Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

MEMORANDUM^* 

Evergreen Air Center (Evergreen) appeals from the judgment entered against it after a trial by jury. The jury awarded Resorts International, Inc., (Resorts) $203,804.00 in damages for replacement and repair to three Grumman G-111 airplanes stored with Evergreen.

We address each of Evergreen's contentions and the facts pertinent thereto under separate headings.

* INSTRUCTION ON PROXIMATE CAUSE

Prior to reading the instructions to the jury, the court asked if there were any objections to them. Evergreen's counsel made the following statement:

I think I must be constrained to reserve my rights with respect to the instruction on the breach of contract allegations and how they've been fashioned in these jury instructions. I'm still not clear that we have made a distinction between a breach of written contract as alleged in your Complaint and a breach of bailment agreement which creates a contract by law.

I believe that as originally argued by defendant, that the instructions should be that the damages--strike that, not the damages, that the injury, if any, to the plaintiff must proximately result from some conduct on the part of the defendant. And I don't think I need go any further.

Evergreen asserts that the jury "instruction pertaining to proximate cause was confusing and misled the jury...." Appellant's Opening Brief at 15. Evergreen cites no authority in support of its claim. Furthermore, Evergreen does not argue that the giving of this instruction was prejudicial. We have reviewed the court's instruction on proximate cause. It is neither misleading nor confusing. This contention is meritless.

II

SUFFICIENCY OF THE EVIDENCE OF PROXIMATE CAUSE

Evergreen argues on appeal that the evidence was insufficient to show that Evergreen was liable for the damages incurred by Resorts. Evergreen made a motion for a directed verdict at the close of the plaintiff's case. Evergreen failed to renew its motion for a directed verdict at the close of all the evidence. "It is thoroughly established that the sufficiency of the evidence is not reviewable on appeal unless a motion for a directed verdict was made in the trial court." United States v. 33.5 Acres of Land, 789 F.2d 1396, 1400 (9th Cir. 1986) (quoting Trans World Air Lines, Inc. v. Shirley, 295 F.2d 678, 678-79 (9th Cir. 1961). " [A] motion at the close of plaintiff's case will not do unless it is renewed at the close of all the evidence." C. Wright & A. Miller, 9 Federal Practice & Procedure, Sec. 2536 at 593 (1971). In Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342 (9th Cir. 1985), we commented that the reason that it is necessary to renew a motion for directed verdict at the close of all of the evidence is to alert "the opposing party to the alleged insufficiency of the evidence.... Failure to renew an earlier motion for a directed verdict may lull the opposing party into believing that the moving party has abandoned any challenge to the sufficiency of the evidence once all of the evidence had been presented." Id. at 1346.

Evergreen failed to preserve for appeal the issue of sufficiency of the evidence of liability. We have examined the record for plain error. Benigni v. City of Hemet, 868 F.2d 307, 310 (9th Cir. 1988). We have found none. The record shows Resorts presented evidence of liability. Sustaining the judgment on the basis of this evidence would not result in a miscarriage of justice.

III

INSTRUCTION ON REPLACEMENT VALUE

Evergreen asserts for the first time on appeal that the court erred in instructing the jury on the applicable measure of damages. Evergreen did not object to the court's instructions on the measure of damages. "No party may assign as error the giving of an instruction or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Fed. R. Civ. P. 51. Because of Evergreen's procedural default, we decline to review its challenge to the court's instruction on the measure of damages.

IV

SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE AMOUNT OF DAMAGES

AWARDED BY THE JURY

Evergreen also argues that the evidence was insufficient to support an award of $203,804.00 in damages. We disagree.

Resorts presented evidence from two witnesses that the reasonable cost to repair and replace the airplanes was $203,804.00. Accordingly, the district court did not abuse its discretion in denying the motion for a new trial on the issue of damages, or in refusing to order a remittitur.

V

ATTORNEY'S FEES

Resorts seeks attorney's fees and costs in defending this appeal. We may award attorney's fees and single or double costs on appeal if the appeal is frivolous. Fed. R. App. P. 38. "An appeal is frivolous if the result is obvious, or the arguments of error are wholly without merit." Dewitt v. Western Pac. R.R. Co., 719 F.2d 1448, 1451 (9th Cir. 1983) (citation omitted). Because we have determined that the arguments presented by Evergreen are wholly without merit, we award Resorts attorney's fees and assess double the costs incurred in the presentation of the defense to this appeal. The district court is directed to determine the amount of the attorney's fees incurred by Resorts on this appeal.

AFFIRMED.