USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2378
ONDINE SHIPPING CORPORATION,
Plaintiff, Appellant,
v.
ROBERT CATALDO, ETC., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin and Bownes, Senior Circuit Judges.
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Michael J. Malinowski, with whom Thomas F. Holt, Jr. and
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Kirkpatrick & Lockhart were on brief, for appellant.
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Gordon P. Cleary, with whom Vetter & White was on brief, for
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appellee Robert Cataldo, Trustee in Bankruptcy.
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May 25, 1994
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SELYA, Circuit Judge. The focal point of this appeal
SELYA, Circuit Judge.
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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
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Newport Offshore, Ltd., 155 B.R. 616, 617-18 (Bankr. D.R.I. 1993)
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(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.
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at 619. On that basis, the judge found for the plaintiff on the
question of liability. See id. at 620. Nevertheless, he ruled
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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-
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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
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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
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Hotel Fire Litig., 989 F.2d 36, 38 (1st Cir. 1993). So it is
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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
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in the district court's bench decision. We pause only to add
five observations.
First: Plaintiff, having jettisoned its trial counsel,
First:
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takes a new tack on appeal. It insists that the record contains
evidence of what it paid to NOL; that Rhode Island law permits
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restitution as a measure of damages where a contracting party's
performance has proven valueless, see, e.g., National Chain Co.
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v. Campbell, 487 A.2d 132, 135 (R.I. 1985) (recognizing possible
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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.
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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
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Cir. 1992), but also, no principle is more firmly anchored in the
jurisprudence of this circuit, see Teamsters, Etc., Local Union
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No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992).
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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
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31. Indeed, this ship sailed many moons ago; the holding in
Slade caps a long, unbroken line of precedent to like effect.
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See, e.g., United States v. Dietz, 950 F.2d 50, 55 (1st Cir.
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1991); Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987).
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Second: It is true, as plaintiff suggests, that an
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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
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31; United States v. Krynicki, 689 F.2d 289, 291 (1st Cir. 1982).
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But this is a long-odds exception that must be applied sparingly.
It is reserved for "the exceptional case." United States v. La
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Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990). The case at bar
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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
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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;
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see also National Chain, 487 A.2d at 134-35. Plaintiff did not
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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.
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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.
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Quinones-Pacheco v. American Airlines, Inc., 979 F.2d 1, 6 (1st
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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:
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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
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1266, is confined to the peculiar facts of the O'Coin case, and
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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,
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Local No. 5705, 507 A.2d 1342, 1346 (R.I. 1986); Stillman v.
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Prew, 177 A.2d 626, 628 (R.I. 1962); Zuccarro v. Frenze, 71 A.2d
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277, 278 (R.I. 1950); see also 5 Arthur L. Corbin, Corbin on
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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
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jurisdictions).
Fourth: In its reply brief, plaintiff attempts to make
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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.
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Comm'n, 906 F.2d 25, 40 (1st Cir.), cert. denied, 498 U.S. 959
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(1990); Sandstrom v. Chemlawn Corp., 904 F.2d 83, 86 (1st Cir.
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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.
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Equipmentlease Corp., 18 F.3d 1, 13 n.17 (1st Cir. 1994); Foley
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v. City of Lowell, 948 F.2d 10, 21 (1st Cir. 1991). In the final
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analysis, "[c]ourts, like the Deity, are most frequently moved to
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help those who help themselves." Paterson-Leitch Co. v.
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Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 989 (1st
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Cir. 1988).
Fifth: Plaintiff suggests that it is entitled to
Fifth:
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prejudgment and post-judgment interest under R.I. Gen. Laws 9-
21-10.3 This suggestion is not well founded. In Murphy, 507
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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.
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See id.; see also Rhode Island Turnpike & Bridge Auth. v.
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Bethlehem Steel Corp., 446 A.2d 752, 757 (R.I. 1982) (describing
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purpose of statute). Since a state's highest court is the best
authority on the meaning of a state statute, see Daigle v. Maine
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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
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infra, we need not consider the trustee's contention that 11
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U.S.C. 502(b)(2), disallowing claims for unmatured interest,
preempts state law on prejudgment interest in the circumstances
of this case.
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Med. Ctr., 14 F.3d 684, 689 (1st Cir. 1994), we accept the Rhode
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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
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Fire Ins. Co., 880 F.2d 575, 578 (1st Cir. 1989). Here,
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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.
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4To be sure, insofar as the statement in Murphy encompasses
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nominal damages, it is dictum but it is considered dictum and,
thus, worthy of our trust. See Posadas de Puerto Rico Assoc.,
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Inc. v. Asociacion de Empleados de Casino, 873 F.2d 479, 482 (1st
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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,
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115-16 (1st Cir. 1988) (similar), cert. denied, 490 U.S. 1107
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(1989); see also Dedham Water Co. v. Cumberland Farms Dairy,
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Inc., 972 F.2d 453, 459 (1st Cir. 1992) (stating general rule
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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.
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