Davignon v. Clemmey , 322 F.3d 1 ( 2003 )

United States Court of Appeals
For the First Circuit
No. 01-1862
NEAL DAVIGNON AND PATRICIA KELLEY,
Plaintiffs-Appellees/Cross-Appellants,
AMANDA DAVIGNON AND CHELSEA DAVIGNON,
Plaintiffs-Appellees,
v.
KARL D. CLEMMEY AND KARL D. CLEMMEY, JR.,
Defendants-Appellants/Cross-Appellees,
TOWN OF MANSFIELD, MASSACHUSETTS,
ARTHUR O'NEIL, ETC.
Defendants-Appellees,
CLEMMEY, INC., ET AL.,
Defendants.
No. 02-1293
NEAL DAVIGNON AND PATRICIA KELLEY,
Plaintiffs-Appellees/Cross-Appellants,
AMANDA DAVIGNON AND CHELSEA DAVIGNON,
Plaintiffs-Appellees,
v.
KARL D. CLEMMEY AND KARL D. CLEMMEY, JR.,
Defendants-Appellants/Cross-Appellees,
TOWN OF MANSFIELD, MASSACHUSETTS,
ARTHUR O'NEIL, ETC.
Defendants-Appellees,
CLEMMEY, INC., ET AL.,
Defendants.
No. 02-1346
NEAL DAVIGNON AND PATRICIA KELLEY,
Plaintiffs-Appellees/Cross-Appellants,
AMANDA DAVIGNON AND CHELSEA DAVIGNON,
Plaintiffs-Appellees,
v.
KARL D. CLEMMEY AND KARL D. CLEMMEY, JR.,
Defendants-Appellants/Cross-Appellees,
TOWN OF MANSFIELD, MASSACHUSETTS,
ARTHUR O'NEIL, ETC.
Defendants-Appellees,
2
CLEMMEY, INC., ET AL.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
Michael J. Traft, with whom Carney & Bassil, P.C. was on brief
for defendants-appellants.
Leonard H. Kesten, with whom Deidre Brennan Regan, Patricia
Malone Campbell, and Brody, Hardoon, Perkins & Kesten were on brief
for plaintiffs-appellees and defendants-appellees.
March 4, 2003
3
CYR, Senior Circuit Judge. Defendants Karl D. Clemmey
("Karl") and Karl D. Clemmey, Jr. ("Dan") appeal from a district
court judgment, entered following a jury verdict, directing them to
pay $2,850,000 in damages to Neal Davignon, Patricia Kelley, and
their two minor children, for intentional infliction of emotional
distress, assault and battery, and various violations of their
civil rights. In turn, Davignon and Kelley cross-appeal from a
district court ruling that their jury verdict against Karl Clemmey,
totaling $2,000,000, for intentional infliction of emotional
distress, is barred by res judicata. We affirm the jury verdict.
I
BACKGROUND
The relevant background facts are recited in the light
most consistent with the jury verdict. See Quint v. A.E. Staley
Mfg. Co., 172 F.3d 1, 9 (1st Cir. 1999). On January 9, 1998, Karl
and Dan Clemmey, owners of Clemmey Auto Body in Mansfield,
Massachusetts, abruptly discharged their mechanic, Neal Davignon,
physically assaulted him, and thereafter threatened his life and
the lives and physical safety of his family. At the time,
Davignon, Patricia Kelley, and their two minor children were
tenants in a residence owned by Karl Clemmey's real estate company
— 360 Chauncey Street LLC.
Twenty minutes after he was fired, Davignon returned to
the auto body shop, with Kelley and their children, in order to
4
retrieve some personal tools which had been wrongfully confiscated
from Davignon by the Clemmeys during the earlier assault. After
Dan Clemmey refused to allow Davignon to enter, claiming that
Davignon had assaulted his father — Karl Clemmey — Kelley and the
children left in tears to seek police assistance. Subsequently,
Dan Clemmey advised the police officer that Karl Clemmey had
decided not to press assault charges against Davignon and Kelley.
Thereafter, Neal Davignon signed an assault-and-battery complaint
against Karl Clemmey.
One week later, the Clemmeys commenced a long and
relentless campaign of harassment and intimidation against Davignon
and Kelley, beginning with their filing of criminal charges of
assault and threats of arson. Subsequently, Karl Clemmey actively
opposed Davignon's pending claim for unemployment compensation.
Additionally, Karl Clemmey's real estate company, 360 Chauncey
Street LLC, commenced eviction proceedings in state housing court
against Davignon and Kelley. Davignon and Kelley counterclaimed
for intentional infliction of emotional distress and thereafter
included Karl Clemmey as a party defendant. Ultimately, in July
1998, Davignon, Kelley, and 360 Chauncey Street LLC entered into an
Agreement for Judgment, which ceded possession of the leased
premises to 360 Chauncey Street LLC, effective October 1, 1998, and
stated that "the parties agree to waive all claims and
counterclaims regarding this matter with prejudice."
5
Meanwhile, the Clemmeys, acting in concert, repeatedly
intimidated and harassed the Davignons from February to August of
1998. For instance, while Davignon was visiting a friend at
another auto repair garage, he observed that Karl Clemmey was
taking his photograph. On the same occasion, Karl Clemmey warned
Neal Davignon that no unemployment-compensation hearing would ever
be held because "[y]ou'll be dead by then, you and your family."
In due course, Neal Davignon reported these threats to
the Mansfield Police Department. Whereupon, Karl Clemmey was
arrested and charged with the January 9 assault, and the state
court entered a "stay-away" order as a condition of bail.
Thereafter, Karl Clemmey submitted several additional false
criminal complaints against Davignon, alleging assault and
threatened assault.
Another witness saw Dan Clemmey break open a trash bag
and strew its contents over the Davignons' lawn. In a similar
vein, Patricia Kelley observed as Karl Clemmey drove past the
Davignon residence. Later, upon returning home from an errand,
Kelley found that the front door had been broken. On yet another
occasion, a Mansfield police officer saw Karl as he was driving by
the Davignon home. By way of further harassment, Karl falsely
reported to the Mansfield Fire Department that the Davignons were
storing explosives and other hazardous materials at their home.
6
Upon investigation, the latter allegation proved to be unfounded as
well.
In April 1998, an anonymous telephone report was received
by the Massachusetts Department of Social Services, to the effect
that Davignon and Kelley were abusing and/or neglecting their
children. Following an investigation, which included interviews of
the Davignon children, the allegations were determined to have been
unfounded.
On several other occasions, Patricia Kelley and another
person witnessed the Clemmeys surveilling the Davignon residence
from their parked car. In August 1998, Davignon saw Karl Clemmey
as he was driving away from the Davignon residence, and immediately
thereafter found the rock which had been thrown through the window
of his residence moments earlier. On yet another occasion, Karl
Clemmey brought his car to a stop on the street beside the Davignon
residence and (i) called out to the Davignon children: "Assholes"!
and (ii) ranted that their parents were "pieces of shit." These
outbursts brought the Davignon children to tears.
Subsequently, Karl Clemmey was convicted in state court
for having assaulted Davignon on January 9, 1998; at the same time,
Kelley was acquitted of the charge that she had assaulted Dan
Clemmey. Thereafter, the numerous remaining criminal complaints
brought by the Clemmeys against Davignon and Kelley were dropped.
7
In September 1999, Davignon, Kelley, and their children
commenced the instant action against the Clemmeys in the United
States District Court for the District of Massachusetts, demanding
damages for (i) assault and battery; (ii) intentional infliction of
emotional distress; and (iii) various civil rights violations. The
Clemmeys counterclaimed against Davignon and Kelley, and instituted
a cross-claim against the Town of Mansfield and its police chief
for facilitating Davignon's and Kelley's alleged harassment of the
Clemmeys.1 Following the nine-day trial, the jury awarded Davignon
$350,000 on the assault and battery charge; as well as $1,000,000
each to Davignon and Kelley, and $1,250,000 to each Davignon child,
on their respective claims for intentional infliction of emotional
distress and civil rights violations.
On June 1, 2001, at the behest of Davignon and Kelley, the
district court certified its partial judgment as final, pursuant to
Federal Rule of Civil Procedure 54(b), and the Clemmeys timely filed
their notice of appeal. On June 11, the district court extended the
time for submitting applications for counsel fees, as well as
motions for judgment as a matter of law, new trial, and remittitur.
1
Following their appeal, the Clemmeys' cross-claim against the
Town was dismissed by the district court as moot, pursuant to
Federal Rule of Civil Procedure 16(c). The Clemmeys contend on
appeal that we must reverse the Rule 16(c) dismissal in the event
we determine that a new trial is warranted on the Clemmeys' claims.
As we reach no such conclusion, see infra, their contention need
not be addressed.
8
The Clemmeys did not file their post-trial motions until June 29,
more than ten days after the entry of final judgment on June 1.
Although the district court rejected the Clemmeys' motions
for new trial and remittitur, it vacated the $1,000,000 jury awards
to Davignon and Kelley for intentional infliction of emotional
distress as well as various civil rights violations. The district
court determined that these claims had been fully litigated and
waived by Davignon and Kelley pursuant to the July 1998 Agreement
for Judgment in the housing-court eviction proceedings, which
included a release stating that "the parties agree to waive all
claims and counterclaims regarding this matter with prejudice."
The Clemmeys now appeal from the district court rulings
which rejected their post-trial motions. Davignon and Kelley cross-
appeal from the district court order which vacated their respective
$1,000,000 awards for intentional infliction of emotional distress
and various civil rights violations.
II
DISCUSSION
A. The Clemmey Appeal
1. Federal Rule of Evidence 803(4)
The district court permitted Jeffrey Parks — a family
therapist and social worker not licensed to practice medicine — to
testify concerning statements made to him by the Davignons during
family-therapy sessions relating to the extreme emotional distress
9
experienced by the Davignon children.2 The Clemmeys contend that
the district court erred in permitting Parks to testify regarding
these statements because (i) Federal Rule of Evidence 803(4)
provides an exception to the hearsay rule only for those statements
made "for the purpose of medical diagnosis," whereas (ii) the
plaintiffs consulted Parks for generalized advice on family
problems, rather than to facilitate contemporaneous or subsequent
treatment by a medical professional for any particular illness or
disease.
Normally, "proper interpretation of the Federal Rules of
Evidence [presents] a question of law and is reviewed de novo,
whereas the application of [a particular rule of evidence] . . . is
reviewed under an abuse-of-discretion standard." Crowley v. L.L.
Bean, Inc., 303 F.3d 387, 394 (1st Cir. 2002) (citation omitted).
The Clemmeys failed to assert any objection at the time Parks
testified. Moreover, their pretrial motion in limine was
insufficient as well. See Varano v. Jabar, 197 F.3d 1, 4 (1st Cir.
1999) (noting that objection asserted by motion in limine does not
2
There are four elements to an intentional-infliction claim
under Massachusetts law: (i) defendant intended to inflict
emotional distress or knew or reasonably should have known that
emotional distress was likely to result from such conduct; (ii) the
conduct was "extreme and outrageous," "beyond all possible bounds
of decency," and "utterly intolerable in a civilized community";
(iii) the defendant's conduct proximately caused plaintiff's
emotional distress; and (iv) the distress was so "severe that no
reasonable man could be expected to endure it." Agis v. Howard
Johnson Co., 355 N.E.2d 315, 318-19 (Mass. 1976) (citations
omitted).
10
preserve evidentiary challenge absent contemporaneous objection at
trial). Consequently, we review for plain error only. We discern
none. See Linn v. Andover Newton Theolog. Sch., Inc., 874 F.2d 1,
3 (1st Cir. 1989) ("We have stated repeatedly that absent
extraordinary circumstances, we will not in a civil case excuse a
party's failure to make a contemporaneous objection [to hearsay
evidence].") (emphasis added).3
2. The Jury Instruction
The district court instructed the jury that a knowing
violation of the state-court restraining order by the Clemmeys would
be sufficient, "standing alone," to demonstrate "outrageous
conduct," an essential element of the claim for infliction of
3
The ambit of Rule 803(4) is not limited to statements made to
a licensed physician, but instead may encompass those made to
social workers, provided that the declarant intended to procure
medical treatment. See Navarro de Cosme v. Hospital Pavia, 922
F.2d 926, 933 (1st Cir. 1991). Here, the plaintiffs sought Parks'
counsel in order to address mental-health issues associated with
the campaign of harassment which the Clemmeys conducted against
them and their children.
The Clemmeys belatedly attempt to distinguish Navarro, based
on legal arguments whose correctness is not remotely obvious. For
instance, they urge that these statements should have been excluded
from evidence because the declarants (viz., the Davignons) had a
compelling motive to lie. However, the district court allowed Park
to testify only to statements the Davignons made prior to this
litigation. Similarly, the Clemmeys cite child-sex-abuse cases, in
which various courts have refused to admit parental statements to
medical doctors who diagnosed physical abuse. However, those cases
are based on the theory that a parent who abuses his or her own
child may harbor a strong motive to mislead the doctor. See, e.g.,
United States v. Yazzie, 59 F.3d 807, 813 (9th Cir. 1995).
11
emotional distress. See supra note 2.4 The Clemmeys maintain that
the challenged instruction misstates Massachusetts law. Jury
instructions are reviewed de novo. See Crowley, 303 F.3d at 394.
A jury instruction, duly objected to, constitutes
reversible error only if it (i) is "misleading, unduly complicating,
or incorrect as a matter of law," id. (citation omitted); and (ii)
cannot be considered harmless, viz., as adversely affecting the jury
verdict and the "substantial rights" of the objecting party, see
Romano v. U-Haul Int'l, 233 F.3d 655, 665 (1st Cir. 2000). Absent
a duly asserted objection at trial, however, an appellant may
prevail only by establishing "plain error," viz., by demonstrating
that (i) the instruction constituted error as a matter of law; (ii)
the error was plain; (iii) likely altered the outcome; and (iv)
threatened the fairness, integrity or public reputation of the
judicial proceeding. See Seahorse Marine Supplies, Inc. v. P.R. Sun
Oil Co., 295 F.3d 68, 80 (1st Cir. 2002).
4
The challenged instruction stated, in pertinent part:
[If Karl Clemmey] knew there was a[] [stay-
away] order and that he intentionally violated
it, I'm telling you that that's enough under
intentional infliction of emotional distress
standing alone because the orders of the state
court are expected to be obeyed. Now that
doesn't say that there's damages. The
violation would have to be the proximate cause
of this severe emotional distress.
12
We need not consider whether the instant jury instruction
constitutes a correct statement of Massachusetts law,5 nor whether
the Clemmeys adequately preserved the present claim for appeal,6
inasmuch as the record on appeal discloses beyond any genuine doubt
that the putative error was neither plain nor harmful, given that
it almost certainly did not affect the verdict. The Clemmeys
maintain, for example, that the jury may have found them liable
based merely on some isolated and relatively innocuous violation of
the "stay-away" order, such as Karl Clemmey driving by the Davignon
home on a single occasion. Of course, appellants conveniently
overlook the fact that the jury was explicitly charged with
5
We note, however, that the validity of the Clemmeys' legal
thesis is hardly self-evident. The Clemmeys cite cases which hold
that a violation of a statute does not itself establish a
negligence claim per se, but rather that it is one factor the
factfinder may consider. See Bennett v. Eagle Brook Country Store,
Inc., 557 N.E.2d 1166, 1168 (Mass. 1990). However, the Clemmeys
cite (and we have found) no Massachusetts case which holds that the
same rule applies to (i) a violation of a court order; or (ii) a
claim for intentional infliction of emotional distress. Cf., e.g.,
Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 697 (9th Cir.
2001) (en banc) (holding that conduct which violates California
penal law is "per se outrageous" for purposes of intentional-
infliction claim), cert. denied, 534 U.S. 1078 (2002).
6
During the precharge conference, the Clemmeys lodged no
objection when the district court announced its intention to give
this jury instruction. Tr. VIII, at 195-96. Following the jury
charge, however, counsel stated: "Objection for the record to the
instruction that violation of the stay-away order is per se
emotional distress." Tr. IX, at 108. A party will be deemed to
have waived objection to a jury instruction unless, prior to the
jury deliberations, it "'stat[ed] distinctly the matter objected to
and the grounds of the objection.'" Seahorse Marine Supplies, 295
F.3d at 79 (emphasis added; citation omitted).
13
assessing the outrageousness of the Clemmeys' conduct in determining
the severity of the injury proximately caused to the Davignons,
hence the amount of damages. Thus, the district court explicitly
instructed the jury: "The violation [of the stay-away order] would
have to be the proximate cause of this severe emotional distress."
(Emphasis added.)
Given the $4.5 million jury award for intentional
infliction of emotional distress, we are entirely confident that the
jury did not opt to rely upon any one innocuous drive-by. Instead,
as the trial outcome turned almost entirely upon the Clemmeys'
credibility vel non, the jury in all likelihood determined that
appellants' well-documented, extensive campaign of harassment
readily rose to the level of "outrageous conduct," resulting in
severe emotional injury to the Davignon family. Accordingly, viewed
in context, any instructional error was harmless.
3. The Sufficiency of the Evidence
a. Appellate Jurisdiction
The Davignons contend that we lack jurisdiction of the
Clemmeys' challenge to the sufficiency of the evidence supporting
the jury verdict, given that the Clemmeys failed to submit their
Rule 50 and Rule 59(e) motions within ten days after entry of the
final judgment on June 1, 2001. See Vargas v. Gonzalez, 975 F.2d
916, 917 (1st Cir. 1992) (per curiam) (noting that district court
lacks jurisdiction to extend "mandatory" ten-day window prescribed
14
by Fed. R. Civ. P. 6(b)). The Clemmeys respond that we may excuse
their tardy motions under the "unusual circumstances" exception, see
Thompson v. INS, 375 U.S. 384, 398-99 (1964) (per curiam), due to
their detrimental reliance upon the specific, albeit mistaken,
assurance by the district court that their motions were not
untimely.7 Their suggestion is problematic for several reasons.
First, the viability of the Thompson doctrine remains in
considerable doubt, see, e.g., Osterneck v. Ernst & Whinney, 489
U.S. 169, 178-79 (1989); United States v. Heller, 957 F.2d 26, 28
(1st Cir. 1992) (noting that Thompson "may be on shaky ground"); see
also Arnold v. Wood, 238 F.3d 992, 996 (8th Cir.), cert. denied, 534
U.S. 975 (2001), most notably as concerns its application to motions
submitted under Rules 50 and 59(e). See Weissman v. Dawn Joy
Fashions, Inc., 214 F.3d 224, 231 (2d Cir. 2000) (holding that
Thompson applies exclusively to timeliness of notices of appeal).
Second, unlike the situation in Thompson, the sole "assurance" given
the Clemmeys by the district court was implicit at most, in that the
district court simply granted, by endorsement, the joint motion of
the parties for an extension. Although we have not determined
whether such an endorsement, standing alone, constitutes an
"assurance" upon which an appellant reasonably may rely, but see
7
We reject their alternative argument that the judgment
entered on June 1 was not "final." The district court explicitly
certified its judgment as final, pursuant to Federal Rule of Civil
Procedure 54(b), and the Clemmeys thereafter lodged their notice
of appeal from that judgment.
15
Scola v. Beaulieu Wielsbeke, N.V., 131 F.3d 1073, 1075 (1st Cir.
1997) (noting, in dicta, that this proposition is "very dubious"),
other courts of appeals have been unreceptive. See, e.g., Rhoden
v. Campbell, 153 F.3d 773, 774 (6th Cir. 1998); Endicott Johnson
Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 57 (2d Cir. 1997).
Finally, even assuming that the district court's endorsement did not
itself give rise to "unique circumstances," the Davignons acquiesced
in its grant of the extension. See, e.g., Weissman, 214 F.3d at
232 (holding that, despite absence of "unique circumstances,"
opposing party, by failing to oppose time extension, waived
nonjurisdictional requirement that appellant renew its Rule 50
motion after trial).
Given the enigmatic nature of the "unique circumstances"
doctrine, and our determination that the sufficiency challenges
asserted by the Clemmeys fail on the merits, see infra, we bypass
the jurisdictional issue, and turn to the substance of their appeal.
See United States v. Woods, 210 F.3d 70, 74 n.2 (1st Cir. 2000)
(noting that timely notice of appeal is not an Article III
requirement, thus does not implicate Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83 (1998)); Kelly v. Marcantonio, 187 F.3d
192, 197 (1st Cir. 1999) (holding that appellate court remains free
to bypass problematic jurisdictional issue, provided it does not
implicate Article III "case and controversy" requirement)
(distinguishing Steel Co.).
16
b. The Assault and Battery Verdict for Neal Davignon
The Clemmeys contend that the $350,000 damages award to
Neal Davignon, arising from the assault and battery by Karl Clemmey
on January 9, 1998, is excessive, in that (i) Davignon established
at most that he sustained but minor physical injuries (e.g., bruised
ribs), as well as little or no lost income; and (ii) the jury may
have compensated Davignon separately — for the emotional injuries
resulting from the assault — under the Davignon intentional-
infliction-of-emotional-distress count. The Clemmeys seek either
a new trial or a remittitur.
A district court ruling rejecting a motion for new trial
is reviewed only for abuse of discretion. See Marrero v. Goya of
P.R., Inc., 304 F.3d 7, 14 (1st Cir. 2002). We accord considerable
deference to the trial court's "greater ability to understand the
scope of the evidence presented before it and to judge the
credibility of th[e] witnesses." MacQuarrie v. Howard Johnson Co.,
877 F.2d 126, 132 (1st Cir. 1989). Furthermore, new-trial motions
predicated on an insufficiency of evidence cannot prevail unless we
determine the verdict to have been "'against the clear weight of the
evidence such that upholding [it would] result in a miscarriage of
justice.'" Marrero, 304 F.3d at 14 (citation omitted); Hendricks
& Assocs., Inc. v. Daewoo Corp., 923 F.2d 209, 217 (1st Cir. 1991)
(noting double-layered deference accorded by courts of appeals —
17
first to jury, then to trial judge — in appeals from denials of Rule
59 motions).
A district court ruling rejecting a motion for remittitur
is reviewed for abuse of discretion. See Trull, PPA v. Volkswagen
of Am., Inc., 311 F.3d 58, 67 (1st Cir. 2002). The task of
estimating money damages, especially intangible, noneconomic loss,
constitutes a core jury function. Id. Thus, in the instant case
appellants face a "formidable" burden, since they must demonstrate
that the district court abused its discretion in determining that
the jury verdict (i) does not exceed "any rational appraisal or
estimate of the damages that could be based on the evidence before
the jury"; and (ii) is not "'grossly excessive, inordinate, shocking
to the conscience of the court, or so high that it would be a denial
of justice to permit it to stand.'" Id. (citations omitted).
An abundance of evidence enabled the jury rationally to
conclude that Neal Davignon sustained severe physical and emotional
injury as a consequence of the Clemmeys' brutal assault on January
9, 1998. Well known for his temper, enraged and unprovoked, Karl
Clemmey abruptly fired Davignon, shoved him, pinned him against a
van, insulted him (e.g., "You're so f---ing stupid"); threatened him
and his family with bodily harm (e.g., "You're a f---ing deadman,"
and "I'm going to stuff you in a trunk so you never see the light
of day."); misappropriated Davignon's work tools and other personal
belongings; held him from behind with a tire iron, while using it
18
to lift him off the floor by the neck and chest, swinging him from
left to right; threatened to break his back "so you never work
again"; and finally struck Davignon in the face with the tire iron.
The version of these events tendered by the Clemmeys was
quite different, of course, but both the jury and the district court
credited the Davignon evidence. Thus, the suddenness and brutality
of the assault, precipitated principally by Karl Clemmey's
unprovoked rage against Davignon and his family, amply supported the
jury finding that much of the emotional trauma sustained by Davignon
proximately resulted from the physical assault, as distinct from the
trauma caused by the Clemmeys' ensuing campaign of harassment,
thereby precluding any ruling on appeal that the $350,000 jury award
was either grossly excessive or shocking to the conscience. See
Trull, 311 F.3d at 67; see also Davis v. DelRosso, 359 N.E.2d 313,
316 (Mass. 1977) (rejecting further remittitur based on argument
that assault verdict should be "measured by reference only to the
physical damage to plaintiff," and not to "the shock and humiliation
of a sudden deliberate assault"); Ross v. Michael, 140 N.E. 292, 293
(Mass. 1923) (noting assault victim was "entitled to recover as an
element of damages for the humiliation, indignity, and injury to his
feelings").
The Clemmeys contend as well that the damages awarded in
relation to Karl's assault upon Davignon must be set aside, since
the jury may have compensated Davignon for the same injuries in its
19
discrete award for intentional infliction of emotional distress.
The district court instructed the jury to indicate, on its special
verdict form, whether and to what extent the mental and emotional
damages sustained by Davignon, due to the Clemmeys' assault,
overlapped with the damages awarded for intentional infliction of
emotional distress. The Clemmeys neither objected nor proposed an
alternative instruction. But cf., e.g., O'Connell v. Chasdi, 511
N.E.2d 349, 350 (Mass. 1987) ("In response to a special question,
the jury indicated that the damages awarded for intentional
infliction of emotional distress included the amount awarded for
assault and battery."). Moreover, on the verdict form in the
instant case, the jury explicitly noted: "no overlap."
c. The Verdict for the Davignon Children
The Clemmeys contend that the district court erred in
declining to enter judgment, as a matter of law, against the
Davignon children in relation to their claim for intentional
infliction of emotional distress, in that (i) the children's counsel
failed to mention or describe, during opening statement, any damages
sustained by the children; and (ii) the children adduced no evidence
that they were present during most of the alleged harassment, so as
to have experienced the requisite "direct impact" of any such
harassment.
Normally, a district court order rejecting a Rule 50(b)
motion is reviewed de novo, and is to be sustained unless the
20
evidence adduced at trial permitted but one conclusion — that the
verdict simply cannot stand. See Jarrett v. Town of Yarmouth, 309
F.3d 54, 59 (1st Cir. 2002). In order even to qualify for such
deferential review, however, appellants were required to preserve
their arguments by (i) submitting timely Rule 50 motions at the
close of evidence; (ii) renewing their motions following the jury
verdict; and (iii) identifying with sufficient particularity the
legal theories supporting their motions. See, e.g., CMM Cable Rep,
Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1530-31 (1st Cir.
1996). Absent such compliance, our review simply contemplates the
basic inquiry as to "'whether the record reflects an absolute dearth
of evidentiary support for the jury's verdict'"; and the district
court will be reversed "sparingly," that is, only where its ruling
is "obviously insupportable." Udemba v. Nicoli, 237 F.3d 8, 13-14
(1st Cir. 2001) (citations omitted).
As appellants did not broach their first contention —
viz., that the children's attorney failed to mention damages during
opening argument — until their post-verdict Rule 50 motion, it must
be deemed waived. Additionally, although the two cited cases do
acknowledge that, in certain circumstances, a trial court might
enter judgment immediately after such a delinquent opening argument,
neither case upheld such a premature dismissal on its facts. See
Best v. Dist. of Columbia, 291 U.S. 411, 415 (1934); Franchi Constr.
Co. v. Combined Ins. Co. of Am., 580 F.2d 1, 8 (1st Cir. 1978).
21
Thus, "[w]hile the district court has the power to direct a verdict
following the plaintiff's opening statement, to warrant the exercise
of that power 'it must clearly appear, after resolving all doubts
in plaintiff's favor, that no cause of action exists.'" Id.(citations omitted).
Although plaintiffs' counsel certainly could have been
more particular, in no respect did their opening statements remotely
permit the suggestion that the Davignon children had sustained no
damages. See id. (in order to warrant early dismissal, opening
statement must be unambiguously "inconsistent" with asserted cause
of action). Instead, these opening statements placed the children
in the presence of tumultuous confrontations between their parents
and the Clemmeys, which necessarily implied that the children were
exposed to the harassment directed at their parents. See Sixty-
Eight Devonshire, Inc. v. Shapiro, 202 N.E.2d 811, 815-16 (Mass.
1964) ("[I]n an opening it is not to be expected that a plaintiff
will outline his damages with particularity. That is a matter
ordinarily left to proof.") (citation omitted).8 Consequently, we
conclude that (i) the instant claim has been waived; and (ii)
8
For instance, plaintiffs' counsel stated that they
represented the Davignon children; "Patty Kelley arrive[d], with
the two babies in the back of the car" at the Clemmeys' business on
the day the Clemmeys fired Davignon, and that when Kelley left with
the children to get the police, she was crying; and the Clemmeys
submitted a false child-abuse claim, against Davignon and Kelley,
to the DDS, seeking to have the Davignon children removed from
parental custody.
22
appellants have not demonstrated an "absolute dearth of evidentiary
support" for the jury verdict. Udemba, 237 F.3d at 13-14.
The second sufficiency challenge advanced by the Clemmeys
— that the children failed to establish that they sustained any
"direct impact" from the alleged harassment — was waived as well.
Contrary to their record citations on appeal, the Clemmeys failed
to include the present contention in their prejudgment Rule 50
motions. Appellants' assertion that their post-verdict motion not
only "focused" upon the plaintiffs' failure to mention damages in
their opening arguments, but also raised the "direct impact"
argument, is utterly disingenuous. Instead, their post-verdict
motion focused exclusively upon the "opening argument" claim. See
CMM Cable Rep, Inc., 97 F.3d at 1530-31.
Moreover, even if we were to assume, arguendo, that
Massachusetts law requires evidence of "direct impact," as advocated
by the Clemmeys, the record on appeal contains such evidence.
Unlike a truly absent family member who lives in another state, for
example, the Davignon children resided with their parents, and their
family home was the focal point of the Clemmeys' campaign.
Accordingly, it cannot reasonably be considered unduly speculative
to infer that the Davignon children were directly impacted by the
Clemmeys' actions. Furthermore, the record discloses several
instances in which the Clemmeys directed their conduct at the
children. For example, Karl Clemmey himself directly asserted to
23
the Davignon children that they were "assholes," and their parents
"pieces of shit!" Finally, Karl Clemmey submitted a false child-
abuse complaint to DSS, which resulted in a DSS interview of the
Davignon children.
Accordingly, and for all these reasons, the Clemmey appeal
must be denied. See Udemba, 237 F.3d at 13-14.
B. The Davignon Cross-Appeal
In January 1998, the Clemmeys' real estate company, which
owned the house the Davignons were renting, brought suit in state
housing court to evict Neal Davignon and Patricia Kelley, who then
counterclaimed against both the real estate company and Karl Clemmey
for intentional infliction of emotional distress. In July 1998,
Davignon, Kelley, and the company (but not Karl Clemmey) entered
into an Agreement for Judgment, which provided, inter alia, that (i)
judgment enter for the real estate company "for possession only,"
requiring the Davignons to vacate the premises by October 1, 1998;
(ii) the real estate company reimburse the Davignons for moving
expenses and attorney fees; (iii) "[t]he parties agree to waive all
claims and counterclaims regarding this matter with prejudice"; and
(iv) that the Agreement for Judgment was to operate as "a direct
order from the [Housing] Court . . . [and] as an injunction." The
caption of the Agreement designated the company alone (i.e., not
Karl Clemmey) as "Landlord/Plaintiff," and Davignon and Kelley as
24
"Tenant/Defendant." Karl Clemmey's counsel signed the Agreement for
"P's" – viz., Plaintiffs.
Davignon and Kelley now cross-appeal from a post-trial
ruling, in which the district court set aside their $2 million
damages award against Karl Clemmey for intentional infliction of
emotional distress, on the ground that their July 1998 Agreement for
Judgment in the housing-court case is res judicata. See Forman v.
Wolfson, 98 N.E.2d 615, 616 (Mass. 1951) (noting three elements of
res judicata defense: "identity of cause of action and issues, the
same parties, and judgment on the merits by a court of competent
jurisdiction").
1. Appellate Jurisdiction
First, the Davignons assert that the district court lacked
subject matter jurisdiction to vacate the jury verdict, since Karl
Clemmey failed to submit his post-trial motion within the ten-day
postjudgment deadline. For the reasons previously discussed, see
supra Section II.A.3(a), we bypass the jurisdictional issue, as the
Davignon and Kelley cross-appeal must be sustained on the merits in
any event. See Kelly, 187 F.3d at 197.
2. The Waiver of the Karl Clemmey Res Judicata Defense
Next, the Davignons insist on appeal, as they did before
the district court, that Karl Clemmey waived any res judicata
defense by failing to raise it until near the close of the
Davignons' case on the eighth day of the nine-day trial. As an
25
affirmative defense enumerated in Federal Rule of Civil Procedure
8(c), normally res judicata is deemed waived unless raised in the
answer. See Fed. R. Civ. P. 8(c); Rivera-Puig v. Garcia-Rosario,
983 F.2d 311, 319 n.12 (1st Cir. 1992); Badway v. United States, 367
F.2d 22, 24-25 (1st Cir. 1966); see also Mass. R. Civ. P. 8(c).9
Rule 8(c) is designed to provide plaintiffs with adequate
notice of a defendant's intention to litigate an affirmative
defense, thereby affording an opportunity to develop any evidence
and offer responsive arguments relating to the defense. See Knapp
Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1226 (1st
Cir. 1994). There are certain exceptions to the Rule 8(c) bar which
might be invoked, inter alia, either where (i) the defendant asserts
it without undue delay and the plaintiff is not unfairly prejudiced
by any delay, see id.; or (ii) the circumstances necessary to
establish entitlement to the affirmative defense did not obtain at
the time the answer was filed, see, e.g., Depositors Trust Co. v.
Slobusky, 692 F.2d 205, 208 (1st Cir. 1982) ("A party may also have
recourse to a late discovered affirmative defense by obtaining leave
to amend his complaint.").
9
Federal Rule 8(c) provides, in pertinent part: "In pleading
to a preceding pleading, a party shall set forth affirmatively
accord and satisfaction, arbitration and award, assumption of risk,
contributory negligence, discharge in bankruptcy, duress, estoppel,
failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata, statute
of frauds, statute of limitations, waiver, and any other matter
constituting an avoidance or affirmative defense." Fed. R. Civ. P.
8(c) (emphasis added).
26
Although application of the res judicata doctrine
essentially constitutes a legal determination for the district
court, which we would assess de novo, post-trial motions generally
are reviewed only for abuse of discretion, as is the case with
district court rulings regarding whether a defendant timely
interposed an affirmative defense. See Perez v. Volvo Car Corp.,
247 F.3d 303, 318-19 (1st Cir. 2001).
In the instant case, Karl Clemmey concededly failed to
raise the res judicata defense in his answer. Moreover, given the
circumstances, the district court abused its discretion, both in
permitting Clemmey to assert a res judicata defense at the eleventh
hour, and in failing to address the Rule 8(c) waiver issue squarely
raised by the Davignons in their opposition. See Coutin v. Young
& Rubicam P. R., Inc., 124 F.3d 331, 336 (1st Cir. 1997) (noting
that "abuse of discretion" obtains if court overlooks material
factor).
The contention that Karl Clemmey raised the res judicata
defense before trial is disingenuous, especially since he relies
entirely upon the fact that he asserted an estoppel defense in his
answer. To the contrary, (i) estoppel — viz., equitable estoppel
— is a defense separate and distinct from res judicata; and (ii)
estoppel broadly adverts to a claimant's prior representations and
conduct in general, while Rule 8(c), with its individualized
enumeration of "res judicata," "estoppel," and "release" as
27
affirmative defenses, plainly evinces an intention to accord
discrete treatment to the preclusive effects of prior consent
judgments, releases, and settlements.
Additionally, Karl Clemmey disingenuously contends that
the plaintiffs were placed on notice, during discovery, that he
intended to pursue a res judicata defense, simply by virtue of the
fact that Clemmey inquired of Patricia Kelley, on deposition,
regarding the Agreement for Judgment. The Patricia Kelley
deposition reflects, however, that defense counsel briefly probed
her understanding of the intended scope of the July 1998 settlement.
When Kelley insisted upon a narrow interpretation, and emphasized
her understanding that her waiver of claims pertained exclusively
to claims "regarding this matter" — viz., the company's claim for
eviction and possession — defense counsel dropped the subject. At
that juncture, therefore, it seems much more likely that plaintiffs
would have understood that Clemmey would not pursue any defense
predicated on the preclusive effect of the Agreement for Judgment,
particularly in light of Clemmey's admitted failure to raise the
defense in his answer.
Those cases which permit the interposition of an
affirmative defense outside the pleadings generally have involved
moderate delays, such as an attempt to raise the defense in a
pretrial motion to dismiss or for summary judgment, rather than at
trial or in a postjudgment motion. Compare, e.g., LaFreniere Park
28
Found. v. Broussard, 221 F.3d 804, 808 (5th Cir. 2000) (allowing
affirmative defense to be raised in summary judgment motion), with
Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985)
(rejecting affirmative defense raised after jury verdict). Such
postponements become far less tolerable where a defendant, such as
Karl Clemmey, has tendered no justification whatsoever for the
belated request for further delay, and his putative entitlement to
the res judicata defense accrued well before the time Clemmey
submitted an answer, in November 1999, to the Davignon complaint.
See Slobusky, 692 F.2d at 208; see also In re Cumberland Farms,
Inc., 284 F.3d 216, 227 (1st Cir. 2002) ("[I]f Rule 8(c) is not to
become a nullity, we must not countenance attempts to invoke such
defenses at the eleventh hour, without excuse and without adequate
notice to the plaintiff.").
Moreover, Clemmey continued to waffle even after
purportedly asserting his affirmative defense. At trial, the
parties stipulated that the jury should be instructed that the
Agreement, at the very least, waived Davignon's and Kelley's claims
with respect to any emotional distress directly attributable to the
eviction, as distinguished from that attributable to the other acts
of harassment and intimidation perpetrated by the Clemmeys. The
district court (i) advised Clemmey's trial counsel that he could
later contend, by motion, that the Agreement had a broader
preclusive effect; (ii) suggested as possible defenses accord and
29
satisfaction, collateral estoppel (or issue preclusion), and res
judicata (or claim preclusion); and (iii) expressed its intention
to decide the issue as a matter of law.
Nevertheless, the post-trial motion submitted by Clemmey
broached no res judicata defense. Instead, the Clemmey motion
captioned his argument "Release," rather than "Res Judicata."
Moreover, the motion made but one prefatory citation to the general
doctrine of collateral estoppel. All five pages of the Clemmey
argumentation focused exclusively upon release, however, yet another
affirmative defense which he had never asserted in his answer. See
Sharon v. City of Newton, 769 N.E.2d 738, 742 (Mass. 2002) (noting
that "the defense of a release must be raised as an affirmative
defense and [] the omission of an affirmative defense from an answer
generally constitutes a waiver of that defense," but upholding trial
court's leave to amend answer to add "release" defense only where
it "did not raise a new issue on the eve of trial").
Moreover, as has been made crystal clear, "a suit can be
barred by the earlier settlement of another suit in either of two
ways: res judicata or release . . . [and] [t]he defenses are
separate and distinct." Nottingham Partners v. Trans-Lux Corp., 925
F.2d 29, 31-32 (1st Cir. 1991) (emphasis added). Here, however,
Clemmey argued that once he established the existence of the
release, the Davignons had to bear the burden of proving its
invalidity, Costello v. Hayes, 144 N.E. 368, 370 (Mass. 1924),
30
whereas the burden of establishing the affirmative defense of res
judicata rests upon the proponent. See Cochrane v. Cochrane, 22
N.E.2d 6, 9 (Mass. 1939); see also Nwosun v. Gen. Mills Rests.,
Inc., 124 F.3d 1255, 1257 (10th Cir. 1997) ("Res judicata is an
affirmative defense on which the defendant has the burden to set
forth facts sufficient to satisfy the elements."). Unlike res
judicata, see Forman, 98 N.E.2d at 616, the release defense simply
would require a showing that the release applied to Clemmey,
encompassed the intentional-infliction claim interposed in the
district court, and was legally enforceable (e.g., not the product
of fraud or duress). See Nottingham Partners, 925 F.2d at 32; Cram
v. Town of Northbridge, 575 N.E.2d 747, 749 (Mass. 1991); Sher v.
Sandler, 90 N.E.2d 536, 540 (Mass. 1950).
It is debatable, however, whether the Agreement for
Judgment applies to Clemmey at all, given that his name appears
nowhere in its caption. The only parties named in the Agreement are
the Clemmey real estate company, Davignon, and Kelley. Moreover,
the caption of the Agreement names the company, rather than Karl
Clemmey, as "Landlord/Plaintiff," and the Davignons as
"Tenant/Defendant."
In addition, the judgment arguably purports simply to
settle the real estate company's eviction action, rather than the
counterclaims for intentional infliction of emotional distress
against Karl Clemmey individually. Karl was merely a counterclaim
31
defendant, of course, not a "plaintiff," and his attorney signed the
Agreement as counsel for the plaintiffs. The release ambiguously
applies to claims "regarding this matter," which may advert either
narrowly to the settlement of the company's claim for eviction, or
more broadly to the eviction claim as well as all counterclaims in
the case, including the counterclaims against Clemmey individually.
But the intended breadth of the pivotal term "matter" is neither
expressly nor otherwise unambiguously defined. Finally, the fact
that the settlement took effect as "a direct order from the
[Housing] Court[,] . . . [and] as an injunction," is not conclusive
for purposes of its interpretation, in that the housing court may
have envisioned its injunctive order merely as a partial, nonfinal
judgment on the 360 Chauncey Street LLC eviction claim.
A judicial interpretation of an ambiguous release of a
joint tort liability implicates two important principles. First,
unless the release specifically conveys such an intent, it should
not be construed as a release of joint tortfeasors. See Cram, 575
N.E.2d at 748-49. Second, any ambiguity in the release is to be
resolved in favor of Davignon and Kelley. See Cormier v. Cent.
Mass. Chapter of the Nat'l Safety Council, 620 N.E.2d 784, 786
(Mass. 1993) ("[A]ny doubts about the interpretation of the release
must be resolved in the plaintiff's favor."). Thus, Clemmey
arguably failed to sustain the burden of proving the affirmative
defense of release, let alone to meet the more stringent
32
requirements of res judicata (e.g., identicality of parties,
finality of prior judgment).
Nor has Clemmey demonstrated that the res judicata
doctrine, even if applicable to the Agreement for Judgment, would
support a vacatur of the entire jury verdict. Clemmey acknowledges
that evidence of tortious conduct after the entry of the Agreement
for Judgment, such as the allegation that he threw a rock through
a window at the Davignon home in August 1998, was introduced and
admitted at trial. See Havercombe v. Dep't of Educ. of the
Commonwealth of P.R., 250 F.3d 1, 4-5 (1st Cir. 2001) (noting that
res judicata may not apply where second lawsuit alleges that
defendant engaged in additional, discrete instances of wrongful
conduct following prior judgment).10
Finally, the record on appeal is sufficiently developed
to enable clear resolution of the pivotal Rule 8(c) waiver issue,
without a remand. Although the district court ably grappled with
the affirmative defense asserted by Clemmey, its failure to consider
the waiver issue, which resulted in the vacation of the jury award,
constituted an abuse of discretion.
The district court order allowing the cross-appellees'
postjudgment motion is therefore vacated, and the original judgment
10
Clemmey contends that these post-July 1998 events are
immaterial, as the Davignons did not include them in their original
complaint. Nevertheless, the testimony was admitted at trial,
without objection. Consequently, the related factual issues were
tried with the implied consent of the parties.
33
for the appellees, entered pursuant to the jury verdict, is hereby
reinstated and affirmed. The parties shall bear their own costs.
SO ORDERED.
34