179 (8th Cir.1990)). While Peacock argues, correctly, that 

the Court must consider the totality of the circumstances in deciding whether there is a 

prima facie case of discrimination under Batson, she points to nothing other than the 

“bare fact” that the defendants used their three strikes to remove African-American 

jurors. For statistical evidence to support an inference of discrimination, it must be 

considered in context of all other relevant information including the racial composition of 

the venire, the racial composition of the jury and the like. United States v. OchoaVasquez, 428 F.3d 1015, 1044-45 (11th Cir. 2005). It is true that a party’s use of all of its 

peremptory challenges against members of a racial or ethnic group is one factor to be 

considered. Id. But that factor stands alone here, and its significance is greatly 

diminished in this case by the negligible number involved. Absent some additional 

evidence, three strikes do not amount to a prima facie case of discrimination. 

Hearsay Evidence & The Business Records Exception

 Peacock asserts that the court erred in ruling that notes taken at a business 

meeting were not admissible under Fed. R. Evid. 803(6), the business records exception 

to the hearsay rule. The notes were personal notes taken by Howard Page, a Floragon 

stockholder and officer, at a company meeting. Peacock failed to lay the foundation for 

admissibility, which would have required testimony from Floragon’s records custodian 

that the notes were Floragon’s business records kept by Floragon in the regular course of 

its business activity. See Fed. R. Evid. 803(6). Even if failure to admit the notes had 

Case 1:05-cv-00377-KD-C Document 716 Filed 05/19/10 Page 7 of 8
8 

been error, a new trial is not justified unless the error caused substantial prejudice See In 

re Kelloggi, 197 F.3d at 1119 (new trial required only where there are manifest errors of 

law or fact); see also Goodman v. Pennsylvania Turnpike Comm’n, 293 F.3d 655, 675 

(3d Cir. 2002) (new trial cannot be granted based on harmless error). The prejudice is not 

obvious here, and Peacock has failed to explain how the absence of Page’s notes affected 

the outcome of the trial. 

Conclusion

 For the reasons set forth above, the motion for new trial is without merit and is, 

therefore, DENIED. 

DONE and ORDERED this the 18th day of May, 2010. 

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES DISTRICT JUDGE 

Case 1:05-cv-00377-KD-C Document 716 Filed 05/19/10 Page 8 of 8