Ondine Shipping v. Cataldo

• Court: Court of Appeals for the First Circuit
• Decided: May 25, 1994
• Docket: 93-2378
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

No. 93-2378

ONDINE SHIPPING CORPORATION,

                                Plaintiff, Appellant,

                                          v.

                            ROBERT CATALDO, ETC., ET AL.,

                                Defendants, Appellees.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                    [Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                              _________________________

                                        Before

                                Selya, Circuit Judge,
                                       _____________

                      Coffin and Bownes, Senior Circuit Judges.
                                         _____________________

                              _________________________

               Michael  J. Malinowski,  with whom  Thomas F. Holt,  Jr. and
               ______________________              ____________________
          Kirkpatrick & Lockhart were on brief, for appellant.
          ______________________
               Gordon P. Cleary, with whom Vetter & White was on brief, for
               ________________            ______________
          appellee Robert Cataldo, Trustee in Bankruptcy.

                              _________________________

                                     May 25, 1994

                              _________________________

SELYA, Circuit  Judge.  The focal point  of this appeal
                    SELYA, Circuit  Judge.
                           ______________

          is  an 80-foot  racing yacht,  the ONDINE,  built for  plaintiff-

          appellant Ondine Shipping Corporation by a Wisconsin shipbuilder,

          Palmer  Johnson,  Inc., at  a cost  of  roughly $1,500,000.   The

          ONDINE encountered rough waters from  the very start, and  Palmer

          Johnson seemed unable to bring the  vessel up to speed.  In 1982,

          the  owner  contracted  with  Newport Offshore,  Ltd.  (NOL)  for

          extensive refurbishing  aimed at repairing defects  and rendering

          the yacht raceworthy.

                    The undertaking proved  to be ill-starred.   See In  re
                                                                 ___ ______

          Newport Offshore, Ltd., 155 B.R. 616, 617-18 (Bankr. D.R.I. 1993)
          ______________________

          (explicating factual background of dispute).  After much time and

          money  had  been  expended,  the  yacht,  even  when  velivolant,

          remained  uncompetitive.      Bitterly  disappointed   by   NOL's

          restorative efforts,  plaintiff brought  suit for  negligence and

          breach  of contract in the  United States District  Court for the

          District of Rhode Island.   Soon thereafter, NOL filed  a Chapter

          11  petition in the bankruptcy court.  Many procedural twists and

          turns ensued, none of which are material here.  Thus, we turn the

          clock  ahead   to  1993,   when  the  bankruptcy   court,  having

          substituted NOL's  trustee in bankruptcy, Robert  Cataldo, as the

          party defendant, proceeded to try plaintiff's claim.

                    With the  acquiescence of  the parties,  the bankruptcy

          judge  applied  the  substantive  law  of  Rhode  Island  to  the

          controversy.    He  determined  "that  NOL did  not  perform  its

          obligations either skillfully  or in a workmanlike manner."   Id.
                                                                        ___

2

at 619.  On  that basis, the judge found for the plaintiff on the

          question  of liability.  See id. at  620.  Nevertheless, he ruled
                                   ___ ___

          that there had been a total failure to  prove damages and limited

          plaintiff's  recovery to a nominal sum ($1,000).  See id. at 620-
                                                            ___ ___

          21.

                    Invoking 28 U.S.C.   158(c), plaintiff sought review in

          the  district court.  That forum, too, proved inhospitable; in an

          ore tenus bench decision, the district court found the bankruptcy
          ___ _____

          judge's evaluation of plaintiff's claim  "correct, as a matter of

          fact, and as a matter of law."  This appeal followed.

                    When a  trial  court produces  a  lucid,  well-reasoned

          opinion that  reaches an appropriate  result, we  do not  believe

          that  a  reviewing court  should write  at  length merely  to put

          matters in its own words.  See, e.g., In re San Juan Dupont Plaza
                                     ___  ____  ___________________________

          Hotel Fire Litig.,  989 F.2d 36,  38 (1st Cir.  1993).  So  it is
          _________________

          here.  We agree with both of the courts below that  the record in

          this case  contains  no competent  proof  of damages,  and  that,

          therefore,  plaintiff's  attempt  to  recover  more than  nominal

          damages runs  aground.  Consequently, we affirm  the judgment for

          substantially the reasons  articulated in the  bankruptcy court's

          rescript,  see In re Newport Offshore,  Ltd., supra, and endorsed
                     ___ _____________________________  _____

          in the district  court's bench decision.   We  pause only to  add

          five observations.

                    First:  Plaintiff, having jettisoned its trial counsel,
                    First:
                    _____

          takes a new tack on appeal.  It insists that  the record contains

          evidence  of what it paid  to NOL; that  Rhode Island law permits

3

restitution as  a measure of damages where  a contracting party's

          performance has  proven valueless, see, e.g.,  National Chain Co.
                                             ___  ____   __________________

          v. Campbell, 487 A.2d 132, 135 (R.I. 1985)  (recognizing possible
             ________

          applicability of  restitutionary  measure of  damages  when  "the

          contractor's performance  is  worthless and  the work  has to  be

          redone completely"); and that it was entitled to recover at least

          the  monies  it  expended  (totalling  several  hundred  thousand

          dollars).  There are two convincing answers to this plaint.

                    The  long, fact-specific  answer  involves sifting  the

          record; while  the evidence  indicates  that NOL  performed in  a

          maladroit  fashion, and  the judge  so found,  it overstates  the

          proof  to say  that NOL's  performance was  "worthless."   To the

          contrary, many repairs were satisfactorily effected and the yacht

          raced competitively  for almost  three years after  NOL completed

          its work.  See In re Newport Offshore, 155 B.R. at 618.
                     ___ ______________________

                    We eschew a detailed  analysis, however, for the short,

          dispositive answer is that plaintiff never broached this argument

          before  the  bankruptcy court.    That  ends successor  counsel's

          rescue mission.  Not only is it "a bedrock rule" that a party who

          has not presented  an argument below  "may not unveil  it in  the

          court of appeals," United States v.  Slade, 980 F.2d 27, 30  (1st
                             _____________     _____

          Cir. 1992), but also, no principle is more firmly anchored in the

          jurisprudence of  this circuit, see Teamsters,  Etc., Local Union
                                          ___ _____________________________

          No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992).
          ______    _____________________

                    Plaintiff strives to elude this coral reef by asserting

          that  its argument involves no new facts, only a new theory, and,

4

thus,  is not  barred.   This assertion  is neither  original nor

          persuasive.  We recently rejected precisely the same proposition,

          holding that raise-or-waive principles apply with full force when

          an appellant tries  to present a  neoteric theory concerning  the

          legal effect of facts adduced  at trial.  See Slade, 980  F.2d at
                                                    ___ _____

          31.   Indeed, this ship  sailed many  moons ago;  the holding  in

          Slade caps a  long, unbroken  line of precedent  to like  effect.
          _____

          See, e.g.,  United States  v. Dietz,  950 F.2d  50, 55  (1st Cir.
          ___  ____   _____________     _____

          1991); Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987).
                 _______    _____

                    Second:   It  is true, as  plaintiff suggests,  that an
                    Second:
                    ______

          appellate court possesses the power, in the exercise of its sound

          discretion, to submerge the raise-or-waive rule if doing  so will

          prevent  a gross miscarriage of justice.   See Slade, 980 F.2d at
                                                     ___ _____

          31; United States v. Krynicki, 689 F.2d 289, 291 (1st Cir. 1982).
              _____________    ________

          But this is a long-odds exception that must be applied sparingly.

          It is reserved  for "the exceptional case."  United  States v. La
                                                       ______________    __

          Guardia, 902  F.2d 1010, 1013 (1st  Cir. 1990).  The  case at bar
          _______

          does not qualify.

                    Here, plaintiff   for  whatever reason   seemingly made

          a  conscious choice to bypass the accepted way of proving damages

          and  to vie  for a  much  larger prize.1    That endeavor  having

____________________

               1As  the  bankruptcy  court   indicated,  Rhode  Island  law
          generally  incorporates  "benefit-of-the   bargain"  damages   in
          contract disputes.  See  In re Newport Offshore, 155 B.R. at 620;
                              ___  ______________________
          see also National  Chain, 487 A.2d at 134-35.   Plaintiff did not
          ___ ____ _______________
          offer  evidence  from  which  such expectancy  damages  could  be
          computed.    Instead  plaintiff  shot  for  the  moon, seeking  a
          $3,000,000 award on a theory of damages that had no foundation in
          Rhode Island law.

                                          5

capsized,  it   is  fitting  that  plaintiff   bear  the  readily

          foreseeable  consequences.     We  do  not   think  that  justice

          miscarries  when a  court  rebuffs a  suitor's efforts  to obtain

          clearly excessive  damages on  an insupportable legal  theory and

          leaves  the suitor  holding an  empty (or  near-empty) bag.   Cf.
                                                                        ___

          Quinones-Pacheco v. American Airlines,  Inc., 979 F.2d 1, 6  (1st
          ________________    ________________________

          Cir. 1992) (upholding take-nothing verdict when plaintiffs failed

          to prove their damages).  Overreaching, like virtue, is often its

          own reward.

                    Third:   Citing O'Coin  v. Woonsocket Inst.  Trust Co.,
                    Third:
                    _____           ______     ___________________________

          535 A.2d 1263 (R.I. 1988), plaintiff posits that Rhode Island law

          bars nominal damage awards in contract cases.  This theorem, too,

          is procedurally  defaulted.2  And, moreover,  it lacks substance:

          we think that the language on which plaintiff  relies, see id. at
                                                                 ___ ___

          1266, is confined to  the peculiar facts of the  O'Coin case, and
                                                           ______

          that   Rhode  Island,   like  virtually   every  other   American

          jurisdiction,  recognizes  nominal  damages  as   proper  when  a

          claimant proves injury to property, but fails to prove the amount

          of damages, see, e.g., Murphy v. United Steelworkers of  America,
                      ___  ____  ______    ________________________________

          Local  No. 5705,  507 A.2d  1342, 1346  (R.I. 1986);  Stillman v.
          _______________                                       ________

          Prew, 177 A.2d  626, 628 (R.I. 1962); Zuccarro v. Frenze, 71 A.2d
          ____                                  ________    ______

          277, 278 (R.I.  1950); see  also 5  Arthur L.  Corbin, Corbin  on
                                 ___  ____                       __________

____________________

               2Plaintiff  hoists this  flag  for the  first  time in  this
          court.  While plaintiff can perhaps be excused for not making the
          argument  in  the  bankruptcy  court    plaintiff  may  not  have
          anticipated that the bankruptcy judge was considering an award of
          nominal damages   there is no satisfactory excuse for its failure
          to advance the argument in the district court.

                                          6

Contracts   1001 (1964 & Supp. 1992) (collecting cases from other
          _________

          jurisdictions).

                    Fourth:  In its reply brief, plaintiff attempts to make
                    Fourth:
                    ______

          the bankruptcy judge a  scapegoat.  It argues for  the first time

          that the judge misled plaintiff into believing that it had proven

          its damages.  This is a cheap shot, easily deflected.

                    In the first place, it is settled law that an appellant

          waives  arguments which should have been, but were not, raised in

          its  opening brief.  See  Playboy Enterps., Inc.  v. Public Serv.
                               ___  ______________________     ____________

          Comm'n, 906 F.2d  25, 40 (1st Cir.),  cert. denied, 498  U.S. 959
          ______                                _____ ______

          (1990);  Sandstrom v. Chemlawn Corp.,  904 F.2d 83,  86 (1st Cir.
                   _________    ______________

          1990).  And, here, the procedural default is  accentuated because

          plaintiff never surfaced this  supposed grievance in the district

          court.

                    In the  second place,  the record plainly  reveals that

          plaintiff's counsel, not the bankruptcy judge,  was the author of

          plaintiff's misfortune.   The trial transcript speaks  eloquently

          in this respect.  Our  perscrutation of it persuades us  that the

          judge acted appropriately in every particular.

                    Third, and last, in our  adversary system of justice it

          is  the parties'  responsibility  to marshal  evidence and  prove

          their  points.   Litigants cannot  expect the  court to  do their

          homework for  them.   See,  e.g., Crellin  Technologies, Inc.  v.
                                ___   ____  ___________________________

          Equipmentlease Corp., 18 F.3d  1, 13 n.17 (1st Cir.  1994); Foley
          ____________________                                        _____

          v. City of Lowell, 948 F.2d 10, 21 (1st Cir. 1991).  In the final
             ______________

          analysis, "[c]ourts, like the Deity, are most frequently moved to

7

help  those  who  help   themselves."    Paterson-Leitch  Co.  v.
                                                   ____________________

          Massachusetts Mun.  Wholesale Elec. Co.,  840 F.2d 985,  989 (1st
          _______________________________________

          Cir. 1988).

                    Fifth:    Plaintiff suggests  that  it  is entitled  to
                    Fifth:
                    _____

          prejudgment and post-judgment interest under R.I. Gen.  Laws   9-

          21-10.3   This suggestion is  not well founded.   In  Murphy, 507
                                                                ______

          A.2d at 1346, the Rhode Island Supreme Court held that section 9-

          21-10 does not  apply to awards for punitive damages.   The court

          reasoned that,  in limiting  the statute to  "pecuniary damages,"

          the  legislature  meant   "pecuniary"  to   be  synonymous   with

          "compensatory," thus excluding both punitive and nominal damages.
                                         ____

          See  id.;  see  also Rhode  Island  Turnpike  &  Bridge Auth.  v.
          ___  ___   ___  ____ ________________________________________

          Bethlehem Steel Corp.,  446 A.2d 752, 757 (R.I. 1982) (describing
          _____________________

          purpose of statute).  Since  a state's highest court is the  best

          authority  on the meaning of a state statute, see Daigle v. Maine
                                                        ___ ______    _____
                              
          ____________________

               3The state statute reads in pertinent part:

                    In  any civil  action in  which a  verdict is
                    rendered  or a  decision  made for  pecuniary
                    damages, there shall be added by the clerk of
                    the court to the amount of damages,  interest
                    at the rate of twelve percent (12%) per annum
                    thereon from  the date  the  cause of  action
                    accrued   which  shall  be  included  in  the
                    judgment  entered  therein.    Post  judgment
                    interest  shall be calculated  at the rate of
                    twelve percent (12%) per  annum and accrue on
                    both the principal amount of the judgment and
                    the prejudgment interest entered therein.

          R.I. Gen. Laws   9-21-10.   Because we find that this statute, by
          its terms, does  not pertain  to awards of  nominal damages,  see
                                                                        ___
          infra,  we  need not  consider the  trustee's contention  that 11
          _____
          U.S.C.    502(b)(2), disallowing  claims for  unmatured interest,
          preempts state  law on prejudgment interest  in the circumstances
          of this case.

                                          8

Med. Ctr., 14 F.3d 684, 689 (1st Cir. 1994), we  accept the Rhode
          _________

          Island Supreme Court's  conclusion that R.I. Gen.  Laws   9-21-10

          does not pertain to nominal damage awards,4 and we so hold.

                    We  need  go  no  further.5    There  is  nothing  very

          complicated  about  this case.    Courts  have repeatedly  warned

          litigants  that damages  "must be  computed in some  rational way

          upon a firm factual base."  Reliance Steel Prods. Co. v. National
                                      _________________________    ________

          Fire  Ins.  Co., 880  F.2d  575,  578  (1st  Cir. 1989).    Here,
          _______________

          plaintiff ignored the storm warnings and botched its presentation

          at trial.   The bankruptcy court found  this failure of  proof to

          possess pivotal importance.  In subsequent proceedings, plaintiff

          has struggled to overcome the effects of its own ineptitude.   We

          find it unsurprising  that these  efforts come to  naught:   most

          factbound  litigation is won  or lost  in the  trial court    and

          properly so.

Affirmed.
          Affirmed.
          ________
                              
          ____________________

               4To be sure, insofar as the statement  in Murphy encompasses
                                                         ______
          nominal damages, it is dictum    but it is considered dictum and,
          thus,  worthy of our  trust.  See Posadas  de Puerto Rico Assoc.,
                                        ___ _______________________________
          Inc. v. Asociacion de Empleados de Casino, 873 F.2d 479, 482 (1st
          ____    _________________________________
          Cir. 1989)  (explaining that  federal courts ordinarily  defer to
          considered dictum  of a state's  highest court  in determining  a
          state law issue); Jackson v. Liquid Carbonic Corp., 863 F.2d 111,
                            _______    _____________________
          115-16 (1st  Cir. 1988)  (similar), cert.  denied, 490 U.S.  1107
                                              _____  ______
          (1989);  see also  Dedham Water  Co. v.  Cumberland Farms  Dairy,
                   ___ ____  _________________     ________________________
          Inc., 972 F.2d  453, 459  (1st Cir. 1992)  (stating general  rule
          ____
          that courts should give weight to dictum that appears "considered
          as opposed to casual").  

               5We  decline plaintiff's invitation  to speculate  about the
          priority   of  its   claim  should   the  estate's   funds  prove
          insufficient to pay the award.  That issue is purely hypothetical
          and, therefore, is not properly before us.

                                          9