Taxinet Corp. v. Santiago Leon
Citation114 F.4th 1212
Date Filed2024-08-19
Docket22-12335
Cited11 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12335
____________________
TAXINET CORP.,
a South Dakota corporation,
PlaintiďŹ-Counter Defendant-Appellant,
LUIS NOBOA,
Counter Defendant-Appellant,
PEDRO DOMIT,
Counter Defendant,
versus
SANTIAGO LEON,
an individual,
Defendant-Counter Claimant-Appellee.
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2 Opinion of the Court 22-12335
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:16-cv-24266-FAM
____________________
Before JORDAN and ROSENBAUM, Circuit Judges, and MANASCO, *
District Judge
JORDAN, Circuit Judge.
Taxinet Corporation sued Santiago Leon, asserting a num-
ber of claims arising from what began as a joint eďŹort to gain a
government concession for a taxi-hailing app in Mexico City. The
district court granted summary judgment in favor of Mr. Leon on
all of Taxinetâs claims except for a Florida-law unjust enrichment
claim. That claim proceeded to trial along with Mr. Leonâs coun-
terclaims for fraudulent misrepresentation and negligent misrepre-
sentation.
The jury found in favor of Taxinet on its unjust enrichment
claim and awarded it $300 million. The jury also found in favor of
Mr. Leon on his negligent misrepresentation claim and awarded
him $15,000. Following the verdict, the district court granted Mr.
Leonâs renewed Rule 50(b) motion for judgment as a matter of law,
* Honorable Anna Manasco, United States District Judge for the Northern Dis-
trict of Alabama, sitting by designation.
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22-12335 Opinion of the Court 3
concluding that the award of damages was based on hearsay evi-
dence that had been improperly admitted and was speculative.
Taxinet now appeals. After a review of the record, and with
the benefit of oral argument, we affirm the district courtâs Rule
50(b) order. The district court did not abuse its discretion in ruling
that most of Taxinetâs evidence of the ventureâs valuation at trialâ
which formed the basis for the calculation of damages on the unjust
enrichment claimâconstituted inadmissible hearsay and should
not have been admitted. And once that inadmissible valuation ev-
idence was excised from the sufficiency analysis, there was not
enough evidence to support the juryâs $300 million award under
Florida law.
But for a number of reasons, we exercise our discretion to
remand for a new trial on the unjust enrichment claim. First, Tax-
inet introduced sufficient evidence from which a jury could have
found that it conferred a benefit on Mr. Leon, that he accepted the
benefit, and that it would be inequitable to allow him to retain the
benefit without paying for it. Second, Taxinet presented evidence
which, though insufficient to sustain the $300 million award, could
form the foundation for some award of damages for Mr. Leonâs
unjust enrichment. Third, the district court admitted Taxinetâs
hearsay evidence on valuation during the trial and changed its
mind about admissibility only after the jury rendered its verdict.
Taxinet, it seems to us, understandably relied on the evidence ad-
mitted at trial, and could have asked for damages (albeit a reduced
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4 Opinion of the Court 22-12335
sum) under a different theory had the court ruled during trial that
the challenged valuation evidence was inadmissible. 1
I
This story begins in 2015âtwo years after USA Today named
Uber the tech company of the year.
A
Taxinet, which is incorporated in South Dakota, successfully
developed a taxi-hailing app in Guayaquil, Ecuador. It decided it
wanted to enter the Mexico City market, which has the largest
number of taxis in the world. It thought that the nearly 140,000-
taxi fleet there could benefit from an app that would allow users to
call a taxi from anywhere, much like they can with Uber and Lyft.
To that end, Luis Noboa, Taxinetâs principal, teamed up
with Pedro Domit and Mr. Leon, a former Mexico City congress-
man and the defendant in this case. There was no written agree-
ment, but Mr. Noboa and Mr. Domit considered themselves Mr.
Leonâs partners.
Together, Messrs. Noboa, Domit, and Leon worked to earn
a government concession that would make their group the exclu-
sive provider of app-based taxi hailing in Mexico City. They first
met with Mexico Cityâs Secretary of Mobility on August 17, 2015.
Then, on September 25, 2015, after a second meeting, they found
1 Because we are remanding for a new trial, we do not address any arguments
relating to setoff. As to any other issues not specifically discussed, we sum-
marily affirm.
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22-12335 Opinion of the Court 5
some success. Mr. Leon sent a text to Mr. Noboa saying the con-
cession was theirs: âWe closed, Lucho! The Secretary [of Mobility]
announced it.â Mr. Leon also sent a text to Mr. Domit with a sim-
ilar message: âWe closed in Mexicoooooo!!!â Mr. Domit, for his
part, considered the matter a âdone dealâ at that time. According
to Mr. Leon, however, the actual concession was formally awarded
only nine months later, in June of 2016, following the publication
of a declaration of need.
A new Mexican company was needed for the concession,
and that led to the formation of Lusad S. de R.L.âa Mexican en-
tityâon October 15, 2015. Lusad stood for âLucho [Noboa], San-
tiago [Leon] and [Pedro] Domit.â
L1bre Corporation, which is wholly owned by Mr. Leon,
owns 99.9% of Lusad. Another person, Eduardo Zayas, owns the
other 0.1% of Lusad. But Mr. Noboa testified that he was the 60%
owner of Lusad based upon his agreement with Mr. Leon.
At some point shortly after his text messages to Messrs.
Noboa and Domit, Mr. Leon decided that he wanted out of the
triumvirate due to a number of issues. On October 24, 2015, he
sent an email to the other two men with an offer. Mr. Leon would
give them 25% of Lusadâa number that will come to matter
laterâand they could part ways. Mr. Noboa declined the offer.
The next day, Mr. Leon alone met with âangel investorsâ on behalf
of the venture and afterward continued to work on the Mexico City
venture without Taxinet or Messrs. Noboa and Domit.
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6 Opinion of the Court 22-12335
Five months later, in March of 2016, Mexico City published
a declaration of need that included a description of services that the
newly formed Lusad had offered. On June 17, 2016, the Mexican
government issued an official 10-year concession to Lusad, which,
as noted, was almost wholly owned by Mr. Leon through L1bre. 2
B
Taxinet sued Mr. Leon in Florida state court, asserting
claims for breach of a joint venture agreement, tortious interfer-
ence, violation of Floridaâs Deceptive and Unfair Trade Practices
Act, and promissory estoppel. Mr. Leon removed the case to fed-
eral court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446.
Mr. Leon asserted counterclaims for fraudulent misrepre-
sentation, negligent misrepresentation, fraudulent concealment,
civil conspiracy, and breach of fiduciary duty against Taxinet and
Messrs. Noboa and Domit. But Mr. Leon never served Mr. Domit,
and all counterclaims as to him were eventually dismissed.
By the time of trial, the only claims remaining were Tax-
inetâs unjust enrichment claim against Mr. Leon and Mr. Leonâs
counterclaims against Taxinet and Mr. Noboa for fraudulent mis-
representation and negligent misrepresentation.
2 As set out later, Mr. Noboa testified that Mr. Leon later sued Mexico City for
wrongfully appropriating the concession and sought $2.4 billion in damages.
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22-12335 Opinion of the Court 7
II
To prevail on its unjust enrichment claim, Taxinet had to
prove that it conferred a benefit on Mr. Leon, that he appreciated
the benefit, and that his acceptance and retention of the benefit un-
der the circumstances made it âinequitable for him to retain it with-
out paying the value thereof.â Pincus v. Am. Traffic Sols., Inc., 333
So. 3d 1095, 1097 (Fla. 2022) (citation and internal quotation marks
omitted). See also Agritrade, LP v. Quercia, 253 So. 3d 28, 33 (Fla. 3d
DCA 2017) (âThe elements of a cause of action for unjust enrich-
ment are: (1) plaintiff has conferred a benefit on the defendant, who
has knowledge thereof; (2) defendant voluntarily accepts and re-
tains the benefit conferred; and (3) the circumstances are such that
it would be inequitable for the defendant to retain the benefit with-
out first paying the value thereof to the plaintiff.â); Cape, LLC v.
Och-Ziff Real Estate Acquisitions LP, 370 So. 3d 1010, 1016 (Fla. 5th
DCA 2023) (same).
A
The value of the Mexico City concession (and its effect on
the worth of Lusad and L1bre) was a significant issue at trial. One
number that kept coming up was $2.4 billion, a figure taken from
a 2018 Goldman Sachs valuation of L1bre, which, as noted, is
wholly owned by Mr. Leon and which owns 99.9% of Lusad. The
district court excluded the Goldman Sachs report on hearsay
grounds. Yet, as explained below, it allowed Messrs. Leon and
Noboa to testify about it.
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8 Opinion of the Court 22-12335
Taxinet called Mr. Leon as its first witness. He testified sev-
eral times on direct examinationâover hearsay objections by his
counselâthat L1bre was valued at $2.4 billion.
When Taxinetâs counsel questioned Mr. Leon about the
value of the concession over five years, he said that there was âno
valuationâ at the time of the negotiations with the Mexico City
government. The valuation question was posed again, and his
counsel objected on grounds of speculation, foundation, mislead-
ing the jury, and relevance. The district court overruled those ob-
jections, and Mr. Leon explained that there had been three different
valuations. Before he mentioned any numbers from the valua-
tions, his counsel objected on hearsay grounds. The district court
agreed that the testimony sought would be hearsay but allowed the
question. See D.E. 334 at 127 (district court: âYes, it is, but Iâm go-
ing to let it in. Go ahead and tell us what the valuations were that
you were told.â); D.E. 335 at 121 (district court: âIâm going to let
him [Mr. Leon] testify as to what he thought the business was
worth and whether he thought it was speculation or no big deal.â).
Mr. Leon then testified that there was one valuation from
Goldman Sachs for $2.4 billion, a second one from LionTree for
$450 million, and a third one he could not recall. When asked if he
had âever stated under oath that the value of the concession was
$2.4 billion,â he said yes.
Taxinet tried to introduce the Goldman Sachs valuation re-
port into evidence as an exhibit, but Mr. Leonâs counsel objected
on hearsay grounds. Following a discussion with counsel, the
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22-12335 Opinion of the Court 9
district court sustained Mr. Leonâs hearsay objection to the admis-
sion of the valuation report. See D.E. 335 at 118.
The examination of Mr. Leon continued, and he explained
that L1bre had engaged Goldman Sachs as its investment banker
when other companies had made approaches about strategic alli-
ances or joint ventures. Goldman Sachs fixed the âenterprise
valueâ of the Mexico City concession at $2.4 billion. According to
Mr. Leon, âthe $2.4 billion valuation was because we worked on it
for years and years and got investment for over a hundred million
dollars into the project, and thatâs how we were able to achieve
that valuation.â L1bre did not pay Goldman Sachs for the valua-
tion; Goldman Sachs would be paid when it presented possible cor-
porate opportunities and/or transactions to L1bre.
Mr. Leon said that Goldman Sachs issued its valuation after
Lusad was âfully funded for the full rollout,â and âfinancially
backed by capital, sufficient for the installation of 138,000 taxis,
[and] all of those ingredients made Goldman Sachsâ value[.]â
When asked what he thought of this valuation, Mr. Leon said he
believed âGoldman [Sachs] took a conservative approach to the
valuation.â He explained that Lusad had invested over $100 mil-
lion in the Mexico City project and expected a revenue stream in
the âbillions of dollarsâ over the 10-year period of the concession.
Up to this point, all of the questions about valuation, includ-
ing those about the Goldman Sachs valuation, had been put to Mr.
Leon by Taxinetâs counsel on direct examination. But when asked
by his own counsel about the value of the taxi-hailing app program
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10 Opinion of the Court 22-12335
in October of 2015, Mr. Leon answered that it âhad no value for
usâ due to purported issues and problems with Taxinet.
Mr. Noboa was Taxinetâs second witness, and he too hinted
at the $2.4 billion valuation, albeit indirectly. Over a hearsay ob-
jection, he testified that Mr. Leon had filed suit in New York against
Mexico City for expropriating the concession and was seeking $2.4
billion in damages in that action. With respect to the partiesâ rela-
tionship, Mr. Noboa claimed that he rightfully owned 60% of Lu-
sad, though he had never been issued any stock certificates. He
also asserted that Mr. Leon benefited from the project that they
started together. See D.E. 335 at 180, 185â86.
Taxinet also called Mr. Domit, who testified he was to be
part owner of the venture, as a witness. He did not provide any
testimony about the valuation of Lusad or L1bre at any point in
time, but he did explain that he had done some financial modeling
of his own for the venture. Depending on certain assumptions he
made and variables he used in the modeling (e.g., the cost of tablets
for the taxis, the cost of advertising, the cost of installation, the
commission percentage (which had not been set), the number of
taxi trips, and the revenue per taxi trip), Mr. Domit came up with
a capital cost of between $500,000 and $20 million, and a profit (us-
ing the $20 million capital cost figure) of $1.6 billion in five years
(i.e., by 2020 or 2021). See D.E. 336 at 38â41, 103â06. When Mr.
Leonâs counsel asked Mr. Domit if his financial modeling was âjust
somewhat of guesswork,â he responded that â[y]ou could call it in-
formed guesswork,â explaining it was informed âbecause we knew
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more or less what the cost of the tablets would be.â Id. at 106.
There were no objections to Mr. Domitâs testimony on these is-
sues.
B
Towards the end of the trial, the district court engaged in a
long discussion with the parties about the jury instructions and the
evidence concerning the damages sought by Taxinet on its unjust
enrichment claim. The court acknowledged that an owner can ex-
press an opinion about the value of his business, but expressed
some doubt as to whether such testimony in this case, based as it
was on the 2018 Goldman Sachs valuation, would be enough for
the jury to fix the value of the benefit conferred on Mr. Leon by
Taxinet in 2015. See D.E. 336 at 68â90.
At the close of Taxinetâs case, Mr. Leon moved for judgment
as a matter of law under Rule 50(a) of the Federal Rules of Civil
Procedure. He argued, in part, that there was insufficient evidence
of the value of the benefit he received from Taxinet in 2015. See
D.E. 336 at 120â21. 3
Taxinet responded that it had presented sufficient evidence
of damages under two theories: the value of services rendered, and
the value received by Mr. Leon in the form of the concession
3 After the jury returned its verdict, Mr. Leon filed a renewed Rule 50(b) mo-
tion in which he argued that there was insufficient evidence of the benefit he
purportedly received from Taxinetâs efforts, or of the value of any such bene-
fit. See D.E. 290 at 12â18.
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granted by the Mexican government. Taxinet also pointed out that
Mr. Leon had testified several times about the Goldman Sachs val-
uation of L1bre (and hence Lusad). See id. at 122â23.
The district court âreluctantlyâ denied Mr. Leonâs motion
for judgment as a matter of law. See id. at 124. The court repeated
its concern about the value of the benefit received or how the jury
could fix the market value of what Mr. Noboa and Taxinet pro-
vided to Mr. Leon in 2015. The court said that it would âtry to
figure it out laterâ after Mr. Leon presented his case. See id. at 124â
25.
At the charge conference, the district court again discussed
the sufficiency of the evidence regarding Taxinetâs unjust enrich-
ment damages. The court explained that there was testimony
about the $2.4 billion valuation by Goldman Sachs but pointed out
that it had not allowed the valuation report to be introduced as an
exhibit because it constituted hearsay. See id. at 151. Taxinetâs
counsel reminded the court that it had allowed Mr. Leon to testify
about the Goldman Sachs valuation and asserted that a business
owner could testify about the value of his company. See id. at 151â
52. The court responded by saying it did â[not] know if [that was]
enough,â as no one from Goldman Sachs had explained how or
why the valuation report was prepared. See id. at 152. When Tax-
inetâs counsel responded that Mr. Leon had put a value on Lusad,
the court replied that âthe law in unjust enrichment is not what the
owner thinks he lostâ and said that the valuation could not be spec-
ulative. See id. at 153. Mr. Leonâs counsel maintained that the
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22-12335 Opinion of the Court 13
evidence had to relate to the value of the benefit provided and not
to the valuation of the business. See id. at 159.
The district court ultimately gave the following jury instruc-
tion on damages for Taxinetâs unjust enrichment claim:
The Plaintiff first must prove that the defendant Leonâs
action caused the damage and that Leon benefited from
that action. If so, then there must be some standard or
âyardstickâ by which the amount of damages may be ad-
equately determined. An award of damages must be
measurable and quantifiable. Although you need not
determine damages with arithmetic precision, damages
cannot be based on speculative conjecture or guess-
work. It is only actual damages that are recoverable
based on the actual evidence presented in court.
D.E. 274 at 8.
In closing argument, Taxinet asked the jury for an award of
$400 million, or 25% of Mr. Domitâs $1.6 billion profit figure after
five years. This sum, Taxinet argued, would put Mr. Noboa where
âhe would have been.â Taxinet also told the jury that it could use
the $2.4 billion valuation by Goldman Sachs as a marker. See D.E.
339 at 35â37.
During deliberations, the jury sent a note with a question to
the district court. It read: âWe are trying to evaluate the market
value of services. We are trying to evaluate what a âyardstickâ of
measurement would be. What do we do if no yardstick is found[?]â
The district court brought the jury in and explained that there were
several options: it could provide other definitions of âyardstick;â or
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14 Opinion of the Court 22-12335
the jury could go home and think about the matter overnight; or
the jury could ask further questions requesting additional guid-
ance. See D.E. 339 at 105â08. The jury subsequently sent a note
saying it hoped to finalize its deliberations that night, which it did.
See id. at 108â09, 129.
The jury found that Mr. Leon obtained a benefit from Tax-
inet through September 25, 2015âthe day Mr. Leon first texted
Messrs. Noboa and Domit that the Secretary of Mobility had
agreed to the concession. The jury awarded Taxinet $300 million,
and added a note to the verdict explaining its calculation of the
award:
$2.4 Billion â value by Goldman Sachs
Email on Oct. 24, 2015 offered break-up
25% to be given to Noboa and Domit
12.5% of total amount
D.E. 276 at 2.
In addition, the jury found for Mr. Leon on his counterclaim
for negligent misrepresentation against Taxinet and Mr. Noboa. It
awarded Mr. Leon $15,000.
After the trial, Mr. Leon moved for judgment as a matter of
law under Rule 50(b), contesting the sufficiency of the evidence.
The district court granted the motion, concluding that âthe evi-
dence is insufficient to support a finding of damages, let alone the
verdict in this case.â D.E. 302 at 1. The court explained that Tax-
inet had not presented any expert testimony as to the value of any
benefit or services provided to Mr. Leon in 2015, and that the juryâs
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22-12335 Opinion of the Court 15
award was âbased on hearsay and speculation.â Id. at 2. The court
also believed that the jury found it difficult to calculate damages
because it asked which yardstick to use to measure damages during
deliberations. See id. at 2, 5â6, 9.
Specifically, the district court questioned how the value of a
benefit conferred on Mr. Leon in 2015 could be calculated based on
the $2.4 billion Goldman Sachs valuation from 2018 (as to which
Mr. Leon had testified). First, the court noted that any evidence of
valuation in 2018 would have been too speculative as to the benefit
conferred on Mr. Leon in 2015, and that, as a result, âthere is no
evidence of the market value of Taxinetâs purported services or
benefit conferred.â Id. at 10. Second, the court thought the events
in question were too attenuated to show that a benefit was con-
ferred in 2015: âThe time that elapsed alone is sufficient to eviscer-
ate the casual connection, let alone the evidence that [Mr.] Leon
worked with software engineers and other partners to develop the
product in the months leading to the official award.â Id. at 11.
III
In Florida, damages for an unjust enrichment claim may be
calculated as either â(1) the market value of the services; or (2) the
value of the services to the party unjustly enriched.â F.H. Paschen,
S.N. Nielsen & Assocs. LLC v. B&B Site Dev., Inc., 311 So. 3d 39, 50
(Fla. 4th DCA 2021) (internal citations omitted). âThe measure of
damages for unjust enrichment is the value of the benefit con-
ferred, not the amount the plaintiff hoped to receive or the cost to
the plaintiff.â Id. See also Kane v. Stewart Tilghman Fox & Bianchi,
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16 Opinion of the Court 22-12335
P.A., 85 So. 3d 1112, 1115 (Fla. 4th DCA 2012) (â[D]amages for un-
just enrichment are based on value from [the] standpoint of the re-
cipient of the benefits.â). Importantly, there must be âsome stand-
ard or âyardstickâ by which the amount of damages may be ade-
quately determined.â Montage Grp., Ltd. v. Athle-Tech Comput. Sys.,
Inc., 889 So. 2d 180, 195 (Fla. 2d DCA 2004). âBecause unjust en-
richment damages are economic damages, the amount . . . must be
measurable and quantifiable[.]â Alvarez v. All-Star Boxing, Inc., 258
So. 3d 508, 512 (Fla. 3d DCA 2018). 4
A
We review a district courtâs entry of judgment as a matter
of law de novo, see Brown v. R.J. Reynolds Tobacco Company, 38 F.4th
1313, 1323 (11th Cir. 2022), and apply the same standards as the
district court. That means âwe consider all the evidence, and the
inferences drawn therefrom, in the light most favorable to the non-
moving party.â Advanced Bodycare Sols., LLC v. Thione Intâl, Inc., 615
F.3d 1352, 1360 (11th Cir. 2010). With respect to the compensatory
damages for the unjust enrichment claim, we âevaluate the propri-
ety of the award under state law.â Kerrivan v. R.J. Reynolds Tobacco
Co., 953 F.3d 1196, 1204 n.6 (11th Cir. 2020).
4 Sometimes unjust enrichment damages can be calculated under a âdisgorge-
ment theory.â See Montage Grp., 889 So. 2d at 196. But here that theory is not
in play because the evidence at trial established that Mr. Leon has not made
any money from the taxi-hailing app project, in part because he claims that
Mexico City wrongfully expropriated the concession Lusad had been awarded.
See, e.g., D.E. 335 at 141.
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Our task is to determine whether the evidence was âlegally
sufficientâ to support the juryâs verdict. See, e.g., Rule 50(b); McGin-
nis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241, 1254 (11th Cir.
2016). This âstandard is heavily weighted in favor of preserving the
juryâs verdict.â Pensacola Motor Sales Inc. v. E. Shore Toyota, LLC, 684
F.3d 1211, 1226 (11th Cir. 2012). âCredibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a [court],â and we
must âdisregard all evidence favorable to the moving party that the
jury is not required to believe.â Cleveland v. Home Shopping Network,
Inc., 369 F.3d 1189, 1193 (11th Cir. 2004) (quoting Reeves v. Sander-
son Plumbing Prods., 530 U.S. 133, 150â51 (2000)). Ultimately, âwe
will âdisturb the juryâs verdict only when there is no material con-
flictâ as to the evidence and where no reasonable juror could agree
to the verdict.â Brown, 38 F.4th at 1323 (internal citations omit-
ted). 5
There is, however, a significant caveat to this standard. It
used to be the law in this circuit that in ruling on a motion for judg-
ment as a matter of law âa district court [could] not exclude
5 In its Rule 50(b) order, the district court relied in part on the juryâs note about
the appropriate âyardstick.â That was likely a mistake. A sufficiency analysis
involves only a review of the evidence and does not extend to matters like the
reasoning the jury used to reach its verdict. See Chaney v. City of Orlando, Fla.,
483 F.3d 1221, 1228 (11th Cir. 2007) (explaining that a district court errs â[b]y
placing an undue emphasis on the juryâs particular findings . . . and by repeat-
edly making decisions on the Rule 50 motion through the lens of what the jury
foundâ).
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18 Opinion of the Court 22-12335
previously admitted evidenceâ on the ground that its admission
was improper. See Jackson v. Pleasant Grove Health Care Ctr., 980 F.2d
692, 696 (11th Cir. 1993) (citing 21 Charles A. Wright et al., Fed,
Prac. & Proc. § 5041 (1977) (âThe judge cannot grant a directed
verdict or judgment notwithstanding the verdict by ignoring evi-
dence he has admitted on the ground that the admission was er-
ror.â)). âThe rationale for prohibiting the district court from disre-
garding previously admitted evidence [wa]s reliance. If evidence is
ruled inadmissible during the course of the trial, the plaintiff has
the opportunity to introduce new evidence. However, when that
evidence is ruled inadmissible in the context of deciding a motion
for [judgment as a matter of law], the plaintiff, having relied on the
evidence already introduced, is unable to remedy the situation.â
Jackson, 980 F.2d at 696.
In Weisgram v. Marley Co., 528 U.S. 440 (2000)âa case in
which expert testimony was improperly admitted at trialâthe Su-
preme Court abrogated decisions like ours in Jackson that had held
that all of the evidence presentedâproperly admitted and improp-
erly admittedâmust be considered when ruling on a motion for
judgment as a matter of law. The Court in Weisgram was uncon-
vinced âthat allowing courts of appeals to direct the entry of judg-
ment for defendants will punish plaintiffs who could have shored
up their cases by other means had they known their [evidence]
would be found inadmissible.â Id. at 455â56. The Court held that
the âauthority of courts of appeals to direct the entry of judgment
as a matter of law extends to cases in which, on excision of testi-
mony erroneously admitted, there remains insufficient evidence to
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22-12335 Opinion of the Court 19
support the juryâs verdict.â Id. at 457. See alsoid. at 454
(explaining
that â[i]nadmissible evidence contributes nothing to a âlegally suf-
ficient evidentiary basisââ).
The Rule 50 question, in light of Weisgram, is whether all of
the properly admitted evidenceâviewed in the light most favorable
to Taxinetâallowed the jury to award unjust enrichment damages
of $300 million. See Goodman v. Pa. Tpk Commân, 293 F.3d 655, 665
(3d Cir. 2002); Sardis v. Overhead Door Corp., 10 F.4th 268, 279 (4th
Cir. 2021); 9B Arthur R. Miller, Fed. Prac. & Proc. Civil § 2540 (3d
ed. & June 2024 update); 27A Tracy Bateman et al., Fed. Prac., Law-
yer Ed. § 62:750 (June 2024 update). We turn to that question next,
starting with the district courtâs hearsay ruling in the Rule 50(b) or-
der. 6
6 In support of the district courtâs order, and as an alternative basis for affir-
mance, Mr. Leon argues that Taxinet did not present sufficient evidence that
it conferred a benefit on him. Viewing the evidence in the light most favorable
to Taxinet, we disagree. As Mr. Noboa testified, Taxinetâwhich had been
successful in Guayaquilâcontributed its experience, platform, technology,
and hardware to the venture with Mr. Leon. Although Mr. Leon had political
connections in Mexico City, he had not done anything to develop, run, or sup-
port a taxi-hailing app service. The jury could have found that he could not
have obtained the September 2015 preliminary approval for the Mexico City
concessionâwhich was a critical first step in securing the concessionâon his
own. See, e.g., D.E. 335 at 145â77. In legal terms, the jury could have found
that Taxinet conferred a benefit on Mr. Leon, that Mr. Leon understood and
appreciated the benefit, and that Mr. Leonâs retention of the benefit without
paying for it would be inequitable. Indeed, Mr. Leon offered Mr. Noboa 12.5%
of Lusad in October of 2015, and the jury could have found that he did so
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20 Opinion of the Court 22-12335
B
We review for abuse of discretion the district courtâs post-
trial ruling that Taxinetâs evidence concerning the $2.4 billion val-
uation by Goldman Sachs constituted inadmissible hearsay. See
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 556 (11th Cir.
1998). The abuse of discretion standard, which gives a district court
a ârange of choiceâ and âconsiderable leeway,â calls for affirmance
of an evidentiary ruling unless it constitutes âa clear error of judg-
ment.â United States v. Frazier, 387 F.3d 1244, 1258â59 (11th Cir.
2004) (en banc).
In a diversity case like this one, Florida law governs on sub-
stantive matters like the elements of unjust enrichment, but federal
law controls on procedural matters such as the admissibility of ev-
idence. See, e.g., Fid. & Cas. Co. of N.Y. v. Funel, 383 F.2d 42, 44 n.3
(5th Cir. 1967); Peat, Inc. v. Vanguard Rsch., Inc., 378 F.3d 1154, 1159
(11th Cir. 2004). So, we look to federal law on the matter of hear-
say.
Generally speaking, âan owner [of a business] is competent
to give his opinion on the value of his property.â Kestenbaum v.
Falstaff Brewing Corp., 514 F.2d 690, 698 (5th Cir. 1975) (explaining
that the then forthcoming Federal Rules of Evidence would permit
testimony by a corporate owner about his businessâ goodwill). For
example, in Dietz v. Consolidated Oil & Gas Co., Inc., 643 F.2d 1088,
because of Taxinetâs contribution to the venture. See Agritrade, 253 So. 3d at
33; Malamud v. Syprett,117 So. 3d 434
, 437â38 (Fla. 2d DCA 2013).
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22-12335 Opinion of the Court 21
1094 (5th Cir. 1981), we held that a farmer could testify âas to the
value of [his] growing crops the moment before their destruction.â
See also Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532,
542 (4th Cir. 2007) (âCourts indulge a common-law presumption
that a property owner is competent to testify on the value of his
own property.â); Fed. R. Evid. 701, Adv. Comm. Note (â[M]ost
courts have permitted the owner or officer of a business to testify
to the value or projected profits of the business, without the neces-
sity of qualifying the witness as an accountant, appraiser, or similar
expert.â).
But, as with almost all general principles of law, there are
limits to this generally accepted principle. Under Rule 701(a) of the
Federal Rules of Evidence, lay opinion testimony is âlimitedâ to
opinions that (as relevant here) are ârationally basedâ on the wit-
nessâ âperception.â Though âa lay witness may base opinion testi-
mony on what [he] heard, this does not mean that lay opinion may
be based on hearsay. This is because a witness who bases an opin-
ion on hearsay may have perceived the out-of-court statement with
the sense of hearing, but the âmatter assertedâ by that statement
usually relates to facts perceived by the hearsay declarant, not the
witness.â 29 Victor J. Gold, Fed. Prac. & Proc.âFederal Rules of
Evidence: Rule 701 § 6254 (2d ed. & Sept. 2023 supp.). âSo if a wit-
ness bases lay opinion on the statement of someone else, the appli-
cation of Rule 701 depends on whether the opinion relies on the
mere fact that the statement was made or on the truth of the facts
asserted within that statement.â Id. If it is the latter, the lay opinion
is not admissible. See id.
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22 Opinion of the Court 22-12335
The owner of a business may give an opinion on value even
if that opinion is partially informed by what others have said or
written. See Dietz, 643 F.2d at 1094. Whether the âownerâs opinion
is accurateâ is usually âa matter for cross-examination and goes
merely to the weight and not to admissibility.â Meredith v. Hardy,
554 F.2d 764, 765 (5th Cir. 1977).
âWhat the [business] owner is not allowed to do,â however,
âis merely repeat another personâs valuation.â Cunningham v. Mas-
terwear Corp., 569 F.3d 673, 676 (7th Cir. 2009). Admittedly, the line
is sometimes difficult to discern, but the owner must have some
basis for providing an opinion that is his own; he cannot simply
serve as the mouthpiece for otherwise inadmissible hearsay. See
United States v. 68.94 Acres of Land, 918 F.2d 389, 394 (3d Cir. 1990)
(â[T]he rationale which justifies landownersâ opinion testimonyâ
i.e., their special knowledge of the propertyâdoes not extend to
the mere repetition of anotherâs assessment of the propertyâs
value.â); Lewis Tyree, The Opinion Rule, 10 Rutgers L. Rev. 601, 603
(1956) (âWhere the âopinionâ is based not on personal knowledge,
but on data received from others, again the opinion rule in the legal
sense is not involved; the affront is to both the rule of testimonial
capacity and the hearsay rule.â). In Kestenbaum, for example, the
business owner based his lay opinion about the value of goodwill
on the âlong history of the distributorship,â additional evidence
concerning the goodwill âcreated during the distributorshipâs
many years of operation,â and âdocumentary evidence of the prof-
its realized during those years.â 514 F.2d at 698.
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22-12335 Opinion of the Court 23
Here, the district court did not abuse its discretion in con-
cluding that it had mistakenly allowed Mr. Leon to testify at trial
about the $2.4 billion Goldman Sachs valuation and in excluding
that testimony from the sufficiency analysis. What Mr. Leon did,
in response to questions by Taxinetâs counsel, was repeat the valu-
ation provided by Goldman Sachs in a report that the district court
had excluded on hearsay grounds. 7
The closest Mr. Leon came to giving his own lay opinion
was to say that he thought Goldman Sachs took a âconservative
approach,â but he never explained why he believed that was so, or
why he was personally convinced that the valuation was accurate,
or why he favored that valuation over LionTreeâs $450 million val-
uation. Mr. Leonâs âconservative approachâ opinion makes the is-
sue a bit closer, but the abuse of discretion standard gives the dis-
trict court some range of choice. We cannot say that the court
7 On this record, the district court did not err in excluding the Goldman Sachs
valuation as hearsay. See, e.g., LJL 33d Street Assocs., LLC v. Pitcairn Props., Inc.,
725 F.3d 184, 194 (2d Cir. 2013) (âSo far as appears, there was no good reason
for Pitcairn to rely on hearsay. It could have presented this [valuation] evi-
dence, unencumbered by the hearsay objection, merely by calling the makers
of the exhibitsâthus providing LJL with the opportunity to cross-examine
these witnesses in an effort to undermine the probative value of the exhibits.
Furthermore, expert valuations of this nature are the product of so many com-
plex factors, and so many assumptions . . . as to make it particularly important
that the opponent of the valuations be offered the opportunity to test their
conclusions by cross-examination.â); In re Cocreham, No. 13-26465-A-13J, 2013
WL 4510694, at *3 (Bankr. E.D. Cal. Aug. 23, 2013) (concluding that property
valuation reports from zillow.com and other internet sources were inadmissi-
ble hearsay).
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24 Opinion of the Court 22-12335
committed a clear error of judgment in ruling that Mr. Leonâs val-
uation testimony was inadmissible hearsay because it merely par-
roted the conclusion of the Goldman Sachs valuation report. The
âprimary purposeâ of the hearsay rule is the âprotection of the right
of litigants to confront the witnesses against them and to test their
credibility through cross-examination,â Colorificio Italiano Max
Meyer, S.P.A. v. S/S Hellenic Wave, 419 F.2d 223, 224 (5th Cir. 1969),
and here Mr. Leon was unable to examine anyone from Goldman
Sachs about the valuation.
C
Once Mr. Leonâs testimony about Goldman Sachsâ $2.4 bil-
lion valuation is excised from the sufficiency of the evidence analy-
sis, the only remaining evidence about that same number comes
from Mr. Noboa. As noted earlier, Mr. Noboa testified that Mr.
Leon sought $2.4 billion in damages when he sued Mexico City for
expropriating the concession. Mr. Leonâs demand or complaint in
that action, as far as we can tell, was not introduced as an exhibit at
trial. 8
Taxinet argues that Mr. Noboaâs testimony about the $2.4
billion figure was admissible under Rule 801(d)(2) of the Federal
8 L1bre, which is wholly owned by Mr. Leon and owns 99.9% of Lusad, initi-
ated arbitration in 2019 against Mexico Cityâunder the auspices of the North
American Free Trade Agreementâconcerning the allegedly expropriated con-
cession. See EspĂritu Santo Holdings, LP and L1bre Holding, LLC v. United Mexican
States, ICSID Case No. ARB/20/13, https://perma.cc/2SRG-474Q. We can
and do take judicial notice of the existence of this arbitral proceeding. See Fed.
R. Evid. 201(b)(2); United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994).
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22-12335 Opinion of the Court 25
Rules of Evidence because it merely related the statement of Mr.
Leon, a party opponent, in his own pleading against Mexico City.
See generally Contâl Ins. Co. of N.Y. v. Sherman, 439 F.2d 1294, 1298
(5th Cir. 1971) (âAs a general rule the pleading of a party made in
another action, as well as pleadings in the same action which have
been superseded by amendment, withdrawn or dismissed, are ad-
missible as admissions of the pleading party to the facts alleged
therein, assuming of course that the usual tests of relevancy are
met.â). Although Mr. Leonâs arbitration demand or complaint was
not introduced as an exhibit, we will assume without deciding that
Taxinet is correct on this evidentiary point and that Mr. Noboaâs
testimony on this point did not constitute hearsay.
Even so, Mr. Noboaâs testimony is not legally sufficient to
support the juryâs $300 million award for a number of reasons. Alt-
hough Mr. Noboa testified that Mr. Leon was seeking $2.4 billion
in damages from Mexico City, there was no explanation as to how
that figure was arrived at or calculated. If the $300 million award
was based only on Mr. Noboaâs testimony, it was speculative. Flor-
ida courts have explained that economic damages on an unjust en-
richment claim âmay not be founded on jury speculation or guess-
work and must rest on some reasonable factual basis.â Alvarez, 258
So. 3d at 512. âPerhaps this need not be done with mathematical
certainty,â but a quantification âcannot be based upon an un-
known, subjective, unexplainable, and therefore unreviewable
method.â Id. at 514. Here there was no connection between the
$2.4 billion valuation and the benefit conferred on Mr. Leon by
Taxinet in 2015. To borrow language from Alvarez, â[e]ven
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26 Opinion of the Court 22-12335
assuming [that the $2.4 billion in damages sought by Mr. Leon]
could be used to establish [his] unjust enrichment, [that figure]
could only be used if [Taxinet] provided evidence establishing a
fact-based chain of reasoning to allocate or quantify to some degree
[its] contribution to those earnings.â Id. As the district court ex-
plained in its Rule 50(b) order, the $2.4 billion valuation âdoes not
represent the value of any benefit conferred on [Mr.] Leon [by Tax-
inet] in the relevant period.â D.E. 302 at 9. See also F.H. Paschen,
311 So. 3d at 51 (reversing the grant of summary judgment on un-
just enrichment damages because the plaintiff âpresented no evi-
dence of the reasonable value of the labor and materials it provided
on the [relevant] phase of the projectâ and â[t]here was no opinion
evidence as to the market value of the services performedâ). 9
D
That leaves Mr. Domitâs testimony. As a reminder, Mr.
Domit, one of the purported partners in the original venture, told
the jury that he performed some financial modeling of his own.
Depending on assumptions he made and variables he used in the
modeling, he came up with a capital cost of between $500,000 and
$20 million, and a profit (using the $20 million capital cost figure)
of $1.6 billion in five years. He explained that his financial model-
ing efforts constituted âinformed guesswork.â D.E. 336 at 106.
9 Neither side has made any arguments about the damages award based on
Fla. Stat. § 768.74, so we do not discuss it. Compare Kerrivan, 953 F.3d at 1204â
08 (analyzing the alleged excessiveness of a compensatory damages award in
a claim governed by Florida law under the factors set out in § 768.74).
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22-12335 Opinion of the Court 27
Mr. Domit, it seems to us, was competent to provide his
opinion of what the ventureâs profit would be in five yearsâ time
based on certain assumptions and variables he used in his own
modeling. Indeed, there were no objections to his testimony on
this point.
We cannot, however, affirm the award of $300 million based
on Mr. Domitâs testimony. Hereâs why.
Contrary to Taxinetâs argument, Lusadâs anticipated profits
in 2020 or 2021 based on millions of dollars in projected capital
costs are not the measure of unjust enrichment damages for a ben-
efit conferred in 2015 before Lusad began operating the concession.
âThe measure of damages for unjust enrichment is the value of the
benefit conferred, not the amount the plaintiff hoped to receive or
the cost to the plaintiff.â F.H. Paschen, 311 So. 3d at 50. The pri-
mary aim of damages in a case like this one âis to restore the plain-
tiff to his or her initial position before the defendant received the
benefit that gave rise to the obligation to restore.â 11 Fla. Jur. 2d
Contracts § 300 (2d ed. & June 2024 update). See also Am. Safety Ins.
Serv., Inc. v. Griggs, 959 So. 2d 322, 332 (Fla. 5th DCA 2007) (âHere,
even if plaintiffsâ contractual agreement with PMI could be con-
strued to confer a direct benefit on American Safety, plaintiffs only
presented evidence of the money they hoped to receive under their
profit participation agreement with PMI. They presented no evi-
dence of the value of the benefit conferred upon American Safety
in the form of the PMI stock or the promissory notes that plaintiffs
relinquished.â).
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28 Opinion of the Court 22-12335
âBecause unjust enrichment damages are economic dam-
ages, the amount . . . must be measurable and quantifiable.â Alva-
rez, 258 So. 3d at 512. Taxinet has âoffered no competent way to
convertâ Mr. Domitâs $1.6 billion profit figure âto [$300 million] in
damages for unjust enrichment.â Id. at 513.
Taxinet seems to think that Mr. Domitâs profit estimate suf-
fices just because the verdict was below that figure, but that is not
the way unjust enrichment works. The claim here is not one for
breach of contract or breach of a joint venture agreement in which
lost profits can sometimes be sought. See generally 24 Williston on
Contracts § 64:14 (4th ed. & May 2024 update). It is instead one for
unjust enrichment, and as a result there must be âsome standard or
âyardstickâ by which the amount of [unjust enrichment] damages
may be adequately determined.â Montage Grp., Ltd., 889 So. 2d at
195. That is missing here with respect to Mr. Domitâs testimony
about anticipated profits. See Merle Wood & Assocs., Inc. v. Frazer,
307 So. 3d 773, 776â77 (Fla. 4th DCA 2020) (setting aside a jury
award of $184,863.60 in favor of a yacht salesman on his unjust en-
richment claim arising from the sale of a yacht: âFrazer himself
only testified as to his anticipated profits from the transaction, but
offered no testimony computing the value of the benefit con-
ferred.â).
Finally, though Mr. Domitâs $1.6 billion figure may be a
valid starting point for calculating Taxinetâs unjust enrichment
damages, it cannot on its own support affirmance of the $300 mil-
lion award. Recall that Mr. Leon offered Messrs. Noboa and Domit
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22-12335 Opinion of the Court 29
collectively 25% of Lusad. If Mr. Leonâs proposal had been ac-
cepted, Mr. Noboaâs share would have been 12.5%. And 12.5% of
$1.6 billion is $200 million, not $300 million.
IV
Taxinet requests that we remand for a new trial if we affirm
the district courtâs Rule 50(b) order setting aside the jury verdict.
See Appellantâs Br. at 48â49. Mr. Leon responds that a new trial
would be futile because Taxinet cannot explain what evidence it
would introduce to establish the value of any benefit it conferred.
See Appelleeâs Br. at 43â44.
When a district court grants a renewed Rule 50(b) motion
for judgment as a matter of law, the party against whom the Rule
50(b) judgment is entered may file a Rule 59 motion for a new trial
within 28 days of the judgment. See Fed. R. Civ. P. 50(d). Taxinet
did not file a motion for a new trial after the district court granted
Mr. Leonâs renewed Rule 50(b) motion, and one might think that
this failure would preclude it from seeking a new trial on appeal if
the Rule 50(b) judgment is affirmed. But it does not.
Though Taxinet did not move for a new trial below, it may
seek a new trial now because of the caseâs procedural posture. That
is the lesson of Neely v. Martin K. Eby Construction Company, 386 U.S.
317, 328 & n.6 (1967): â[I]f the plaintiďŹâs verdict is set aside by the
trial court on defendantâs motion for judgment n.o.v., plaintiďŹ may
bring these very grounds directly to the court of appeals without
moving for a new trial in the district court.â Indeed, the party
which has had a Rule 50(b) judgment entered against it âcan choose
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30 Opinion of the Court 22-12335
for his own convenience when to make his case for a new trial: he
may bring his grounds for new trial to the trial judgeâs attention
when defendant ďŹrst makes an n.o.v. motion, he may argue this
question in his brief to the court of appeals, or he may in suitable
situations seek rehearing from the court of appeals after his judg-
ment has been reversed.â Id. at 328â29. See also Rule 50(c)(2), Adv.
Comm. Note (âEven if the verdict winner makes no motion for a
new trial, he is entitled upon his appeal from the judgment n.o.v.
not only to urge that that judgment should be reversed and judg-
ment entered upon the verdict, but that errors were committed
during the trial which at the least entitle him to a new trial.â); 9B
Fed. Prac. & Proc. § 2540 n.7 (discussing Neely).
Even when the party who has had a Rule 50(b) judgment
entered against it does not speciďŹcally request a new trial below or
on appeal, we have the discretion to order a new trialâand we have
done so, at least once. See Network Publâns, Inc. v. Ellis Graphics Corp.,
959 F.2d 212, 215 (11th Cir. 1992) (âThe appellate court has discre-
tion to order a new trial even though the trial court granted judg-
ment n/o/v to the trial loser.â). In Network Publications, we ordered
a new trial after aďŹrming a Rule 50(b) order granting judgment as
a matter of law because liability was not challenged and because
there was some (albeit insuďŹcient) evidence of damages. And we
did so even though the plaintiďŹâthe verdict winnerâhad not ďŹled
a motion for a new trial below or sought a new trial on appeal: âIn
this appeal plaintiďŹ insisted that it was entitled to have judgment in
its favor reinstated. It did not assert that, if the court did not grant
that relief, it was entitled to at least a new trial. The request for a
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22-12335 Opinion of the Court 31
whole loaf does not preclude this courtâs discretion to grant the
relief of half a loaf.â Id.
Of course, ânot all cases involving insufficiency of evidence
deserve a new trial,â Smith v. Washington Sheraton Corp., 135 F.3d
779, 785 (D.C. Cir. 1998), but here we conclude in the exercise of
our discretion that a new trial on Taxinetâs unjust enrichment
claim is appropriate. First, as we have explained, Taxinet presented
sufficient evidence that it conferred a benefit on Mr. Leon, that Mr.
Leon understood and accepted that benefit, and that it would be
inequitable for him to retain the benefit without paying for it. Sec-
ond, though the evidence was insufficient to sustain the $300 mil-
lion award, Mr. Domitâs testimony provided the foundation for
awarding Taxinet some damages for Mr. Leonâs unjust enrich-
ment. See Network Publâns, 959 F.2d at 215. This is not a case in
which âthe defect in the proof is of the sort that could not be ex-
pected to be cured by any evidence at a new trial.â 9B Fed. Prac.
& Proc. § 2538. Third, Taxinet understandably relied on the dis-
trict courtâs admission of the testimony of Mr. Leon about the $2.4
billion Goldman Sachs valuation. By the time the district court
ruled in its Rule 50(b) order that this testimony constituted inad-
missible hearsay, it was too late for Taxinet to remedy the situation
by submitting other evidence of damages or presenting a different
theory of such damages to the jury. See Jackson, 980 F.2d at 696.
Rule 59(a) provides in relevant part that a new trial may be
granted âon all or some of the issues.â See Fed. R. Civ. P. 59(a).
Partial new trials are appropriate when âthe issue to be retried is so
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32 Opinion of the Court 22-12335
distinct and separable from the others that a trial of it alone may be
had without injustice.â Gasoline Products Co. v. Champion Refin. Co.,
283 U.S. 494, 500 (1931) (cited as âwell settledâ authority in Vidrine
v. Kan. City So. Ry. Co., 466 F.2d 1217, 1221 (5th Cir. 1972)).
If the issues of liability and damages are âsufficiently inter-
woven, a partial new trial is inappropriate.â 11 Mary Kay Kane,
Fed. Prac. & Proc. § 2814 (3d ed. & June 2024 update). That is the
case here. Placing a value on the benefit conferred by Taxinet on
Mr. Leon is next to impossible without knowing what that benefit
was, and that entails understanding the sequence of events that led
to the preliminary approval of the concession in September of 2015
and the formal grant of the concession in June of 2016.
The new trial, therefore, will be on the entirety of Taxinetâs
unjust enrichment claim. Taxinet will bear the burden of establish-
ing all of the elements of unjust enrichment under Florida law, and
Mr. Leon will be able to challenge those elements as he sees fit.
V
Finally, Taxinet appeals the district courtâs grant of sum-
mary judgment on its claims for breach of a joint venture agree-
ment, fraud, fraudulent inducement, conversion, tortious interfer-
ence, promissory estoppel, and violation of Floridaâs Deceptive and
Unfair Trade Practices Act. It argues that the district court erred in
reasoning that all of these claims depended on the existence of an
enforceable joint venture agreement and in ruling that Floridaâs
statute of frauds barred enforcement of that agreement. See Appel-
lantsâ Br. at 49â52.
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22-12335 Opinion of the Court 33
âOur review of a summary judgment order is plenary, and
we apply the same legal standards as required of the district court.â
Kuhne v. Fla. Dept. of Corr., 745 F.3d 1091, 1094 (11th Cir. 2014).
Summary judgment was appropriate âif [Mr. Leon] show[ed] that
there [were] no genuine dispute[s] as to any material fact[s] and
[that he was] entitled to judgment as a matter of law.â Fed. R. Civ.
P. 56(a). We assess all of the evidence and draw all reasonable fac-
tual inferences in the light most favorable to Taxinet, the non-mov-
ing party. See Chapman v. A1 Transp., 229 F.3d 1012, 1023 (11th Cir.
2000) (en banc).
Floridaâs statute of frauds provides that â[n]o action shall be
brought . . . upon any agreement that is not to be performed within
the space of 1 year from the making thereof . . . unless the agree-
ment or promise upon which such action shall be brought . . . shall
be in writing and signed by the party to be charged therewith.â Fla.
Stat. § 725.01. If âfull performance is possible within one year from
the inception of the contract,â the statute of frauds does not apply.
See Browning v. Poirier, 165 So. 3d 663, 666 (Fla. 2015).
Here, as noted, there was no written agreement. According
to Taxinet, however, the members of the joint venture achieved
their goal well within a year, even if the concession was only for-
mally granted in June of 2016, when the declaration of need was
published. This argument is based on the premise that Messrs.
Noboa, Domit, and Leon only intended that the venture, through
Lusad, obtain the Mexico City concession. In Taxinetâs view, there
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34 Opinion of the Court 22-12335
was no plan for Lusad to actually continue with and operate the
concession.
We disagree. Assuming that there were disputed issues of
material fact on whether a joint venture agreement existed, it is
undisputed that the desired Mexico City concession was for a pe-
riod of 10 years, and that it could only be awarded to a Mexican
company. That is why Lusad was formed. If Lusad obtained the
concession, it would naturally be expected to operate the conces-
sion for the 10-year period, or at least for a period of time beyond
one year from the formation of the joint venture agreement. In-
deed, without operation of the concession Lusad would not realize
any profits.
Taxinet seems to recognize this reality in its brief. It says
that â[a]s part of the agreement [Messrs. Noboa, Domit, and Leon]
formed the Mexican entity Lusad to receive the concession and op-
erate the concession business, as required by Mexican law.â Appellantâs
Br. at 50 (emphasis added). This admission is fatal to Taxinetâs con-
tention that material issues of fact precluded summary judgment
based on the statute of frauds.
Furthermore, the very email that Taxinet citesâsent by Mr.
Domit on September 7, 2015âshows that the joint venture was
intended to both secure and operate the concession. See D.E. 155-
16 at 2â3. That email, which referred to âactivitiesâ to be com-
pleted, included not only the incorporation of a company in Mex-
ico (which turned out to be Lusad), but also the â[h]iring of instal-
lation companies,â the â[i]nitial staff training,â and the creation and
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22-12335 Opinion of the Court 35
implementation of a âmarketing campaign.â Id. Those âactivitiesâ
could not be completed within a year of the purported creation of
the joint venture agreement, particularly given that the concession
was formally awarded only in June of 2016.
As the magistrate judge and the district court correctly ex-
plained, the evidenceâviewed in the light most favorable to Tax-
inetâindicates that the joint venture went âbeyond obtaining the
concession . . . and included the implementation of Taxinetâs tech-
nology as well as operation of the ride-hailing service for the [10]-
year term of the concession.â D.E. 192 at 12. The district court
properly granted summary judgment to Mr. Leon on Taxinetâs
other claims.
VI
Taxinet presented sufficient evidence to allow the jury to
find that it conferred a benefit on Mr. Leon, that he accepted the
benefit, and that it would be inequitable for him to retain the ben-
efit without paying for it. It did not, however, introduce sufficient
admissible evidence to support the juryâs award of $300 million on
the unjust enrichment claim. The district court therefore properly
granted Mr. Leonâs Rule 50 motion with respect to damages.
But we exercise our discretion to order a new trial. We do
so because there was sufficient evidence of Mr. Leonâs receipt and
acceptance of a benefit conferred by Taxinet, because Mr. Domitâs
testimony provided a foundation for an award of some damages to
Taxinet, and because Taxinet relied on the district courtâs admis-
sion of the hearsay testimony about the $2.4 billion Goldman Sachs
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36 Opinion of the Court 22-12335
valuation at trial. As explained, the trial will be on the entirety of
Taxinetâs unjust enrichment claim.
We affirm the district courtâs grant of summary judgment in
favor of Mr. Leon on Taxinetâs other claims. The alleged joint ven-
ture agreement was that Lusad would obtain and operate the Mex-
ico City 10-year concession. Because the agreement could not be
completed within a year, any claims based on its existence were
barred by Floridaâs statute of frauds.
AFFIRMED IN PART AND REMANDED FOR A NEW
TRIAL.