United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 27, 2005
_______________________
Charles R. Fulbruge III
No. 04-40537 Clerk
_______________________
H.E. STEVENSON; ET AL,
Plaintiffs,
H.E. STEVENSON, DIANA STEVENSON, AND SHARON HARPER,
Plaintiffs - Appellants,
v.
E.I. DUPONT DE NEMOURS AND COMPANY,
Defendant - Appellee.
_______________________
Appeal from the United States District Court
for the Southern District of Texas
(01-CV-24)
_______________________
Before SMITH, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
This is a trespass case, which now makes its second
appearance before this court. In the original appeal of this
case, we affirmed a jury finding of liability but reversed and
remanded to allow the plaintiffs to present additional evidence
of damages at a new trial. Shortly before the second trial,
however, the district court entered judgment in favor of the
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
1
defendant. The court concluded that two of the original jury
questions established that the plaintiffs suffered no damages.
Because the district court’s actions violated the mandate rule,
we reverse.
H.E. Stevenson, Dianna Stevenson, and Sharon Harper sued
DuPont for negligence, nuisance, and trespass based on DuPont’s
emission of heavy metal particulates from its plant in Victoria,
Texas. The plaintiffs alleged that these particulates damaged
their properties, which are located near the plant. The case
went to trial in the Southern District of Texas; the jury found
in favor of DuPont on the plaintiffs’ negligence and nuisance
claims but found that DuPont had trespassed on the plaintiffs’
land.
Four verdict-form questions——6, 8, 11(a), and 12(a)——are
crucial here. Question 6 laid the groundwork for possible mental
anguish damages. It read, “Do you find from a preponderance of
the evidence that the trespass, if any, committed by DuPont
against the property of the Stevensons was willful and that the
trespass caused actual damages to the Stevenson’s [sic]
Property?” Question 8 was the same, with Harper’s name
substituted for the Stevensons’. The jury answered both “no.”
Later questions, however, contained different queries related to
damages for permanent trespass injury. Question 11(a) asked,
“What is the difference in the market value of the property owned
by H.E. Stevenson and Dianna Stevenson immediately before and
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immediately after the damage you have found was proximately
caused by DuPont’s operation of the Victoria Plant?” The jury
provided the amount of $168,000 as the answer to this question.
Question 12 asked the same question with regard to Harper’s
property, to which the jury answered with the amount of $96,000.
The district court entered judgment in those amounts.
DuPont appealed. On appeal, a panel of this court
determined that airborne particulates’ entry onto the plaintiffs’
land could be a trespass and that the plaintiffs had produced
sufficient evidence of that entry. Stevenson v. E.I. DuPont De
Nemours & Co. (“Stevenson I”), 327 F.3d 400, 408 (5th Cir. 2003).
The court concluded, however, that the jury could not have
awarded damages for permanent injury to land——“the difference in
the market value of the land immediately before and immediately
after the trespass”——because “[n]o evidence was presented to show
the value of the land before the trespass began.” Id. at 409.
The court remanded the case for a new trial on damages. Id. at
410.
Following remand, the parties conducted additional discovery
about damages. DuPont then filed Daubert1 motions that sought to
exclude the plaintiffs’ expert witnesses. The district court
denied all of these motions.
The day after denying the Daubert motions, the district
1
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
3
court conducted a pretrial conference to hear limine motions. In
the middle of hearing these motions, the district court stated,
“You know this is just so crazy. . . . I just don’t know why
we’re here. I’m sorry. You know what I’m thinking about doing?
Let me go off the record.” The district court recessed and then
returned to enter judgment in DuPont’s favor. The district court
provided the following reasons for its actions: “I’m going to
just give judgment in favor of DuPont based on the jury answers
to Questions 6 and 8, which said no damages as a result of the
trespass.” The judgment, too, indicates that it is based on “the
jury findings in Questions No. 6 and 8 of the Verdict Form from
the original trial.” The Stevensons and Harper appealed.
In this appeal, the Stevensons and Harper argue that the
district court violated the mandate rule by entering judgment on
the original jury findings instead of holding a new trial on
damages. “Absent exceptional circumstances, the mandate rule
compels compliance on remand with the dictates of a superior
court and forecloses relitigation of issues expressly or
impliedly decided by the appellate court.” United States v. Lee,
358 F.3d 315, 321 (5th Cir. 2004). Based on this rule, “a lower
court on remand ‘must implement both the letter and the spirit of
the appellate court's mandate and may not disregard the explicit
directives of that court.’” Id. (quoting United States v.
Matthews, 312 F.3d 652, 657 (5th Cir. 2002)). The mandate rule
4
is subject to three exceptions: “(1) The evidence at a subsequent
trial is substantially different; (2) there has been an
intervening change of law by a controlling authority; and (3) the
earlier decision is clearly erroneous and would work a manifest
injustice.” Matthews, 312 F.3d at 657. We review whether the
district court departed from the mandate de novo. See United
States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004).
The district court violated the mandate rule. We determined
in the original appeal that the appropriate measure of damages
was the difference in the value of the land before and after the
trespass, and we remanded the case for trial on that amount.
Stevenson I, 327 F.3d at 409. On remand, however, the district
court decided that the amount of damages was controlled by the
jury’s answer to the question asking whether the trespass was
willful and caused actual damages. In reaching this conclusion,
the district court did not follow this court’s mandate.
Nevertheless, DuPont argues that the district court’s
actions were proper.2 Its principal argument is that the
mandate, with its remand of this case for trial, did not prevent
the district court from granting summary judgment based on the
plaintiffs’ failure to provide adequate expert evidence of the
properties’ value before the trespass. DuPont argues that this
2
DuPont does not defend the entry of judgment based on the
original jury findings.
5
is exactly what the district court did.
The record does not support DuPont’s characterization of the
ruling as a sua sponte summary judgment based on defects in
expert testimony. While there were some discussions about expert
testimony during the pretrial conference in which the district
court entered judgment, the court did not enter judgment
immediately after those discussions. In fact, just before the
court’s ruling, the parties and the judge addressed how long the
parties could question witnesses about DuPont’s plant operations.
Moreover, only one day earlier, the district court had denied
DuPont’s Daubert motions to exclude the testimony of the
plaintiffs’ expert. Finally, the district court’s statement of
reasons for the judgment does not refer to experts; it relies
solely on the jury answers from the trial.3 In this
circumstance, we decline to transform the district court’s entry
of judgment on the original jury findings into a sua sponte entry
of summary judgment on the basis of expert testimony.4
3
DuPont analogizes this situation to that in Brumley Estate
v. Iowa Beef Processors, Inc., 704 F.2d 1351 (5th Cir. 1983). In
Brumley Estate, we affirmed a partial summary judgment even
though the district court had provided no reason for its ruling.
Id. at 1362. Brumley Estate is distinguishable; there the
relevant facts were undisputed and the appellants “concede[d] the
reason for the district court’s ruling.” Id. at 1359. That is
not the case here.
4
We also note that although a district court may grant
summary judgment sua sponte, when it does so, the court must
“provide adequate notice and an opportunity to respond akin to
that required by [FED. R. CIV. P.] 56(c).” Mannesman Demag Corp.
6
In the alternative, DuPont argues that this case presents
the kind of “exceptional circumstances” that would permit
deviation from the mandate rule. Although it claims that
exceptional circumstances exist, DuPont does not argue that this
case falls within any of the three recognized exceptions to the
mandate rule. In other words, it does not argue that the
evidence was substantially different at the second trial, that
there has been a change in controlling authority, or that the
earlier decision was incorrect and would result in a manifest
injustice. Instead, DuPont relies on the same failure of proof
arguments that it raises for its summary judgment argument. This
possible failure of proof does not justify creating a new
exception to the mandate rule.
For these reasons, we reverse the judgment of the district
court and remand this case for trial on damages.
REVERSED AND REMANDED.
v. M/V Concert Express, 225 F.3d 587, 595 (5th Cir. 2000).
7