Gem Realty Trust v. First Nat'L Bank ( 1996 )

USCA1 Opinion

          April 26, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT




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        No. 95-1649



                                  GEM REALTY TRUST,



                                Plaintiff, Appellant,



                                          v.



                        FIRST NATIONAL BANK OF BOSTON, ET AL.,



                                Defendants, Appellees.




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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                   [Hon. Shane Devine, Senior U.S. District Judge]
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                                        Before



                               Torruella, Chief Judge,
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                           Cyr and Boudin, Circuit Judges.
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             James H. Gambrill,  with whom Engel, Gearreald and  Gardner, P.A.
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        was on brief for appellant.

             Bruce  W. Felmly,  with whom  Byrne J.  Decker and  McLane, Graf,
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        Raulerson & Middleton, P.A. were on brief for appellees.
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                    Per Curiam.   GEM Realty Trust appeals  from a district
Per Curiam.
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          court  judgment     based  on a  jury  verdict     dismissing its



          challenge  to  a mortgage  foreclosure  sale  conducted by  First



          National  Bank  of  Boston  against certain  New  Hampshire  real



          property owned by GEM.  On appeal, GEM presses various objections



          to the  district court's  jury instructions and  evidentiary rul-



          ings.  Following full  briefing and oral argument, we  affirm the



          district court  judgment and  comment briefly on  but two  claims



          raised by GEM on appeal.



                    A careful review of the record and the controlling  New



          Hampshire precedent  persuades us that the  district court fairly



          and accurately conveyed the governing principles of New Hampshire



          law in its instructions to the jury.  See Davet v. Maccarone, 973
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          F.2d  22, 26 (1st  Cir. 1992),  for our  standard of  review, and



          Murphy  v. Financial Dev. Corp.,  495 A.2d 1245  (N.H. 1985), for
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          the applicable  law.  And  the district  court did not  abuse its



          discretion, Bates v. Shearson  Lehman Bros., 42 F.3d 79,  83 (1st
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          Cir.  1994), either  by  excluding the  marginally probative  and



          potentially confusing evidence relating to the first  forbearance



          agreement  between the parties, see  Fed. R. Evid.  401-03, or by
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          sustaining  the Bank's hearsay objection, see  Fed. R. Evid. 801,
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          to the Katsaros  real estate appraisal  as plainly cumulative  in



          light of other appraisals before the jury, see id. 403.
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                    Accordingly, the district court judgment is affirmed.
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