Maritimes & Northeas v. 1.43 Acres of Land ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1243
MARITIMES & NORTHEAST PIPELINE, L.L.C.,
Plaintiff, Appellee,
v.
1.43 ACRES OF LAND IN THE TOWN OF LISBON, COUNTY OF
ANDROSCOGGIN, STATE OF MAINE,
Defendant,
DAVID MOCKLER,
Defendant, Appellant,
LAWRENCE B. STEWART; CLAUDETTE STEWART;
NORMAND J. VALLEE; STATE OF MAINE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
David Mockler on brief pro se.
James T. Kilbreth, Juliet T. Browne, Hope K. Creal and
Verrill & Dana, LLP on brief for appellee Maritimes & Northeast
Pipeline, L.L.C.
December 29, 2000
Per Curiam. Following a one-day bench trial, the
district court upheld the validity of a grant of easement
which afforded the appellee pipeline company a right-of-way
across appellant Mockler's property to construct and
maintain a natural gas pipeline. Mockler now appeals,
raising two assignments of error. As we find neither
persuasive, we summarily affirm.
Mockler first argues that his charge of fraud was
impermissibly rejected. The district court found, contrary
to Mockler's assertions, that appellee had not
misrepresented the pipeline's location to him in the course
of negotiating the easement and, further, that a revised
route had been properly approved by the government prior to
that time. "In reviewing factual findings, this court
applies the clear-error standard of review," Vinick v.
United States, 205 F.3d 1, 6 (1st Cir. 2000), under which we
accept the lower court's findings unless we are "left with
the definite and firm conviction that a mistake has been
committed," Anderson v. City of Bessemer City, 470 U.S. 564,
573 (1985) (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)). Our review of the record
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reveals no such mistake. Mockler's own witnesses (two
neighboring landowners) belied any suggestion that
appellee's "land agent" was purveying false information.
And appellee's evidence concerning the approval of "Reroute
63-D" went entirely unrebutted. There was no clear error.1
Mockler also contends that he was denied his
Seventh Amendment right to a trial by jury. Yet he has not
even attempted to explain how this case--a diversity action
seeking a declaratory judgment as to the validity of an
easement--might involve "rights and remedies of the sort
traditionally enforced in an action at law, rather than in
an action in equity." Pernell v. Southall Realty, 416 U.S.
363, 375 (1974). The argument not only is without merit but
also has been waived--whether because of the lack of
"developed argumentation" on appeal, United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990), or because of the
lack of objection below, see, e.g., 8 Moore's Federal
Practice §§ 38.52[4], 39.13[1][c] (3d ed. 2000).
Affirmed. See Loc. R. 27(c).
1 Even if a misrepresentation had occurred, we fail to see
how Mockler could establish justifiable reliance thereon, in
light of his admitted failure to read the contract or to review
the accompanying diagram which accurately depicted the
pipeline's route across his property. See, e.g., Francis v.
Stinson, 760 A.2d 209, 217-18 (Me. 2000).
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