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USCA1 Opinion
April 25, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1774
G. ROCKETT & SONS, INC., AND BRIAN ROCKETT,
Plaintiffs - Appellants,
v.
WINTER HARBOR FISHERMAN'S COOP, INC.,
Defendant - Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________
_____________________
Peter Panaro on brief for appellants. ____________
Michael L. Ross on brief for appellee. _______________
____________________
____________________
Per Curiam. Plaintiffs-appellants, G. Rockett & Sons, Per Curiam __________
Inc., and Brian Rockett, appeal a jury verdict in favor of
defendant-appellee, Winter Harbor Fisherman's Coop, Inc., on
plaintiffs' complaint and defendant's counter suit. Judgment was
entered by the district court in the amount of $99,360.35 against
G. Rockett & Sons, Inc., for breach of contract, and in the
amount of $15,000 against G. Rockett & Sons, Inc., and Brian
Rockett, jointly and severally, for conversion and unjust
enrichment. We affirm.
BACKGROUND BACKGROUND
Winter Harbor Fisherman's Coop, Inc. ("Winter") is a
fisherman's cooperative, located in Winter Harbor, Maine, which
sells live lobsters at market wholesale cost to wholesalers. G.
Rockett & Sons, Inc. ("Rockett & Sons") is a wholesaler of
lobsters which contracts with suppliers of lobsters and delivers
them to its customers in the Northeast. In December of 1992,
Brian Rockett ("Rockett"), an officer1 and employee of Rockett
and Sons, reached an oral agreement with Winter's manager and
bookkeeper, Becky Utecht-Towle ("Utecht-Towle"), for Rockett &
Sons to purchase 26,000 pounds of lobsters from Winter. The
lobsters were to be sold in three shipments on a cash and carry
basis. The purchase price was $39,423.90 for the first shipment,
$34,502.50 for the second shipment, and $27,223.45 for the third
shipment, for a total of $101,860.35 (including a $711.50 balance
____________________
1 Although Rockett signed an affidavit expressly stating that he
is an officer of Rockett & Sons, he nevertheless argued at trial,
and again on appeal, that he is not an officer of the company.
He has offered no reason, however, why we should disregard his
own sworn statement to the contrary.
due on a previous transaction).
Rockett picked up the three shipments of lobsters on
December 22nd, 27th and 29th, respectively. He paid Winter
$14,600 in cash, and paid the remainder due on the first two
shipments by two corporate checks dated December 28, 1992, and
December 29, 1992. Rockett eventually stopped payment on the two
corporate checks, and has never paid for the third shipment.
Instead, Rockett & Sons and Rockett filed the instant lawsuit
alleging that they received non-conforming goods in the first two
shipments. Specifically, Rockett & Sons alleged that Winter
breached the contract because the lobsters in the first shipment
were below weight specifications and because most of the lobsters
in the second shipment were freezing or frozen. W i n t e r
thereafter filed suit against Rockett and Rockett & Sons for
breach of contract, unjust enrichment and conversion. The two
suits were consolidated and tried to a jury.
On May 26, 1994, the jury returned a verdict for Winter
on its breach of contract claims, finding that Rockett and Sons
breached its agreement to pay Winter for the three shipments of
lobsters. The jury also returned a verdict for Winter on its
conversion and unjust enrichment claims, finding that Rockett and
Rockett & Sons had converted Winter's lobsters and/or lobster
crates and been unjustly enriched by the same. The court entered
judgment against Rockett & Sons on the contract claims in the
amount of $99,360.35, and against Rockett & Sons and Brian
Rockett, jointly and severally, on the conversion and unjust
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enrichment claims in the amount of $15,000. This appeal
followed.
DISCUSSION DISCUSSION
Appellants raise a number of issues on appeal. We
address them seriatim.
I. Insufficiency of the Evidence I. Insufficiency of the Evidence _____________________________
Appellants maintain that the evidence presented at
trial was legally insufficient for a reasonable jury to find that
Rockett & Sons breached the contract as to the first shipment of
lobsters. They also maintain that the evidence was insufficient
for a reasonable jury to find that either Rockett or Rockett &
Sons converted Winter's lobster crates and was therefore unjustly
enriched.
To challenge the sufficiency of the evidence on appeal,
a party is required, at the close of the evidence, to move for
judgment as a matter of law and, if that motion is denied, to
renew the motion after the jury verdict. See Vel zquez v. ___ _________
Figueroa-G mez, 996 F.2d 425, 426-27 (1st Cir. 1993); Fed. R. ______________
Civ. P. 50. A motion for judgment as a matter of law must be
made with sufficient particularity to explain why the evidence is
insufficient, and the moving party may appeal only on the grounds
stated in the motion. Vel zquez, 996 F.2d at 427. A motion for _________
judgment as a matter of law, after a jury verdict, must be made
"not later than ten days after judgment." Fed. R. Civ. P. 50(b).
Appellants moved for judgment as a matter of law at the close of
the evidence. They maintain that they also moved for judgment as
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a matter of law after the jury rendered its verdict. The record
does not support this contention.
After the jury returned its verdict, the following
colloquy took place between counsel for appellants and the court.
MR. PANARO: Yes your honor. Just to
make a motion. I would make a motion for
verdict for the defendant, I'm sorry,
verdict for Rockett, notwithstanding the
verdict in the amount of -- what I'm
trying to do is make a motion to set
aside that portion of the verdict which
states $15,000 for unjust enrichment on
the part of G. Rockett & Sons and Brian
Rockett, and also to set aside that
portion of the verdict of $39,800 [sic]
and some odd as being against the weight
of the evidence in the case.
THE COURT: After I enter judgment in
the case, Mr. Panaro, you obviously are
free to file post judgment motions and
you should do that in writing. At this
point I'm simply inviting counsel, to the
extent that you wish to, to comment
before I indicate the amount that is to
be entered in the judgment in favor of
[Winter].
Appellants never took the court's invitation to file
post judgment motions, in writing or otherwise. The above
discussion does not constitute a proper Rule 50(b) motion. The
district court judge clearly indicated to counsel that he was not
treating his statements as a post-trial motion. In addition,
defense counsel's statement is insufficient by itself because it
does not state with sufficient particularity -- indeed, with any
particularity -- why the evidence was insufficient. The
attempted motion did not provide a basis upon which the district
court could rule, and, consequently, we have no district court
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decision to consider. See Wells Real Estate v. Greater Lowell ___ _________________ ______________
Bd. of Realtors, 850 F.2d 803, 810 (1st Cir. 1988).2 _______________
Appellants did not move for a new trial under either
Rule 50 or Rule 59 of the Federal Rules of Civil Procedure.
Having failed to move, after the verdict, for judgment as a
matter of law and/or a new trial, appellants are precluded from
appealing the sufficiency of the evidence to this court. See id. ___ __
at 810-11. Accordingly, we only address appellants' arguments
concerning alleged errors by the trial court.
II. The Conversion and Unjust Enrichment Verdicts II. The Conversion and Unjust Enrichment Verdicts _____________________________________________
The jury initially found Rockett liable on the
conversion and unjust enrichment counts, but found that Rockett &
Sons was not liable on those counts. The jury awarded Winter
$15,000 but apportioned that award equally between Rockett and ___
Rockett & Sons. The district court properly found that the
verdict and the apportionment of damages were inconsistent.
Accordingly, the court explained the inconsistency to the jury
and asked them to resolve it with reference to the jury
instructions. The court then asked them to return to deliberate
further. Counsel for appellants did not object to the court's
supplemental instructions.
In its subsequent verdict, the jury found that both
Rockett and Rockett & Sons had converted Winter's lobsters and/or
____________________
2 This is not a case, therefore, where appellants either were
misled by the trial judge or substantially complied with Rule 50.
Accordingly, they do not fit within the very narrow "substantial
compliance" exception. See Jusino v. Zayas, 875 F.2d 986, 991 ___ ______ _____
n.6 (1st Cir. 1989) (citations omitted).
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lobster crates and that both had been unjustly enriched. The
jury found that Winter suffered damages of $15,000 as a result of
this conduct, but that no portion of that $15,000 was a result of
Rockett & Sons' conduct alone. The court entered judgment in the
amount of $15,000 against Rockett and Rockett & Sons, jointly and
severally.
Appellants maintain that the jury's finding that both
appellants had converted Winter's property, but that none of
Winter's damages were caused by Rockett & Sons' conduct alone,
"shows the jury was confused regarding the charge of conversion
and is otherwise unreasonable, inconsistent, against the weight
of the evidence and contrary to the judge's instructions on the
law." As explained above, by not moving for judgment
notwithstanding the verdict, appellants have waived their right
to challenge the sufficiency of the evidence. We therefore
address only the question of whether the verdict was inconsistent
or contrary to the judge's instructions.
The verdict was not inconsistent under Maine law. It
was stipulated at trial that Rockett was acting as an agent of
Rockett & Sons. Under Maine law, the jury could conclude that
Rockett converted the lobsters and/or crates and that he was
acting within the scope of his employment with Rockett & Sons.
See McLain v. Training & Dev. Corp., 572 A.2d 494, 497-98 (Me. ___ ______ ______________________
1990). The jury could determine that the damages were caused by
Rockett's conduct alone, but he was acting as an agent for
Rockett & Sons at the time. The jury could therefore conclude
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that Rockett and Rockett & Sons were jointly and severally liable
for the $15,000 in damages, even though the damages were not the
result of Rockett & Sons' conduct alone. _____
Nor was the verdict contrary to the judge's
instructions. With respect to the claim for conversion, the
court instructed the jury as follows:
The Co-op also claims that Rockett &
Sons and Brian Rockett converted its
property, namely, its lobsters and 100
wooden crates. To prove conversion, the
Co-op must establish that Rockett & Sons
have wrongfully taken or retained
property belonging to the Co-op.
The Co-op need not prove that Rockett
& Sons and Brian Rockett knew or intended
to convert the Co-op's property, only
that they came to have custody of
property belonging to the Co-op when they
had no right to the property.
Of course, if you find that Rockett &
Sons was entitled to possession of the
lobsters under the contract, then neither
it nor Brian Rockett is liable for
conversion of the lobsters. If, however,
you determine that Rockett & Sons was not
entitled to possession of the lobsters
under the contract due to its fraud in __________________
procuring delivery of the lobsters, then
you may find that Rockett & Sons and
Brian Rockett are liable for conversion
of the lobsters.
Appellants argue that this instruction only allows a
finding of conversion if the jury finds fraud in the procuring of
the lobsters, and that, since the jury found no fraud, the
verdict was inconsistent. The court instructed the jury to
consider all of the instructions together, and not to single out
any one instruction. The conversion instruction explained that
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Winter need not prove that Rockett & Sons and Rockett "knew or
intended to convert" Winter's property, only that they came to
have possession of that property when they had no right to it.
The mention of fraud merely indicates that, in addition, if they
had possession of Winter's property through fraud, that would
suffice for conversion. We find no inconsistency in the verdict.
III. Violation of Sequestration Order III. Violation of Sequestration Order ________________________________
Appellants assert that the district court committed
reversible error by allowing a witness for the appellee, Michael
Faulkingham ("Faulkingham"), to testify after he admittedly
violated the court's sequestration order. The district court
thoroughly explored this issue at trial. The court allowed
counsel for appellants to voir dire Faulkingham on the record
about what he heard while in violation of the court's order. The
court also conducted a voir dire of Faulkingham. Faulkingham
testified on voir dire that he was in the courtroom for about ten
minutes during the direct and cross-examinations of appellee
witness, Michael Kramp ("Kramp"), and then left when he was
informed that he was not allowed to be in the courtroom.
Faulkingham told the court what he heard Kramp testify about.
Counsel for Winter then told the court the questions he would ask
Faulkingham.
The court determined that there was no overlap in the
two areas of questioning and allowed Faulkingham to testify.
Counsel for Winter asked Faulkingham thirteen questions on direct
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examination, seven of which were foundational. None of the
questions related to anything Faulkingham testified he heard
Kramp testify about. The appropriate sanction for breach of a
sequestration order is ordinarily left to the district court's
discretion. See United States v. Cox, 752 F.2d 741, 748 (1st ___ _____________ ___
Cir. 1985). Appellants have not shown that the measures adopted
by the district court were inappropriate or that the violations
were so significant as to warrant departure from this ordinary
rule. Finally, appellants have not shown how they were
prejudiced by Faulkingham being allowed to testify. We conclude
that the district court did not abuse its discretion in allowing
Faulkingham to testify.
IV. Prejudicial Remarks IV. Prejudicial Remarks ___________________
Appellants allege that certain statements made by
counsel for appellee during closing argument were unfairly
prejudicial and deprived appellants of a fair trial. Appellants
point to the following statements by counsel for appellee: 1)
counsel described Rockett as a "con artist", and the breach of
contract as a "con"; 2) counsel referred to Winter as the "little
fishermen's Co-op in Maine" and stated that "we don't need
anymore of this here in Maine"; 3) and counsel stated that
Rockett "makes more money in one deal than the Co-op makes in a
couple of years." Appellants did not object during or after
appellee's closing argument, therefore, we review only for plain
error. United States v. Rodr guez-Estrada, 877 F.2d 153, 158 ______________ _________________
(1st Cir. 1989); Wildman v. Lerner Stores Corp., 771 F.2d 605, _______ ___________________
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609 (1st Cir. 1985) ("Counsel cannot play a waiting game and
after an adverse verdict is rendered raise an objection to
argument for the first time.") (citations omitted). We find no
plain error in counsel's remarks. The description of Rockett as
a "con artist" is not unduly prejudicial since the complaint
charged him with fraud. Moreover, the jury determined that
Rockett did not defraud Winter, and, thus, presumably rejected
counsel's characterization of Rockett as a "con artist" and the
breach as a "con." None of the other statements by counsel were
such that a new trial is required to prevent a miscarriage of
justice. See Fed. R. Civ. P. 61; Wildman, 771 F.2d at 609. ___ _______
V. Evidentiary Issues V. Evidentiary Issues __________________
Appellants list twenty-one instances in which the
district court allegedly admitted evidence erroneously.
Appellants assert that these errors, taken together, denied
appellants a fair trial and warrant a new trial. We need not
linger long over this argument. "[T]he admission and exclusion
of evidence is primarily within the discretion of the trial
judge, and this determination will not be disturbed absent a
showing of abuse of discretion." Doty v. Sewall, 908 F.2d 1053, ____ ______
1058 (1st Cir. 1990) (quoting Harrington v. United States, 504 __________ ______________
F.2d 1306, 1313 (1st Cir. 1974)). We have reviewed each
assignment of error and find no abuse of the district court's
broad discretion, certainly none which rises to the level of
affecting appellants' substantial rights. See Farr Man & Co., ___ ________________
Inc. v. M/V Rozita, 903 F.2d 871, 875 (1st Cir. 1990); Fed. R. ____ __________
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Civ. P. 61.
CONCLUSION CONCLUSION
We have considered appellants' other contentions of
error and find none meriting further discussion. The verdict and
judgment are affirmed. ________
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Document Info
Docket Number： 94-1774
Filed Date： 4/25/1995
Precedential Status： Precedential
Modified Date： 9/21/2015