Appellate Law

CA1: getting tripped up on Unitherm

By S. COTUS

Ellrich v. US Bank National Association, No. 07-1115 (unpublished).  Despite this case?s lofty caption, it is really an appeal of a jury verdict.  But, the plaintiff gets tripped up because ?The short answer is that at trial Ellrich did not move for judgment as a matter of law on his breach of contract claim against U.S. Bank and this in turn bars him from making such a claim on appeal.  Fed. R. Civ. P. 50(b); Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400-01 (2006).?  The First goes to the merits and says that it would have been hard to find fault with what the defendant did (screwed up a statement, but then corrected it.) 

There was one evidentiary issue: whether an expert could testify.  The District Court said it wasn?t relevant, and it was really being offered to interpret a contract. 

Full post as published by Appellate Law and Practice on March 13, 2008 (boomark / email).