Rockett & Sons v. Winter Harbor

• Court: Court of Appeals for the First Circuit
• Decided: April 25, 1995
• Docket: 94-1774
• Status: Published

Opinion

USCA1 Opinion

April 25, 1995        [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

          No. 94-1774

                     G. ROCKETT & SONS, INC., AND BRIAN ROCKETT,

                               Plaintiffs - Appellants,

                                          v.

                        WINTER HARBOR FISHERMAN'S COOP, INC.,

                                Defendant - Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                               Torruella, Chief Judge,
                                          ___________

                           Selya and Stahl, Circuit Judges.
                                            ______________

                                _____________________

               Peter Panaro on brief for appellants.
               ____________
               Michael L. Ross on brief for appellee.
               _______________

____________________

____________________



Per Curiam.  Plaintiffs-appellants,  G. Rockett & Sons,
                    Per Curiam
                    __________

          Inc.,  and Brian  Rockett,  appeal a  jury  verdict in  favor  of

          defendant-appellee,  Winter  Harbor  Fisherman's Coop,  Inc.,  on

          plaintiffs' complaint and defendant's counter suit.  Judgment was

          entered by the district court in the amount of $99,360.35 against

          G.  Rockett &  Sons,  Inc., for  breach of  contract, and  in the

          amount  of $15,000  against G.  Rockett &  Sons, Inc.,  and Brian

          Rockett,  jointly  and  severally,   for  conversion  and  unjust

          enrichment.  We affirm.

                                      BACKGROUND
                                      BACKGROUND

                    Winter  Harbor Fisherman's Coop,  Inc. ("Winter")  is a

          fisherman's cooperative,  located in Winter  Harbor, Maine, which

          sells  live lobsters at market wholesale cost to wholesalers.  G.

          Rockett  & Sons,  Inc.  ("Rockett &  Sons")  is a  wholesaler  of

          lobsters which contracts with  suppliers of lobsters and delivers

          them to its customers in the Northeast.  In  December  of   1992,

          Brian Rockett  ("Rockett"), an  officer1 and employee  of Rockett

          and Sons,  reached an  oral agreement  with Winter's  manager and

          bookkeeper,  Becky Utecht-Towle  ("Utecht-Towle"), for  Rockett &

          Sons  to purchase  26,000 pounds  of lobsters  from Winter.   The

          lobsters were to  be sold in three shipments on  a cash and carry

          basis.  The purchase price was $39,423.90 for the first shipment,

          $34,502.50 for the second shipment, and $27,223.45  for the third

          shipment, for a total of $101,860.35 (including a $711.50 balance
                              
          ____________________

          1  Although Rockett signed an affidavit expressly stating that he
          is an officer of Rockett & Sons, he nevertheless argued at trial,
          and again  on appeal, that he  is not an officer  of the company.
          He  has offered no reason,  however, why we  should disregard his
          own sworn statement to the contrary.



due on a previous transaction).  

                    Rockett picked  up the  three shipments of  lobsters on

          December  22nd, 27th  and  29th, respectively.    He paid  Winter

          $14,600  in cash,  and paid  the remainder due  on the  first two

          shipments  by two corporate  checks dated December  28, 1992, and

          December 29,  1992. Rockett eventually stopped payment on the two

          corporate  checks,  and has  never paid  for the  third shipment.

          Instead, Rockett  & Sons  and Rockett filed  the instant  lawsuit

          alleging that they received non-conforming goods in the first two

          shipments.   Specifically,  Rockett  & Sons  alleged that  Winter

          breached the contract because the  lobsters in the first shipment

          were below weight specifications and because most of the lobsters

          in the second shipment were freezing or frozen.    W i n t e r

          thereafter filed  suit  against Rockett  and Rockett  & Sons  for

          breach of  contract, unjust enrichment  and conversion.   The two

          suits were consolidated and tried to a jury.   

                    On May 26, 1994, the jury returned a verdict for Winter

          on its breach of  contract claims, finding that Rockett  and Sons

          breached its agreement to  pay Winter for the three  shipments of

          lobsters.  The  jury also returned  a verdict for  Winter on  its

          conversion and unjust enrichment claims, finding that Rockett and

          Rockett  & Sons  had converted  Winter's lobsters  and/or lobster

          crates and been unjustly enriched by the same.  The court entered

          judgment against Rockett  & Sons  on the contract  claims in  the

          amount  of  $99,360.35,  and against  Rockett  &  Sons and  Brian

          Rockett,  jointly and  severally,  on the  conversion and  unjust

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enrichment  claims  in  the  amount  of  $15,000.    This  appeal

          followed. 

                                      DISCUSSION
                                      DISCUSSION

                    Appellants  raise a  number of  issues on  appeal.   We

          address them seriatim.

          I.  Insufficiency of the Evidence
          I.  Insufficiency of the Evidence
              _____________________________

                    Appellants  maintain that  the  evidence  presented  at

          trial was legally insufficient for a reasonable jury to find that

          Rockett & Sons breached the contract as to the first  shipment of

          lobsters.  They also maintain that the evidence was  insufficient

          for a reasonable  jury to find that  either Rockett or Rockett  &

          Sons converted Winter's lobster crates and was therefore unjustly

          enriched.

                    To challenge the sufficiency of the evidence on appeal,

          a party  is required, at the  close of the evidence,  to move for

          judgment as a  matter of law  and, if that  motion is denied,  to

          renew  the motion  after  the jury  verdict.   See  Vel zquez  v.
                                                         ___  _________

          Figueroa-G mez, 996  F.2d 425,  426-27 (1st  Cir. 1993);  Fed. R.
          ______________

          Civ. P.  50.  A  motion for judgment as  a matter of  law must be

          made with sufficient particularity to explain why the evidence is

          insufficient, and the moving party may appeal only on the grounds

          stated in the motion.  Vel zquez, 996  F.2d at 427.  A motion for
                                 _________

          judgment as a matter of  law, after a jury verdict, must  be made

          "not later than ten days after judgment."  Fed. R. Civ. P. 50(b).

          Appellants moved for judgment as a matter of law at  the close of

          the evidence.  They maintain that they also moved for judgment as

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a matter of law after the jury rendered its verdict.   The record

          does not support this contention.

                    After  the  jury returned  its  verdict,  the following

          colloquy took place between counsel for appellants and the court.

                        MR. PANARO:   Yes your honor.   Just to
                      make a motion.  I would make a motion for
                      verdict  for  the  defendant, I'm  sorry,
                      verdict for  Rockett, notwithstanding the
                      verdict  in  the  amount of  --  what I'm
                      trying  to do  is  make a  motion to  set
                      aside  that portion of  the verdict which
                      states $15,000 for  unjust enrichment  on
                      the part  of G. Rockett &  Sons and Brian
                      Rockett,  and  also  to  set  aside  that
                      portion of the  verdict of $39,800  [sic]
                      and some  odd as being against the weight
                      of the evidence in the case.

                        THE COURT:   After I  enter judgment in
                      the  case, Mr. Panaro,  you obviously are
                      free  to file  post judgment  motions and
                      you should  do that in writing.   At this
                      point I'm simply inviting counsel, to the
                      extent  that  you  wish  to,  to  comment
                      before I  indicate the amount that  is to
                      be entered  in the judgment  in favor  of
                      [Winter].

                    Appellants never took  the court's  invitation to  file

          post  judgment  motions, in  writing  or  otherwise.   The  above

          discussion does not constitute  a proper Rule 50(b) motion.   The

          district court judge clearly indicated to counsel that he was not

          treating his  statements as a  post-trial motion.   In  addition,

          defense counsel's statement is  insufficient by itself because it

          does not state with sufficient particularity --  indeed, with any

          particularity  --  why  the   evidence  was  insufficient.    The

          attempted  motion did not provide a basis upon which the district

          court  could rule, and,  consequently, we have  no district court

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decision  to consider.  See  Wells Real Estate  v. Greater Lowell
                                  ___  _________________     ______________

          Bd. of Realtors, 850 F.2d 803, 810 (1st Cir. 1988).2
          _______________

                    Appellants did  not move for  a new trial  under either

          Rule 50  or Rule  59 of  the  Federal Rules  of Civil  Procedure.

          Having  failed  to move,  after the  verdict,  for judgment  as a

          matter of law and/or  a new trial, appellants are  precluded from

          appealing the sufficiency of the evidence to this court.  See id.
                                                                    ___ __

          at 810-11.   Accordingly,  we only address  appellants' arguments

          concerning alleged errors by the trial court.

          II.  The Conversion and Unjust Enrichment Verdicts
          II.  The Conversion and Unjust Enrichment Verdicts
               _____________________________________________

                    The   jury  initially  found   Rockett  liable  on  the

          conversion and unjust enrichment counts, but found that Rockett &

          Sons was not  liable on  those counts.   The jury awarded  Winter

          $15,000 but  apportioned that  award equally between  Rockett and
                                                                        ___

          Rockett  &  Sons.   The district  court  properly found  that the

          verdict  and  the  apportionment of  damages  were  inconsistent.

          Accordingly, the  court explained  the inconsistency to  the jury

          and  asked  them  to  resolve  it  with  reference  to  the  jury

          instructions.   The court then asked them to return to deliberate

          further.   Counsel for appellants  did not object  to the court's

          supplemental instructions.

                    In  its subsequent  verdict, the  jury found  that both

          Rockett and Rockett & Sons had converted Winter's lobsters and/or
                              
          ____________________

          2   This is not a  case, therefore, where appellants  either were
          misled by the trial judge or substantially complied with Rule 50.
          Accordingly, they do not fit within the very  narrow "substantial
          compliance"  exception.  See Jusino  v. Zayas, 875  F.2d 986, 991
                                   ___ ______     _____
          n.6 (1st Cir. 1989) (citations omitted).

                                         -6-



lobster crates and  that both  had been unjustly  enriched.   The

          jury found that Winter suffered damages of $15,000 as a result of

          this conduct, but that no portion of that $15,000 was a result of

          Rockett & Sons' conduct alone.  The court entered judgment in the

          amount of $15,000 against Rockett and Rockett & Sons, jointly and

          severally.

                    Appellants maintain that the  jury's finding that  both

          appellants  had converted  Winter's  property, but  that none  of

          Winter's damages  were caused by  Rockett & Sons'  conduct alone,

          "shows the  jury was confused regarding the  charge of conversion

          and  is otherwise unreasonable,  inconsistent, against the weight

          of the evidence and  contrary to the judge's instructions  on the

          law."    As   explained  above,  by   not  moving  for   judgment

          notwithstanding the verdict, appellants  have waived their  right

          to  challenge the  sufficiency  of the  evidence.   We  therefore

          address only the question of whether the verdict was inconsistent

          or contrary to the judge's instructions.

                    The verdict was  not inconsistent under Maine  law.  It

          was stipulated  at trial that Rockett  was acting as an  agent of

          Rockett & Sons.   Under Maine  law, the jury could  conclude that

          Rockett  converted the  lobsters  and/or crates  and that  he was

          acting  within the scope of  his employment with  Rockett & Sons.

          See McLain v. Training  & Dev. Corp.,  572 A.2d 494, 497-98  (Me.
          ___ ______    ______________________

          1990).  The jury  could determine that the damages were caused by

          Rockett's  conduct alone,  but  he was  acting  as an  agent  for

          Rockett  & Sons at the  time.  The  jury could therefore conclude

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that Rockett and Rockett & Sons were jointly and severally liable

          for the $15,000 in  damages, even though the damages were not the

          result of Rockett & Sons' conduct alone.    
                                            _____

                    Nor  was   the   verdict  contrary   to   the   judge's

          instructions.   With  respect to  the claim  for conversion,  the

          court instructed the jury as follows:

                         The Co-op also  claims that Rockett  &
                      Sons  and  Brian  Rockett  converted  its
                      property,  namely,  its lobsters  and 100
                      wooden  crates.  To prove conversion, the
                      Co-op must establish  that Rockett & Sons
                      have   wrongfully   taken   or   retained
                      property belonging to the Co-op.

                         The Co-op need not prove  that Rockett
                      & Sons and Brian Rockett knew or intended
                      to  convert  the  Co-op's property,  only
                      that   they  came  to   have  custody  of
                      property belonging to the Co-op when they
                      had no right to the property.

                         Of course, if you find that  Rockett &
                      Sons  was entitled  to possession  of the
                      lobsters under the contract, then neither
                      it   nor  Brian  Rockett  is  liable  for
                      conversion of the lobsters.  If, however,
                      you determine that Rockett & Sons was not
                      entitled  to  possession of  the lobsters
                      under  the contract due  to its  fraud in
                                          __________________
                      procuring delivery of the  lobsters, then
                      you  may find  that  Rockett &  Sons  and
                      Brian Rockett are  liable for  conversion
                      of the lobsters.

                    Appellants argue  that this  instruction only allows  a

          finding of conversion if the jury finds fraud in the procuring of

          the  lobsters, and  that,  since the  jury  found no  fraud,  the

          verdict  was inconsistent.    The court  instructed  the jury  to

          consider  all of the instructions together, and not to single out

          any one  instruction.  The conversion  instruction explained that

-8-



Winter need not prove  that Rockett &  Sons and Rockett "knew  or

          intended to  convert" Winter's property,  only that they  came to

          have  possession of that  property when they had  no right to it.

          The  mention of fraud merely indicates that, in addition, if they

          had  possession of  Winter's property  through fraud,  that would

          suffice for conversion.  We find no inconsistency in the verdict.

III.  Violation of Sequestration Order
          III.  Violation of Sequestration Order
                ________________________________

                    Appellants  assert that  the  district court  committed

          reversible error by allowing a witness for the appellee,  Michael

          Faulkingham  ("Faulkingham"),  to  testify  after  he  admittedly

          violated  the court's  sequestration order.   The  district court

          thoroughly  explored  this issue  at  trial.   The  court allowed

          counsel  for appellants to  voir dire  Faulkingham on  the record

          about what he heard while in violation of the court's order.  The

          court also conducted a voir dire of Faulkingham.  Faulkingham

          testified on voir dire that he was in the courtroom for about ten

          minutes during  the  direct and  cross-examinations  of  appellee

          witness,  Michael  Kramp ("Kramp"),  and  then left  when  he was

          informed  that he  was  not  allowed  to  be  in  the  courtroom.

          Faulkingham told  the court what  he heard  Kramp testify  about.

          Counsel for Winter then told the court the questions he would ask

          Faulkingham.  

                    The court determined that  there was no overlap in  the

          two  areas of  questioning  and allowed  Faulkingham to  testify.

          Counsel for Winter asked Faulkingham thirteen questions on direct

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examination,  seven  of which  were  foundational.   None  of the

          questions  related to  anything  Faulkingham  testified he  heard

          Kramp  testify about.  The  appropriate sanction for  breach of a

          sequestration order  is ordinarily  left to the  district court's

          discretion.   See United States  v. Cox,  752 F.2d 741,  748 (1st
                        ___ _____________     ___

          Cir.  1985).  Appellants have not shown that the measures adopted

          by the district court  were inappropriate or that  the violations

          were  so significant as  to warrant departure  from this ordinary

          rule.    Finally,  appellants  have   not  shown  how  they  were

          prejudiced by Faulkingham being allowed to testify.  We  conclude

          that  the district court did not abuse its discretion in allowing

          Faulkingham to testify.

          IV.  Prejudicial Remarks
          IV.  Prejudicial Remarks
               ___________________

                    Appellants  allege  that  certain  statements  made  by

          counsel  for  appellee  during  closing  argument  were  unfairly

          prejudicial and deprived appellants of a  fair trial.  Appellants

          point to  the following  statements by counsel  for appellee:  1)

          counsel  described Rockett as a  "con artist", and  the breach of

          contract as a "con"; 2) counsel referred to Winter as the "little

          fishermen's  Co-op  in Maine"  and  stated  that "we  don't  need

          anymore  of this  here  in Maine";  3)  and counsel  stated  that

          Rockett  "makes more money in one deal  than the Co-op makes in a

          couple of years."  Appellants  did  not  object  during  or after

          appellee's closing argument, therefore,  we review only for plain

          error.  United  States v.  Rodr guez-Estrada, 877  F.2d 153,  158
                  ______________     _________________

          (1st  Cir. 1989); Wildman v.  Lerner Stores Corp.,  771 F.2d 605,
                            _______     ___________________

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609  (1st Cir.  1985) ("Counsel  cannot play  a waiting  game and

          after  an  adverse verdict  is  rendered  raise an  objection  to

          argument for the first time.") (citations omitted).  We  find  no

          plain  error in counsel's remarks.  The description of Rockett as

          a "con  artist"  is not  unduly prejudicial  since the  complaint

          charged  him with  fraud.   Moreover,  the  jury determined  that

          Rockett did  not defraud  Winter, and, thus,  presumably rejected

          counsel's characterization of  Rockett as a "con artist"  and the

          breach as a "con."  None  of the other statements by counsel were

          such that  a new  trial is required  to prevent a  miscarriage of

          justice.  See Fed. R. Civ. P. 61; Wildman, 771 F.2d at 609. 
                                                                      
                    ___                     _______

          V.  Evidentiary Issues
          V.  Evidentiary Issues
              __________________

                    Appellants  list  twenty-one  instances  in  which  the

          district   court   allegedly   admitted   evidence   erroneously.

          Appellants  assert  that  these errors,  taken  together,  denied

          appellants a fair  trial and warrant  a new trial.   We need  not

          linger  long over this argument.  "[T]he admission and  exclusion

          of  evidence is  primarily  within the  discretion  of the  trial

          judge, and  this determination  will  not be  disturbed absent  a

          showing of abuse of  discretion."  Doty v. Sewall, 908 F.2d 1053,
                                             ____    ______

          1058 (1st Cir. 1990)  (quoting  Harrington v. United  States, 504
                                          __________    ______________

          F.2d  1306,  1313   (1st  Cir.  1974)).  We  have  reviewed  each

          assignment of error  and find  no abuse of  the district  court's

          broad discretion,  certainly none  which rises  to  the level  of

          affecting appellants' substantial  rights.  See  Farr Man &  Co.,
                                                      ___  ________________

          Inc. v.  M/V Rozita, 903 F.2d  871, 875 (1st Cir.  1990); Fed. R.
          ____     __________

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Civ. P. 61.  

                                      CONCLUSION
                                      CONCLUSION

                    We  have considered  appellants'  other contentions  of

          error and find none meriting further discussion.  The verdict and

          judgment are affirmed.
                       ________

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