Housing 21 v. Atlantic Home ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
______________________
Nos. 01-1893NI, 01-1957NI
______________________
Housing 21, L.L.C., *
*
Appellee/Cross-Appellant, *
*
v. * On Appeal from the United
* States District Court
* for the Northern District
Atlantic Home Builders Company, * of Iowa.
also known as Champion Home *
Builders Company, *
*
Appellant/Cross-Appellee, *
___________
Submitted: February 13, 2002
Filed: May 16, 2002
___________
Before WOLLMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
Defendant Atlantic Home Builders Co., a factory builder of manufactured and
modular houses, appeals a jury verdict awarding $435,411.79 in damages to Plaintiff
Housing 21, LLC, a real estate developer, for breach of warranty. Housing 21
purchased six modular houses from Atlantic as part of the initial phase of its plan to
develop a residential subdivision of 120 such houses in Sioux City, Iowa. The project
failed, and Housing 21 sued Atlantic, contending that the six houses that Atlantic
provided were not well constructed and that Atlantic’s failure to provide
well-constructed houses caused the failure of the entire project. A jury returned a
verdict in favor of Housing 21, granting damages for the cost of repair of the six
houses, $5,411.79, and for Housing 21's lost investment, $430,000, but not for
Housing 21's lost future profits or other incidental damages.
In this appeal, Atlantic argues, first, that the District Court erred in responding
to a question from the jury asking for a list of investors in Housing 21. It contends
that the identity of Housing 21's investors was irrelevant and that providing such
information to the jury was unfairly prejudicial. Second, it argues that Housing 21
failed to establish that defects in the six houses caused, in fact, the failure of the entire
project, and, as a result, that the Court erred by not granting judgment as a matter of
law in its favor regarding damages for lost investment. Third, it argues that the Court
erred by giving jury instructions on damages for both lost investment and lost future
profits. In a cross appeal, Housing 21 contends that the Court erred by not awarding
it, as a matter of law, damages for lost future profits and that the Court erred in
allowing Atlantic to make an improper summation, which, it argues, resulted in the
jury’s not awarding damages for lost future profits.
Finding Atlantic’s first argument meritorious, for reasons we explain below,
we reverse and remand for a new trial.
I.
We set forth the facts in the light most favorable to the jury’s verdict. See
Moysis v. DTG Datanet, 278 F.3d 819, 822 (8th Cir. 2002). Housing 21 is a limited
liability company that was formed by Robert Bjerke, a lawyer with a background in
real estate development, for the purpose of building an affordable housing
development of 120 modular houses, called Riverview Estates, in Sioux City, Iowa.
Bjerke understood that he needed to provide modular houses of high quality both to
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ensure success in the market and to allay community fears that the development
would be a “trailer park.”
To finance the project, Bjerke contributed $150,000 of his own money, and
Housing 21 received a $400,000 equity investment from eleven investors, including
five charities: the Boys Club of Sioux City, Girls Incorporated of Sioux City, the
Ronald McDonald House of Charities, the Boys and Girls Home of Sioux City, and
the Council on Sexual Assault and Domestic Violence. Housing 21 also received a
loan from Norwest Bank. Bjerke hired an experienced construction coordinator,
oversaw site work, and advertised the project through direct mailings and in the local
media.
Bjerke was familiar with Atlantic’s houses, having used them in a previous
project. In December 1995, he visited Atlantic’s Central City, Nebraska,
manufacturing plant and spoke with a salesperson about purchasing houses for
Riverview Estates. Atlantic warranted that its houses would comply with the
Uniform Building Code (UBC) and that they would be of high quality and ready for
immediate occupancy. Atlantic stressed the similarity between its manufactured and
modular houses and houses built on site. As a result, Bjerke decided to use Atlantic’s
houses for the project.
In June 1996, Atlantic and Housing 21 entered into a manufacturer-dealer
relationship for the sale of modular houses. Atlantic was aware of the planned scale
of the Riverview Estates project. On July 1, Housing 21 placed an initial order for
the purchase of three houses from Atlantic. Atlantic constructed the houses and had
them delivered in mid-July.
Problems with the houses were apparent immediately. On July 22 and July 25,
1996, Housing 21 sent letters to Atlantic complaining about the quality of the houses
it had received. Substantial repair work had to be done to prepare the houses for an
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August 1 showing for local dignitaries. At the showing, a representative from
Atlantic assured Housing 21 that future houses would be of superior quality. On
August 3, Housing 21 opened the houses for public viewing. Although it could show
the houses, it was unable to sell them because of difficulties obtaining occupancy
permits from Sioux City.
Housing 21 ordered a second group of three houses in mid-July 1996, and
Atlantic had them delivered in late August. Again, Housing 21 was dissatisfied with
the quality of the houses. On August 23, it sent a letter to Atlantic complaining about
the poor quality of the houses and listing needed repairs. That fall, repair work on
these houses was performed. A dispute arose between Housing 21, Atlantic, and city
inspectors over whether the houses conformed to the UBC. Various Sioux City
inspectors found the houses not to conform in numerous respects, and the city refused
to issue certificates of occupancy. (Ultimately, it was determined that the city
inspectors were not applying the UBC correctly, and that the houses failed to conform
only in respect to the thickness of the sheet metal used in the duct work of the heating
and cooling systems.)
On January 14, 17, and 20, 1997, Atlantic service technicians corrected the
duct work, and Sioux City finally issued certificates of occupancy on January 23.
However, problems with the houses persisted. Atlantic service technicians spent
February 17 through 26 repairing the houses. Housing 21's own personnel had to
spend substantial time doing repairs. Finally, some seven months after the first
houses were delivered, sales were not able to support debt service, and the project
failed.
On May 5, 1998, Housing 21 brought suit against Atlantic in an Iowa state
court, claiming that the poor quality of the houses and their nonconformance with the
UBC caused lengthy delays, an ongoing need for repairs, Housing 21's plummeting
reputation, and a nearly empty development, and thus caused the failure of the entire
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project. Atlantic removed the case to the United States District Court for the
Northern District of Iowa. The case was tried from October 10 to October 23, 2000.
At trial, Housing 21 presented evidence of numerous problems with the houses,
including plumbing leaks, wavy joists, bowed window sills, wavy vinyl siding, walls
that were not level or connected, toilets not bolted to the floor, disconnected cabinet
doors, improperly installed cabinet tops, improperly installed entertainment centers,
warped flooring, miscut linoleum, loose, mismatched, and missing molding and trim,
mislaid carpet, and improperly cut doors.
On October 23, 2000, the jury returned a verdict in favor of Housing 21,
awarding it $435,411.79 in damages. This appeal followed.
II.
A. The Jury’s Question Regarding the Identity of Housing 21's Investors
Atlantic argues that the District Court erred in its response to a question
received from the jury during deliberations and that, consequently, Atlantic’s motion
for a new trial should have been granted. Housing 21 responds both that Atlantic
failed to object adequately to the District Court’s answer to the jury’s question,
thereby failing to preserve the error, and that the District Court did not commit any
error in its response.
The jury commenced deliberations on October 23. That afternoon, the jury sent
a note to the Court asking, in relevant portion, the following questions: “All under
final instruction number 25. One, if any damages are awarded, who will get the
money? Two, who makes up Housing 21? Names, please.” Appellant’s Appendix
(App.) 1956. Jury instruction number 25 was the Court’s instruction on items the jury
should consider if it found that Housing 21 was entitled to recover damages. App.
309. After receiving the note, the Court afforded the parties the opportunity to
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suggest appropriate responses. Atlantic and Housing 21 agreed that the proper
response to the first question was that “Plaintiff Housing 21, LLC” would receive the
money if damages were awarded. Id. at 1957-59. The Court agreed to this response.
Id. at 1959.
There was disagreement, however, over how to handle the second question,
which sought the names of the persons or entities that made up Housing 21. Housing
21 expressed reluctance to specify the names, but the Court indicated that a response
would be proper. App. 1957-58. Atlantic then stated as follows:
Well, the second [question]’s a little more problematical, Your
Honor, in that I think it probably would simply involve telling them - -
first of all, I don’t think it’s important. Housing 21 is a legal entity. It
is the real party in interest. It is the plaintiff. I think in this context it’s
simply irrelevant.
Second of all, I think it would be a matter - - to the extent they
think this is of interest to them, it would simply be a matter of telling
them to review the evidence. I think it would be improper at this point
to send them a specific list.
Id. at 1959-60 (emphasis added).
And I think it’s that kind of a situation where, Your Honor - - you
know, I don’t know if the jury’s back there saying, We don’t want to
give very much money, but if we give it, we want to make sure it goes
to [Bjerke’s wife][1] and not [Bjerke]. And I think telling them who the
investors are could lead them down a wrong path and would
overemphasize a certain part of the evidentiary record.
Id. at 1960 (emphasis added).
1
Mrs. Bjerke was among the investors.
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Housing 21 agreed with Atlantic’s suggestion that the Court simply instruct the
jury to review the evidence and its notes of the trial. Id. at 1960-61. The Court,
however, indicated that providing an exhibit in evidence would be preferable, and it
suggested exhibit 87, a memorandum from Housing 21 to various investors, including
the five charities, that discussed problems that Housing 21 had encountered with the
project. Id. at 1966-67. Nevertheless, the Court expressed some reservation:
I’m a little leery myself about the Boys and Girls Home and so
forth . . . . [I]f it were known that the Boys and Girls Home, the Girls
Home and the Boys Home and all of these names here were going to get
some money, it might be a bigger incentive to give some money. And
I really don’t know if they’re going to get any money, so I kind of hate
to tell them that they might.
Id. at 1968.
Atlantic agreed with the Court’s concern and noted, correctly, that exhibit 87
did not contain a complete list of the investors. As an alternative, it suggested that
the Court use a document that had been marked as exhibit 424, an operating
agreement for Housing 21 that was not in evidence but that did contain an accurate
list of all of the investors as well as their ownership interests. Each of the five
charities had a two per centum interest. App. 1977-78. The Court accepted this
suggestion. After the Court reiterated what it intended to do, Atlantic responded: “If
the Court is going to answer it that way and tell them who it is, I think that’s the way
to do it and tell them the exact owners and percentages rather than - - because it is
confusing to look at Exhibit 87.” Id. at 1979. Later, Atlantic again indicated that it
would accept the Court’s response to question two, “subject to the record I made
earlier.” Id. at 1981.
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The colloquy between the Court and both parties concluded at 4:02 p.m., id.
at 1983, after which the Court gave its answer to the jury. Shortly thereafter, the jury
returned with its verdict. The entire proceeding concluded at 5 p.m. Id. at 1988.
Housing 21 contends that Atlantic’s objection to the District Court’s response
was insufficient to preserve the claim of error. It argues that Atlantic preserved only
its objection to the Court’s response to the two other questions, not to question two.
It also argues that Atlantic stated only that the jury’s question, not the Court’s
response, was irrelevant, and, citing Tinnon v. Burlington N. R.R., 898 F.2d 1340,
1343 (8th Cir. 1990), that a relevance objection to a jury instruction is insufficiently
specific as a matter of law. Housing 21 also argues that Atlantic never objected
specifically on the grounds that providing a list of investors would overemphasize
certain evidence.
These contentions are without merit. Federal Rule of Civil Procedure 51 does
not require a party to employ the utmost formality in making an objection to avoid
waiver. Meitz v. Garrison, 413 F.2d 895, 899 (8th Cir. 1969) (“The rule does not
require formality, and it is not important in what form an objection is made or even
that a formal objection is made at all, as long as it is clear the trial judge understood
the party’s position . . . .”) (citing 5 James Wm. Moore et al., Moore’s Federal
Practice ¶ 51.04 (2d ed. 1968)); 9A Charles Alan Wright and Arthur R. Miller,
Federal Practice and Procedure § 2554, at 428 (2d ed. 1995) (“No particular formality
is required of the objection so long as it is clear that the trial judge was informed of
possible errors in the charge and was given an opportunity to correct them.”). All that
is required is that the objector “stat[e] distinctly the matter objected to and the
grounds of the objection.” Fed. R. Civ. P. 51. The previous discussion makes clear
that Atlantic did object to providing an answer to question two—both when it first
received the jury’s question and when the Court proposed an answer—on the grounds
that a response to that question would be irrelevant and potentially prejudicial. It is
also clear that the District Court understood these concerns.
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Moreover, Housing 21's citation to Tinnon is inapt. Tinnon simply holds that
a party’s objection to a jury instruction on the grounds that it was misleading and not
applicable to the facts does not preserve for appeal an objection on the ground that
a portion of the applicable statute had been omitted from the instruction. 898 F.2d
at 1343. Nowhere does Tinnon state that a relevance objection to a jury instruction
is legally insufficient.
Turning to the merits of the objection, Atlantic argues that the identities of the
investors in Housing 21 are irrelevant to the issues in the case. Atlantic is correct.
Housing 21, the sole plaintiff, is a distinct legal entity. None of the investors was
party to the suit, and their identities had no bearing on any issue under the jury’s
consideration. It was improper for the jury to consider or to place any weight on the
identities of the investors in determining whether Housing 21 was entitled to a
damage award.
Housing 21 does not contend that the investors’ names actually were relevant,
just that the names of various of the investors had been introduced during trial
without objection from Atlantic, and that the exhibit proposed by the Court, exhibit
87, which contained almost all of the names (including the charities), already was in
evidence. Housing 21 argues that it is inconsistent for Atlantic to raise a relevance
objection to information supplied in answer to a jury’s question when it did not raise
such an objection when the same information was offered in evidence initially.
There is no inconsistency. Evidence of the investors’ names had come in only
incidentally, not because anyone contended their identities mattered to the outcome
of the case. Not every piece of information presented over the course of a trial will
necessarily be relevant to the issues that the jury must decide. And there are practical
reasons not to raise every conceivable objection. Moreover, a party does not waive
the right to object to initial or supplemental jury instructions on the grounds that the
instructions provide or unduly emphasize (through judicial imprimatur) irrelevant
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information, simply because that party did not object when some of the information
was first presented.
Housing 21 also argues that the Court’s response did not instruct the jury on
a matter of law but simply answered a factual question in a way that was neither
misleading, incorrect, unclear, nor unresponsive. This argument misses the point.
The answer was misleading. It directed the jury to factual information that was not
relevant to the jury’s determination of whether Housing 21 should receive a damages
award or, if so, the size of any such award. The jury apparently believed that an
answer to the question was essential to its verdict, and, by providing irrelevant
information, the Court failed to disabuse the jury of this mistaken belief. An
analogous case is Dakota Industries, Inc. v. Ever Best Limited, 28 F.3d 910 (8th Cir.
1994), in which we reversed a judgment and ordered a new trial on the ground that
the District Court, in answering a question from the jury, had injected a new, and
irrelevant, issue into the case.
Housing 21 also argues that, apart from any objection to the names of investors,
Atlantic can have no objection to the Court’s providing their respective ownership
interests (which were not in evidence), which Atlantic requested be included in the
response to the jury. It is true that if Atlantic had no well-founded objection to the
provision of the names, it could not create reversible error by insisting that the Court
include other irrelevant information (or information not in evidence) such as the
ownership interests, and then appeal its inclusion in the Court’s response. However,
Atlantic did object to providing the names of the investors, and the Court overruled
the objection. Atlantic’s attempt to mitigate the potential prejudice to it of the
Court’s decision to provide the names to the jury by asking that the Court also
provide the ownership interests does not erase its objection.
Moreover, the likelihood of prejudice due to the Court’s error is high. Citing
United States v. Glick, 463 F.2d 491, 494 (2d Cir. 1972), Atlantic contends that the
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fact that the jury returned with a verdict so shortly after receiving the District Court’s
response to its inquiry indicates a substantial likelihood that the answer allowed the
jury to reach a compromise verdict. Atlantic infers that one or more jurors doubted
that damages should be awarded to Housing 21 but nonetheless agreed, after
receiving the Court’s supplemental instruction, to award damages under the belief
that some of the money ultimately would go to charitable organizations. Housing 21
argues that Glick and other criminal cases cited by Atlantic are inapplicable because
in those cases the trial court was reversed because it misstated the law or followed
improper procedure. But Atlantic cites those cases not to reveal the Court’s error but
to demonstrate the likelihood of prejudice. Here, the fact that the jury rendered its
verdict almost immediately after receiving irrelevant and potentially prejudicial
information makes it reasonably likely that the jury mistakenly relied on that
irrelevant information in forming the verdict. Cf. Rogers v. United States, 422 U.S.
35, 40 (1975) (“The fact that the jury, which had been deliberating for almost two
hours without reaching a verdict, returned a verdict of guilty with extreme mercy
within five minutes after being told unconditionally and unequivocally that it could
recommend leniency strongly suggests that the trial judge’s response may have
induced unanimity by giving members of the jury who had previously hesitated about
reaching a guilty verdict the impression that the recommendation might be an
acceptable compromise.”) (citations and internal quotation marks omitted).
B. Sufficiency of the Evidence that Atlantic Caused
Housing 21's Lost Investment Damages
The jury awarded Housing 21 $430,000 in damages for loss of investment.
Atlantic contends that the evidence that defects in the six houses it provided caused
the entire project to fail was legally insufficient and, therefore, that the District Court
erred in failing to grant its motion for judgment as a matter of law on this issue. Our
review of the denial of the motion is de novo. Gray v. Bicknell, 86 F.3d 1472, 1478
(8th Cir. 1996). We view the evidence in the light most favorable to the verdict,
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considering every legitimate inference that reasonably can be made from the
evidence. American Family Mut. Ins. Co. v. De Groot, 543 N.W.2d 870, 871 (Iowa
1996).
Although the issue of causation typically arises in the context of tort cases, the
legal principles involved apply equally to a breach of warranty case. Winter v.
Honeggers’ & Co., 215 N.W.2d 316, 320 (Iowa 1974). Under Iowa law, causation
includes the two traditional components of causation in fact and legal causation.
Gerst v. Marshall, 549 N.W.2d 810, 815 (Iowa 1996). Regarding factual causation,
“the majority of our decisions require a plaintiff to meet both the but-for test of
causation, with the concurrent cause exception, and the Restatement’s substantial
factor requirement.” Id. at 817. Under the concurrent cause exception, but-for
causation need not be established when “two causes concur to bring about the event,
and either one of them, operating alone, would have been sufficient to cause the
identical result.” Id. at 815 (quoting Prosser and Keeton on the Law of Torts § 41,
at 266 (5th ed. 1984)). In such a situation, the plaintiff establishes causation by
showing that the defendant’s conduct was a material element and a substantial factor
in bringing about the event. Id.
Atlantic argues only the absence of but-for causation. In doing so, it contends
that the record demonstrates that the 120-house project failed not because of defects
in the six houses that it provided but because of “Housing 21's inadequate financing,
its unsuitable marketing, the general incompetence of [its] staff, persistent bad
weather, and the bizarre and unlawful conduct of Sioux City officials.” Appellant’s
Brief 41-42. This argument suggests that alternative (or concurrent) causes other than
Atlantic’s breach caused the lost-investment damages. Atlantic further contends that
Housing 21 could have—indeed should have—taken various corrective measures to
prevent and limit any damages resulting from defects in the houses (e.g., hiring
contractors to fix the problems more quickly, rescheduling the planned open house,
turning to a different manufacturer). Appellant’s Reply Brief 15. This argument
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goes, in essence, to Housing 21's obligation to mitigate damages, not to the question
of factual causation.
Housing 21 responds, correctly, that sufficient evidence exists for a jury to
have found that Atlantic’s breach of warranty was a material and substantial factor
in causing its investment damages. Viewing the evidence in the light most favorable
to the jury’s verdict, Housing 21 and Atlantic agreed that Atlantic would provide
well-constructed modular houses complying with the UBC. Atlantic broke its
warranty by providing houses in poor condition that did not meet all of the UBC’s
requirements. Housing 21 had to wait for more than six months to receive occupancy
permits for the houses, and at least part of the reason for the delay was the poor
condition of the houses and their incomplete compliance with the UBC. The poor
condition of the houses hurt not only sales of the six houses but the reputation, and
thus the viability, of the entire project. The delay in sales and the injury to reputation
caused revenue to be lower than expected and insufficient to support debt service,
ultimately causing the project to fail.
A reasonable jury could well have rendered a verdict in Atlantic’s favor,
finding that the various factors described by Atlantic alone caused the project to fail.
But this jury did not do so, and its determination was not unreasonable. As the
Supreme Court stated in Lavender v. Kurn, 327 U.S. 645 (1946):
Whenever facts are in dispute or the evidence is such that
fair-minded men may draw different inferences, a measure of
speculation and conjecture is required on the part of those whose duty
it is to settle the dispute by choosing what seems to them to be the most
reasonable inference. Only when there is a complete absence of
probative facts to support the conclusion reached does a reversible error
appear. But where . . . there is an evidentiary basis for the jury’s verdict,
the jury is free to discard or disbelieve whatever facts are inconsistent
with its conclusion. And the appellate court’s function is exhausted
when that evidentiary basis becomes apparent, it being immaterial that
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the court might draw a contrary inference or feel that another conclusion
is more reasonable.
Id. at 653.
C. Jury Instruction Numbers 25, 26, and 27 and Lost Future Profits
As part of its instructions to the jury on the issue of damages, the Court gave
instructions 25 (listing types of damages),2 26 (lost investment),3 and 27 (lost future
2
Instruction number 25 reads as follows:
If you find Housing 21, LLC is entitled to recover damages, you
shall consider the following items:
1. Cost to correct defects;
2. Loss of investment;
3. Lost future profits; and,
4. Other incidental damages.
A party cannot recover duplicate damages. Do not allow amounts
awarded under one item of damage to be included in any amount
awarded under another item of damage.
Appellee’s App. 309.
3
Instruction number 26 reads as follows:
In considering any loss resulting from general or particular
requirements and needs of which the seller at the time of the contracting
had reason to know in determining what damage, if any, were sustained
by Plaintiff, you are instructed that if because of Defendant’s breach of
express warranty, Plaintiff lost equity in the development or lost
investment due to unrealized sales, then Plaintiff was in fact damaged.
Appellee’s App. 310.
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profits).4 Atlantic argues that the District Court erred in submitting these instructions
to the jury because, it asserts, an instruction for lost future profits was contrary to the
law and the evidence of the case.
Atlantic asserts that Housing 21 did not establish that Atlantic’s breach caused
Housing 21 to lose any future profits. Atlantic also argues, citing several Iowa cases,
that the Court should not have given the damage instruction on lost future profits
because consequential damages can be awarded under Iowa Code section 554.2714
only if such damages are foreseeable to the seller at the time of contracting. Lost
future profits, it argues, were not foreseeable. Atlantic further argues that Iowa’s
new-business rule prevents a new enterprise from recovering lost future profits
because the amount of any such award would be too speculative. However, the jury
4
Instruction number 27 reads as follows:
In considering the element of future profits in determining what
damages, if any, were sustained by Plaintiff, you are instructed that if
because of Defendant’s breach of warranty, the Plaintiff was unable to
earn net profits which would have accrued to it but for a breach of the
warranty, then Plaintiff was in fact damaged. Future profits mean net
profits and are determined by subtracting the costs and expenses of a
business from its gross revenue.
The fact that a Plaintiff’s business may have been new or
unestablished is not fatal to the element of damages constituting net
profits. You are instructed that you may consider the following factors
in determining whether or not any part of Plaintiff’s damages constitute
future net profits, including but not limited to, the uncertainty which
makes the success of a new business problematical, the experience of the
Plaintiff’s officers in the business, the competition which the Plaintiff
would have had in Sioux City and the surrounding area and the general
market conditions in said area.
Appellee’s App. 311.
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did not award Housing 21 any damages for lost profits, so even if there was error
(which we need not decide), it was harmless. Crittenden v. Tri-State Thermo King,
Inc., 108 F.3d 165, 167 (8th Cir. 1997) (“Since the jury found for Tri-State on this
theory, any error in the instruction would clearly be harmless.”); Smith v. Smithway
Motor Xpress, Inc., 464 N.W.2d 682, 685 (Iowa 1990) (“[E]rror in giving or refusing
to give a particular instruction does not warrant reversal unless the error is
prejudicial.”).
Atlantic also contends that because Housing 21 retained possession of the
houses and sought damages for lost future profits it had no right under Iowa law to
seek damages for loss of investment. This argument has no basis. Housing 21 agrees
that it would not be entitled to an award of both loss of investment and loss of future
profits. However, as we have noted, Housing 21 did not receive a damage award for
loss of future profits. Loss of investment can properly be awarded as an element of
consequential damages, and a party can argue both theories of expectancy and
reliance damages. Mid-Country Meats, Inc. v. Woodruff-Evans Const., 334 N.W.2d
332, 337 (Iowa App. 1983).
Finally, Atlantic raises several arguments regarding the amount of damages that
the jury awarded for lost investment. For example, it argues that the instructions
should have required the proceeds received by Housing 21 from the sale of the houses
to be credited against any loss of investment damage. Because the case is being
remanded for a new trial, we need not address these arguments.
For its part, Housing 21 argues that the jury should have awarded lost profits,
and that the Court erred by not ordering such damages or a new trial on the issue.
This argument is spurious. Housing 21 presented no expert on future profits, and the
evidence that it did present was highly speculative. There is no basis for concluding
that the jury’s determination on damages for loss of future profits was unreasonable.
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D. Atlantic’s Summation
During summation, as part of an argument that businesses frequently fail for
any of a number of reasons, Atlantic referred to the recent failure of a local restaurant
called the Blue Stem. In a cross-appeal, Housing 21 argues that Atlantic’s summation
was improper because there was no evidence in the record regarding the Blue Stem,
and that Atlantic’s reference caused the jury to fail to award lost future profits. Citing
no evidence, Housing 21 hyperbolizes, “[i]t is certain that the verdict was influenced
by the misconduct of Atlantic.” Appellee’s Brief 62.
This claim requires no extended discussion. Housing 21 itself points out that
our review is for abuse of discretion and that, to constitute reversible error, statements
made in a closing argument must be plainly unwarranted and clearly injurious.
Griffin v. Hilke, 804 F.2d 1052, 1057 (8th Cir. 1986), cert. denied, 482 U.S. 914
(1987). Moreover, the complaining party bears the burden of making a concrete
showing of prejudice. City of Malden v. Union Elec. Co., 887 F.2d 157, 164 (8th Cir.
1989). Housing 21 does not approach this threshold. The District Court did not
abuse its discretion.
III. Conclusion
For the foregoing reasons, we reverse the judgment of the District Court and
remand the case for retrial. On remand, the issue of lost future profits will not be
open. The jury has specifically determined to award nothing on this score. No error
that has either been urged or found affects this conclusion.
It is so ordered.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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