  February 5, 1993
                        [NOT FOR PUBLICATION]

                    UNITED STATES COURT OF APPEALS
                        FOR THE FIRST CIRCUIT

                                             

No. 92-1349 

                            PETER GRABLER,

                        Plaintiff, Appellant,

                                  v.

                       ISRAEL ROIZMAN, ET AL.,

                        Defendants, Appellees.

                                             

             APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. William G. Young, U.S. District Judge]
                                                        

                                             

                                Before

                        Selya, Cyr and Boudin,
                           Circuit Judges.
                                         

                                             

    Peter Grabler on brief pro se.
                 
    Brian P.  Flaherty  and  Wolf, Block,  Schorr and  Solis-Cohen  on
                                                                  
brief for appellee Israel Roizman.

                                             

                                             

    Per Curiam.     On  March  7,  1991,  appellant Peter  Grabler,  a
              

resident of  Massachusetts, filed a complaint  against appellee Israel

Roizman, a  resident  of  Pennsylvania.   Jurisdiction  was  based  on

diversity of citizenship.   Grabler essentially  claimed that  Roizman

had breached an agreement to  purchase all of Grabler's  shareholdings

in  Benchmark  Broadway  Corporation and  Benchmark  Developers,  Inc.

Among other  forms of relief, Grabler  requested damages (unspecified)

and  an accounting.   He  also included  allegations that  Roizman had

committed fraud, engaged in economic duress and had violated M.G.L. c.

93A and Section  10(b) and Rule 10b-5 of the  1934 Securities Exchange

Act.   The details  of the complaint  are not relevant  to this appeal

because Roizman  agreed to pay  Grabler approximately $96,000  for the

stock.

    In May  1991, Roizman  filed an  answer and  a counterclaim.   The

counterclaim,  which  essentially forms  the  basis  for this  appeal,

concerns  the  deterioration  in  the  business  relationships   among

Grabler,  Roizman  and  a third  person,  David  Kohen.   These  three

individuals  are  the  sole   shareholders  in  Benchmark   Properties

Corporation ("Benchmark").*   Benchmark  is  in the  business of  real

estate  development.   Specifically, it  is a  general partner  in two

housing projects -- Elm Hill Limited Partnership ("Elm Hill") and Blue

Hill  Limited Partnership ("Blue Hill").  Benchmark has a 50% interest

in each project.   The other general partners are  Benchmark Financial

Group, Ltd. ("BFGL")  and an  individual, Frank Jones.   Each  project

also has a  limited partnership as  its limited partner.   Grabler and

Kohen are the sole shareholders of BFGL.

                    

*Grabler and  Kohen  are  directors of  Benchmark;  Roizman  holds  no
office.  All  decisions concerning  Benchmark must be  by a  unanimous
vote of the three shareholders.

    In June 1991, the parties reached a  final settlement and the case

was dismissed.   Paragraphs 2 through 4 of the  settlement concern how

much Roizman  owed Grabler for the stock  purchase and how Roizman was

to effect payment to Grabler.  Paragraph 7 of the settlement stated:

    After Grabler  and Roizman have  reached agreement  regarding
    the allocation  of expenses and partnership  distributions in
    connection  with Elm  Hill Housing Limited  Partnership, Blue
    Hill  Housing Limited  Partnership and  Benchmark Properties,
    Inc., Grabler  shall add Roizman  as a required  signatory on
    the  Massachusetts escrow  account, as  well as  all savings,
    checking and other  banking accounts maintained  by Elm  Hill
    Housing  Limited  Partnership,   Blue  Hill  Housing  Limited
    Partnership  and  Benchmark  Properties, Inc.    Grabler  and
    Roizman  agree that they will proceed in good faith to affect
    [sic] a resolution of this issue.

Unfortunately, the obligation to  use good faith failed to  ensure the

settlement  of  the  disputes  concerning  Elm  Hill,  Blue  Hill  and

Benchmark  pursuant to  the  above paragraph.    Also in  dispute  was

whether  Grabler was  due  interest  on  the  payment  for  the  stock

purchased by Roizman.   Thus, on October 15, 1991,  the district court

granted Roizman's motion to reopen and set the case for hearing.

    The specific  claims presented  at that  time by  Roizman were  as

follows:  (1) Grabler and Kohen caused Benchmark to pay all of certain
                                                           

expenses incurred by  Blue Hill and  Elm Hill, despite  the fact  that

Benchmark only had a fifty percent  interest in each project, and  the
                                  

excess costs  should be deducted from the profits of Blue Hill and Elm

Hill; (2) Grabler and  Kohen each received salaries from  Benchmark to

which they were not entitled and, having reimbursed Benchmark for part

of the salaries, still owed  Benchmark approximately $23,000; (3) Blue

Hill incurred  expenses for deleading  and $18,200  of these  expenses

were  "double deducted" from the  profits of Blue  Hill; (4) Benchmark

paid  for Grabler's  personal phone  calls in  an estimated  amount of

$2563;  and (5)  Benchmark,  at  the  end  of  1989,  had  $50,529  in

                                  3

development  cash (profits  from both  Elm Hill  and Blue  Hill) which

should have been  distributed to the  Benchmark shareholders,  Roizman

being entitled to one-third of that amount.

    The district court ultimately  found in Roizman's  favor on  these

five  claims,  holding that  he "is  owed the  sum  of $37,335  as the

appropriate allocation  of expenses  and partnership  distributions in

connection  with Elm  Hill  Housing  LP,  Blue  Hill  Housing  LP  and

Benchmark Properties  Corporation  ("BPC") .  . .  ."   See Order  and
                                                           

Judgment,   2.  This order also provided that

    [s]ubject  to  making  provision  for  the  payment  of   the
    reasonable  expenses  of  BPC  in  the  ordinary  course   of
    business, Peter Grabler  and Israel Roizman  are directed  to
    take  all appropriate action to effect  the prompt payment of
    $37,335 to  Israel Roizman  from the future  profits of  BPC,
    such payments to  be arranged in such fashion as  to have the
    same  economic effect as if  these payments had  been made in
    the ordinary course.

Id.   3.  The judgment finally stated that if Grabler and Roizman were
   

not able to  agree on  a method to  effect the payment  of $37,335  to

Roizman, the court  would appoint an independent auditor  to recommend

how the payment should be made.  Id.   4.
                                    

                                  4

                              DISCUSSION
                                        

    Grabler attacks the district court's findings  on four out of  the

five  claims asserted  by Roizman.**   He also  argues that  he should

have been awarded  interest on the $96,000  owed to him  for Roizman's

failure to  pay for the stock.  We review the district court's factual

findings under the clearly erroneous standard.

    "If the district court's account of the evidence is plausible
    in light of  the record viewed in its entirety,  the court of
    appeals  may not reverse it even though convinced that had it
    been sitting as the trier of fact, it would have  weighed the
    evidence differently.  Where there are two permissible  views
    of the evidence, the factfinder's choice between them  cannot
    be clearly erroneous."

Anderson v. Beatrice Foods Co., 900 F.2d 388, 392  (1st Cir.) (quoting
                             

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)), cert.
                                                                     

denied., 111 S.Ct. 233 (1990).  In this case, which depends heavily on
      

the inferences to be drawn from conflicting views of the facts, we may

not substitute our opinion  as to conclusions reached by  the district

court absent clear  error.    Id. at  392.  Keeping  this standard  in
                                

mind, we turn to the disputed findings.

    A.  The Counterclaims
                         

    1.   Roizman asserts  that during 1988,  1989  and  1990 Benchmark

incurred certain expenses connected with its operation of Elm Hill and

Blue  Hill.  Pages D, E  and F of Trial Exhibit  6 reflect these costs

for each year.   In total,  Benchmark paid $221,454  for the years  in

question.   Roizman's basic claim  is that Benchmark  should have been

                    

**  Grabler  does  not  challenge  on  appeal   the  district  court's
conclusion that, at the end of 1989, Benchmark should have distributed
to  the shareholders $50,529 as profits.   Issues not raised on appeal
are waived. Cf. Pignons S.A. de  Mecanique v. Polaroid Corp., 701 F.2d
                                                           
1, 3  (1st  Cir. 1983)  (issues  not presented  in initial  brief  are
waived).  As for Grabler's contention that Roizman did not have "clean
hands," it  was not  raised below  and  is thus  forfeited on  review.
Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979).
                             

                                  5

charged  for only  half of  this amount  because it  only had  a fifty

percent  interest in each  project.  That  is, Elm Hill  and Blue Hill

should have absorbed  half of  these expenses.   As Roizman  explained

during trial:  

    The basis is  as follow[s]:   When  in this  industry of  low
    income housing  when you have a  partnership [Benchmark] that
    operates two projects, and that's it, and this partnership is
    supposed to  get income for  management fee[s], but  does not
    receive any management fee because the project is not healthy
    financially to  pay  the  management  fee, and  there  is  an
    expense of rent, taxes, interest, copying, office supply, and
    everything else  that shows in RD,  E and F.   When you don't
    have an income  to this  project, to this  company, there  is
    someplace where  the money has to be paid from.  And the only
    place where the  money can be paid is from  profit that comes
    in from the two entities and that's Elm Hill and Blue Hill.

App. I, Tab 1, at 40. 

    As  a result,  Roizman  concludes,  the  profits of  both  limited

partnerships should  have been reduced  by their respective  shares of

the $221,454  in expenses incurred by Benchmark.  Accordingly, Note #1

on page A  of Trial Exhibit 6  reflects a deduction in the  profits of

Blue Hill of $112,942.  Similarly, Note #1 of page B of Trial  Exhibit

6 shows a reduction in Elm Hill's profits of $108,512.***

    Grabler  claims  that  these calculations  are  wrong.   He  first

argues that because Benchmark was running projects in addition to Blue

Hill and Elm Hill, see Trial Exhibit 6, at pages J  and K, these other
                      

projects also should have absorbed some of Benchmark's costs. Although

not entirely clear, Roizman's accountant, Stuart Briefer (who also had

been  the  accountant for  Benchmark  and  the limited  partnerships),

testified  that the costs  listed in Trial  Exhibit 6 were  not all of
                                                                   

Benchmark's costs  for the  years 1988-1990.   App. I,  Tab 2,  at 64.

                    

***Although Benchmark has  a fifty percent  interest in each  project,
Blue  Hill was charged with fifty-one percent of Benchmark's costs and
Elm Hill was charged  forty-nine percent. There is no  explanation for
this difference but, in any event, it is not challenged on appeal.

                                  6

Rather, the  inference from the testimony is that the amounts on pages

D, E and F were Benchmark expenses that related solely to Elm Hill and
                                                      

Blue Hill.  Id.  at 64-65.  Grabler  did not submit any  evidence that
              

would contradict Briefer's testimony.**** 

    Next, Grabler contends that  an independent auditor's  report, see
                                                                      

App. III, Tab 7, at 7 and Tab 8, at 9, demonstrates that Blue Hill and

Elm  Hill  each   paid  about   $57,811  for   their  own   respective

organizational   costs.    However,  Grabler  did  not  point  to  any

documentary  or other evidence that  this money was  spent on the same

items listed on pages D, E and F of Trial Exhibit 6.  Indeed, there is

no explanation concerning exactly how the independent auditor's report

relates to the payment of Benchmark's expenses. 
                                     

    Grabler also  alleges that Benchmark  in fact  received income  in

the form of management fees for 1988-1990, but assigned this income to

another company,  Benchmark Apartment  Management  Corp.   As  Grabler

never put in evidence any agreements concerning the assignment of such

fees or any documents indicating the dollar amounts of these fees,  we

cannot say that the district court's decision to credit Roizman's view

of the evidence was plainly wrong.

    2.   Roizman claims that $18,200  -- which reflects  a payment for

deleading at the Blue Hill housing project -- was erroneously "double-

deducted" from the profits of Blue Hill.  Thus, as reflected on page A

of  Trial Exhibit  6, $18,200  was added  to  the calculation  of Blue

Hill's profits.  To support his position, Roizman relies on a document

entitled "Calculation of Syndication Profits,"  Exhibit RO, #5, and  a

                    

****Similarly, Grabler's claim that there were no charges for ordinary
expenses  such  as telephone,  rent and  copying  listed on  the pages
concerning these other projects seems irrelevant, without more, to the
question  whether Elm Hill and Blue Hill should have been charged with
some of Benchmark's expenses.

                                  7

record  of  Syndication Account  Transactions  for Blue  Hill.   Trial

Exhibit 7, at 4.  

    It is  undisputed that Blue Hill  has two  accounts -- syndication

and operations.   Under  this arrangement,  the operations account  is

funded by the syndication account.  It also is undisputed that most of

the expenses for the deleading were paid from the syndication account,

except  for the  $18,200 which,  for some  reason, was  paid  from the

operations account.  According to Briefer's testimony, in  calculating

Blue  Hill's profits,  one  of the  expenses  listed in  RO  #5 is  an

"operating deficit" of $75,000.   App. I, Tab 3, at 17-19 and App. II,

Tab 1, at 17-20.  However, this deficit was reduced  by $18,200 -- the

amount  for  deleading  which had  been  paid  out  of the  operations
                                                                      

account.  Id.
            

    Although not free from doubt, it  appears that Roizman is  arguing

that the "double deduction"  occurred when $75,000 was wired  from the

syndication account to the  operations account in December 1990.   See
                                                                      

Trial  Exhibit 7, at  4.  Briefer  testified that only  $56,800 should

have been transferred.   App. I, Tab 2, at 61.   As a result, not only

did  the  operations account  lay out  $18,200  for deleading,  but by

transferring the  full  $75,000,  the  syndication  account  also  was

charged $18,200.  

    Grabler  first argues  that  Exhibit  RO  was  never  admitted  in

evidence  and that,  in any event,  it was "superseded"  by Exhibit 7.

Exhibit RO  contains the underlying documents from which Trial Exhibit

6 was prepared  by Roizman and  Briefer.  The district  court admitted

Exhibit 6 in evidence on the second day  of trial.  App. I, Tab 2,  at

32.  It later described RO as "part of exhibit 6,"   App. I, Tab 2, at

59, and referred to it during the course of the trial.  As such, it is

                                  8

plain that RO was considered  as admitted in evidence by  the district

court.  

    As for Exhibit 7,  it is a  memorandum, dated September 20,  1991,

from Kohen to  Roizman.  Page 4 reflects Blue Hill syndication account

transactions for 1990  and 1991.   Grabler points  out that Exhibit  7

does not list  $18,200 as a deduction.  He  then makes the observation

that  RO #5  reflects  only an  "estimate"  of Blue  Hill  syndication

profits.   From this  he concludes that the  $18,200 was accounted for

only once -- when it was paid out from the operations account.

    Based on  the evidence and testimony,  we think  that the district

court's  decision  to credit  Roizman's  explanation  was not  clearly

erroneous.  Exhibit RO  #5 was prepared on February 8,  1991.  At this

time,  the  operations  account  already  had  paid  the  $18,200  for

deleading.  Indeed, according to Grabler, the  operations account paid

this amount in December 1990.  This is the same time that $75,000 from

the  syndication account  was wired  to the  operations account.   See
                                                                      

Trial  Exhibit  7, at  4.    To  this  extent,  it  appears  that  the

calculation concerning the operations deficit of $56,800 (the  $75,000

minus $18,200) is not an estimate.

    3.  Roizman's  claim that Grabler  and Kohen  agreed to return  to

Benchmark  salaries  they  had  received  is  well  supported  by  the

evidence.  In fact, in his brief, Grabler candidly admits  that he and

Kohen "repaid all but $7,800  of the salary they had each  received in

1989"   to  Benchmark.*****     Appellant's   Brief,  at  33.     This

admission lends direct support to Roizman's  contention that Kohen and

                    

*****  Grabler's  argument  that he  and  Kohen  each retained  $7,800
because  Roizman allegedly  received  $7,800 in  extra  salary is  not
relevant  to the  question whether  an agreement  concerning repayment
existed.

                                  9

Grabler had, in fact, agreed  to repay the salaries they  had received

in 1989.  In the absence of any evidence to the contrary, the district

court's finding that Benchmark still is owed approximately $23,000 for

salary reimbursement is not clearly erroneous.

    4.    Roizman claims  that  during 1988,  1989  and part  of  1990

Grabler charged all of  his personal calls  to Benchmark.  To  support

this assertion, Roizman submitted four cellular  one phone bills dated

November  11, 1988, January  8, 1989,  July 6,  1989 and  September 7,

1989.  According to Briefer's testimony,  see App. I, Tab 1, at 65-70,
                                             

he  reviewed  the above  bills,  identified  Grabler's personal  phone

charges,  added them  up,  determined an  average  monthly figure  and

multiplied  it by  the number  of  covered months.   Page  L of  Trial

Exhibit 6 contains Briefer's  calculations.  It reveals that  based on

the four phone  bills, the average  amount of personal phone  calls is

$82.66.  Thus,  for the period June  1988 to December  1990, Benchmark

allegedly  paid  approximately  $2,563  for  Grabler's  personal phone

calls.   Page H of Trial Exhibit 6,  which contains the summary of how

the profits of Benchmark should  be adjusted, therefore indicates that

Grabler owes Benchmark $2563.  Grabler  first  argues  that the  claim

must fail because the telephone bills should not have been admitted in

evidence under Fed. R.  Evid. 1006 (admission of summaries).   Second,

he  points  out that  Briefer testified  that  he had  no recollection

concerning whether Benchmark actually  had paid these bills.   App. I,

Tab 3, at 25.  Indeed, Briefer  stated that he could not "recall  what

entity paid  for the  bills."  Id.   We believe  that, even  under the
                                 

clearly  erroneous standard, this claim  must fail.   Therefore, we do

not address the evidentiary question.

                                  10

    Simply stated,  how much  Roizman might  be due  in damages  would

depend  on  which entity  paid the  phone  bills.   Assuming Roizman's

figures are accurate, and Grabler owes Benchmark $2,563, Roizman might

be  entitled to recover as much as  one-third.  However, if Blue Hill,

Elm Hill or some  other entity paid these bills, the  $2,563 repayment

would not  go directly to Benchmark.   As a result,  Roizman would not

receive  one-third.  For example,  if one of  the limited partnerships

paid the phone bills, Grabler would reimburse the limited partnership,

and Benchmark, as a fifty percent  owner, might be entitled to as much

as one-half of $2,563 or $1,281.50.   Roizman's share would be reduced

to approximately  $427.  As  Roizman failed to establish  who paid the

phone bills, on the present  record it is impossible to  calculate the

amount of any damages due.

    B.  Interest on the Stock Transaction
                                         

    The final order of the district  court regarding the  disbursement

of  the  purchase price  of  the stock  (which  had been  held  in the

registry  of  the   district  court),  stated,   subject  to   certain

preconditions not relevant to this appeal, that

    the sum of $96,333.84 shall be released by the Clerk from the
    Registry of  this Court to Peter  Grabler, representing final
                                                                 
    payment  to Grabler  for his  100 shares  of common  stock of
           
    Benchmark  Broadway  Corporation  and  Benchmark  Developers,
    Inc., each,  pursuant to  paragraph 2 of  the Stipulation  of
    6/28/91. 

Order of  Court, dated November 1991,  reproduced in App.  III, Tab 17

(emphasis added).  

    Grabler  argues that  the  November  1991  Order only  applies  to

paragraph 2  -- the  underlying obligation  of Roizman  concerning the

purchase  price for  the stock  -- and  not to  paragraph 5  which, he

                                  11

asserts, addresses interest on the purchase price.  Grabler also avers

that contrary to  Roizman's statement in Roizman's  draft order (which

the  district court adopted) he (Grabler) never agreed to the language

in  Roizman's draft.   Grabler  points  out that  the  draft order  he

submitted  to the court,  App. III, Tab  18, did not  specify that the

$96,000 was a "final payment."

    We are  unable to ascertain any basis in the  record for Grabler's

claim that  he is due  interest on  the purchase price  for the  stock

notwithstanding    the   final    judgment    of   the    court.******

Specifically, he  has not  carried  his burden  of demonstrating  that

paragraph 5 of the June Stipulation applied to the stock purchase.  In

any event,  it is not  clear from the  record how such  interest would

have been calculated and Grabler, in support of his claim to interest,

has not even established  the period during which such  interest would

have  accrued.  Consequently, we decline to disturb the final judgment

of the district court regarding this claim.       C. Rule 19 
                                                            

    Grabler finally  argues on appeal  that the  district court failed

to join Kohen,  Benchmark, Blue  Hill, Elm Hill,  BFGL, Jones and  the

limited  partners of Blue Hill  and Elm Hill  as indispensable parties

under Fed. R. Civ. P. 19.   We note in this context that Grabler never

filed a Rule  19 motion for joinder.  Nonetheless,  the district court

was  aware that  it had  only Grabler  and Roizman  before it  when it

entered judgment and acknowledged that it was directing enforcement of

                    

******Indeed,  the only  reference  the  district  court  made  to  an
interest claim by Grabler was its  statement that it was not persuaded
that  Roizman was required  to pay  interest on  the sum  of $102,441.
App. II,  Tab 2, at 101, which amount appears to relate to the Flipper
Temple deal  in  Atlanta, not  the  stock purchase  agreement  between
Grabler and Roizman.

                                  12

the  June  stipulation  between  Grabler  and  Roizman.*******     For

the reasons stated below,  it would be premature to  address Grabler's

Rule 19 claim at the present time.

    First,  Grabler specifically  promised  to exercise  "good  faith"

efforts to  reach an "agreement  regarding the allocation  of expenses

and partnership distributions"  in connection with  Benchmark and  the

limited  partnerships.  June  Stipulation,   7.   He  entered into the

stipulation, which  the court  treated as  an enforceable  contract at

trial, knowing that  the resolution of  the accounting disputes  might

require action on behalf of Benchmark, Blue Hill, Elm Hill and others.

    Second,  after both Grabler  and Roizman  filed post-trial motions

                    

*          *          *          *          *          *          *
    Now,  it's important to understand that  there are before the
    Court  only Mr.  Grabler  and  Mr.  Roizman.    None  of  the
    corporations  have been  joined and  Mr. Kohen  has  not been
    joined.  The Court infers, but  makes no finding, that one of
    the reasons  these  parties were  not enjoined  was it  would
    destroy the  diversity jurisdiction . . .  which is necessary
    for this  Court to act  and the disputes  arising out of  the
    settlement agreements  would then have  to be disposed  of in
    the state court.

App.  II,  Tab 2,  at 94.    As for  Grabler's  ability to  effect the
judgment, the district court stated:

    [W]hile  it's certainly  appropriate  for me  to resolve  all
    matters  as between  Mr. Grabler  and Mr. Roizman  and indeed
    equitably  to make sure that those two parties who are before
    the  Court give  effect to  the Court's  judgment, I  have no
    right to enter orders, nor have I yet entered . . . any order
    against Mr. Kohen. . . .

                               . . . .

    So,  I  can  imagine   saying,  and  correct  me,  that   the
    accountings  shall be  as  I decreed  them  and I  order  the
    parties before the  Court to  give effect  to the  accounting
    resolution that I have made and leave it at that.

Id. at 67.
   

                                  13

requesting enforcement  of the court's final  order, Roizman's counsel

filed a letter  with the court indicating that "the  parties have been

able to agree in  [sic] the manner in  which to carry out  the Court's

Order."   Thus, it appears that the  means are available with which to

enable Grabler  to effect payment  to Roizman.   Even if  any Rule  19

claim has not been waived, it  clearly was not addressed below, and is

unripe for review.  For the present, therefore, issues relating to the

enforcement of the district court order are properly presented to that

court in the first instance.

    For the  foregoing reasons, the case  is remanded  to the district
                                                                      

court  for further  proceedings  consistent with  this  opinion.   The
                                                                      

judgment of the  district court  is affirmed, except  as concerns  the
                                                                      

award of $2,563 to Roizman.  SO ORDERED.
                                       

                                  14
