Jentz v. ConAgra Foods, Inc.

Filing 538

ORDER denying 518 Motion for Judgment as a Matter of Law; denying 518 Motion for New Trial. Signed by Judge Michael J. Reagan on 2/8/13. (caa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN W. JENTZ, JUSTIN BECKER, AMBER
BECKER and ROBERT SCHMIDT,
Plaintiffs,
v.
CONAGRA FOODS, INC., et al.,
Defendants.

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Case No. 10-cv-0474-MJR-PMF

MEMORANDUM AND ORDER
DENYING WEST SIDE‟S POST-TRIAL MOTION (Doc. 518)
REAGAN, District Judge:
I.

Introduction
On June 1, 2012, the jury entered its verdict in favor of ConAgra Foods,

Inc., and against West Side Salvage, Inc., on ConAgra‟s breach of contract claim (Doc.
478). The jury found that the April 19, 2010, Work Order Contract signed by West
Side‟s Director of Salvage Operations, Ken R. Lanham, was in effect on April 27, 2010,
the date of the grain bin explosion that resulted in damage to ConAgra‟s Elevator C.
The jury awarded ConAgra $3,000,000.00 for the value of the cost of repairs proved
by ConAgra as reasonably necessary to repair the Elevator.
West Side renews its motion for judgment as a matter of law pursuant to
Fed. R. Civ. P. 50(b) on Count IV (Breach of Contract) in Jentz, Third-Party Complaint
in Becker and Cross Claim in Schmidt (Doc. 518). In the alternative, West Side moves
for a new trial pursuant to Fed. R. Civ. P. 50(a)(1)(A) (Doc. 518).
II.

Judgment as a matter of law
1

Rule 50 of the Federal Rules of Civil Procedure allows a district court to
enter judgment against a party that has been fully heard on an issue during a jury
trial if “a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue.” Fed.R.Civ.P. 50(a) (motion for judgment as a matter
of law), (b) (renewed motion for judgment as a matter of law). Under Rule 50(b) a
court may “(1) allow judgment on the verdict, if the jury returned a verdict; (2) order
a new trial; or (3) direct the entry of judgment as a matter of law.”
In deciding a Rule 50 motion, the Court “construes the evidence strictly
in favor of the party who prevailed before the jury and examines the evidence only to
determine whether the jury's verdict could reasonably be based on that evidence.”
Passananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012) (citing Tart v.
Illinois Power Co., 366 F.3d 461, 464 (7th Cir. 2004) (citing Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150–51 (2000)). “The court does not make
credibility determinations or weigh the evidence.” Id. (citing Waite v. Bd. of Trs. of
Illinois Cmty. Coll. Dist. No. 508, 408 F.3d 339, 343 (7th Cir. 2005) (citing
Reeves, 530 U.S. at 150). The court reviews the entire record but “‛must disregard
all evidence favorable to the moving party that the jury [was] not required to
believe.‟” Id. (quoting Reeves, 530 U.S. at 151).
Rule 50(a)(2) provides that a motion for judgment as a matter of law
“must specify the judgment sought and the law and facts that entitle the movant to
the judgment.” ConAgra submits that West Side does not cite to the trial record or
the law of the case to support any of its arguments. The Court notes that only two of

2

West Side‟s 10 grounds for judgment as a matter of law are developed beyond a single
sentence – which falls far short of Rule 50‟s requirements.
“Failure to state the grounds or the motion with specificity may provide
grounds for denying the motion.”

Nobelpharma Ab v. Implant Innovations,

Inc., 930 F.Supp. 1241, 1249 (N.D.Ill. 1996).

This requirement serves the dual

purposes of assuring that the trial court has an adequate basis for its decision and
affording the adverse party the opportunity to correct any possible infirmities in the
proof presented. Id. (quoting Moore's Federal Practice ¶ 50.04 (additional citation
omitted)).
Clearly, providing no more than a single sentence as grounds for relief
apprises neither the Court nor opposing counsel of the reasons that West Side believes
judgment as a matter of law is appropriate. However, a failure to expressly state a
sufficient argument in a Rule 50(b) motion does not result in waiver if previously
presented arguments have made the movant‟s position clear for the Court and
opposing counsel. Laborers' Pension Fund v. A & C Environmental, Inc., 301 F.3d
768, 777-78 (7th Cir. 2002) (additional citations omitted)). West Side‟s motion
does not explain where and how it has previously argued these issues in greater
depth, nor did West Side file a reply, which could have been allowable under Local
Rules, since this would arguably constitute an exceptional circumstance. 1
Consistent with these principles, the Court reviewed West Side‟s Rule
50(a) motion and finds that it, too, suffers from the same lack of specificity – only 5
of 15 arguments are developed beyond a single sentence and some of the grounds
1

“Reply briefs are not favored and should be filed only in exceptional circumstances. The party filing
the reply brief shall state the exceptional circumstances.” SDIL-LR 7.1(c)(2).

3

advanced relate not to breach of contract but to common law indemnity, negligence
and contribution, which are not challenged in the Rule 50(b) motion (Doc. 397). West
Side has, however, strenuously argued previously that no contract was formed on
April 19, 2010, in both a motion for summary judgment (Doc. 195) and a motion in
limine (Doc. 282). Consequently, to the extent that West Side‟s previously presented
arguments have made its position clear, there is no waiver.
West Side‟s arguments may be divided, generally, into two categories:
(1) evidence presented at trial failed to establish that a valid contract existed
between ConAgra and West Side (grounds 5, 6, 8 and 9); and (2) evidence presented
at trial failed to establish that ConAgra was damaged, proximately or otherwise, by
West Side‟s breach of contract (grounds 1, 2, 3, 4 and 10). Ground seven (that no
evidence was offered or received which raised a jury issue on allegations in ConAgra‟s
Second Amended Cross-Claim in Jentz, Third-Party Complaint in Becker and CrossClaim in Schmidt) is too broad and vague to categorize – or to reasonably and
adequately state a ground that the Court can address.
A.

Whether sufficient evidence was presented at trial to establish that a
valid contract existed between ConAgra and West Side (grounds 5, 6, 8
and 9)
“[T]o have a valid contract, „an agreement between competent parties,

upon a consideration sufficient in law, to do or not to do a particular thing,‟ in
Illinois, the only things necessary are an offer, an acceptance, and consideration.”
Clarendon Nat’l Ins. Co. v. Medina, 645 F.3d 928, 936 (7th Cir. 2011) (quoting
Steinberg v. Chi. Med. Sch., 371 N.E.2d 634, 639 (Ill. 1977) (quoting People v.
Dummer, 113 N.E. 934, 935 (Ill. 1916)).
4

“In the absence of fraud, mistake,

unconscionability, or like defenses, a person is bound by all provisions in a contract,
including standard provisions colloquially described as boilerplate.” Dugan v. R.J.
Corman R.R. Co., 344 F.3d 662, 667 (7th Cir. 2003).
“Generally, one of the acts forming the execution of a written contract
is its signing.”

Carlton at the Lake, Inc. v. Barber, 928 N.E.2d 1266, 1270

(Ill.App.Ct. 2010) (citing Hedlund & Hanley, LLC v. Bd. of Trs. of Cmty. Coll. Dist.
No. 508, 876 N.E.2d 1 (Ill. 2007)). “Nevertheless, „a party named in a contract may,
by his acts and conduct, indicate his assent to its terms and become bound by its
provisions even though he has not signed it.‟” Id. (quoting Landmark Properties, Inc.
v. Architects International–Chicago, 526 N.E.2d 603 (1988)).
The jury heard extensive testimony on offer, acceptance, consideration
and performance.

Ronald Sumner, West Side‟s Vice-President, testified that he

negotiated with ConAgra‟s Godfrey Friedt the date on which West Side could begin
the job, how many people he would send and what the costs would be, “getting him a
new quote.”

Doc. 332, Sumner Trans. 207:22-208:9.

Ken Lanham, West Side‟s

Director of Salvage Operations, who signed the April 19, 2010, Work Order Contract,
agreed that part of his job responsibilities for West Side during the relevant period
included administering contracts.

Doc. 410, Lanham Trans., 29:12-15.

Lanham

denied, however, having any role in contract negotiations with ConAgra for work at
the Chester facility. Id. at 29:16-19. He testified that he did “a standard quote,”
which included “the time and materials quote offer,” and sent it to ConAgra. Id. at
29:23-30:5.

Lanham testified that the quote involved rate sheets describing the

number of men and the equipment that would be needed. Id.
5

Lanham also testified that ConAgra accepted the offer when it sent the
Work Order Contract back to him, setting forth the terms of the agreement and
specifying, inter alia, the terms of payment, commencement and completion date,
contractor work rules and responsibilities, and the scope of the work. Id. at 33:944:18. The jury also heard testimony from West Side‟s President, Gene Schwers, that
West Side was paid for its work at ConAgra‟s facility.

Doc. 493, Schwers Trans.,

67:10-12.
In summary, legally sufficient evidence of offer, acceptance and
consideration supports the jury‟s verdict that a contract was formed on April 19,
2010.
Nonetheless, West Side contends that no contract was formed because
the document was signed only by Lanham and not by all parties, as required by Illinois
law. The cases cited by West Side are, however, either distinguishable or do not
stand for the proposition for which they are cited. In Crum v. Krol, 425 N.E.2d 1081
(Ill.App.Ct. 1981), the court determined that a valid contract for the sale of realty
had been formed between the plaintiff and the defendant even though the documents
were not signed by all of the titleholders. 425 N.E.2d at 1084. The court noted that
if the agreement had been subject to final approval by a third party and was
otherwise contingent upon the execution of a formal contract, the writing might be
deemed insufficient or incomplete as a final contract. Id. Similarly, in Bloomington
Partners, LLC v. City of Bloomington, 2006 WL 2578916 (C.D.Ill. 2006), the court
stated, “Under Illinois law, if „the parties intended the execution of a formal
agreement as a condition precedent, then „no formal contract arises until the formal
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agreement is, in fact, executed.‟” 2006 WL 2578916, at * 11 (quoting IK Corp. v.
One Fin. Place P'ship, 558 N.E.2d 161, 166 (Ill.App.Ct.1990), overruled on other
grounds by Royal Imperial Group, Inc. v. Joseph Blumberg & Assocs., Inc., 608
N.E.2d 178 (Ill.App.Ct. 1992) (quoting Interway, Inc. v. Alagna, 407 N.E.2d 615,
619 (Ill.App.Ct. 1980) (additional citation omitted)).
In the matter sub judice, West Side points to no contingency or condition
precedent that would make the contract unenforceable, nor does the Court find in
the contract itself or elsewhere in the record any words expressing contingency or
dependence on a subsequent event without which no contract would be formed.
Even if Lanham‟s signature alone were insufficient to form a valid
contract, West Side conducted itself as if the contract were enforceable.

See

Carlton at the Lake, 928 N.E.2d at 1270 (quoting Landmark Properties, Inc., 526
N.E.2d 603). West Side sent its employees to the site, performed the work according
to the terms of the contract and accepted payment therefor. In so doing, West Side
conducted itself as if the contract were enforceable, indicating its assent to the
contract‟s terms and becoming bound by its provisions.
Ample evidence supports the jury‟s conclusion that a contract was
formed on April 19, 2010, and that West Side intended its execution as shown by
Lanham‟s signing the contract and by West Side‟s conduct in performing according to
the contract‟s terms.
B.

Whether sufficient evidence was presented at trial to establish that
ConAgra was proximately damaged by West Side‟s breach of contract
(grounds 1, 2, 3, 4 and 10)

7

For its first, second, third, fourth and tenth grounds, West Side asserts
that (1) the evidence adduced at trial failed to establish that ConAgra suffered any
damages; (2) the evidence adduced at trial failed to establish that ConAgra suffered
any damages as the direct and proximate result of any act or omission by West Side;
(3) any claim by ConAgra against West Side is based upon speculation, conjecture and
surmise; (4) the evidence failed to establish that ConAgra‟s claimed damages were
the result of any claimed act or omission of West Side; and (10) the evidence failed to
establish a submissible case against West Side.
The jury found that ConAgra proved that West Side had breached the
contract by failing to:
employ on the work only workers skilled in the task assigned to him;
be responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the work, comply with all
applicable laws, ordinances, rules, regulations and orders of any public
authority having jurisdiction for the safety of persons or properly or to
protect them from damage, injury or loss; and
remedy without cost, charge or expense to ConAgra all damage or loss to
any property caused in whole or in part by the West Side Salvage, any
subcontractor or anyone directly or indirectly employed by any of them,
or by anyone for whose acts any of them may be liable. Doc. 478, p.2.
West Side offers no evidence that disputes the jury‟s findings. It merely
recites the negative – that the evidence failed to establish these things. Although the
Court recognizes that it is difficult to prove a negative proposition, West Side could
have at least offered some reason why the jury‟s findings were unreasonable.
The Court, through its review of the record, finds ample evidence
supporting the jury‟s verdict. For example, Dr. Robert Schroeder, ConAgra‟s expert,
opined that a West Side employee‟s use of an air lance at the bottom of Manhole 15
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“certainly did impact the development, growth, and rapid rise of this glowing nest to
create conditions that lead to the explosion.” Doc. 368, Schroeder Trans., 113:25114:13. Dr. Schroeder testified that rather than “buttoning up” the bin and waiting
for things to die down, West Side had the bottom, top and side hatches open, which
provided more air and caused the fire to start “burning more rapidly than it had ever
burned before.” Id. at 115:8-21. Dr. Schroeder further testified, damningly, “It was
West Side Salvage's actions and inactions on the afternoon of the 27th that led to the
explosion and injury of the workers.” Id. at 120:20-22. Dr. Schroeder also described
how the explosion initiated in Bin C-15 migrated to other parts of the Annex C facility,
traveling “down legs, blowing out the base of the leg.” Id. at 122:20-25.
Based on evidence offered at trial, the jury had a legally sufficient
evidentiary basis to determine that ConAgra was damaged by West Side‟s breach of
the contract and that these damages were the direct and proximate result of acts or
omissions by West Side.
C.

Whether sufficient evidence was offered or received which raised a jury
issue in ConAgra‟s Second Amended Cross-Claim in Jentz, Third-Party
Complaint in Becker and Cross-Claim in Schmidt (ground 7)
For ground seven, West Side asserts, again in a single sentence, that no

evidence was offered or received which raised a jury issue on the allegations in
ConAgra‟s Second Amended Cross-Claim in Jentz, Third-Party Complaint in Becker and
Cross-Claim in Schmidt.
As stated above, Rule 50(a)(2) provides that a motion for judgment as a
matter of law “must specify the judgment sought and the law and facts that entitle
the movant to the judgment.” Bare-bones suggestions and skeletal arguments do not
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preserve claims. Jennings v. AC Hydraulic A/S, 383 F.3d 546, 551 (7th Cir. 2004)
(citing DDI Seamless Cylinder Int'l, Inc. v. Gen. Fire Extinguisher Corp., 14 F.3d
1163, 1168 (7th Cir. 1994) (“An issue must be pressed, must be argued and
supported; a bare conclusion is not enough.”); United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991) (per curiam) (“A skeletal „argument,‟ really nothing more
than an assertion, does not preserve a claim.... Judges are not like pigs, hunting
for truffles buried in briefs.”)).
West Side‟s assertion is so bare-bones that the Court cannot divine what,
to put it colloquially, West Side is driving at. And, as shown above, ample evidence
supports the jury‟s findings that a contract was formed and that West Side breached
that contract. Ground seven fails for lack of specificity pursuant to Rule 50(a)(2).
III.

Motion for a new trial
FEDERAL RULE

OF

CIVIL PROCEDURE 59(a) provides that in any action where

there has been a jury trial, a new trial may be granted “for any reason for which a
new trial has heretofore been granted in an action at law in federal court.…” That
language has been interpreted to mean that a district court may grant a new trial
only if the jury‟s verdict is against the clear weight of the evidence or the trial was
unfair to the moving party. Whitehead v. Bond, 680 F.3d 919, 927-28 (7th Cir.
2012) (citing Clarett v. Roberts, 657 F.3d 664, 674 (7th Cir. 2011)). “A new trial
should be granted … „only when the record shows that the jury's verdict resulted in a
miscarriage of justice or where the verdict, on the record, cries out to be overturned
or shocks our conscience.‟” Id. at 928 (quoting Clarett, 657 F.3d at 674). Stated
another way, “a court will set aside a verdict as contrary to the manifest weight of
10

the evidence only if no rational jury could have rendered the verdict.” Id. (quoting
Marcus & Millichap Inv. Servs. of Chi., Inc. v. Sekulovski, 639 F.3d 301, 313–14
(7th Cir. 2011) (quotations omitted); see also Galvan v. Norberg, 678 F.3d 581,
589 (7th Cir. 2012)).
For its first ground, West Side asserts that the Court erred in adopting as
the measure of ConAgra‟s property damage claim the cost to repair the elevator
where the proper measure was its diminution in value. West Side contends that a
new trial is necessary in order to prevent a miscarriage of justice because the Court
allowed ConAgra to present evidence of the cost to repair its facility rather than
evidence of the facility‟s diminution in value. West Side objected to Dean Hoerning‟s
testimony on this issue in its entirety. West Side made an offer of proof with Exhibit
11, a report prepared by its expert appraiser based on diminution-in-value. In short,
West Side contends that the Court‟s decision to permit Hoerning to testify regarding
the money that ConAgra spent to repair and replace the damaged portions of its
facility was in error, as the proper measure of ConAgra‟s property damage claims was
the diminution in the value of the property, not the cost to repair it.
When this issue arose during trial, the Court thoroughly and carefully
reviewed case law and considered the parties‟ arguments before making its decision –
a decision which the Court stands by. Nothing in West Side‟s motion for a new trial
alters the Court‟s determination.
The Court‟s analysis was guided by the Illinois case law on damages to
real property exhaustively set forth in Williams-Bowman Rubber Co. v. Industrial
Maintenance, Welding and Machining Co., 677 F.Supp. 539 (N.D. Ill. 1987)
11

(collecting cases).

Illinois appellate courts apply the cost-of-repair or the

diminution-in-value measure of damages depending upon whether the property is
partially damaged and may be repaired in a practicable manner, or whether it is
totally destroyed or damaged in a manner which renders repair impracticable.
Williams-Bowman, 677 F.Supp. at 545.

If the former applies, then the proper

measure of damages is the cost of restoring the property to its condition prior to the
injury; if the latter, then the diminution-in-value rule applies. Id.; see also Beasley
v. Pelmore, 631 N.E.2d 749, 756 (Ill.App.Ct. 1994) (cost of repair was appropriate
measure of damages where neighboring owner caused collapse of the back portion
of plaintiff‟s building); Frisch Contracting Service Corp. v. N. Ill. Gas Co., 417
N.E.2d 1070, 1075 (Ill.App.Ct. 1981) (cost of repair was proper measure of
damages even when entire sewer system must be dug up and replaced).
It is impracticable to repair real property if doing so “would put the
defendant to disproportionate expenses or effort to restore it to its condition prior to
the injury.” Id. (citing Restatement (Second) of Contracts sec. 261 comment d
(1981); Johnson v. Pagel Clikeman, 99 N.E.2d 148 (Ill.App.Ct. 1951)). In other
words, if the property is damaged in a way that renders repair impracticable, the
injury is permanent, and the diminution in market value is the appropriate measure of
damages. Id. However, if repair is practicable, the injury is temporary, and the
appropriate measure of damages is the cost of repair. Id. Distinguishing between
temporary and permanent injury serves the compensatory purpose of making an
injured party whole without penalizing the party causing injury. Id.

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Hoerning testified that the damage to Elevator C was partial and
practicable to repair, that the grain bin and elevator were not destroyed and did not
suffer permanent injury, and that ConAgra had restored the facility by the time trial
commenced. He testified that he had overseen the following repairs: a new roof on
the structure, new legs and new equipment to distribute the product and to get the
grain out of the bottom of the elevator or back into the facility. Doc. 493, Hoerning
Trans., 8:20-25.

Invoices were admitted into evidence showing that the cost for

demolishing and rebuilding the damaged portion of the facility was $3,805,740.51. Id.
at 19:2-20:5.

West Side, in cross-examining Hoerning, elicited testimony that the

facility had a new, more modern roof and the following new equipment: conveying
equipment with a higher capability and improved flow, dust control, duct work and
two legs. Id., at pp. 22, et seq.
As previously held by the Court, the proper measure of damages to
Elevator C is the cost of repair. This is not a matter of compelling a defendant to
rebuild a barn with a market value of $50 at a replacement cost of $500.

See

Williams-Bowman, 677 F.Supp. at 545. The cost of repair, while steep, did not
render repair impracticable. Remedial measures, such as replacing the roof, served
to repair the structure as a whole.

The elevator clearly was not permanently

damaged since repairs were made, and the elevator was placed back into operation.
West Side has not demonstrated that the cost of repair in this case was so great as to
constitute a “disproportionate expense.”
Nor has West Side offered contrary evidence that repairs were upgrades
or improvements that were unwarranted, excessive or avoidable by selecting other
13

types of equipment. To the contrary, Hoerning testified that some upgrades were
required by new regulations or by the unavailability of parts to repair the damaged
equipment or structure. Furthermore, the jury may have factored in the upgrade and
declined to award a windfall to ConAgra by awarding $805,740.51 less than the cost of
repair ConAgra sought.
In summary, although portions of ConAgra‟s grain elevator had to be
replaced, those replacements served to repair the structure as a whole, and the cost
was not so great as to constitute a disproportionate expense. The Court did not err in
adopting as the measure of ConAgra‟s property damage claim the cost-to-repair
because the diminution-in-value measure was not supported by the facts of this case
and the law that governs it.
For its second and third grounds, West Side asserts that the Court erred
in admitting ConAgra‟s Exhibits 63, 64, 65, 66, 108 and 128 over West Side‟s
objection, because the exhibits were inadmissible as hearsay. West Side contends
that admitting these documents was prejudicial because ConAgra was able to use
these out-of-court statements as evidence of the amount of its property damage,
resulting in a jury award of $3,000,000.00.

West Side argues that Exhibit 128, a

spreadsheet purporting to summarize the invoice totals from Exhibits 63, 64, 65 and
66, was inadmissible because the invoices upon which the spreadsheet was based
were inadmissible hearsay and did not constitute records of regularly conducted
business activity.
When the Exhibits were offered into evidence, West Side objected that
ConAgra had failed to lay a proper foundation and that the documents were hearsay
14

to the extent that the witness (Hoerning) was reading them. Id. at 10:15-17. The
Court required ConAgra‟s counsel to lay more foundation.

Id. at 10:18.

ConAgra

attempted to comply, but West Side continued to dispute the admissibility of the
documents. The Court then ordered a voir dire examination of the witness. Id. at pp.
10, et seq. The Court observed that the documents constituted hearsay evidence and
that if ConAgra wanted the documents admitted, Rule 803‟s prongs must be met.2 Id.
at 14:6-11. In addition, the Court indicated that no testimony had been offered that
the damage was related to the explosion at issue. Id. Until the six prongs – and the
last concerns of the Court - were met the documents were not admissible. Id.
Upon resuming direct examination of Hoerning, ConAgra elicited
testimony showing that (1) but for the explosion occurring, the repairs to the elevator
would have been unnecessary; (2) the invoices were prepared at or near the time of
the work that was being done to repair the facility; (3) it was ConAgra‟s regular
practice, as part of its business activity, to keep records such as the purchase orders,
contracts and check payments at issue; (4) the documents reflected the acts that
were performed by the contractors to repair the facility; and (5) the documents were
2

Rule 803 (6) of the Federal Rules of Evidence provides –

Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis
if:
(A) the record was made at or near the time by - or from information transmitted by - someone with
knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization,
occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by
a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of
trustworthiness.

15

collected and provided to Hoerning in his capacity as ConAgra‟s corporate
representative for a deposition he gave in connection with this case. Id. at pp. 14, et
seq.
It is patently clear that the Court required ConAgra to lay an extensive
foundation for the admission of the exhibits in keeping with Rule 803 and that,
ultimately, ConAgra was able to lay that foundation. Moreover, West Side did not
challenge the trustworthiness of the documents, or present any evidence that
Hoerning‟s testimony was untruthful or inaccurate. All of the elements of Rule 803(6)
were met, and the exhibits were properly admitted over West Side‟s hearsay
objection. Because the invoices themselves were found to be admissible, West Side‟s
objection to Exhibit 128 also fails.
For its fourth ground, West Side asserts that the Court erred in
submitting ConAgra‟s breach of contract claims to the jury where the evidence at
trial failed to establish a submissible case for breach of contract against West Side.
West Side contends that no evidence was offered at trial that raised a jury issue as to
the existence of a contract between ConAgra and West Side or West Side‟s breach of
the purported contract.

West Side maintains that it was prejudiced because

submitting this case to the jury allowed the jury to render a verdict in favor of
ConAgra where there was no factual basis for it.
West Side‟s fourth ground for a new trial reiterates its argument for
judgment as a matter of law that there was insufficient evidence to submit the
contract claim to the jury. As set forth above, extensive evidence supported the

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jury‟s finding that a contract was formed between ConAgra and West Side, and that
West Side breached that contract. See § § A, B, pp. 4-9, supra.
IV.

Conclusion
For all the foregoing reasons, the Court DENIES West Side‟s renewed

motion for judgment as a matter of law or, in the alternative, for a new trial (Doc.
518).
IT IS SO ORDERED.
DATED this 8th day of February, 2013

s/Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge

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