Hall v. Hall

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


No. 96-1227



                                    MARYANN HALL,



                                Plaintiff, Appellant,



                                          v.



                                 LAWRENCE ALAN HALL,



                                 Defendant, Appellee.



                                                     
                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Robert B. Collings, U.S. Magistrate Judge]
                                             _____________________



                                                     
                                 ____________________



                                        Before



                                Cyr, Boudin and Stahl,



                                   Circuit Judges.
                                   ______________



                                                     
                                 ____________________


Anthony M. Fredella, with whom Fredella & Wheeler was on brief
             ___________________            __________________

        for appellant.

             Seth M. Kalberg for appellee.
             _______________


____________________



                                   November 6, 1996

                                                     
                                 ____________________



Per Curiam.   Appellant Maryann Hall,  former spouse of
                    Per Curiam.
                    __________



          defendant-appellee Lawrence  Hall, appeals from a  district court



          judgment  dismissing  her  diversity  suit for  breach  of  their



          agreement  for  an equal  division  of any  remaining  capital in



          Merlin Machinery, a Massachusetts corporation in which each owned



          shares.1  Maryann claims  that the adverse jury verdict  on which



          the  district court based its  judgment is against  the weight of



          the evidence and  that the court erred in denying  her motion for



          new trial.2  We affirm.



                    Maryann's timeous  motion for  new trial under  Fed. R.



          Civ.  P. 59(b)  requires that  we review  the sufficiency  of the



          evidence, see  Velazquez v. Figueroa-Gomez, 996  F.2d 425, 426-27
                    ___  _________    ______________



          (1st Cir.), cert. denied, 510 U.S. 993 (1993), but only for abuse
                      ____  ______



          of  discretion.  Id.  at 427.   Following  careful review  of the
                           __



          entire  record, we  are satisfied  that the district  court acted



          well  within its broad discretion  in denying the  motion for new



          trial.  We add only these brief comments.  



                    The district court submitted two questions to the jury.



          The  first  inquired  whether  Maryann had  proven  that  capital



          remained  or should have remained  in Merlin Machinery  as of the


____________________



               1The  evidence is  viewed,  and every  reasonable  inference

          drawn, in the light most favorable to the verdict.  J.D.  Havinga
                                                              _____________

          v. Crowley Towing and Transp.  Co., 24 F.3d 1480, 1483  (1st Cir.
             _______________________________

          1994).



               2As Maryann filed no motion for judgment as a matter of law,

          see Fed. R.  Civ. P. 50(a), (b), we cannot  entertain the Rule 50
          ___

          claim.   Hammond v.  T.J. Litle &  Co., Inc., 82  F.3d 1166, 1171
                   _______     _______________________

          (1st Cir. 1996).



                                          2



agreed settlement date.3  The jury responded in the negative.  



                    Unlike Larry, Maryann presented  no expert testimony on



          this accounting question.   Moreover, although Maryann  presented



          other  evidence which, if credited by the jury, may have sufficed



          to demonstrate undistributed capital in the corporation,  nothing



          in  the  record suggests  that the  jury  need have  accepted her



          evidence   over  the   competing  evidence   offered   by  Larry.



          Consequently, we must credit Larry's version, see J.D. Havinga v.
                                                        ___ ____________



          Crowley  Towing and  Transp. Co.,  24 F.3d  1480, 1483  (1st Cir.
          ________________________________



          1994).  Accordingly, the district court judgment is affirmed.  
                                                              ________


____________________



               3We do not reach the second question.



                                          3