847 F.

2d 1524
11 Fed.R.Serv.3d 1160

ELECTRO SERVICES, INC., Plaintiff-Appellee,

v.
EXIDE CORPORATION, Defendant-Appellant.
No. 87-3565.

United States Court of Appeals,

Eleventh Circuit.
June 28, 1988.

Griffin B. Bell, King & Spalding, James D. Miller, Perry E. Pearce,

Atlanta, Ga., for defendant-appellant.
A. Lamar Matthews, Jr., Williams, Parker, Harrison, Dietz & Getzen,
Theodore C. Eastmoore, Sarasota, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of
Florida.
Before JOHNSON and HATCHETT, Circuit Judges, and ESCHBACH* ,
Senior Circuit Judge.
JOHNSON, Circuit Judge:

In this diversity case, Electro Services, Inc. (Electro) sued Exide Corporation
(Exide) for compensatory and punitive damages allegedly attributable to
Exide's defective automotive batteries and Exide's conduct in relation to the
batteries' manufacture and sale and this litigation. A jury found for Electro on
all seven counts: (1) negligence, (2) breach of warranty, (3) fraud and
misrepresentation, (4) scheme to defraud, (5) false advertising, (6) deceptive
trade practices/theft, and (7) breach of contract. The jury awarded Electro
$750,000 in compensatory damages and $3.5 million in punitive damages.

On May 20, 1987, the United States District Court for the Middle District of
Florida entered judgment on the jury's verdict. On June 4, 1987, Exide filed

motions for a stay pending disposition of motions for new trial and judgment
notwithstanding the verdict (Fed.R.Civ.P. 62(b)), for a new trial or remittitur
(Fed.R.Civ.P. 59(a), (e)), and for a judgment notwithstanding the verdict
(Fed.R.Civ.P. 50(b)). On July 9, 1987, the district court denied the motions for
new trial or remittitur and for judgment notwithstanding the verdict.
3

On July 29, 1987, Exide filed its notice of appeal.1 Exide does not question its
liability. Rather, Exide attacks the compensatory and punitive damages awards
on four grounds: (1) the district court abused its discretion by permitting one of
Electro's witnesses to testify as to the amount of compensatory damages, (2)
insufficient evidence supported the jury's award for lost profits, (3) the district
court improperly instructed the jury as to punitive damages, and (4) the $3.5
million award for punitive damages violated the Excessive Fines Clause of the
Eighth Amendment. We affirm.

I. Testimony Regarding Compensatory Damages

4

The jury awarded Electro $750,000 in compensatory damages.2 Over objection,

the district court permitted Floyd Price, secretary-treasurer and one-third owner
of Electro, to testify that Electro suffered losses of $750,000. Exide argues that
the district court abused its discretion in permitting this testimony. See Murphy
v. City of Flagler Beach, 761 F.2d 622, 626 (11th Cir.1985) ("A trial judge's
rulings concerning the admissibility of evidence are reversible only where the
appellant can show that the judge abused his broad discretion and that the
decision affected the substantial rights of the complaining party."). We
disagree.
Florida law guides our analysis:

5 recognize the general rule that an owner of property is qualified as such to testify
We
to the value of his property, whereas officers of corporations do not qualify on the
same basis. However, if the officer is qualified by virtue of his experience, his
management of the affairs of the corporation and his knowledge of relevant value he
is also a competent witness as to value.
6

Mercury Marine Division v. Boat Town U.S.A., Inc., 444 So.2d 88, 90
(Fla.Dist.Ct.App.1984). Exide contends that Price is not a competent witness
because he was a full-time attorney and did not participate in the day-to-day
operation of Electro. In its brief, however, Electro provides citations to the
record to demonstrate that Price's experience, management, and knowledge
make him a competent witness. See Brief of Appellee at 3-5, 17. Our
independent review of the record convinces us that Price was a competent

witness and that the district court did not abuse its discretion in permitting Price
to testify as to the amount of compensatory damages.
7

Exide misplaces its reliance on the testimony of Electro's expert witness, Price's
prior deposition testimony, and Price's signing of interrogatories. Exide's
contentions are directed at the weight, rather than the admissibility, of Price's
testimony. See J & H Auto Trim Co. v. Bellefonte Insurance Co., 677 F.2d
1365, 1369 (11th Cir.1982) ("[A]n owner of property is competent to testify
regarding its value. 'The weight of such testimony is, of course, affected by the
owner's knowledge of circumstances which affect value, and as an interested
witness, it is for the jury to evaluate the credibility of his testimony.' " (quoting
Berkshire Mutual Insurance Co. v. Moffett, 378 F.2d 1007, 1011 (5th Cir.1967)
(footnote omitted))). Apparently, the jury found Price's testimony credible.

II. Award for Lost Profits

8

The jury awarded Electro $145,509 for loss of future profits as part of the
$750,000 award of compensatory damages. See R22:10. Exide argues that the
evidence is insufficient to support any award for lost profits and, if the
evidence supports some award, the jury erred in determining the amount it
awarded. We disagree.

At trial, the jury heard the testimony of Lanny Tyler, a certified public
accountant and an expert witness for Electro, regarding Electro's loss of future
profits. Tyler examined 17 commercial accounts and determined when these
commercial purchasers bought batteries from Electro and when they stopped
buying batteries from Electro. Tyler then determined the average number of
batteries purchased per month and, using Electro's financial statements,
determined the gross profit percentage on automotive batteries. Tyler then
projected the monthly gross profit figure for 60 months and arrived at a figure
of $113,039 for lost gross profits. Tyler then used a net profit margin to
calculate lost net profits of $100,000 for the 17 commercial accounts.

10

Tyler stressed in his testimony that he calculated lost profits for commercial
accounts only. Tyler stated that his calculation did not include lost profits on
individual accounts because, with the thousands of returns, it would be very
difficult and very prohibitive timewise to contact all the individuals and
calculate a figure. Floyd Price, secretary-treasurer and one-third owner of
Electro, testified that "people were madder than you can imagine, and they quit
buying from us.... We lost a lot of customers." R7:89. Similarly, Lawrence
Anderson, another one-third owner of Electro, testified that many people were
bringing batteries back. See R13:187.

11

We conclude that the evidence supports the jury's award for lost profits. In the
landmark case of Twyman v. Roell, 123 Fla. 2, 166 So. 215, 218 (1936), the
Florida Supreme Court stated that "[t]he uncertainty which defeats recovery in
[lost profit] cases has reference to the cause of the damage rather than the
amount of it." Twyman indicates that "uncertainty as to the amount of damages
or difficulty in proving the damages will not prevent recovery if it is clear that
substantial damages were suffered as a result of the wrong. Inability to give the
exact or precise amount of damages does not preclude recovery...." Conner v.
Atlas Aircraft Corp., 310 So.2d 352, 354 (Fla.Dist.Ct.App.) (footnote omitted),
cert. denied, 322 So.2d 913 (Fla.1975); accord R.A. Jones & Sons v. Holman,
470 So.2d 60, 70 (Fla.Dist.Ct.App.1985), petition for review dismissed, 482
So.2d 348 (Fla.1986); A.O. Smith Harvestore Products, Inc. v. Suber Cattle
Co., 416 So.2d 1176, 1178 (Fla.Dist.Ct.App.1982); Adams v. Dreyfus
Interstate Development Corp., 352 So.2d 76, 78 (Fla.Dist.Ct.App.1977);
National Papaya Co. v. Domain Industries, 592 F.2d 813, 818 (5th Cir.1979)
(applying Florida law).

12

Consequently, "[i]f from proximate estimates of witnesses a satisfactory

conclusion can be reached, it is sufficient if there is such certainty as satisfies
the mind of a prudent and impartial person." Twyman, 166 So. at 218. "The
requisite to ... allowance [for lost profits] is some standard, such as regular
market values, or other established data, by reference to which the amount may
be satisfactorily ascertained." Id., 166 So. at 217. Generally, "[p]roof of the
income and of the expenses of the business for a reasonable time anterior to the
interruption charged, or facts of equivalent import, is usually required." New
Amsterdam Casualty Co. v. Utility Battery Manufacturing Co., 122 Fla. 718,
166 So. 856, 860 (1936); see National Industries v. Sharon Steel Corp., 781
F.2d 1545, 1547 (11th Cir.1986).

13

In the present case, it is undisputed that Exide caused Electro to lose profits as a
result of "lousy" batteries. Causation of damages thus is not an issue; rather, the
amount of damages is the issue. As set forth above, Florida law clearly provides
that inability to give the precise amount of damages does not preclude recovery
when substantial damages were suffered. Tyler's testimony, based upon
Electro's financial records, customer accounts, net profit margin, and sales
projections, satisfies the dictates of Florida law and supports the award as it
relates to commercial purchasers. See Born v. Goldstein, 450 So.2d 262, 264
(Fla.Dist.Ct.App.), petition for review dismissed, 458 So.2d 272 (Fla.1984);
Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., 415 So.2d 865, 867
(Fla.Dist.Ct.App.1982). Similarly, Tyler's testimony regarding Electro's sales
figures and determination of a net profit margin, the testimony by Price and
Anderson concerning lost customers, and the number of batteries returned

provided adequate evidence to satisfy the "reasonable certainty" requirement

for lost profits as determined by the jury for individual accounts. Accordingly,
we will not disturb the jury's award for lost profits.
III. Punitive Damages Instruction
14

The district court charged the jury on punitive damages as follows:

15

If you find for Electro Services and find also that Exide Corporation acted with
malice, moral turpitude, wantonness, willfulness, or reckless indifference to the
rights of others or if you find that Exide Corporation violated Section 817.41
Florida Statutes by disseminating to Electro Services and the general public
misleading advertisements you may in your discretion assess punitive damages
against Exide Corporation as punishment and as a deterrent to others.

16

R21:184 (emphasis added). Exide claims that this charge is erroneous because
it states that the jury could award punitive damages against Exide for violation
of Section 817.41 without making a finding of "malice, moral turpitude,
wantonness, willfulness, or reckless indifference to the rights of others." Electro
argues that we should decline to consider this alleged error because Exide failed
to object to the challenged instruction.

17

This Court's reasoning in Pate v. Seaboard Railroad, 819 F.2d 1074, 1082-83
(11th Cir.1987), guides our analysis. Rule 51 of the Federal Rules of Civil
Procedure provides in relevant part that "[n]o party may assign as error the
giving or the failure to give an instruction unless that party objects thereto
before the jury retires to consider its verdict, stating distinctly the matter
objected to and the grounds of the objection." Exide admits that it made no
formal objection to the challenged instruction at trial, but argues that this
failure to object is excused based upon its offer of proposed charges related to
punitive damages made during a conference concerning requested jury charges.
See Industrial Development Board v. Fuqua Industries, 523 F.2d 1226, 1238
(5th Cir.1975) ("Only when the appellate court is sure that the trial court was
adequately informed as to a litigant's contentions may the appellate court
reverse on the basis of jury instructions to which there was no formal
objection.").

18

We conclude that Exide's conduct at the charge conference failed to satisfy the
dictates of Rule 51 for two independent reasons. First, the now-challenged
charge was expressly discussed at the charge conference and Exide's attorney
indicated agreement with, rather than objection to, it.3 Second, Exide's mere

offer of proposed charges related to punitive damages does not serve adequately
to inform the trial judge of Exide's contentions. In Ezell v. Mobile Housing
Board, 709 F.2d 1376, 1382 (11th Cir.1983), this Court refused to examine a
proposed charge when no objection was made to the district court's refusal to
give the proposed charge. If offering a charge does not preserve an objection
for refusal to give that charge, then offering a proposed charge, a fortiori, does
not preserve an objection to the giving of a different charge. Consequently, we
approve and adopt the following language: "[T]he offering of a proposed
instruction does not preserve a challenge to the court's instructions under Rule
51, absent a specific objection." See Aspen Highlands Skiing Corp. v. Aspen
Skiing Co., 738 F.2d 1509, 1515 (10th Cir.1984), aff'd on other grounds, 472
U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985).
19

Because Exide failed adequately to object to the challenged charge, we review

the charge for "plain error." "In order to merit reversal as plain error, [Exide]
must establish that the challenged instruction was an incorrect statement of the
law and that it was probably responsible for an incorrect verdict, leading to
substantial injustice." Pate, supra, 819 F.2d at 1083. We conclude that Exide
has failed to establish either ground.

20

First, the challenged instruction was a correct statement of law. Section

817.41(6) provides that "[a]ny person prevailing in a civil action for violation
of this section [prohibiting misleading advertisement] ... may be awarded
punitive damages in addition to actual damages proven. This provision is in
addition to any other remedies prescribed by law." We think it evident that
proof of a violation of the statute itself supports an award of punitive damages.
Consequently, we will not disturb this clear policy determination of the Florida
legislature.

21

Second, even if the instruction was an incorrect statement of law, we do not

believe that it was responsible for an incorrect verdict, resulting in substantial
injustice. The jury found that Exide was liable for negligence, breach of
warranty, fraud and misrepresentation, a scheme to defraud, false advertising,
deceptive trade practices/theft, and breach of contract. It is clear from these
unchallenged findings and the facts underlying them4 that the jury would have
awarded punitive damages even if part of the charge was erroneous.IV.
Punitive Damages as an Excessive Fine

22

Exide claims that the $3.5 million punitive damages award violates the
Excessive Fines Clause of the Eighth Amendment. We hold that Baker v.
Dillon, 389 F.2d 57 (5th Cir.1968), controls this issue and thus the issue is not
open for appellate review.

23

In Baker, this Circuit's predecessor reasoned:

24

It is a well-established rule of this Court that the granting or denial of a new

trial on the ground of excessive or inadequate damages is a matter of discretion
with the trial court, not subject to review except for grave abuse of discretion.
The necessary implication of this rule is that there can be no appellate review if
the trial court was not given an opportunity to exercise its discretion on a
motion for a new trial. Since there was no motion for new trial in this case, we
have no basis for reviewing the trial court's exercise of discretion and therefore
no basis for reviewing the adequacy of damages.

25

Id. at 58 (citations omitted). Baker 's reasoning applies with equal force to the
situation where, as here, a party makes a motion for new trial, but does not raise
the ground now asserted on appeal. See R6:162, at 2-3; R6:168, at 4.5

26

Furthermore, if the issue were properly preserved for appellate review, we

conclude that Exide is not entitled to prevail on the merits of its argument.
Ingraham v. Wright, 525 F.2d 909 (5th Cir.1976) (en banc), aff'd, 430 U.S. 651,
97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) and Jowers v. Nationwide Insurance Co.,
832 F.2d 1246 (11th Cir.1988), control our analysis.

27

Although Ingraham addressed the Cruel and Unusual Punishment Clause of the
Eighth Amendment, its language applies with equal force here: "Not only the
connotation of the words 'bail,' and 'fine,' but the legislative history concerning
enactment of the bill of rights supports an argument that the Eighth Amendment
was intended to be applied only to punishment invoked as a sanction for
criminal conduct." 525 F.2d at 912-13 (footnote omitted). In Jowers, this Court
rejected an argument identical to that raised by Exide: "Nationwide also asserts
that the size of the [punitive damages] award violates the excessive fines clause
of the eighth amendment to the United States Constitution. We find this
argument particularly unpersuasive." 832 F.2d at 1252 n. 8 (citation omitted).6
Consequently, we hold that the Excessive Fines Clause does not apply in the
civil context.7

28

Finally, if the Excessive Fines Clause were to apply to civil cases, we conclude
that the $3.5 million punitive damages award is not excessive. Although Exide
does not suggest any analysis for determining whether the award is excessive
under the Eighth Amendment, we believe an appropriate test would be whether
the award is so large as to shock the judicial conscience. Based on the facts
relating to punitive damages, see supra note 4, we cannot say that the $3.5
million award is out of all reasonable proportion to the egregiousness of Exide's

conduct so as to shock the judicial conscience.

29

Accordingly, AFFIRMED.

ORDER
BY THE COURT:
30

On December 28, 1987, Electro filed a motion for costs and attorney fees on
appeal. On January 5, 1988, Exide filed its response. On January 26, 1988, this
Court carried Electro's motion with the case. In light of our affirmance today,
we determine that, to the extent permitted by Florida law, Electro is entitled to
an award for costs and attorney fees for this appeal. We direct that the district
court determine the amount of this award when it considers the issues of costs
and attorney fees, issues upon which the district court reserved judgment when
it entered final judgment on May 20, 1987.

Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh
Circuit, sitting by designation

At oral argument, this Court sua sponte raised a question as to the timeliness of
Exide's appeal concerning the entry of final judgment on May 20. We conclude
that the appeal is timely. Rule 4(a)(1) of the Federal Rules of Appellate
Procedure provides that a notice of appeal must be filed within 30 days after the
entry of judgment. It thus appears that Exide's notice of appeal on July 29 was
not filed within 30 days of the district court's entry of judgment on May 20. It is
well settled, however, that a timely filed motion for new trial suspends the time
to appeal and review must be initiated within 30 days after denial of the motion.
See, e.g., Morse v. United States, 270 U.S. 151, 153-54, 46 S.Ct. 241, 242, 70
L.Ed. 518 (1926). Because Exide filed its notice of appeal on July 29, a time
within 30 days of the district court's denial on July 9 of the motion for new
trial, the remaining question is whether Exide filed its motions within 10 days
of the May 20 entry of judgment. Pursuant to Federal Rule of Civil Procedure
6(a), we calculate that the motions were filed on the tenth day (June 4) and thus
were timely
We note that, in its May 20 entry of judgment, the district court reserved
judgment on the issues of costs and attorney fees. We have jurisdiction over this
appeal. See Budinich v. Becton Dickinson & Co., --- U.S. ----, ----, 108 S.Ct.
1717, 1722, 100 L.Ed.2d 178 (1988).

Exide's challenge regarding lost profits is discussed infra in Section II

2
3

The following colloquy took place at the charge conference:

The Court: The only thing I was not sure about, and you say this is straight
from the Florida Standard Jury Instruction, is the misleading advertisement part
in that.
[Plaintiff's Counsel]: That part is not, Judge. That comes directly from the
statute.
The Court: Okay. So you didn't-[Plaintiff's Counsel]: The part that is not in the-The Court: Okay. Well, are you sure about that? Have you got a case
supporting that?
[Plaintiff's Counsel]: There are no cases interpreting that, Judge. But the
statute, itself, states that the jury is allowed to consider punitive damages if a
violation of the statute is found.
The Court: [Asks for comments of defendant's counsel]
[Defendant's Counsel]: I am not sure which misleading advertising statute?
There are two of them.
[Plaintiff's Counsel]: In 817.41.
The Court: He only refers to 817.41. That is another reason for dividing--is that
the one we are dividing up into two?
[Plaintiff's Counsel]: Yes, sir.
The Court: That is another good reason for dividing it up.
[Plaintiff's Counsel]: Subsection 6 of that advertising statute says: "Any person
prevailing in a civil action for violation of this section shall be awarded costs[,]
including reasonable attorney's fees[,] and maybe [sic] awarded punitive
damages in addition to actual damages proven."
The Court: It seems pretty clear, doesn't it?
[Plaintiff's Counsel]: And it continues with: "This provision is in addition to
any other remedies prescribed by law."

[Defendant's Counsel]: The statute says that, Your Honor. I have found it.
The Court: All right. We'll give Number 23, then. That seems to cover it.
R15:108-09 (emphasis added).
4

Although not necessarily an exhaustive list of facts relevant to this issue, we

note that: (1) Exide represented to Electro a warranty return percentage it knew
to be too low, (2) Exide told Electro that Electro was the only Exide customer
in the nation having excessive returns, yet Exide also gave this answer to other
complaining Exide customers, (3) Exide's engineers testified that batteries
Exide represented had a certain "life" could not be manufactured to last for any
specific warranty time period, (4) a former Exide Vice President admitted that
Exide had manufactured and shipped "lousy" batteries to Electro, (5) one of
Exide's plant managers said that defective batteries were being shipped to
Florida so that tourists would buy them, return home, and be unable to return
the batteries to the place of purchase for warranty adjustment, and (6) Exide
asked Electro not to sue while Exide considered settlement, and then Exide sued
Electro in federal court in Philadelphia, see Exide Corp. v. Electro Services,
Inc., 596 F.Supp. 1404, 1406 (E.D.Pa.1984), cancelled all pending Electro
orders for golf car batteries, wrote Electro's suppliers to say Electro did not pay
its bills, and devised a plan to steal Electro's customers

We find unavailing any suggestion that we should excuse the failure to raise
this ground before the district court. On March 9, 1987, the Supreme Court
noted probable jurisdiction in a case presenting the question of whether the
Excessive Fines Clause applies in the civil context to a punitive damages
award. See Bankers Life & Casualty Co. v. Crenshaw, --- U.S. ----, 107 S.Ct.
1367, 94 L.Ed.2d 683 (1987). (Because the issue was not presented to
Mississippi courts, the Supreme Court declined to address the merits. Bankers
Life & Casualty Co. v. Crenshaw, --- U.S. ----, 108 S.Ct. 1645, 1649-1651, 100
L.Ed.2d 62 (1988))
Exide relied on the Supreme Court's note of probable jurisdiction to argue this
issue on appeal. The grant of certiorari, however, easily predated the filing of
Exide's new trial motions on May 6, 1987, and June 4, 1987. Yet, Exide failed
to present this issue to the district court. In addition, the Supreme Court had
heard oral argument on this issue in an earlier case, but its resolution of the case
precluded it from reaching the merits of this "important" issue. See Aetna Life
Insurance Co. v. Lavoie, 475 U.S. 813, 828-29, 106 S.Ct. 1580, 1589, 89
L.Ed.2d 823 (1986).

The comment in Jowers may appear ambiguous when read out of context.
Because this Court concluded that the great weight of the evidence did not

support the punitive damages award, see 832 F.2d at 1255, it is clear that this
Court, rather than concluding that the award was not an "excessive" fine,
determined that the Excessive Fines Clause does not apply in the civil context
7

We note that, although the issue was presented in two cases, the Supreme Court
has yet to address the issue. See cases cited supra note 5