
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2378                             ONDINE SHIPPING CORPORATION,                                Plaintiff, Appellant,                                          v.                            ROBERT CATALDO, ETC., ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                      Coffin and Bownes, Senior Circuit Judges.                                         _____________________                              _________________________               Michael  J. Malinowski,  with whom  Thomas F. Holt,  Jr. and               ______________________              ____________________          Kirkpatrick & Lockhart were on brief, for appellant.          ______________________               Gordon P. Cleary, with whom Vetter & White was on brief, for               ________________            ______________          appellee Robert Cataldo, Trustee in Bankruptcy.                              _________________________                                     May 25, 1994                              _________________________                    SELYA, Circuit  Judge.  The focal point  of this appeal                    SELYA, Circuit  Judge.                           ______________          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                                                                 ___ ______          Newport Offshore, Ltd., 155 B.R. 616, 617-18 (Bankr. D.R.I. 1993)          ______________________          (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.                                                                        ___                                          2          at 619.  On  that basis, the judge found for the plaintiff on the          question  of liability.  See id. at  620.  Nevertheless, he ruled                                   ___ ___          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-                                                            ___ ___          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          ___ _____          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                                     ___  ____  ___________________________          Hotel Fire Litig.,  989 F.2d 36,  38 (1st Cir.  1993).  So  it is          _________________          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                     ___ _____________________________  _____          in the district  court's bench decision.   We  pause only to  add          five observations.                    First:  Plaintiff, having jettisoned its trial counsel,                    First:                    _____          takes a new tack on appeal.  It insists that  the record contains          evidence  of what it paid  to NOL; that  Rhode Island law permits                                          3          restitution as  a measure of damages where  a contracting party's          performance has  proven valueless, see, e.g.,  National Chain Co.                                             ___  ____   __________________          v. Campbell, 487 A.2d 132, 135 (R.I. 1985)  (recognizing possible             ________          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.                     ___ ______________________                    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                             _____________     _____          Cir. 1992), but also, no principle is more firmly anchored in the          jurisprudence of  this circuit, see Teamsters,  Etc., Local Union                                          ___ _____________________________          No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992).          ______    _____________________                    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                                                    ___ _____          31.   Indeed, this ship  sailed many  moons ago;  the holding  in          Slade caps a  long, unbroken  line of precedent  to like  effect.          _____          See, e.g.,  United States  v. Dietz,  950 F.2d  50, 55  (1st Cir.          ___  ____   _____________     _____          1991); Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987).                 _______    _____                    Second:   It  is true, as  plaintiff suggests,  that an                    Second:                    ______          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                                                     ___ _____          31; United States v. Krynicki, 689 F.2d 289, 291 (1st Cir. 1982).              _____________    ________          But this is a long-odds exception that must be applied sparingly.          It is reserved  for "the exceptional case."  United  States v. La                                                       ______________    __          Guardia, 902  F.2d 1010, 1013 (1st  Cir. 1990).  The  case at bar          _______          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                                        ____________________               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;                              ___  ______________________          see also National  Chain, 487 A.2d at 134-35.   Plaintiff did not          ___ ____ _______________          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.                                          5          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.                                                                        ___          Quinones-Pacheco v. American Airlines,  Inc., 979 F.2d 1, 6  (1st          ________________    ________________________          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:                    _____           ______     ___________________________          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                                                                 ___ ___          1266, is confined to  the peculiar facts of the  O'Coin case, and                                                           ______          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,                      ___  ____  ______    ________________________________          Local  No. 5705,  507 A.2d  1342, 1346  (R.I. 1986);  Stillman v.          _______________                                       ________          Prew, 177 A.2d  626, 628 (R.I. 1962); Zuccarro v. Frenze, 71 A.2d          ____                                  ________    ______          277, 278 (R.I.  1950); see  also 5  Arthur L.  Corbin, Corbin  on                                 ___  ____                       __________                                        ____________________               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          _________          jurisdictions).                    Fourth:  In its reply brief, plaintiff attempts to make                    Fourth:                    ______          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.                               ___  ______________________     ____________          Comm'n, 906 F.2d  25, 40 (1st Cir.),  cert. denied, 498  U.S. 959          ______                                _____ ______          (1990);  Sandstrom v. Chemlawn Corp.,  904 F.2d 83,  86 (1st Cir.                   _________    ______________          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.                                ___   ____  ___________________________          Equipmentlease Corp., 18 F.3d  1, 13 n.17 (1st Cir.  1994); Foley          ____________________                                        _____          v. City of Lowell, 948 F.2d 10, 21 (1st Cir. 1991).  In the final             ______________          analysis, "[c]ourts, like the Deity, are most frequently moved to                                          7          help  those  who  help   themselves."    Paterson-Leitch  Co.  v.                                                   ____________________          Massachusetts Mun.  Wholesale Elec. Co.,  840 F.2d 985,  989 (1st          _______________________________________          Cir. 1988).                    Fifth:    Plaintiff suggests  that  it  is entitled  to                    Fifth:                    _____          prejudgment and post-judgment interest under R.I. Gen.  Laws   9-          21-10.3   This suggestion is  not well founded.   In  Murphy, 507                                                                ______          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.                                         ____          See  id.;  see  also Rhode  Island  Turnpike  &  Bridge Auth.  v.          ___  ___   ___  ____ ________________________________________          Bethlehem Steel Corp.,  446 A.2d 752, 757 (R.I. 1982) (describing          _____________________          purpose of statute).  Since  a state's highest court is the  best          authority  on the meaning of a state statute, see Daigle v. Maine                                                        ___ ______    _____                                        ____________________               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                                                                        ___          infra,  we  need not  consider the  trustee's contention  that 11          _____          U.S.C.    502(b)(2), disallowing  claims for  unmatured interest,          preempts state  law on prejudgment interest  in the circumstances          of this case.                                          8          Med. Ctr., 14 F.3d 684, 689 (1st Cir. 1994), we  accept the Rhode          _________          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                                      _________________________    ________          Fire  Ins.  Co., 880  F.2d  575,  578  (1st  Cir. 1989).    Here,          _______________          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.          ________                                        ____________________               4To be sure, insofar as the statement  in Murphy encompasses                                                         ______          nominal damages, it is dictum    but it is considered dictum and,          thus,  worthy of our  trust.  See Posadas  de Puerto Rico Assoc.,                                        ___ _______________________________          Inc. v. Asociacion de Empleados de Casino, 873 F.2d 479, 482 (1st          ____    _________________________________          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,                            _______    _____________________          115-16 (1st  Cir. 1988)  (similar), cert.  denied, 490 U.S.  1107                                              _____  ______          (1989);  see also  Dedham Water  Co. v.  Cumberland Farms  Dairy,                   ___ ____  _________________     ________________________          Inc., 972 F.2d  453, 459  (1st Cir. 1992)  (stating general  rule          ____          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.                                          9
