          United States Court of Appeals
                       For the First Circuit

Nos. 13-1437
     13-1513
     13-1514

                       ATLANTECH INCORPORATED,

                Plaintiff, Appellant/Cross-Appellee,

                                 v.

      AMERICAN PANEL CORPORATION, APC AQUISITION CORPORATION
    INCORPORATED, and UNIVERSAL AVIONICS SYSTEMS CORPORATION,

               Defendants, Appellees/Cross-Appellants.




          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Douglas P. Woodlock, District Judge]


                               Before

                      Selya, Stahl, and Lipez,
                           Circuit Judges.


     Irwin B. Schwartz, with whom Nicholas R. Cassie and BLA
Schwartz, PC were on brief, for Atlantech, Inc.
     Michael J. King, with whom John F. Farraher, Jr. and Greenberg
Taurig, LLP were on brief, for American Panel Corporation and
Universal Avionics Systems Corporation.
     John A. Christy, with whom Michelle Roback Kraynak, Schreeder,
Wheeler & Flint, LLP, Justin P. O'Brien, and Collora LLP were on
brief, for APC Acquisition Corporation, Inc.


                          February 20, 2014
             STAHL, Circuit Judge.      Plaintiff Atlantech Incorporated

("Atlantech")    filed    a   seven-count     amended   complaint     against

Defendants American Panel Corporation ("APC"), APC Acquisition

Corporation, Inc. ("APC Acquisition"), and Universal Avionics

Systems   Corporation     ("Universal")      (collectively,   "Defendants")

asserting    claims    related   to    the   alleged    breach   of   various

agreements involving the sale of aviation equipment.             After a jury

trial, the parties filed post-trial motions, which the district

court resolved partially in favor of Atlantech and partially in

favor of Defendants.          Atlantech appeals and Defendants cross-

appeal.   We affirm.

                          I. FACTUAL BACKGROUND

             Atlantech was a dealer of aircraft LCD displays and APC

was its primary product supplier.             Pursuant to an August 2002

agreement,    Atlantech    was   the    exclusive   vendor    to    Ulyanovsk

Instrument Manufacturing Design Bureau ("UIMDB"), which integrated

the displays into its own product for use in aircraft instrument

panels.     On December 2, 2003, APC, operating at the time as a

division of Universal, entered into a Memorandum of Agreement with

Atlantech for the sale of 103 1040-100 AMLCD displays ("1040 MOA").

At the same time, APC and Atlantech reached a Non-Circumvention

Agreement ("NCA") preventing APC from          conducting direct business

with UIMDB for two years after the last completed transaction

between APC and Atlantech.


                                       -2-
             The 1040 MOA required APC to "support" the product

through   December    31,   2012    ("Support    Agreement");     the    parties

dispute the meaning of the word "support" in the context of this

provision.    The Support Agreement further required APC to maintain

"Data Warehouse Documents" recording the intellectual property

necessary for the production and repair of the displays.                 In the

event that APC discontinued the product, the Support Agreement

obligated APC to provide those documents to Atlantech.                  The 1040

MOA also exempted Defendants from liability for "consequential,

incidental, indirect, special or punitive damages," including "lost

profits" and "cost of replacement goods."

             APC stopped producing 1040-100 displays in 2004.                 To

obtain "form, fit, and function replacements" for the discontinued

model,    Atlantech   purchased     two     hundred   1040-725    displays    in

February 2006 ("2006 Purchase Order").            APC did not deliver any

displays under the 2006 Purchase Order.          Under a separate purchase

agreement, APC eventually did deliver fifteen 1040-725 displays.

According to subsequent communications between Atlantech and APC,

these displays did not function properly.

             In   April     2006,     Atlantech,       invoking     diversity

jurisdiction, see 28 U.S.C. § 1332(a), filed an action in the

District Court of Massachusetts against APC for breach of contract

and negligent misrepresentation.          Later that year, it voluntarily

dismissed the complaint.      In January 2007, APC sold its assets to


                                      -3-
APC Acquisition.       At the same time, APC, APC Acquisition, and

Universal agreed among themselves not to sell any further product

to Atlantech without obtaining either a release from Atlantech of

all liability or the written consent of the three parties to the

agreement.     Over the course of 2008 and 2009, APC Acquisition, in

violation of the 1040 MOA, sold sixteen display units to a third-

party vendor, knowing that it intended to develop business with

UIMDB.

                           II. PROCEDURAL HISTORY

             This case has followed a convoluted course, and in order

to place the parties' arguments in context it is necessary to trace

its    procedural   path   in    some   detail.     On   February    21,   2007,

Atlantech filed a complaint against Defendants alleging breach of

warranty, breach of the 1040 MOA, breach of the 2006 Purchase

Order, and negligent misrepresentation.             After two amendments to

the    complaint,    the   parties      filed   cross-motions   for    summary

judgment. Judge Tauro, in an order dated March 24, 2008 ("March

2008    Order"),    granted     partial   summary   judgment    in    favor   of

Atlantech.     While that order decided a number of issues, it left

others unresolved. Among the issues it addressed, Judge Tauro held

that APC was "in breach of its obligations under the Data Warehouse

Documents provision" and granted injunctive relief to Atlantech

requiring that APC provide it with the 1040-100 Data Warehouse

Documents.


                                        -4-
                 Despite the presence of unresolved issues, Judge Tauro

entered judgment in favor of Atlantech, effectively closing the

case.        A    series   of   motions   to     reopen   and   appeals   followed,

culminating in this court's order dated May 19, 2010 ("May 2010

Order"), which left in place the injunctive relief related to the

Data Warehouse Documents and otherwise vacated the March 2008

Order.

                 On remand, the case was reassigned to Judge Woodlock.

Two further amendments to the complaint followed.                  Atlantech filed

the final version, the Fourth Amended Complaint, on June 1, 2011,

alleging seven counts: Breach of Contract — Warranty (1040 MOA,

1040-72X MOA, and 890 MOA)1 (Count I); Breach of Contract — Support

and Product Availability (1040 MOA, 1040-72X MOA, 890 MOA, and

Purchase Order #40323) (Count II); Breach of Contract — Data

Warehouse Documents (1040 MOA, 1040-72X MOA, and 890 MOA) (Count

III);       Breach   of    Contract   —   2006    Purchase      Order   (Count   IV);

Negligent Misrepresentation (Count V); Intentional Interference

with Contractual Relations (Count VI); and Breach of Contract — NCA

(Count VII).          Thereafter, the district court resolved pending

cross-motions for summary judgment and ruled in favor of Defendants

on Counts III, V, and VI.

                 An eight-day jury trial began June 13, 2011.                On the



        1
       The 1040-72X MOA and 890 MOA are not directly at issue on
appeal.

                                          -5-
seventh   trial   day,   the   court   determined   that   it   would   be

expeditious for the jury to resolve a set of preliminary questions

while the court heard arguments regarding directed verdict motions.

The judge conferred extensively with trial counsel at that point to

fashion three questions for an "interim verdict slip."            On the

morning of the eighth day the court instructed the jury on those

preliminary questions and sent them to deliberate while the court

dealt with the directed verdict motions.

           Eventually, the judge indicated that he would grant a

directed verdict in favor of Defendants on Counts I, V, and VI, and

portions of Count II involving a purchase order that is not at

issue on this appeal. He also explained that he was "keeping alive

the Count III to resolve on the papers and the evidence that is

presented here."2    The judge also engaged trial counsel in an

extensive discussion of what additional questions remained for the

jury to decide.

           Thereafter the jury was given a second verdict slip with

questions regarding damages under Count IV, breach of the 2006

Purchase Order, and Count VII, breach of the NCA. On these counts,

the jury awarded Atlantech $1,112,476 in damages.



     2
       According to the record, Judge Woodlock had already
resolved Counts III, V, and VI on summary judgment prior to
trial. His reason for revisiting those counts after trial is not
readily apparent in the transcript. None of those counts is
presently before us on appeal, however, so the timing of their
resolution need not concern us.

                                   -6-
          After dismissing the jury, the court instructed the

parties to file a joint status report delineating the issues that

remained to be resolved post-trial. The parties filed their report

on July 8, 2011, and Atlantech subsequently filed a motion for

judgment as a matter of law on Defendants' alleged breach of the

1040 MOA Support Agreement (an unresolved issue remaining under

Count II). The court denied that motion and ordered the parties to

"frame this case for final resolution by means of summary judgment

motions in the wake of trial and the record as it existed as of

trial."

          On May 23, 2012, Atlantech filed a motion for summary

judgment seeking damages for breach of the Support Agreement,

prejudgment    interest    on   all        claims,   and   attorney's    fees.

Defendants    filed   motions   for    a    directed   verdict   or,    in   the

alternative, for judgment notwithstanding the verdict, asking the

court to construe the Support Agreement in their favor and seeking

a reduction in the jury's award of damages for breach of the 2006

Purchase Agreement.       On March 6, 2013, the court found that

Defendants were not liable for breach of the Support Agreement,

denied prejudgment interest, awarded Atlantech $26,761.58 in fees

and expenses, and upheld the jury's award of damages for breach of

the 2006 Purchase Agreement ("March 2013 Order").                The parties

appeal from the district court's March 2013 Order.




                                      -7-
                            III. ANALYSIS

          Before us on appeal are three broad issues: (1) whether

Defendants are liable to Atlantech for damages under the terms of

the 1040 MOA Support Agreement; (2) whether Atlantech is entitled

to prejudgment interest; and (3) whether the district court erred

in upholding the jury award of damages for breach of the 2006

Purchase Agreement.3

A.        1040 MOA Support Agreement

          In   section   11.2    of    the    Support   Agreement,   entitled

"Length of Product Availability," APC agreed "to support original

product through December 31, 2012.           At that point the product may

be discontinued."    The district court held that this provision was

an enforceable agreement obligating Defendants "to hold open the

opportunity    for   Atlantech    to    buy     form,   fit,   and   function

replacements" for the 1040-100 displays for a period of ten years.

          Nevertheless, the district court entered judgment in

favor of Defendants on this claim.            Proceeding under a theory of

anticipatory repudiation, Atlantech argued that Defendants breached

the Support Agreement by agreeing in January 2007 to discontinue

sales to Atlantech, unless Atlantech provided them with a release

from liability or they all consented.            A claim for anticipatory

repudiation requires an absolute and unqualified refusal to perform



     3
       The parties initially disputed the award of fees and
expenses, but settled that issue after oral argument.

                                      -8-
a contract.   Textile Rubber & Chem. Co., v. Thermo-Flex Techs.,

Inc., 687 S.E.2d 919, 922 (Ga. Ct. App. 2009).4   The district court

found that "there [was] nothing absolute or unqualified about" the

Defendants' refusal to perform under the contract, because they

could have all consented to continue sales.   Accordingly, it found

no breach of the agreement as a matter of law.    The district court

also found that Atlantech could not prove the damages it sought,

which were based on lost profits as a measure of direct damages.

The court held that "[t]here is nothing inherent in the bargain

. . . sufficient to provide reliable numbers, and this precludes

Atlantech from recovering lost profits."

          On appeal, the parties dispute numerous issues with

respect to the alleged breach of the Support Agreement: whether the

mandate rule requires judgment in favor of Atlantech, whether the

Support Agreement is an enforceable contract, the nature and scope

of Defendants' obligations under the Support Agreement, whether

Defendants repudiated or otherwise breached the Support Agreement,

and whether Atlantech can prove direct damages related to the

alleged repudiation. We can quickly dispense with Atlantech's

argument for the application of the mandate rule. Of the remaining


     4
       "Both sides premise their arguments on Georgia law, which
the parties reasonably understand to govern their relationship in
this regard." Atlantech Inc. v. Am. Panel Corp., No. 07-cv-
10342, 2013 WL 870227, at *8 (D. Mass. Mar. 6, 2013). Like the
district court, we accept the parties' reasonable understanding
and look to Georgia law for the substantive rules of decision.
See Shay v. Walters, 702 F.3d 76, 79–80 (1st Cir. 2012).

                               -9-
arguments, only one requires our attention at this stage. We agree

with the district court that Atlantech did not prove direct damages

resulting from the alleged repudiation, and that the plain terms of

the   contract   preclude   recovery   for   other   types   of   damages.

Therefore the claim fails as a matter of law.        Because this issue

is dispositive, we need not resolve the other disputes related to

the Support Agreement.

           1.         Mandate Rule

           "[A]n appellate court's mandate controls all issues that

were actually considered and decided by the appellate court, or as

were necessarily inferred from the disposition on appeal." Kashner

Davidson Sec. Corp. v. Mscisz, 601 F.3d 19, 23-24 (1st Cir. 2010)

(quoting NLRB v. Goodless Bros. Elec. Co., 285 F.3d 102, 107 (1st

Cir. 2002)) (internal quotation marks omitted).          "[I]ssues that

were not decided by the appellate court . . . are not affected by

the mandate." Id. (quoting de Jesús–Mangual v. Rodríguez, 383 F.3d

1, 6 (1st Cir. 2004)) (alteration in original).

           Atlantech argues that Judge Tauro's March 2008 Order held

that APC breached the Support Agreement, and that this court

subsequently affirmed that holding.          But this court's May 2010

Order expressly vacated the March 2008 Order in part, leaving in

place only the injunction related to the Data Warehouse Documents.

All that can be "necessarily inferred" from the May 2010 Order is

that Defendants breached the provision of the Support Agreement


                                 -10-
requiring them to turn over the Data Warehouse Documents.             The May

2010 Order did not decide the question currently before us; whether

Defendants    breached    section     11.2   of    the   Support   Agreement.

Therefore, the mandate rule does not apply.

             2.          Damages

             In a breach of contract case, "the burden is on the

plaintiff to show both the breach and the damage."            Adamson Co. v.

Owens-Ill. Dev. Corp., 309 S.E.2d 913, 916 (Ga. Ct. App. 1983).

Atlantech does not dispute that it contractually waived the right

to seek consequential damages, including lost profits.             It argues,

however, that lost profits can serve as a measure of direct

damages.   It also offers two alternate measures of damages.

             At trial, Atlantech attempted to prove lost profits by

showing past sales to UIMDB as well as evidence of UIMDB's intent

to buy certain quantities in the future.            It relied on the prices

at which it bought and sold the displays at the time the parties

entered into the 1040 MOA. But as the district court observed, the

Support Agreement itself does not prescribe any particular price or

quantity for future sales, other than providing that prices must be

"in line" with those from past sales.             Under these circumstances

the district court found the evidence offered by Atlantech too

speculative, because "[t]here is nothing inherent in the bargain

when the parties entered into the 1040 MOA in 2003 sufficient to

provide reliable numbers."         We agree with the district court.


                                     -11-
          Under Georgia law, the term "lost profits" refers to two

distinct concepts:

     Consequential damages, which may include 'profits which
     might accrue collaterally as a result of the contract's
     performance,' are a separate concept from direct damages,
     which may include 'profits necessarily inherent in the
     contract.' Thus there are two types of lost profits: (1)
     lost profits which are direct damages and represent the
     benefit of the bargain (such as a general contractor
     suing for the remainder of the contract price less his
     saved expenses), and (2) lost profits which are indirect
     or consequential damages such as what the user of the MRI
     would lose if the machine were not working and he was
     unable to perform diagnostic services for several
     patients.

Imaging Sys. Int'l, Inc. v. Magnetic Resonance Plus, Inc., 490

S.E.2d 124, 127 (Ga. Ct. App. 1997) (internal citation omitted).

Another court observed that profits "necessarily inherent in the

contract . . . are always provable." Franklin v. Demico, Inc., 347

S.E.2d 718, 721 (Ga. Ct. App. 1986).

          The question here is whether the damages Atlantech seeks

to prove are "necessarily inherent in the contract."    We find that

they are not, because they depend on contingencies beyond the terms

of the contract itself. The brief examples offered by the court in

Imaging Systems are instructive.      When a general contractor sues

for its remaining contract price less saved expenses, the damages

do not depend on the future action of any third party; they are

determined by the terms of the contract and the circumstances of

the breach.   Thus, they are "always provable" in the sense that

they do not require evidence of what some other party might have


                               -12-
done. The damages suffered by the doctor with a malfunctioning MRI

machine depend on how many patients one might have seen if the

machine were working.       The doctor very well might be able to

recover such damages by showing evidence of how many patients were

normally seen in the past, but they would remain consequential

damages.

             Other circuits have reached a similar understanding of

the distinction between the two types of lost profits:

     Direct damages refer to those which the party lost from
     the contract itself—in other words, the benefit of the
     bargain—while consequential damages refer to economic
     harm beyond the immediate scope of the contract. Lost
     profits, under appropriate circumstances, can be
     recoverable as a component of either (and both) direct
     and consequential damages. Thus, for example, if a
     services contract is breached and the plaintiff
     anticipated a profit under the contract, those profits
     would be recoverable as a component of direct, benefit of
     the bargain damages. If that same breach had the knock-on
     effect of causing the plaintiff to close its doors,
     precluding it from performing other work for which it had
     contracted and from which it expected to make a profit,
     those lost profits might be recovered as "consequential"
     to the breach.

Atl. City Assocs., LLC, v. Carter & Burgess Consultants, Inc., 453

F. App'x 174, 179-80 (3d Cir. 2011) (quoting Penncro Assocs., Inc.

v. Sprint Spectrum, L.P., 499 F.3d 1151, 1156 (10th Cir. 2007)).

             The evidence that Atlantech offered at trial is relevant

to lost profits as consequential, not direct, damages.     Atlantech

is seeking to show how much it would have earned selling displays

to UIMDB if APC had performed its obligations under the Support

Agreement.     Because those damages rely on future deals with a

                                 -13-
business that is not a party to the Support Agreement, and are

contingent on anticipated prices and demand that are not determined

by the contract itself, the damages are not "necessarily inherent

in the contract."   Thus, they are consequential damages, for which

Defendants are not liable under the terms of the 1040 MOA.

           Atlantech fares no better with its other theories of

damages.   It argues that "under Georgia law, Atlantech may recover

direct damages in an amount equal to the difference between the

market price at the time the buyer learned of the breach and the

contract price, less expenses saved at as a result of the breach."

The obvious problem with the use of this method of measuring

damages here is that there is no contract price in section 11.2 of

the Support Agreement. Presumably, if APC had continued to sell

displays to Atlantech under the terms of the Support Agreement, the

parties would have negotiated a price for each sale.          Without a

fixed contract price, Atlantech cannot use this method to prove

damages.

           Finally, Atlantech argues that it "is entitled to recover

its attempted mitigation expenses associated with Defendants'

repudiation of their support obligations."      Atlantech defines its

"mitigation   expenses"   as   its   "failed   efforts   to   develop   a

substitute for the 1040-100 Display."      But the terms of the 1040

MOA clearly exempt Defendants from liability for the "cost of

replacement goods." Therefore, Atlantech is barred from recovering


                                 -14-
damages under this theory as well.

               In sum, the district court correctly concluded that

Atlantech had failed to prove damages for breach of the Support

Agreement and thus finding for Defendants on that claim.

B.             Prejudgment Interest

               In its post-trial motion, Atlantech asked the district

court to award prejudgment interest.                  Georgia law provides for a

discretionary award of prejudgment interest on unliquidated claims,

Ga. Code Ann. § 13-6-13,5 but it is the role of the jury, not the

court, to exercise that discretion. See Alphamed, Inc. v. B. Braun

Med., Inc., 367 F.3d 1280, 1287 (11th Cir. 2004) (applying Georgia

law); Am. Family Life Assurance Co. of Columbus, Ga. v. U.S. Fire

Co., 885 F.2d 826, 835–36 (11th Cir. 1989).

               Atlantech    did    not   submit       a    request   for   prejudgment

interest to the jury at trial. Therefore the court found the issue

to be waived and denied the request.                  On appeal, Atlantech argues

that it did not knowingly waive the request, because "the district

court bifurcated the case in the middle of trial and allowed only

certain issues to go to the jury."                According to Atlantech, when

the district court bifurcated the case, it represented that it

would       impanel   a   second    jury   at     a       later   time   to   determine

outstanding factual issues.


        5
       "[T]he parties agree that the request is one for interest
on unliquidated damages. . . . " Atlantech, 2013 WL 870227, at
*8.

                                         -15-
          The record belies Atlantech's argument.    The court only

"bifurcated" the trial in the sense that it sent three preliminary

questions to the jury while the court heard arguments about issues

pertaining to the directed verdict requests.        While the jury

deliberated the questions submitted to it, the court repeatedly

asked counsel to articulate which issues remained for the jury and

which could be decided as a matter of law.   ("My touchstone is what

else am I going to do with this jury at this time, . . . I am

trying to figure out what else I am going to ask them."); ("I am

searching through to identify those factual disputes that can be

resolved in a way that I am comfortable with by this jury."); ("But

let me just see if I can get through all of this to see what else

is potentially left that requires jury determination . . . .");

("So, I would like you to be thinking about, again, what else we

would want from this particular jury.")

          Thus, prior to submitting a second (and final) verdict

form to the jury, the court expressly gave the parties multiple

opportunities to identify any issues they believed the jury needed

to decide.   Under these circumstances, there is no legitimate

reason for Atlantech's failure even to mention the issue of

prejudgment interest at that time, and thus the district court did

not err in its holding that Atlantech had waived the issue.




                               -16-
C.               2006 Purchase Agreement

                 Under the 2006 Purchase Agreement, Atlantech ordered 2006

1040-725 displays from APC for $1,335,750 in order to fulfill an

agreement it reached with UIMDB in December 2005.                     APC guaranteed

that       the   1040-725      model    would    be    "form,   fit   and   function"

compatible with the displays Atlantech purchased previously.                       APC

was to deliver twenty-five units by April 15, 2006, and place the

"[r]emaining 175 unit materials on hold until confirmation of

compatibility."           As discussed above, APC did not deliver any

displays under the 2006 Purchase Agreement, but did deliver fifteen

displays under a separate agreement.                      Those fifteen displays

apparently did not function properly, and Atlantech never gave APC

a confirmation of compatibility.

                 At   trial,   the     jury    awarded   Atlantech    $1,070,456    in

damages on Count IV, based on the value of the UIMDB contract minus

the cost of the 2006 Purchase Agreement, the cost of sale, and the

amount Atlantech received for separately delivering the fifteen

displays it received from APC.                       In their post-trial motion,

Defendants asked the district court to reduce the damages to

$57,862.67, which would represent the lost profits on the twenty-

five displays that APC was supposed to deliver by April 15, 2006,

minus the profits Atlantech received on the fifteen that APC


       6
       There is a discrepancy in the order, which appears to be
for 201 displays but only requires delivery of 200. At trial,
Atlantech sought damages based on the 200 units to be delivered.

                                              -17-
delivered separately.      According to Defendants, they were only

obligated to deliver twenty-five displays until Atlantech gave them

a confirmation of compatibility; the fact that Atlantech never

confirmed compatibility absolved them of the obligation to deliver

the remaining 175 units.

          The district court rejected Defendants' reading of the

contract. It read the confirmation provision as a protection for

Defendants "against a situation in which they produced the full

number of displays (thus bearing the cost of production for a full

200 displays), and then also faced liability for breach if all

those displays turned out to be incompatible with 1040-100 units."

It concluded that "nothing indicates that a failure to provide a

confirmation of compatibility relieved APC of its obligation to

deliver" the full order of 200 displays, particularly in light of

Defendants'   "fail[ure]   to   deliver   even   the   initial   round   of

compatible displays."

          The district court's reading of the contract is correct.

Defendants have not offered any arguments on appeal that persuade

us otherwise.   They ask us to read the confirmation provision as a

condition precedent to full delivery, but that is not the ordinary

meaning of the contractual language. The phrase "on hold," which

commonly indicates a temporary delay,7 implies the expectation of


     7
       See Random House Dictionary of the English Language 911
(2d. ed. 1987) (defining "on hold" as "in or into a temporary
state of interruption or suspension").

                                  -18-
eventual completion. In that respect it is different from the type

of   language   that   would    more   commonly   indicate   a   condition

precedent, such as "subject to" or "if and only if."             The 2006

Purchase Agreement was for 200 displays. The fact that the parties

had the foresight to test the compatibility of a few displays prior

to delivery of the entire order does not evince an intention to

truncate Defendants' obligation under the contract.          Accordingly,

we hold that the district court did not err in upholding the jury's

award of damages.

                               IV. CONCLUSION

           For the reasons explained above, we AFFIRM the district

court's orders.   All parties shall bear their own costs.




                                    -19-
