Kirby v. Estate of Johnson
Kirby v. Estate of Johnson
Opinion of the Court
OPINION
Larry Kirby, proceeding pro se, appeals from a judgment of the United States District Court for the Western District of Pennsylvania in favor of the Estate of Rodney D. Johnson, individually, and Rodney D. Johnson, trading and doing business as Buffalo Express (together, “the Trucking Company Defendants”) in a breach of contract action. For the reasons that follow, we will affirm.
In July 2000, Kirby entered into a written agreement with Buffalo Express to buy a truck referred to as Unit 226 (the “Lease/Purchase Agreement”). Kirby would own the truck upon completion of the specified payments. On the same day, Kirby and Buffalo Express entered into a second written agreement under which Kirby agreed to haul freight for Buffalo Express in exchange for a percentage of the gross revenues. Kirby claimed that he was promised a minimum number of freight trips, which were necessary for him to make his payments under the Lease/Purchase Agreement. In February 2002, after disputes arose between the parties, Kirby took possession of Unit 226 and stopped making payments under the Lease/Purchase Agreement.
Kirby filed suit in District Court against the Trucking Company Defendants pursuant to 28 U.S.C. § 1332.
The case proceeded to trial, and a jury reached a verdict in favor of the Trucking Company Defendants on Kirby’s breach of contract claims. The jury awarded the Trucking Company Defendants $7,199.38 on their breach of contract counterclaim and $16,256.64 on their conversion counterclaim. The jury also awarded the Trucking Company Defendants $100,000 in punitive damages. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
Kirby also contends that the District Court erred in ruling that Rodney Johnson’s wife was not an owner of Buffalo Express, which resulted in her dismissal as a party to the action. Kirby states that the District Court ignored evidence establishing that Johnson’s wife operated Buffalo Express, shared in its profits and losses, and held herself out as an operator of Business Express. Kirby again has not established that the District Court erred. We are unable to review the evidence presented at trial absent the transcript.
Kirby also challenges the District Court’s denial of his motion to alter the punitive damages award. The District Court found the motion untimely under Federal Rule of Civil Procedure 59(e). The District Court also noted that it lacked jurisdiction to entertain the motion because Kirby had already filed a notice of appeal. We are unable to review the District Court’s denial of the Rule 59 motion because Kirby did not file an appeal from the District Court’s order. See Fed. R.App. P. 4(a)(4)(B)(ii) (requiring the filing of a notice of appeal or an amended notice of appeal to challenge an order disposing of a motion to alter or amend the judgment).
Finally, Kirby argues that the jury’s verdict is against the weight of the evidence. Kirby, however, did not preserve this issue for appeal by filing a motion for a new trial in District Court. See Etienne v. Inter-County Security Corp., 173 F.3d 1372, 1375 (11th Cir. 1999) (holding same).
Accordingly, we will affirm the judgment of the District Court.
. Kirby initially named as defendants Rodney Johnson and his wife, each individually, and Rodney Johnson and his wife, doing business as Buffalo Express. Rodney Johnson passed away before trial, and his estate was substituted as a party. The District Court granted Rodney Johnson's wife’s motion for judgment as a matter of law.
. Kirby also claimed that the Trucking Company Defendants defrauded him of revenue and misrepresented the number of freight trips he would make under their contract. The District Court granted summary judgment for the Trucking Company Defendants on these claims, and they are not at issue in this appeal.
. Kirby, however, returned the truck after the Trucking Company Defendants filed their answer and counterclaims.
. The Trucking Company Defendants have provided excerpts of the transcript, but they only reflect the trial court’s ruling.
. The motion to strike Kirby’s brief is denied.
Reference
- Full Case Name
- Larry P. KIRBY v. Estate of Rodney D. JOHNSON, individually Rodney D. Johnson, trading and doing business as Buffalo Express
- Status
- Published