Interstate Markings, Inc. v. Mingus Constructors, Inc.

941 F.2d 1010, 1991 WL 154808
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 16, 1991
DocketNo. 89-16706
StatusPublished
Cited by4 cases

This text of 941 F.2d 1010 (Interstate Markings, Inc. v. Mingus Constructors, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Interstate Markings, Inc. v. Mingus Constructors, Inc., 941 F.2d 1010, 1991 WL 154808 (9th Cir. 1991).

Opinion

HUG, Circuit Judge:

In this contract diversity action, appellants Interstate Markings, Inc. and its bonding company, Aetna Casualty and Surety Company, appeal the district court’s judgment following a jury trial in favor of general contractor Mingus Constructors, Inc. Appellants contend that the jury’s first verdict was ambiguous and that the district court erred when it recalled and reinstructed the jury prior to its second verdict. Appellants also contend that (1) they were entitled to judgment as a matter of law due to a number of contract defenses; (2) Mingus was not entitled to prejudgment interest; (3) the court instructed the jury improperly regarding damages; and (4) a new trial is warranted because Mingus’ counsel made inappropriate remarks during his closing arguments. We affirm.

I.

Mingus Constructors, Inc. (“Mingus”) contracted to clean the Granite Reef Aqueduct, a 186-mile canal in the Colorado River, on November 15,1983. One week later, Mingus entered into a subcontractor agreement with Interstate Markings, Inc. (“Interstate”). Interstate agreed to remove the old sealant, reseal the joints and cracks, and clean the canal. Mingus, however, retained responsibility for the initial cleaning of the canal in front of Interstate to remove mud, dirt, water and other debris to facilitate Interstate’s extruding, sandblasting and resealing of the joints.

The subcontractor agreement provided that Mingus was obligated to supply sealant for the project. The parties, however, dispute whether the decision to purchase the sealant was made by Mingus alone or Interstate and Mingus jointly. In any event, Mingus signed an exclusive supplier contract with Edoco for the manufacture of a sealant. Interstate built three mechanical devices designed to extrude the old sealant, sandblast the joints and apply the new sealant.

Interstate experienced a number of problems in attempting to perform the contract. Mingus, however, continued precleaning the aqueduct. As a result, Mingus was, at times, several miles ahead and was forced to reclean portions of the aqueduct many times. Mingus eventually fired Interstate and hired Hunt Construction Company (“Hunt”) to complete the job.

After completion of the job, a number of complaints, counter-claims, and third-party complaints were filed among the participants in the construction project. The claims relevant to this appeal are: (1) Mingus’ claim against Interstate for breach of contract, (2) Mingus’ claim against Aetna Casualty and Surety Company (“Aetna”) on Interstate’s performance bond, (3) Interstate’s claim against Mingus for breach of contract, and (4) Aetna’s claim against Mingus for wrongfully terminating Interstate and for breach of Interstate’s subcontract. Following a six-week trial on these claims, the jury returned the following verdict:

WE, THE JURY, IN THE ABOVE ENTITLED AND NUMBERED CASE FIND:
A. On the Mingus Claim:
1. In favor of Mingus Constructors, Inc. and against Interstate Markings, Inc. and assess damages in the sum of $_
2. In favor of Mingus Constructors, Inc. and against Aetna Casualty and [1013]*1013Surety Company and assess damages in the sum of $853,330.
3. Against Mingus Constructors, Inc. and in favor of Interstate Markings, Inc. and Aetna Casualty and Surety Company.
yes no
B. On the Interstate and Aetna Claims:
1. In favor of Interstate Markings, Inc. and against Mingus Constructors, Inc. and American Insurance Company and assess damages in the sum of $__
2. In favor of Aetna Casualty and Surety Company and against Mingus Constructors, Inc. and assess damages in the sum of $_
3. Against Interstate Markings, Inc. and Aetna Casualty and Surety Company and in favor of Mingus Constructors, Inc. and American Insurance Company
yes no

One day later, counsel for Aetna telephoned both counsel for Mingus and the court and pointed out that the jury failed to indicate liability as to Interstate. Aetna took the position that the verdict against Aetna was not valid absent a verdict against Interstate.

One week later, the district court, on its own initiative, recalled the jury. The district court resubmitted the matter to the jury with further instructions. These were addressed to the issue of whether Interstate was liable to Mingus as well as Aet-na. The jury rendered a second verdict, in which it found Interstate also liable for the $853,330. Because we find the first verdict sufficient to support the judgment, we do not delve specifically into the facts and arguments concerning the additional proceedings before the jury and the second verdict.

Following a motion by Mingus for interest, costs, and attorneys’ fees, the district court entered an order granting prejudgment interest in the amount of $317,343.80 and attorneys’ fees in the amount of $300,-000. An amended judgment was then entered in the amount of $1,470,673.80.

II.

We first consider whether the original verdict rendered by the jury was sufficient to support the judgment entered by the court. Our interpretation of the original verdict rendered by the jury is assisted by considering the instructions that were given to the jury relative to the verdict form. The jury was told that the verdict form contained two parts. Part A related to the Mingus claim and Part B related to the claims of Interstate and Aetna. With regard to Part A, the Mingus claim, the jury was told that “there are three choices.” Thus, the jury was instructed to pick one of the three alternatives, not to select more than one of the alternatives. Had the jury entered $853,330 on the lines and alternatives both 1 and 2, this could have left the impression that Mingus was to collect that amount of money from each of them. Instead, the jury most logically would have selected only alternative no. 2 if it found that both Interstate and Aetna were liable to Mingus, because the jury had been instructed in Jury Instruction 15 as follows:

Aetna’s obligation on its performance bond was to guarantee Interstate’s performance to Mingus. If you determine that Interstate materially breached its contract with Mingus and Aetna is not otherwise discharged or excused, then you must find that Aetna is liable to Mingus for certain damages.

Under that instruction the jury most logically would have concluded that if it found both Interstate and Aetna liable that it was to enter the amount of the judgment under choice no. 2, which in fact it did.

Thus, consistent with our obligation to read the verdict harmoniously with the jury instructions, see Toner for Toner v. Lederle Laboratories, 828 F.2d 510, 512 (9th Cir.1987), cert. denied, 485 U.S. 942, 108 S.Ct. 1122, 99 L.Ed.2d 282 (1988), and with the general rule that the jury’s finding of liability against Aetna assumes the factual prerequisite that Interstate was also liable, [1014]*1014see, e.g., Burgess v. Premier Corp., 727 F.2d 826

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Bluebook (online)
941 F.2d 1010, 1991 WL 154808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/interstate-markings-inc-v-mingus-constructors-inc-ca9-1991.