
USCA1 Opinion

	




          January 4, 1995       [NOT FOR PUBLICATION]                             UNITED STATES COURT OF APPEALS                                                               FOR THE FIRST CIRCUIT                                 ____________________        No.  94-2015                DENNIS G. BEZANSON, TRUSTEE OF ESTATE OF UNITEX, INC.,                                 Plaintiff, Appellee,                                          v.                             FLEET BANK OF NEW HAMPSHIRE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Cyr and Boudin, Circuit Judges.                                           ______________                                 ____________________            Francis L.  Cramer, Valerie A. Walsh,  Sullivan &  Gregg, on brief            __________________  ________________   _________________        for appellant.            Graydon  G. Stevens,  Kelly,  Remmel  & Zimmerman,  on  brief  for            ___________________   ___________________________        appellee.                                 ____________________                                   January 4, 1995                                 ____________________                 Per Curiam.  In March 1993, a jury returned a verdict in                 __________            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.                          ________    _____________            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                                               ___            where  the  verdict is  supported  by substantial  evidence."            Lama v. Borras, 16 F.3d 473, 477 (1st Cir. 1994) (emphasis in            ____    ______            original).   On the  other hand, "there  is no rule  that the            district court  must do  so."   Id.  (emphasis in  original).                            ____            __            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                                                           __            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,                                      ________     ______________________            Inc., 832 F.2d 702,  703 (1st Cir. 1987).   Furthermore, when            ___            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,                                          ____                  ________            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                                           ________      ________________            Agency, Inc., 685 F.2d 729, 741 (1st Cir. 1982) (motion for a            ___________            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).                              ____  ______                                         -3-                 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                 ________    _____________            jury verdict was not a "miscarriage of justice."   Therefore,            the  judgment of  the district  court is  summarily affirmed.                                                                ________            See  1st Cir. Loc. R. 27.1.  Appellee's request for sanctions            ___            is denied.               ______                                         -4-
