Konstantinos Varesis v. Michael Landry

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14335
Non-Argument Calendar
____________________
KONSTANTINOS VARESIS,
Plaintiff-Appellant,
versus
MICHAEL JOSEPH LANDRY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:21-cv-00084-KD-M
____________________
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2 Opinion of the Court 22-14335
Before L AGOA , ABUDU, and ANDERSON, Circuit Judges.
PER CURIAM:
Konstantinos “Kova” Varesis and Michael Joseph Landry
were student-athletes at Spring Hill College in Mobile, Alabama.
One night, a fight between players on the school’s soccer and golf
teams broke out during an on-campus party. Varesis, a soccer
player, and Landry, a golfer, were both involved. The exchange
between the two teams ended abruptly when Landry punched Va-
resis, knocking him unconscious.
Varesis sued Landry for negligence and wantonness, and the
case proceeded to a two-day jury trial. The jury found Landry lia-
ble, but it also found that Varesis was negligent and awarded Vare-
sis $1 in compensatory damages and $20,000 in punitive damages.
Varesis now appeals, arguing that the district court improperly in-
structed the jury. After careful review, we affirm.
I. BACKGROUND
In 2019, Landry was a student at Spring Hill College and a
member of the school’s golf team. On February 23, 2019, Landry
attended a late-night party at Fairway Apartments, a student resi-
dential building on the college’s campus, with several of his team-
mates, including Grayson Glorioso. About fifty or sixty people
were at the party. One of the attendees was George Brown, a
member of Spring Hill’s soccer team.
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22-14335 Opinion of the Court 3
At the party, a heated argument between Brown and Glori-
oso ensued when Brown made a comment about Glorioso’s girl-
friend. Glorioso invited Brown to talk outside. Brown then sent
several of his teammates, including Varesis, a Snapchat message
saying that “[s]tuff is going down with the golf players.” Varesis
was not at the party at the time. When he received Brown’s mes-
sage, he left his dorm room and walked toward the Fairway Apart-
ments.
Varesis arrived amid a heated exchange between three golf
players and seven or eight soccer players in a breezeway outside of
the party. Varesis and other soccer players shouted at Glorioso and
Landry to leave the area. The two groups continued to exchange
profanities, with Varesis standing toward the front of the soccer
team and yelling at Landry and Glorioso to “[g]et the fuck out.”
Additionally, one of the soccer players swung an umbrella, and an-
other threw a glass beer bottle, toward the golf players. Dionte
Rudolph, a student and resident adviser for a Spring Hill dormitory,
heard about the commotion and walked to the parking lot. Ru-
dolph tried to calm Landry down. She placed her arm around him
and began guiding him away from the soccer team.
Several soccer players taunted the golfers as they walked
away, singing, “[N]ah, nah, nah, nah, nah, nah, nah, nah, hey, hey,
goodbye.” Angry about the taunting, Landry broke away from Ru-
dolph and ran toward the soccer players. Landry punched Varesis,
then ran away.
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4 Opinion of the Court 22-14335
Varesis immediately collapsed onto the pavement. He lost
consciousness, and his head began bleeding. An ambulance trans-
ported Varesis to the hospital, where an ER doctor determined that
he had suffered epidural, subdural, and intraparenchymal hemor-
rhages. Varesis had suffered a previous concussion before the inci-
dent.
The fight on February 23, 2019, was not the only one in
which the soccer team was involved. Several months prior, the
Spring Hill soccer and tennis teams engaged in a brawl after a ten-
nis player slapped a soccer player. Varesis was present at this brawl
as well.
At trial, the parties presented conflicting evidence of Vare-
sis’s condition after being punched by Landry. One of Varesis’s
teammates testified that Varesis was “not the same Kova” and “was
sad every day” when he returned to school. The Spring Hill soccer
coach thought that Varesis was “off pace” after the injury. Varesis
also had frequent, sharp headaches. Still, Varesis finished the
spring semester at Spring Hill and briefly returned to playing soc-
cer. Despite his injury, and despite having earned a 2.98 GPA dur-
ing the fall semester, Varesis earned a 3.94 GPA for the spring se-
mester.
Varesis briefly returned to Spring Hill in August 2019. In his
first game of the new season, he suffered a concussion after “head-
ing” a soccer ball. After this incident, he experienced a constant
migraine headache. Not much later, Varesis left Spring Hill and
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22-14335 Opinion of the Court 5
returned home to Greece. He then enrolled in the Agricultural
University of Athens, where he earned high grades.
In February 2021, Varesis filed suit against Landry in the
United States District Court for the Southern District of Alabama,
asserting claims of negligence and wantonness under Alabama law.
The case proceeded to trial. Before trial, Varesis and Landry each
individually filed proposed jury instructions. The parties also
jointly filed proposed jury charges. As relevant here, the parties’
joint submission included a version of Alabama Pattern Jury In-
struction 11.10. That proposed instruction provided:
Mr. Varesis says that he has had pain and suf-
fering, mental anguish, and emotional distress and
will have future pain and suffering, mental anguish,
and emotional distress. There is no legal rule or yard-
stick that tells you how much money to award for
physical pain or mental anguish. The amount you de-
cide to award is up to you, but it must be fair and rea-
sonable, based on sound judgment, and proved by the
evidence. In deciding the amount of the award, you
may consider, among other things, the nature, sever-
ity, and length of time Mr. Varesis had past physical
pain and mental anguish. You should award Mr. Va-
resis an amount for future physical pain and emo-
tional distress if Mr. Varesis has proved that it is rea-
sonably certain that he will have physical pain and
emotional distress in the future.
Similarly, Varesis’s individual submission included an in-
struction modeled after Alabama Pattern Jury Instruction 11.09:
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6 Opinion of the Court 22-14335
Mr. Varesis asks for damages for the following:
• Past physical pain
• Future physical pain
• Past mental anguish and emotional distress
• Permanent injuries
• Past loss of enjoyment of life
• Future loss of enjoyment of life
After the first day of trial, the district court circulated a draft
of the jury instructions and verdict form to the parties. The draft
instructions did not include either Alabama Pattern Jury Instruc-
tion 11.09 or Alabama Pattern Jury Instruction 11.10. The next day,
the district court conferenced with the parties about the instruc-
tions. The district court began the conference by asking, “I didn’t
get any objections to the instructions. Is that correct from the
plaintiff?” Varesis’s counsel stated that it was.
Later during the same conference, Varesis’s counsel asked,
“Well, the only reservation that I can—these are—these are not the
jury charges. This is just the Court’s instruction, right?” The dis-
trict court answered, “It says, ‘Final Instructions to the Jury,’ and,
at the top, it has ‘draft’ right there. I’m going to hand those to the
jury, and I’m going to read it to them.”
Varesis’s counsel again asked about the draft instructions to-
ward the end of trial. He told the district court, “I didn’t know if
this was just going to be your final instructions or that you were
going to do like in the beginning when you gave the jury
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22-14335 Opinion of the Court 7
instructions about the trial before we started.” The district court
responded, “Okay. I’m just trying to understand you. So what
other kind of instructions am I supposed to give?” After some back-
and-forth, the district court stated, “I’m not sure where the confu-
sion is. There is no other charge to give. This is it. So that’s why
I keep asking, are there any objections to this charge.” At that
point, Varesis’s counsel responded that he objected that the draft
jury instructions did “not include a charge for permanent injuries
or the mortality tables.” The district court overruled the objection
on the ground that no medical evidence supported permanency.
The district court again asked whether there were further objec-
tions to the jury instructions. Varesis’s counsel replied, “No, Your
Honor.”
In his closing argument to the jury, Varesis argued that
Landry acted negligently and wantonly, and, accordingly, he asked
the jury to award him $194,700 in compensatory damages and
$584,100 in punitive damages. Landry argued that he punched Va-
resis in self-defense. He also argued that Varesis was contributorily
negligent. Then, addressing damages, Landry’s counsel advised
the jury that Varesis was “only asking to be compensated, as the
verdict form is going to say, for pain and suffering, mental an-
guish”—not for “medical expenses, tuition, anything like that.”
Landry asserted that Varesis’s treating physician did not find that
Varesis suffered any lasting brain injuries, and other evidence
demonstrated that Varesis simply carried on with his life, reen-
rolled in another university, and earned good grades as he did pre-
viously. In Varesis’s rebuttal argument, his counsel confirmed to
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8 Opinion of the Court 22-14335
the jury that Varesis was asking only for compensatory damages
amounting to “$100 a day from when he got punched until today .
. . for the physical injuries and the pain and the suffering that he’s
endured,” in addition to “$50 a day for the mental anguish and
emotional distress that he’s been through since that time.”
The district court then instructed the jury, excluding the
proposed Alabama Pattern Jury Instructions 11.09 and 11.10 in do-
ing so. The district court instructed the jury:
Varesis asks you to award compensatory dam-
ages for the harm caused by Landry, and he also asks
you to award punitive damages.
Now, as to compensatory damages, they are
awarded to fairly and reasonably compensate for the
harm caused by another’s wrongful conduct. Varesis
must prove the amount of compensatory damages to
a reasonable satisfaction from the evidence and rea-
sonable inferences from the evidence. You can’t
guess at the amount of damages. . . .
Before you can award punitive damages, you
must have decided to award Varesis compensatory or
nominal damages, and Varesis must have proved, by
clear and convincing evidence, that Landry con-
sciously or deliberately acted towards Varesis with
wantonness. So the only way that you can award pu-
nitive damages is if you find for Mr. Varesis on the
wanton claim.
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22-14335 Opinion of the Court 9
The jury then retired to deliberate. The verdict form con-
tained three questions on damages, including question number 5,
which read:
5. What amount of compensatory damages will fairly
and reasonably compensate Konstantinos Varesis for
his injuries?
Physical injury, pain, suffering and mental anguish
$__________
During deliberations, the jury submitted a question to the
district court. It asked, “Can Varesis be awarded punitive damages
without compensatory?” After discussing the matter with the par-
ties, the district court answered,
Before you can award punitive damages (1)
you must have decided to award Varesis compensa-
tory or nominal damages; and (2) Varesis must have
proved by [clear] and convincing evidence that
Landry consciously or deliberately acted toward Va-
resis with wantonness.
Nominal damages are a small amount of
money awarded, for example $1, when you are rea-
sonably satisfied from the evidence that Varesis has
been harmed, but Varesis has not proved the amount
that you should award. If you find that Varesis is due
nominal damages instead of Compensatory damages,
indicated such in question #5 by writing in nominal
damages and indicating an amount.
Varesis’s counsel suggested that he objected to the district
court’s answer, but then withdrew the objection:
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10 Opinion of the Court 22-14335
[Varesis’s Counsel]: The other thing is that Varesis
has not proved the amount that you should award, I
think it may be a misstatement because he’s entitled
maybe—
THE COURT: That’s directly from the Alabama jury
charges.
[Varesis’s counsel]: It is?
THE COURT: Yes.
[Landry’s counsel]: No objection from the defense.
THE COURT: Any other objection?
[Varesis’s counsel]: No. No, Your Honor.
The jury returned a verdict finding that Landry was negli-
gent and wanton and did not act in self-defense. But the jury also
found Varesis comparatively negligent. The jury wrote “$1.00” as
the answer to question 5, finding that Varesis was entitled only to
$1 for his “[p]hysical injury, pain, suffering, and mental anguish.”
The jury also awarded Varesis $20,000 in punitive damages. The
district court entered judgment for Varesis in the amount of
$20,001.
Following the verdict, Varesis filed a motion for a new trial
under Federal Rule of Civil Procedure 59. Varesis argued that he
was entitled to a new trial because the district court failed to give
Alabama Pattern Jury Instructions 11.09 and 11.10, resulting in
prejudice. Varesis argued that the jury’s verdict was against the
weight of the evidence. Varesis also asserted that the district
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22-14335 Opinion of the Court 11
court’s omission of jury instructions regarding permanent injury
and a mortality table warranted a new trial.
Landry responded to Varesis’s motion, contending that Va-
resis failed to timely object to the omission of the relevant instruc-
tions, so plain-error review applied. And, Landry argued, Varesis
had not shown plain error. Landry further contended that Varesis
did not present sufficient evidence of a permanent injury, so the
district court did not err in excluding mortality tables from the ev-
idence. And last, Landry argued that the jury’s verdict accurately
reflected the weight of the evidence.
The district court agreed with Landry, adopting several sec-
tions from his opposition brief as its reasoning. This appeal fol-
lowed.
II. STANDARD OF REVIEW
“[W]e review a district court’s refusal to give a particular
jury instruction for abuse of discretion.” Hicks v. City of Tuscaloosa,
870 F.3d 1253, 1261 (11th Cir. 2017). But when the appealing party
failed to object to the exclusion of the instruction before the jury
deliberated, we review only for plain error. Vista Mktg., LLC v.
Burkett, 812 F.3d 954, 975 (11th Cir. 2016) (citing Fed. R. Civ. P. 51).
III. ANALYSIS
Varesis raises a single argument on appeal: that the district
court abused its discretion in denying his motion for a new trial
because, by not giving Alabama Pattern Jury Instructions 11.09 and
11.10, the district court failed to instruct the jury on how to
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12 Opinion of the Court 22-14335
determine damages for pain, suffering, and mental anguish.1 This
argument faces a significant obstacle at the start, however. As
Landry points out, Varesis did not object to the exclusion of the
instructions until his motion for a new trial—i.e., after the district
court entered judgment. And if Landry is correct, we must review
the district court’s instructions only for plain error.
Federal Rule of Civil Procedure 51 governs objections to
jury instructions, so we apply it to determine whether Varesis
timely objected below. Rule 51(b) requires district courts to inform
the parties of the jury instructions it plans to give before closing
arguments and to “give the parties an opportunity to object on the
record and out of the jury’s hearing before the instructions and ar-
guments are delivered.” Fed. R. Civ. P. 51(b). Under Rule 51(c)(2),
an objection to a jury instruction or the failure to give an instruc-
tion is timely if either the party objects at the opportunity provided
by the district court or the party “was not informed of an instruc-
tion or action on a request before that opportunity to object, and
the party objects promptly after learning that the instruction or re-
quest will be, or has been, given or refused.” Fed. R. Civ. P.
51(c)(2).
Rule 51(d) spells out the consequences of a timely objec-
tion—and of the failure to make one. The rule permits parties to
1 Varesis argues that the jury’s verdict contradicts the great weight of the trial
evidence, but he asserts only that this disconnect “evidence[s]” the prejudice
caused by the district court’s erroneous exclusion of the proposed jury instruc-
tions. Thus, this argument is not an independent basis for a new trial.
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22-14335 Opinion of the Court 13
assign as error “a failure to give an instruction, if that party properly
requested it and . . . also properly objected.” Fed. R. Civ. P. 51(d)(1)(B)
(emphasis added). If the party did not preserve its objection, “[a]
court may consider a plain error in the instructions . . . if that error
affects substantial rights.” Fed. R. Civ. P. 51(d)(2); see also Vista
Mktg., 812 F.3d at 975. We have read Rule 51 “strictly” and thus
“require a party to object to a jury instruction or jury verdict form
prior to jury deliberations in order to preserve the issue on appeal.”
Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir.
1999).
Although Varesis proposed versions of Alabama Pattern
Jury Instructions 11.09 and 11.10, the question is whether he “also
properly objected” after being informed of the district court’s pro-
posed instructions. Fed. R. Civ. P. 51(d)(1)(B). Reviewing the rec-
ord, it is clear that he did not. In fact, Varesis admits that his coun-
sel did not even notice the omission until after trial. Instead, Vare-
sis argues that he did not have a fair opportunity to object because
of the time constraints of a two-day trial and the formatting of the
district court’s proposed instructions. But this argument is largely
beside the point and, in any event, unpersuasive. Varesis concedes
that the draft instructions circulated by the district court after the
first trial day did not include Alabama Pattern Jury Instructions
11.09 and 11.10 and that his counsel had time to “spen[d] at least
two hours reviewing, discussing, and editing” the district court’s
three-page draft verdict form the same night. When the district
court brought up the jury instructions at its conference the next
day, Varesis’s counsel did not request more time to review the draft
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14 Opinion of the Court 22-14335
instructions. To the contrary, he unequivocally stated that he had
no objection to the draft instructions. He later confirmed that he
had no further objections after separately objecting to the omission
of an instruction on permanent injuries.
Trial no doubt places difficult demands on parties, their
counsel, and trial courts. But that fact only makes it more im-
portant, not less, for parties to raise timely, specific objections to
errors they seek to correct. See, e.g., Ford ex rel. Est. of Ford v. Garcia,
289 F.3d 1283, 1288 (11th Cir. 2002) (explaining that Rule 51 re-
quires timely objections “to prevent unnecessary new trials be-
cause of errors the judge might have corrected if they had been
brought to his attention at the proper time” (quoting Pate v. Sea-
board R.R., 819 F.2d 1074, 1082 (11th Cir. 1987))). And because Va-
resis belatedly objected to the district court’s exclusion of Alabama
Pattern Jury Instructions 11.09 and 11.10, we must review the ex-
clusion only for plain error.
“Plain error review is an extremely stringent form of re-
view.” Farley, 197 F.3d at 1329. To prevail under plain-error re-
view, “a party must show (1) an error occurred; (2) the error was
plain; (3) the error affected substantial rights; and (4) failure to cor-
rect the error would ‘seriously affect the fairness of the judicial pro-
ceeding.’” Vista Mktg., 812 F.3d at 975 (quoting Farley, 197 F.3d at
1329). A party challenging jury instructions as plainly erroneous
must show that the instructions “misled the jury or left the jury to
speculate as to an essential point of law” and that the erroneous
instruction “was probably responsible for an incorrect verdict,
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22-14335 Opinion of the Court 15
leading to substantial injustice.” DeJesus v. Lewis, 14 F.4th 1182,
1199 (11th Cir. 2021) (quoting Farley, 197 F.3d at 1329). The appel-
lant bears the burden of proving that each prong of the plain-error
test is met. See Pulliam v. Tallapoosa Cnty. Jail, 185 F.3d 1182, 1188
(11th Cir. 1999); United States v. Moran, 57 F.4th 977, 984 (11th Cir.
2023). “[R]eversal for plain error in the jury instructions or verdict
form will occur ‘only in exceptional cases where the error is “so fun-
damental as to result in a miscarriage of justice.”’” Farley, 197 F.3d
at 1329 (quoting Montgomery v. Noga, 168 F.3d 1282, 1294 (11th Cir.
1999)).
Varesis argues only that the district court abused its discre-
tion in omitting his proposed instructions. Although Landry ar-
gued in his brief that we must review the omission for plain error,
Varesis did not mention the plain-error standard anywhere in his
briefing. Because Varesis has not argued—even in the alterna-
tive—that the district court plainly erred, he cannot meet his bur-
den of establishing that he has satisfied each prong of the plain-er-
ror standard. See, e.g., United States v. Duncan, 400 F.3d 1297, 1304
(11th Cir. 2004) (holding that the appellant did not meet his burden
with respect to one prong of the plain-error standard because he
did “not point to anything indicating” that he could satisfy that
prong); see also United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir.
2006) (“We may decline to address an argument where a party fails
to provide argument on the merits of an issue in its initial or reply
brief. Without such argument the issue is deemed waived.”).
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16 Opinion of the Court 22-14335
But even considering the merits, we find no plain error.
“‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’”
United States v. Olano, 507 U.S. 725, 734 (1993). Accordingly,
“‘[p]lain error’ review under Rule 51 is suited to correcting obvious
instances of injustice or misapplied law.” City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 257 (1981) (emphasis added). In other
words, it is not enough to show that an error occurred; the error
must be clear and obvious under existing law. See, e.g., Wammock
v. Celotex Corp., 835 F.2d 818, 821–22 (11th Cir. 1988) (explaining, in
a diversity case, that even though a jury instruction was “an incor-
rect statement of Georgia law,” the error was not plain).
Varesis argues that because the district court excluded his
version of Alabama Pattern Jury Instruction 11.09 from its instruc-
tions, the jury was not informed that it could award damages for
pain, suffering, and mental anguish. The record contradicts his ar-
gument. Both Varesis’s and Landry’s closing arguments made
clear to the jury that Varesis was seeking damages for his physical
injuries, pain, suffering, and mental anguish. And so did the ver-
dict form. Question 5 of the verdict form expressly described the
type of compensatory damages the jury was to consider: “[p]hysical
injury, pain, suffering, and mental anguish.” “[W]e review jury in-
structions and verdict forms together rather than separately for re-
versible error.” Farley, 197 F.3d at 1329. Thus, given the verdict
form, trial evidence, and parties’ closing arguments, Varesis has not
shown plain error because he has not pointed to binding case law
requiring his requested instructions under these circumstances. See
Ford, 289 F.3d at 1292 (holding that appellants did not show plain
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22-14335 Opinion of the Court 17
error because “no case law exists clearly” supporting their posi-
tion).
Varesis also contends that the district court’s instructions did
not give the jury a complete framework for calculating his damages
for pain, suffering, and mental anguish. In particular, Varesis fo-
cuses on the district court’s instruction that the jury could not
“guess” as to the amount of compensatory damages, contrasting
that instruction with the portion of Alabama Pattern Jury Instruc-
tion 11.10 that provides, “[N]o legal rule or yardstick that tells you
how much money to award for physical pain or mental anguish.”
But Varesis ignores other parts of Alabama Pattern Jury Instruction
11.10 that closely mirror the instructions the district court gave.
For example, although Alabama Pattern Jury Instruction 11.10
states that no “yardstick” directs a jury exactly how to calculate
pain, suffering, and mental anguish damages, that instruction also
requires any amount awarded to “be fair and reasonable, based on
sound judgment, and proved by the evidence.” Therefore, it was
not plainly erroneous for the district court to tell the jury that it
could not “guess” the amount of pain, suffering, and mental an-
guish damages suffered by Varesis. And again, Varesis has not
pointed to any Alabama case law suggesting that excluding his re-
quested instructions was error, so any error committed by the dis-
trict court was not plain. See Ford, 289 F.3d at 1292–93 (finding no
plain error where “no [governing] decision . . . has addressed this
issue” and “no clear case law exists” to the contrary).
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18 Opinion of the Court 22-14335
Varesis also has not carried his heavy burden of demonstrat-
ing that the district court’s jury instructions were “probably re-
sponsible for an incorrect verdict.” Farley, 197 F.3d at 1330 (quoting
Noga, 168 F.3d at 1294). The parties and the district court made it
abundantly clear through argument, evidence, and the verdict
form that Varesis sought damages for pain, suffering, and mental
anguish. And the trial evidence supported the jury’s finding that
even though Landry was liable, Varesis did not suffer significant
damages because of it. Evidence elicited at trial suggested that Va-
resis’s grades improved after the incident and that Varesis suffered
concussions both before and after Landry punched him that might
have caused his headaches. And, as discussed, the instructions
given by the district court mirrored Alabama Pattern Jury Instruc-
tion 11.10 in relevant part. We thus cannot conclude on this record
that Varesis has satisfied his burden of showing that the district
court’s purported error affected his substantial rights.
For all of these reasons, we affirm the judgment below.
AFFIRMED.
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