Cableguard Systems v. Mid-Continent Cslty, et al

United States Court of Appeals
Fifth Circuit
F I L E D
August 4, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-30696
Summary Calendar
_______________
CABLEGUARD SYSTEMS, INC.,
UNITED STATES OF AMERICA FOR THE USE OF,
Plaintiff-Appellee,
VERSUS
MID-CONTINENT CASUALTY COMPANY; ET AL.,
Defendants,
MID-CONTINENT CASUALTY COMPANY;
PETE VICARI GENERAL CONTRACTOR, INC.,
Defendants-Appellants
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 99-CV-2064-A
_________________________

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Before JOLLY, HIGGINBOTHAM, and SMITH,
Circuit Judges.
PER CURIAM:*
Pete Vicari General Contractor Inc. (“Vica-
ri”), and its surety, Mid-Continent Casualty
Company (“Mid-Continent”), appeal a
judgment for Cableguard Systems, Inc.
(“Cableguard”), in this Miller Act suit.
Finding no error, we affirm.
I.
In 1997, Vicari became the general
contractor on a project to construct a building
for the United States Postal Service. As
required by the Miller Act, 40 U.S.C. § 270a-
(a)(2), Vicari (through its surety, Mid-
Continent) posted a payment bond to protect
its subcontractors and suppliers of labor and
material.
Vicari subcontracted the electrical work to
Phoenix Electrical, Inc. (“Phoenix”), which
contracted with Cableguard, doing business as
Dictograph Security (“Dictograph”), for the
supply and installation of a fire alarm and se-
curity system. While Cableguard was
performing its obligations in early 1998, a
modification to the contract required it to
install two extra fire pull stations. Cableguard
could not do so, however, because of
improper wiring in the post office.
Cableguard submitted a final bill to Vicari
in July 1998 but did not receive payment. In
October 1998, Cableguard removed the
improper wiring and installed the correct
wiring and the fire pull stations. Cableguard
again sought payment, but Vicari refused. In
November 1998, Cableguard therefore
submitted written notice to Vicari of its intent
to collect the contractual amount from the
payment bond under the Miller Act, 40 U.S.C.
§ 270b(a). Cableguard then sued Vicari and
Mid-Continent.
The parties disputed one key factual ques-
tion, namely, whether Cableguard provided
timely notice of its claim to Vicari. The Miller
Act requires a supplier to give written notice
to the general contractor “within ninety days
from the date on which [the supplier] did or
performed the last of the labor or furnished or
supplied the last of the material[.]” 40 U.S.C.
§ 270b(a); see generally J.D. Fields & Co. v.
Gottfried Corp., 272 F.3d 692, 696 (5th Cir.
2001). Cableguard’s notice was timely if its
October 1998 work is characterized as
“labor,” but not if it is characterized as
“repairs.” See United States ex rel. Ga.
Supply Co. v. United States Fid. & Guar. Co.,
656 F.2d 993, 995-96 (5th Cir. Unit B Sept.
1981).
The district court denied the parties’
motions for summary judgment on this factual
question and submitted the case to a jury. The
jury found that the October 1998 work was
“labor” under the Miller Act and, hence, that
Cableguard had provided timely notice. The
court then entered judgment for $51,261.41,
the stipulated amount of contractual damages,
plus pre-judgment interest of $13,290.77.
On appeal, Vicari and Mid-Continent do
not challenge the finding that the work was
“labor,”1 but argue that several alleged proce-
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Actually, they raise this issue in their reply
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dural and evidentiary errors require reversal.
II.
Vicari challenges Cableguard’s capacity to
sue. The district court entered summary judg-
ment for Cableguard on this question.
Reviewing the judgment de novo, Hollowell v.
Orleans Reg’l Hosp. LLC, 217 F.3d 379, 382
(5th Cir. 2000), and applying Louisiana
corporate law, FED. R. CIV. P. 17(b), we
affirm.
Vicari contends that Cableguard lacks capa-
city to sue for two reasons. First, Phoenix
contracted with Dictograph, not Cableguard,
to install the fire alarm and security systems.
Second, that contract prohibits assignment
without Phoenix’s written consent. Vicari
concludes that without a valid contract
between Cableguard and Phoenix, Cableguard
cannot recover against the payment bond.
Vicari mistakenly assumes, however, that
Cableguard and Dictograph are different enti-
ties. In fact, Edgar Rea, Cableguard’s
president, attested that Dictograph is merely
an assumed trade name of Cableguard. Under
Louisiana law, “a corporation may enter into a
binding contract under an assumed name ab-
sent any fraud or deceit.” Pro Source
Roofing, Inc., v. Boucher, 822 So. 2d 881,
884 n.2 (La. App. 2d Cir. 2002). Vicari
produced no evidence to dispute the identity of
Dictograph and Cableguard and has not
alleged fraud or deceit. Thus, Cableguard has
capacity to sue under Louisiana law.
III.
Vicari appeals the decision to admit into ev-
idence a work order for the October 1998
work. Vicari argues that the work order,
which Cableguard offered to prove that it had
performed work within the Miller Act’s ninety-
day period, was inadmissible hearsay. The
court admitted the work order under the
business-records exception to the hearsay rule.
FED. R. EVID. 803(6). We review this
evidentiary ruling for abuse of discretion,
United States v. Wells, 262 F.3d 455, 459 (5th
Cir. 2001), and find no abuse.
Rule 803(6) creates an exception to the
hearsay rule for a record “if kept in the course
of a regularly conducted business activity, and
if it was the regular practice of that business
activity to make the . . . record . . ., all as
shown by the testimony of the custodian or
other qualified witness[.]” FED. R. EVID.
803(6). Rea and Frank Soehnlein, Cable-
guard’s general manager, competently testified
to these foundational requirements. In
particular, they explained that Cableguard
installs fire alarm and security systems in the
course of its regular business and regularly
uses work orders to instruct its employees and
bill its customers. Rea also identified the no-
tation “FO” on the work order as the initials
and handwriting of Frank Ohlinger, the
employee who installed the fire pull stations.2
Vicari nevertheless argues that “the source
of information or the method or circumstances
of preparation [of the work order] indicate
lack of trustworthiness.” FED. R. EVID.
803(6); Wells, 262 F.3d at 459-60 (“Whether
(...continued)
brief, provoking a motion from Cableguard, to
strike the reply brief. We do not consider issues
not raised in an appellant’s opening brief, Peavy v.
WFAA-TV, Inc., 221 F.3d 158, 179 (5th Cir.
2000), so we will not address this issue, and we
therefore deny Cableguard’s motion as moot.
2 Cableguard could not call Ohlinger as a wit-
ness, because he died before trial.

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evidence is admissible under Rule 803(6) is
chiefly a matter of trustworthiness.”)
(quotation marks omitted). First, Vicari
contends that Cableguard prepared the work
order in anticipation of this lawsuit, not as a
genuine business record. The record,
however, contains no evidence to support this
assertion. Second, Vicari argues that Ohlinger
“may” not have performed the work in
October 1998 and that he “possibly” forged
the work order. Again, the record does not
support this rank speculation, as Vicari’s use
of conditional verb tenses and adjectives
reveals.
Third, Vicari notes that the local postmaster
did not sign the work order on the customer
line. Yet, Rea’s uncontroverted testimony
explains this supposed discrepancy.
Cableguard used work orders to instruct its
employees on a particular assignment and to
bill its customers. On a fixed-price contract,
however, the customer already had approved
the job and the price; thus, Cableguard did not
need the customer’s signature on the work or-
der. Because the post office project was a
fixed-price contract, Cableguard did not need
the postmaster’s signature. And, in any event,
Phoenix, not the postmaster, was Cableguard’s
customer on the contract.3
IV.
Vicari argues that the district court erred by
refusing to give a proposed jury instruction.4
We review the court’s refusal to give the in-
struction for abuse of discretion, which we will
find only if the jury instruction as a whole is
not a correct statement of the law and does
not clearly instruct the jury on the legal
principles applicable to the factual issues
before them. Cozzo v. Tangipahoa Parish
Council-President Gov’t, 279 F.3d 273, 293
(5th Cir. 2002). There is no abuse of
discretion, because the proposed instruction
was not relevant to the factual dispute before
the jury.
Vicari asked the court to instruct the jury
that a supplier to a subcontractor cannot
extend the ninety-day notice period by
furnishing labor or material directly to the
general contractor. As a statement of law, this
instruction is certainly correct. See United
States ex rel. Harris Paint Co. v. Seaboard
Sur. Co., 437 F.2d 37 (5th Cir. 1971). But the
instruction is as irrelevant to this case as it is
correct. The key factual dispute at trial was
whether Cableguard performed “labor” or
“repairs” in October 1998 (which in turn
determined whether it gave timely notice to
Vicari). However characterized, though, there
is no factual dispute that Cableguard
performed the work pursuant to its contract3 Vicari also challenges what it calls the court’s
decision to exclude evidence that Vicari paid
Phoenix. At a pretrial conference, the court
excluded the evidence as irrelevant under the Miller
Act. After Cableguard presented its case, the court
reversed itself and ruled that Vicari could offer
evidence of payment from Vicari to Phoenix within
unspecified “strict guidelines.” Peter Vicari then
testified that Vicari had paid Phoenix. Vicari’s
counsel also reminded the jury of this testimony in
closing arguments. In other words, the court did
not exclude the evidence. We therefore find the
(continued...)
3(...continued)
entire issue bewildering, especially because Vicari
does not identify, on appeal, what other evidence or
testimony it would have introduced.
4 Vicari actually appeals the court’s refusal to
give eight proposed instructions, but we treat its
arguments on seven of these instructions as waived
for failure to brief adequately on appeal. FED. R.
APP. P. 28(a)(9)(A).

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with Phoenix, not for Vicari. The court
therefore did not err.
V.
Vicari appeals the decision to use a general
verdict. The form asked simply whether Ca-
bleguard had provided labor or materials with-
in ninety days of its written notice to Vicari.
Vicari argues that the court instead should
have used Vicari’s proposed forty special in-
terrogatories. “The decision to use a general
verdict rather than a special verdict . . . is a
matter of discretion” to which we give
especially high deference. Martin v. Texaco,
Inc., 726 F.2d 207, 217 (5th Cir. 1984).5 The
general verdict form accurately stated the
determinative factual question for the jury,
whereas the proposed forty special
interrogatories are confusing, duplicative, and
often irrelevant. The court did not abuse its
discretion by refusing to use the proposed
interrogatories.
VI.
Finally, Vicari contends that the court erred
by awarding Cableguard pre-judgment
interest.6 Reviewing the award for abuse of
discretion, Reyes-Mata v. IBP, Inc., 299 F.3d
504, 507 (5th Cir. 2002), we affirm.
Louisiana law applies to a motion for pre-
judgment interest under the Miller Act. Unit-
ed States ex rel. Lochridge-Priest, Inc. v. Con-
Real Support Group, Inc., 950 F.2d 284, 287-
88 (5th Cir. 1992). In Louisiana, interest is
recoverable on a contractual debt from the
time the debt becomes due, unless otherwise
stipulated. Corbello v. Iowa Prod., No. 2002-
C-0826, 2003 La. LEXIS 613, at *50 (La.
Feb. 25, 2003), rehearing granted in part on
other grounds, 2003 La. LEXIS 1913 (La.
June 20, 2003).7 The Phoenix-Cableguard
contract therefore determines the assessment
of pre-judgment interest against the payment
bond. Lochridge-Priest, 950 F.2d at 289.
Under that contract, Phoenix’s debt to Cable-
guard became due ten days after Cableguard
completed performance. The jury found that
Cableguard completed performance in October
1998. Thus, the court rightly allowed pre-
judgment interest from that date.8
AFFIRMED.
5 “[T]here ought never be a reversal for use or
nonuse of special verdicts.” 9A CHARLES A.
WRIGHT & ARTHUR R. MILLER, FEDERAL PRAC-
TICE AND PROCEDURE § 2505, at 165 (2d ed.
1995).
6 Vicari argues that Cableguard is not entitled
to any pre-judgment interest, but does not dispute
the court’s calculation of that interest.
7 See also Schiro-Del Bianco Enters., Inc. v.
NSL, Inc., 765 So. 2d 1087, 1092 (La. App. 4th
Cir), writ denied, 774 So. 2d 146 (2000) (“In an
action on a building contract, interest is recover-
able from the time the debt becomes due unless
otherwise stipulated.”).
8 Vicari relies on Roques v. Alfonso, 399 So. 2d
1294, 1296 (La. App. 4th Cir. 1981), holding that
interest on “[a]n unliquidated claim is due from the
time it becomes ascertainable.” In Roques,
however, the parties disputed both the amount of
the debt and a potential offset. This cases involves
no such disputes.

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