USCA1 Opinion
January 4, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2015
DENNIS G. BEZANSON, TRUSTEE OF ESTATE OF UNITEX, INC.,
Plaintiff, Appellee,
v.
FLEET BANK OF NEW HAMPSHIRE,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Boudin, Circuit Judges.
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Francis L. Cramer, Valerie A. Walsh, Sullivan & Gregg, on brief
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for appellant.
Graydon G. Stevens, Kelly, Remmel & Zimmerman, on brief for
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appellee.
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January 4, 1995
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Per Curiam. In March 1993, a jury returned a verdict in
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favor of appellee Dennis Bezanson, trustee of the estate of
Unitex, Inc., in his suit against Fleet Bank-NH, successor of
Indian Head National Bank. Bezanson alleged that Indian Head
had violated its duty under New Hampshire law by failing to
dispose of the assets of Unitex in a commercially reasonable
manner. The jury awarded the trustee $379,779.21 in damages.
Upon Fleet's post-trial motion for judgment as a matter of
law, the district court held that, although sufficient
evidence supported the finding of liability, Fleet was
entitled to judgment as a matter of law because the trustee
had not proven damages with "reasonable certainty." On
appeal, this court held that the evidence was adequate to
support the jury verdict both as to the issue of liability
and that of damages. It therefore reversed the judgment and
remanded the matter to the district court for further
proceedings. Bezanson v. Fleet Bank-NH, 29 F.3d 16 (1st Cir.
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1994). Fleet then moved in the district court for a new
trial on the ground that there was insufficient evidence to
support the verdict. The motion was denied and Fleet now
appeals.
Fleet is correct that this court's decision that it was
not entitled to judgment as a matter of law does not preclude
Fleet's prevailing on its motion for a new trial in the
district court. A "district court may order a new trial even
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where the verdict is supported by substantial evidence."
Lama v. Borras, 16 F.3d 473, 477 (1st Cir. 1994) (emphasis in
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original). On the other hand, "there is no rule that the
district court must do so." Id. (emphasis in original).
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Rather, the decision rests in the discretion of the trial
court and this court will reverse a denial of a motion for a
new trial "only in a very unusual case," id. (citations
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omitted), where the "verdict is so clearly mistaken, so
clearly against the law or the evidence, as to constitute a
miscarriage of justice," Levesque v. Anchor Motor Freight,
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Inc., 832 F.2d 702, 703 (1st Cir. 1987). Furthermore, when
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the motion for a new trial rests on the claim that the
evidence was insufficient to support the verdict, a denial of
a motion for a new trial is reviewed by a standard
"essentially coterminous" with that used in reviewing a
judgment as a matter of law. Lama, 16 F.3d at 477; Levesque,
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832 F.2d at 703 (in reviewing denial of a new trial,
appellate court considers "relevant testimony in the light
most flattering to the appellees and draw[s] all legitimate
inferences in their favor"); Robinson v. Watts Detective
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Agency, Inc., 685 F.2d 729, 741 (1st Cir. 1982) (motion for a
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new trial based on insufficiency of evidence "is subject to a
standard of review as strict as that for a [judgment as a
matter of law]"), cert. denied., 459 U.S. 1105 (1983).
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We have reviewed the record in this case, the judgment
of the district court and the parties briefs. Essentially
for the reasons stated in our earlier opinion in which we
held that Fleet was not entitled to a judgment as a matter of
law, Bezanson v. Fleet Bank-NH, 29 F.3d 16, we find that the
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jury verdict was not a "miscarriage of justice." Therefore,
the judgment of the district court is summarily affirmed.
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See 1st Cir. Loc. R. 27.1. Appellee's request for sanctions
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is denied.
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