Ppg Industries, Incorporated, Plaintiff-appellee, v. Fairview Orchards Landbesitz, Gmbh, Vermogensverwaltung, Kg,d/b/a Fairview Orchards Growers, Inc. and Fairvieworchards Associates, Defendant-appellant,max Schlereth, Dr., Defendant, v. Roanoke Engineering and Sales Company, Inc., Marmetcorporation, Third-party Defendant, 831 F.2d 1058 (4th Cir. 1987)

Fairview Orchards Landbesitz, GMBH, Vermogensverwaltung, KG (Fairview Orchards) appeals from a jury verdict and judgment in this diversity contract case. We find no error in the district court's response to a question from the jury or the jury's findings, and we affirm.

PPG Industries, Inc. (PPG) brought this action¹  against Fairview Orchards, in march 1985, seeking payments remaining under a contract entered into by the parties, along with other damages. Fairview Orchards counterclaimed for breach of contract, breach of warranty and negligence. Pursuant to the contract, PPG agreed to furnish and install a window system at the Fidelity Building in Richmond, Virginia which was owned by Fairview Orchards. In return, Fairview Orchards agreed to make installment payments totaling $381,000²  to PPG for the work performed. When disputes over PPG's work arose, Fairview Orchards refused to comply with the contract's payment terms.

The case was tried before a jury on May 13-16, 1986. During the trial, PPG presented evidence that it had substantially completed the project by September 1984, and one of its employees had checked the work by December of that year. In fact, the onsite contract administrator, William Shirey, prepared an architect's "certificate of substantial completion" dated October 17, 1985, he having believed the project was substantially complete. PPG also introduced evidence that it was due additional sums for damages sustained due to extra work performed and additional costs incurred due to delays and interferences encountered on the project. Dennis Kakol, a consulting engineer retained by PPG, testified regarding the damages suffered by PPG due to the extra work and delays. Kakol's damage calculations were based on his review of PPG's cost records and his interviews of PPG employees involved with the project. He testified that he took a conservative approach to PPG's claim and gave detailed testimony with respect to it.

Alternatively, Fairview Orchards presented evidence as to its counterclaims and in defending against PPG's claims. Just as PPG had blamed the project's delays on Fairview Orchard, Fairview Orchard also attempted to claim that the newly installed windows leaked due to defective work on the part of PPG, and that PPG had not substantially performed. Additionally, Fairview Orchard attacked PPG's extra work and delay claims.

The jury returned its verdict in the amounts of $214,332 in favor of PPG and $42,280 in favor of Fairview Orchards. Fairview Orchards then filed a motion for judgment notwithstanding the verdict and a motion for a new trial. The district court, after thoroughly reviewing the record, denied these motions based on its conviction that the two verdicts were supported by the evidence and thus should stand. This appeal followed.

Fairview Orchards challenges both verdicts on two grounds. First, it contends that the district court's response to a question asked by the jury confused the jury and led to an incorrect verdict. second, Fairview orchards contends that there was insufficient evidence to support the jury verdict for PPG and that the verdict awarded it was inadequate. It also contends that its verdict was inadequate in view of the evidence.

Fairview Orchard's first argument is answered by the transcript. The following colloquy between the district court and counsel clearly demonstrates that this argument was not preserved for appeal, for Fairview Orchards' attorney approved the court's response to the jury's inquiry and took no exception thereto.

THE COURT: I have two inquiries from the jury. I will read them into the record. If we find in favor of PPG, will the warranty be reinstated on the workmanship and materials of the installed windows:

MR. WRIGHT: Certainly.

THE COURT: i.e.,

MR. DAVIS: What is left of the--

THE COURT: i.e., will it be PPG's responsibility to repair any defects due to the installation of the windows described within the warranty?

Now, I am open to suggestions. What's the plaintiff's suggestion as to a response?

MR. WRIGHT: If your honor please, it takes me quite by surprise. The warranty that was there presumably is still there, although it may be res adjudicata as to the warranty and I just--

THE COURT: I am going to tell them I cannot answer the question.

MR. DAVIS: I think so, judge. I think that probably is the only thing you can tell them. Because that is not an available remedy as far as i am aware. It is either dollars or doughnuts.

THE COURT: Well, the fact of the matter is that is a question that is open, isn't it? It is not an issue here. Is that right, mr. Wright?

MR. WRIGHT: Right, I think it is. What I am trying to go over in my mind is whether or not it would be barred in the future if the claim were made on it.

THE COURT: I know that.

MR. WRIGHT: But--

THE COURT: I think what I should tell them is, sorry, but we cannot decide that in the context of this case, Is that a fair statement?

MR. WRIGHT: Yes, your honor.

MR. DAVIS: I think it is. Again, it is difficult to grapple with. Either that or the only award you can provide is one involving a monetary value. That is, I suppose, is what the message will be to them.

THE COURT: I think that is about all I ought to say. Sorry, but that is an issue that cannot be decided at this time. I § there any exception to that.

MR. WRIGHT: No.

MR. DAVIS: No, sir.

Based on its earlier affirmation of the lower court's response to the jury's question, Fairview cannot now be heard to complain of its effect. We doubt, in any event, that the response of the district court to the question by the jury was erroneous.

Fairview Orchard's sufficiency of the evidence arguments are also without merit. The jury heard a full range of evidence regarding liability and damages on both PPG's initial claim and Fairview Orchard's defense and counterclaim. After a thorough review of the record, we are unable to say that the jury's verdicts were not supported by the evidence.

Accordingly, the judgment of the district court is

AFFIRMED.