Marcus Lomax v. Marquette Transportation Co., et a ( 2019 )

Case: 19-30070 Document: 00515176342 Page: 1 Date Filed: 10/28/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-30070 October 28, 2019
Summary Calendar
Lyle W. Cayce
Clerk
MARCUS LOMAX,
Plaintiff-Appellee Cross-Appellant
v.
MARQUETTE TRANSPORTATION COMPANY GULF-INLAND, L.L.C.,
Defendant-Appellant Cross-Appellee
ROSS SALVAGGIO M/V,
Defendant-Cross-Appellee
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CV-17825
Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
This case involves an injury Plaintiff Marcus Lomax suffered while using
a grinder to repair an interior surface of the Ross Salvaggio M/V (the “vessel”),
which is owned by Defendant Marquette Transportation Company Gulf-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-30070 Document: 00515176342 Page: 2 Date Filed: 10/28/2019
No. 19-30070
Inland, L.L.C. (“Marquette”). The parties cross-appeal from the district court’s
judgment in Lomax’s favor, which followed a three-day bench trial and a
sixteen-page order containing thirty-seven detailed findings of fact and law.
Marquette seeks reversal, arguing primarily that the district court
committed clear error by relying on Lomax’s testimony. While Lomax’s brief
does not contain the required “short conclusion stating the precise relief
sought,” Fed. R. App. P. 28(a)(9); L.R. 28.3(j), it appears that he would have us
vacate the district court’s damages award and remand with instructions to
increase his recovery.
The district court had maritime jurisdiction, 28 U.S.C. § 1333, and we
have jurisdiction from the district court’s final judgment, id. § 1291. Because
neither party demonstrates reversible error, we will affirm.
I.
We review the district court’s factual conclusions for clear error and its
legal conclusions de novo. Guzman v. Hacienda Records & Recording Studio,
Inc., 808 F.3d 1031, 1036 (5th Cir. 2015) (citation omitted). Factual findings
made after a bench trial deserve special deference and are reversed only if we
have a “definite and firm conviction” that the district court erred. Id. (citation
omitted). We will not reverse “simply because we are convinced that we would
or could decide the case differently.” Id. (citation omitted). Fact findings based
on credibility determinations are especially insulated on review and “virtually
never” constitute clear error. Id. (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 575 (1985)).
A.
We hold first that Lomax has waived the only argument in support of his
cross-appeal. “Failure adequately to brief an issue on appeal constitutes waiver
of that argument.” Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499
2
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n.1 (5th Cir. 2004). To invoke our power of review, an appellant must provide
“legal citations” and “analysis” in support of his argument. Id.Here, Lomax argues we should vacate his award because it is
“significantly below established awards in this Circuit for similar injuries.” But
he cites no legal authority for the proposition that we may set aside a damages
award simply because it is smaller than other awards arising from similar
injuries. Instead, Lomax’s brief only details his medical expenses and lists ten
cases that happened to involve awards greater than the district court’s. 1 We
decline to address an appellate argument supported by no legal reasoning or
citation to pertinent authority.
B.
Marquette’s arguments fare little better. Marquette’s primary
contention is that the district court was wrong to rely on Lomax’s testimony.
Marquette points to a handful of putative discrepancies in Lomax’s testimony,
including over whether Lomax was wearing a protective face shield at the time
of the injury, the color and weight of the grinder that injured him, and whether
the grinder had a “T handle.” Even though the district court resolved most of
these contradictions in Marquette’s favor, Marquette claims that they
undermine Lomax’s credibility so severely that the district court’s reliance on
any of his testimony was clear error. This argument undergirds most of
Marquette’s briefing.
1 Only two of these cases were decided on appeal from maritime-injury judgments. In
one, we affirmed the district court’s damages award. Johnson v. Offshore Exp., Inc., 845 F.2d
1347, 1357 (5th Cir. 1988). In the other, the district court provided no reasoning for its
damages award, merely adopting the defendant’s post-trial damages proposal. Jauch v.
Nautical Servs., Inc., 470 F.3d 207, 214 (5th Cir. 2006). Lomax does not cite Jauch (or any
other case) to support his proposed legal standard. Instead, he cites it as an example of an
award larger than his. And even if Lomax had not waived reliance on Jauch, that case is
easily distinguished in that the district court here provided detailed calculations for the
amount of damages.
3
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Critically, Marquette fails to grapple with the special deference afforded
a district court’s credibility determinations following a bench trial. Marquette
never attempts to explain why we should have a “definite and firm conviction”
that the district court erred in its treatment of Lomax’s testimony. See, e.g.,
Guzman, 808 F.3d at 1036. Indeed, as Marquette acknowledges, the district
court did not simply accept Lomax’s testimony at face value but instead made
several findings contrary to Lomax. For example, it found that Lomax was in
fact provided a protective face mask and that the grinder he was given weighed
much less than he had testified. In light of the district court’s careful sifting of
the evidence, it is not for us to reach a different conclusion regarding Lomax’s
credibility. Furthermore, even if Marquette is correct that the district court
relied on Lomax’s testimony to determine what happened when he was alone,
the district court’s ruling was based on far more than Lomax’s testimony. For
instance, the district court also relied on the testimony of both Marquette’s and
Lomax’s experts, and it fully recognized and took account of the fault Lomax
had in the accident.
Marquette also argues that Lomax failed to corroborate certain parts of
his testimony with extrinsic evidence—acknowledging all the while that the
injury occurred while Lomax was alone. But Marquette cites no case for the
proposition that it is per se reversible error for a district court to rely on
testimony without extrinsic corroborating evidence. 2 Any argument to that
effect is therefore waived. Procter & Gamble, 376 F.3d at 499 n.1.
2 Marquette claims that we have “affirmed the proposition that a plaintiff’s
‘uncorroborated testimony cannot support his burden of proof.’” In support of that statement,
Marquette cites our unpublished affirmance of a judgment relying in part on a finding that
a seaman-claimant was not credible. Gisclair Towing Co. v. Mire, 61 F. App’x 918 (5th Cir.
2003). But our opinion in that case did not disturb the district court’s credibility findings and
did not use or refer to the language Marquette quoted.
4
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That waiver, along with our refusal to disturb the district court’s
credibility findings, disposes of most of Marquette’s other arguments, including
those based on the vessel’s seaworthiness 3 and Lomax’s relative liability. The
remainder of Marquette’s arguments lack merit and do not necessitate further
discussion.
***
Neither Marquette nor Lomax has identified even the shadow of
reversible error in the district court’s meticulous findings.
AFFIRMED
3 Here again, Marquette has failed to develop, and has thus waived, its argument that
as a matter of law, the vessel was seaworthy. A vessel is unseaworthy if it presents an
unreasonable risk of harm to seamen. Park v. Stockstill Boat Rentals, Inc., 492 F.3d 600, 604
(5th Cir. 2007) (citation omitted). Marquette claims that the grinder was safe if used properly
and that Lomax had access to other equipment to complete the assigned task. But Marquette
cites no legal authority for the proposition that either fact eradicates any unreasonable risk
of harm.
5