IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-60654
_____________________
DEERE & COMPANY,
Plaintiff - Counter Defendant - Appellee-Cross-Appellant,
versus
EDWARD JOHNSON, JR., doing business
as F & E Farms,
Defendant - Counter Claimant - Appellant-Cross-Appellee.
_________________________________________________________________
Appeals from the United States District Court
for the Northern District of Mississippi
_________________________________________________________________
November 12, 2001
Before KING, Chief Judge, and JOLLY and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Deere financed a combine its dealer, Parker Tractor &
Implement Company (“Parker”), sold to Johnson. Johnson was unhappy
with the combine because it would not do the job. Deere was
unhappy with Johnson because he failed to make any payments on the
loan. Johnson wrote Deere a letter revoking acceptance of the
combine. Deere refused to take it back. Johnson continued to use
the combine. Deere finally sued Johnson to collect the unpaid
balance on the loan. Johnson counter-claimed against Deere, as the
manufacturer of the combine, for breach of implied and express
warranties, breach of the implied warranty of fitness for a
particular purpose, and intentional misrepresentations. The jury
returned a verdict that effectively awarded zero to both parties.
The district court conformed the pleadings to the evidence and
entered a quantum meruit award for Deere for the rental value of
the combine while Johnson was using it.
Today’s appeal addresses three issues: First, whether Johnson
effectively revoked acceptance in the view of his continuing to
assert ownership of the combine and failing to return it to Deere;
second, whether the district court erred in conforming the
pleadings to state a quantum meruit claim for Deere and awarding
Deere a judgment on that basis; and finally, whether Deere
presented sufficient evidence of the rental value of the combine.
We hold that under the circumstances of this case, Johnson
effectively revoked acceptance of the combine; that the district
court erred in conforming the pleadings to state a quantum meruit
claim and in entering a judgment for Deere; and that Deere
presented evidence to support the jury’s determination of the
rental value of the combine. At the end of the day, this case is
a “wash”-–neither party receives anything. Accordingly, we reverse
and remand for entry of a take-nothing judgment.
I
In 1994, Edward Johnson bought a combine from Parker, a
retailer for Deere located in Tunica, Mississippi. Johnson made a
down payment of $30,634.36. He financed the remainder of the
2
purchase price with Deere, using the combine as security for the
loan.1 The combine was a lemon. Throughout the harvest season of
1994, Johnson made service requests to Parker. Each time Parker
sent its mechanic to Johnson’s farm to repair the combine.
Finally, on March 3, 1995, Johnson sent a letter to Deere, which
revoked acceptance, tendered the combine, and asked for a
replacement. In a letter dated May 12, 1995, Deere refused to take
the combine back. It stated “Deere & Company certainly sees no
reason to replace this combine and it is not willing to accept it
back.” Johnson continued to use the combine during the harvest
season of 1995, as well as during the spring of 1996. After this
lawsuit was initiated, Deere filed a replevin action, repossessed
and sold the combine in July of 1997. Although Johnson used the
1
In this case, a central issue -- which the parties pled,
tried to the jury, retried in post-verdict motions, briefed, and
orally argued on appeal –- is whether Johnson effectively revoked
the sale contract for the combine. Johnson entered into this
contract with Parker. We note, in passing, that there is nothing
in the record that suggests (1) that Deere and Parker are one
entity or (2) that Parker assigned Deere its rights under the sale
contract.
Moreover, even if we assumed that Deere, not Parker, had all
the rights under the sale contract, this fact would still fail to
explain why the parties vigorously litigated the validity of the
underlying sale contract in this action for collection on a loan
contract. The loan contract and the sale contract are independent
unless there is a contractual provision which states otherwise.
Neither contract contains such a provision.
Undaunted, our analysis of the issues proceeds as tried to the
jury and briefed on appeal; that is, we assume Deere (not Parker)
was potentially entitled to the reasonable rental rate of the
combine and that Johnson’s revocation of the sale contract (if
effective) would have nullified his obligations under the loan
contract.
3
combine from 1994 until the spring of 1996, he made no payments on
the loan contract.
II
On September 26, 1995, Deere filed a complaint seeking to
collect on the contract. Johnson counter-claimed. He alleged
breach of contract, breach of express and implied warranties,
breach of the implied warranty of fitness for a particular purpose,
and intentional misrepresentations. Johnson sought lost profits,
punitive and consequential damages. The jury found for Johnson on
his breach of warranty claim and against Deere on its breach of
contract claim. The jury awarded Johnson the down payment that he
had made on the combine, $30,634.86, but subtracted $70,000 from
this award for the fair rental value of the combine for the period
of Johnson’s use. This calculation was exactly what the verdict
4
form instructed the jury to do.2
Deere then filed a post-verdict motion that sought (a)
judgment as a matter of law under Rule 50 or, alternatively, (b)
the amendment of the pleadings to conform to the evidence presented
under Rule 15(b); that is, to state a claim against Johnson in
quantum meruit. Johnson filed his own post-verdict motion. He
2
The verdict form completed by the jury reads as follows:
VERDICT
On Deere & Company’s claim against Edward Johnson, Jr. for
breach of the variable rate installment contract, we the jury
find:
_______ For Deere & Company and award contract damages in
favor of Deere and Company in the amount of $_____
Plus interest at a rate of $_____, per day from and
after June 7, 2000.
X For Edward Johnson, Jr.
On Edward Johnson’s claim against Deere & Company for breach
of warranty, express or implied, we the jury find:
X For Edward Johnson, Jr. and award damages as
follows:
$30,634.86 Down Payment
0 Interest on Down Payment
0 Incidental expenses incurred
LESS the fair rental value of the equipment for the
period of use by Johnson in the amount of $70,000.
________ For Deere & Company
6/09/00
Date
5
sought (a) judgment notwithstanding the verdict, asking the court
to set aside the jury’s determination of the rental value of the
combine and award him the full down payment, or (b) an alteration
or amendment of the judgment to that same effect, or (c) a new
trial on damages only, and (d) attorney’s fees.
In resolving this barrage of post-verdict motions, the
district court denied Johnson’s motions in all respects except as
to prejudgment interest on the down payment, denied Deere’s motion
for judgment as a matter of law, and granted Deere’s motion to
amend the pleadings.
Based on the legal theory of quantum meruit -- raised for the
first time in Deere’s post-verdict 15(b) motion -- the district
court amended the pleadings and entered an amended judgment for
Deere. The amended judgment awarded Deere $70,000 minus Johnson’s
down payment and any prejudgment interest on that down payment.
Notwithstanding that (1) the jury had found in favor of Johnson and
against Deere, and (2) the district court had found against Deere
as a matter of law on all of its asserted claims, Deere walked away
from the district court with about $35,000.
Both parties now appeal.
III
We first address Deere’s appeal. Deere appeals the district
court’s denial of its motion for judgment as a matter of law with
respect to its contract claim.
6
Deere moved for judgment as a matter of law twice –- once
during trial and once in its post-verdict motion. Deere’s argument
is that it was entitled to collect on the loan contract for the
combine because Johnson’s continued use of the combine nullified
his revocation of acceptance as a matter of law. The district
court denied both motions. Deere only appeals the denial of the
post-verdict motion. This ruling of the district court is to be
distinguished from its ruling granting Deere’s 15(b) motion, which
we address later in this opinion.
We review the denial of a motion for judgment as a matter of
law de novo. Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir.
1994).
It is not surprising that Mississippi law requires that buyers
pay the contract price for any goods accepted, unless that
acceptance is later effectively revoked. MISS. CODE ANN. §§ 75-2-
607(1), 75-2-608 (1999). Deere argues that because Johnson failed
to revoke his acceptance of the combine, he is bound by the
contract, and thus the jury erred in awarding Johnson the return of
his down payment. On appeal, the question is whether, viewing the
evidence in the light most favorable to Johnson, a reasonable jury
could have found that Johnson revoked acceptance of the combine.
See Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)(en
banc) overruled on other grounds by Gautreux v. Scurlock
Marine,Inc., 107 F.3d 331 (5th Cir. 1997)(en banc).
7
As we have noted, the Mississippi version of the UCC provides
for the revocation of acceptance.3 A buyer revoking acceptance of
goods has the same duties as a buyer rejecting a shipment of goods;
in most cases, a buyer must discontinue asserting any ownership
over the goods. MISS. CODE ANN. § 75-2-602(2)(a)(1999)(“after
rejection any exercise of ownership by the buyer with respect to
any commercial unit is wrongful as against the seller”). It is
undisputed that Johnson notified Deere of his revocation in a
letter of March 3, 1995. It is further undisputed that Johnson
continued to use the combine after this letter of revocation.
Still further, Johnson generated a tax benefit for himself by
claiming depreciation of the combine on his tax forms in both 1995
and 1996. Without doubt, these two actions represent ownership
3
The Mississippi Code states:
(1) The buyer may revoke his acceptance of a lot or
commercial unit whose non-conformity substantially
impairs its value to him if he has accepted it
(a) on the reasonable assumption that its non-
conformity would be cured and it has not been
seasonably cured; or
(b) without discovery of such nonconformity if his
acceptance was reasonably induced either by
the difficulty of discovery before acceptance
or by the seller’s assurances.
(2) Revocation of acceptance must occur within a
reasonable time after the buyer discovers or should have
discovered the ground for it and before any substantial
change in the condition of the goods which is not caused
by their defects. It is not effective until the buyer
notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties
with regard to the goods involved as if he had rejected
them.
MISS. CODE. ANN. § 75-2-608 (1999).
8
activities by Johnson. The question remains: Do these activities
nullify Johnson’s revocation of acceptance as a matter of law?
Mississippi courts have addressed this question in several
cases. In North River Homes v. Bosarge, 594 So.2d 1153 (Miss.
1992) the court addressed whether a family’s failure to move out of
a “lemon” mobile home waived their revocation of acceptance. The
court, in finding no waiver, reasoned that “[the family’s] mistaken
belief that North River would fulfill its assurances to repair the
defects is but one reason why the Bosarges did not move out of
their home. Another reason is simple and [understandable]: When
you tie up all your savings into purchasing a home, you cannot take
it and park it somewhere. [Y]ou have got to live in it until you
get the people to clear your lot so you can put another [mobile
home] on it.” Id.at 1160 (internal quotation marks omitted).
In a case involving a defective copier, however, the court
held that the failure to return the copier did vitiate the
revocation of acceptance. Nevertheless, the court noted in dicta
that this might not always be true. J.L. Teel Co., Inc. v. Houston
United Sales, Inc., 491 So.2d 851, 859 (Miss. 1986)(stating
“without doubt, failure to surrender the copier did not per se
render ineffective Houston’s revocation“).4
4
Teel went on to hold that the seller was entitled, under the
theory of quantum meruit, to the reasonable rental rate for the
copier. Id. at 860. Deere primarily relies on Teel to support its
quantum meruit claim. We do not disagree that Deere could have
alleged a colorable claim based on quantum meruit, had it done so
in a timely and proper way. The fact that Deere could have made
9
Other states agree that continued use of non-conforming goods
does not, in all cases, waive the revocation of acceptance. See
Wilk Paving, Inc. v. Southworth-Milton, Inc., 649 A.2d 778, 781-82
(Vt. 1994)(failure to return defective asphalt roller does not
forfeit the revocation of acceptance); McCullough v. Bill Swad
Chrysler-Plymouth, Inc., 449 N.E.2d 1289, 1291 (Ohio 1983) (failure
to return automobile did not forfeit revocation); Aubrey’s R.V.
Center, Inc. v. Tandy Corp., 731 P.2d 1124, 1129 (Wash.App.Ct.
1987)(failure to return software did not forfeit revocation).
Allowing continued use of the good is not the general rule,
however. Typically, the law requires that a buyer return a non-
conforming good, purchase a replacement, if necessary, and then sue
for breach. MISS. CODE ANN. §§ 75-2-602, 75-2-714 (1999). The
rationale is that even non-conforming goods have value, and by
requiring a prompt return of the goods, the law enables a seller to
resell the goods before they substantially depreciate in value. As
the Mississippi Supreme Court has noted, however, a buyer, with no
ability to replace the defective good, suffers substantial injury
if forced to cede ownership of that good. The law thus weighs the
two effects; that is, where the cost of replacement is low, the
injury to the seller from the depreciation of the good outweighs
the injury to the buyer that results from surrendering ownership.
Thus, in such a situation the law requires the return of the non-
the quantum meruit claim, however, is irrelevant to whether Johnson
revoked acceptance.
10
conforming good. On the other hand, when the cost of replacement
is high, the injury resulting to the buyer from returning the good
outweighs the seller’s injury of depreciation; hence, in this
situation the cases do not penalize the buyer when he reasonably
retains the non-conforming good.
As we have noted, Mississippi case law employs this principle.
In North Rivers Homes, the cost to the family of giving up the
trailer was high. Hence, the court held that the failure to “move-
out” did not waive revocation. On the other hand, in the Teel
case, the company easily could have purchased another copier, and
hence, the court held that the failure to surrender the copier
nullified the attempt to revoke acceptance of the copier.
Here, the evidence shows that Johnson’s cost of replacement
was high. Johnson’s credit was adversely affected when he failed
to make payments on the loan for the combine. The record reflects
that Johnson was operating close to the margin; he admittedly could
not make but a few of the payments. It is unlikely that any
combine dealer would have either rented or sold to Johnson under
these circumstances. Without a combine, Johnson’s ability to farm
would be severely impaired. With little farm production, he could
not mitigate the damages he suffered as a result of the defective
combine. Thus, as with the mobile home owners in North River
Homes, the record demonstrates that the damage to Johnson from
ceding ownership of the combine would have been high.
11
Deere also maintains that Johnson continued to use the
combine, which naturally caused depreciation, and that this change
of the good rendered his revocation of acceptance ineffective.
Other than depreciation, Deere does not allege that Johnson damaged
the combine. Deere bases its depreciation-as-change argument on
the language of the statute: “[R]evocation must occur within a
reasonable time ... and before any substantial change in the
condition of the goods not caused by their defects.” MISS. CODE ANN.
§ 75-2-608(2) (1999). Deere cites no cases in which depreciation
by itself was deemed a substantial change under this section of the
Mississippi UCC. It seems that in almost all cases involving a
“substantial change” the buyer engaged in some activity which
altered the goods. See Intervale Steel Corp. v. Borg & Beck Div.,
Borg-Warner Corp., 578 F.Supp. 1081 (E.D.Mich. 1984)(buyer broke up
goods into parts), aff’d, 762 F.2d 1998 (6th Cir 1985); Trinkle v.
Schumacher Co., 301 N.W.2d 255 (Wis.Ct.App. 1980)(buyer cut
fabric); Toyomenka (America), Inc. v. Combined Metals Corp., 487
N.E.2d 1172 (Ill.App.Ct. 1985)(buyer cut goods into narrow strips).
That simple depreciation alone usually does not constitute a
substantial change in the condition of the good is consistent with
the doctrine of revocation of acceptance because the doctrine is
meant to remedy a situation in which a latent defect arises. If
simple depreciation of the non-conforming good was enough to
nullify the revocation of acceptance, a buyer might not be able to
12
revoke acceptance of a good with a latent defect.
Furthermore, Deere’s refusal to accept the return of the
combine undermines its argument that Johnson failed to revoke
acceptance as a matter of law. How does one return a combine when
the dealer refuses to take it back –- park it, perhaps, illegally
in their lot? We find unpersuasive the premise of Deere’s
argument: that a seller can refuse to accept the return of a non-
conforming good, and then claim that the buyer nullified his
revocation by not returning the good in question.5
Most important for the case at hand, the issue of whether a
buyer has effectively revoked acceptance is a factual one. Royal
Lincoln-Mercury Sales, Inc. v. Wallace, 415 So.2d 1024, 1028 (Miss.
1982). For the reasons outlined above, we think that a reasonable
jury could have concluded -- despite Johnson‘s continued use of the
combine -- that he effectively revoked acceptance of the combine on
March 5, 1995. The district court’s denial of Deere’s motion for
judgment as a matter of law was thus correct.
IV
We turn next to Johnson’s appeal. Johnson argues first that
the district court erred when it amended the pleadings under Rule
15(b) and consequently awarded damages to Deere. Second, Johnson
argues that there was insufficient evidence to support the jury
5
To be precise, Deere did demand the return of the combine
after the initiation of this lawsuit. Nevertheless, up to the
filing of the lawsuit in 1995, the evidence indicates that Deere
would not accept the return of the combine.
13
determination of the fair rental value of the combine.
A
We first address Johnson’s appeal of the district court’s
amendment of the pleadings under Rule 15(b) of the Federal Rules of
Civil Procedure, and the ensuing judgment entered for Deere. After
the jury returned a verdict for Johnson, Deere filed a 15(b) motion
to amend the pleadings to conform to the evidence presented. The
motion raised the legal theory of quantum meruit -- a legal theory
that neither party had raised prior to the jury verdict. The
district court granted the motion. It then awarded Deere the
rental value of the combine minus Johnson’s down payment and any
interest on that down payment. Johnson argues, in short, that the
amendment of the pleadings violated his right to procedural due
process because it left him with no chance to devise an appropriate
defense to the legal theory of quantum meruit.6
Rule 15(b) of the Federal Rules of Civil Procedure provides:
6
Notwithstanding the remaining analysis in this section, we
note, in passing, that even if the amendment of the pleadings under
Rule 15(b) were proper, Deere still should not recover, without
taking the appropriate steps to somehow set aside the verdict -- a
verdict that found against Deere and awarded it nothing. Rule
15(b) allows a court to modify the pleadings to conform to the
evidence presented, but the rule does not provide the authority to
reverse the jury’s verdict and then turn it bottom-side up. The
jury’s verdict in this case has never been set aside; indeed, the
district court denied both Deere’s and Johnson’s motions for
judgment as a matter of law. Neither the plaintiff nor the
district court addressed this lacuna in the reasoning that led to
the entry of a judgment for Deere based on the conformed pleadings.
Nevertheless, because the parties briefed the issue as one of
procedural due process and fair notice, we decide solely on that
basis.
14
When issues not raised by the pleadings are tried
by express or implied consent of the parties, they
shall be treated in all respects as if they had
been raised in the pleadings. Such amendment of
the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues
may be made upon motion of any party at any time,
even after judgment.
Id. (emphasis added). We review Rule 15(b) amendments for abuse of
discretion. Triad Electric & Controls, Inc. v. Power Systems
Engineering, Inc., 117 F.3d 180, 191 (5th Cir. 1997).
As has been often said, the principal purpose of Rule 15(b) is
judicial economy. If the parties either expressly or implicitly
consented to having a matter litigated, and the evidence provides
the court with sufficient guidance to resolve the matter, amending
the pleadings saves judicial resources.7
Nevertheless, saving resources usually takes a back seat to
procedural due process. Thus, in the absence of express consent,
“trial of unpled issues by implied consent is not lightly to be
inferred under Rule 15(b), [and] such inferences are to be viewed
on a case-by-case basis and in light of the notice demands of
procedural due process.” Triad Electric, 117 F.3d at 193-94
(quoting Jimenez v. Tuna Vessel Grananda, 652 F.2d 415, 422 (5th
Cir. 1981). The due process concerns are most acute when a party
7
According to the leading treatise on federal procedure, “Rule
15(b) [is] designed to avoid the tyranny of formalism that was a
prominent characteristic of the former practice and to avoid the
necessity of a new trial.” Charles Wright, et al., FEDERAL PRACTICE
AND PROCEDURE § 1491 (2d ed. 1990).
15
seeks a pleading amendment post-verdict. T.J. Stevenson & Co.,
Inc. v. 81,193 Bags of Flour, 629 F.2d 338, 370 (5th Cir.
1980)(“[I]t is not often that amendments are allowed after the
close of evidence, since the opposing party may be deprived of a
fair opportunity to defend and offer any additional evidence.”);
see also Morgan and Culpeper, Inc. v. Occupational Safety and
Health Review Commission, 676 F.2d 1065, 1068 (5th Cir.
1982)(“[W]hile it is true that amendments ... should be freely
granted, it is just as certain that the company charged should be
given an opportunity to fully respond to the new theories
presented.”).
In this case, the district court amended the pleadings to
allow for the legal theory of quantum meruit, but did so after the
close of evidence and after the jury returned its verdict. Our
review of the record shows that neither party mentioned, even in a
whisper, quantum meruit prior to Deere’s 15(b) motion. Thus we are
not surprised that Deere points to nothing in the record that would
support any such finding of express consent. Consequently, we must
find that the parties did not expressly consent to having this
theory tried to the jury. Express consent, however, is only one of
two bases for amendment under Rule 15(b); implied consent provides
a second basis, and this seems to be the centrality of Deere’s
argument.
Deere contends that it actually raised and litigated the
quantum meruit claim at trial, even though it never used the “magic
16
words” quantum meruit. Deere argues that Johnson implicitly
consented to having this claim tried because he failed to object to
evidence offered about the reasonable rental value of the combine.
Our review of the record shows that this case was tried as a
contract case in which Deere sought to hold Johnson liable for the
full amount of the loan contract. Deere introduced evidence with
respect to the rental value of the combine to offset Johnson’s
claim for the return of the down payment in the event that the jury
found for Johnson. The fact that neither Deere nor Johnson
considered the rental evidence under a quantum meruit theory is
evidenced by the verdict form itself. If, as Deere argues, a
quantum meruit claim was implicitly understood by both parties,
Deere surely would have objected to the verdict form, which
provided no basis for a quantum meruit award in favor of Deere.
Finally, as we have suggested earlier, the amendment of the
pleadings to state a quantum meruit claim implicates the due
process clause. If Johnson had been put on notice about this claim
before trial, he would have had an opportunity to offer evidence to
negate Deere’s contention that he expected to pay for the use of
the combine after he offered to return it. This evidence would
have been available to Johnson, especially in the light of Deere’s
initial refusal to accept the combine’s return. Because Deere
failed to raise the claim at any point during the trial, Johnson
was not on notice as to the issue that was allegedly being
litigated, and thus could not construct an appropriate defense. In
17
this case, amending the pleadings -- after the close of evidence
and after the return of the verdict -- violated Johnson’s right to
procedural due process, and thus the district court abused its
discretion by allowing an amendment under Rule 15(b). It follows
that the judgment entered in favor of Deere must be and is
reversed.
B
Finally, we turn to Johnson’s appeal of the denial of his
post-verdict motion for judgment notwithstanding the verdict.
Johnson’s argument to the district court -- which he reasserts on
appeal –- was that there is insufficient evidence to support the
jury determination of the fair rental value of the combine. We
first observe that Johnson objected to only part of the evidence
that was introduced concerning the rental value of the combine.8 In
addition, Johnson failed to object to the verdict form itself,
which allowed a set-off based on the reasonable rental value of the
combine. Finally, Johnson failed to move for a partial directed
verdict on the basis that there was insufficient evidence to
support a set-off.
Our inquiry into the evidence supporting a jury verdict is
especially limited when the moving party, as here, fails to seek a
8
Johnson objected on hearsay grounds to the introduction of an
appraisal estimating the number of hours on the combine. The court
did not abuse its discretion in allowing the introduction of this
evidence because the appraisal was made by a person with knowledge
of the hours of use on the combine and kept in the regular course
of business (i.e., the appraisal was a business record).
18
directed verdict or challenge the sufficiency of the evidence at
trial. We should inquire only “whether there was any evidence to
support the jury verdict, regardless of its sufficiency.” Coughlin
v. Capital Cement Co., 571 F.2d 290, 297 (5th Cir. 1978). Because
Johnson failed to object to the sufficiency of the evidence in the
district court, the Coughlin standard applies.
The verdict form clearly delineated the jury’s task, which the
jury faithfully executed. First, the jury was to decide whether
Johnson breached the contract. The jury said “no.” Second, the
jury was to decide whether Deere breached its warranty. The jury
said “yes.” If the jury found for Johnson -- which it did -- it
was to assess the amount of the down payment, the interest on the
down payment, and the incidental expenses incurred. After adding
these three sums, the jury was to determine the fair rental value
of the equipment for the period of Johnson’s use and subtract it
from the sum due Johnson. Johnson now argues that there was
insufficient evidence to support a finding as to the fair rental
value of the combine. He is wrong on this point.
Three items of evidence support the verdict. First, an
appraisal by F&E Farms was entered into evidence through the
testimony of Dave Broeker. The appraisal indicated 762 total hours
on the combine. Second, Chuck Cariker, the current manager for
Parker, testified that the rental rate on a combine in 1996 was
about $100 an hour. Third, Walter Gray, a previous manager for
Parker, testified that the current (i.e., 1997) rental rate for
19
used combines was $90 to $100 an hour. Admittedly none of this
evidence goes directly to the value of the use of the defective
combine in 1994 or 1995. Nevertheless, our inquiry on appeal is
narrow -- whether there was any evidence to support the jury
verdict. We find that the testimony of these three witnesses, plus
the appraisal, is enough to support the jury verdict under this
limited standard of review.
V
In sum, we hold: (1) that the district court committed no
error when it denied Deere’s motion for judgment as a matter of law
because a reasonable jury could have concluded that Johnson revoked
his acceptance of the combine; (2) that the district court erred
when it amended the pleadings after the return of the jury verdict
based on a legal theory that was not expressly or implicitly tried
to the jury; and (3) that there was sufficient evidence to support
the jury verdict.9
The jury in this case acted as it was instructed on the jury
form -- a form that was agreed to by both the plaintiff and the
defendant. The verdict says that this case was a “wash” -- neither
9
Johnson also contends that the district court erred in (1)
awarding Deere costs; (2) denying his request for a jury
instruction on punitive damages; and (3) denying his request for
attorney’s fees. We address each of these claims in the light of
our holding.
The district court abused its discretion only in awarding
Deere costs, and on this point is reversed. The district court did
not abuse its discretion in denying Johnson’s jury instruction on
punitive damages or his request for attorney’s fees.
20
party is entitled to relief. We therefore reverse the amended
judgment entered by the district court and remand for entry of a
take-nothing judgment in accordance with the verdict.10
REVERSED and REMANDED for entry
of judgment
10
Chief Judge King concurs in the judgment only.
21