
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-2178                               PERDONI BROTHERS, INC.,                                 Plaintiff, Appellee,                                          v.                               CONCRETE SYSTEMS, INC.,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Joyce L. Alexander, U.S. Magistrate Judge]                                          _____________________                                                                                      ____________________                                        Before                                Breyer,* Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             John  M. Lovely,  with  whom Daniel  F.  Cashman and  Gelerman  &             _______________              ___________________      ___________        Cashman were on brief for appellant.        _______             Valeriano Diviacchi, with whom Diviacchi Law Office was  on brief             ___________________            ____________________        for appellee.                                                                                      ____________________                                  September 2, 1994                                                                                      ____________________                                    ____________________             *Chief Judge Stephen  Breyer heard oral argument in  this matter,        but  did not participate in the drafting  or the issuance of the panel        opinion.   The remaining  two panelists  therefore issue  this opinion        pursuant to 28 U.S.C.   46(d).                    CYR,  Circuit  Judge.     Defendant-appellant  Concrete                    CYR,  Circuit  Judge                          ______________          Systems, Inc.  (CSI), a New  Hampshire producer of  pre-cast con-          crete  products,  contracted   in  1985  with  plaintiff-appellee          Perdoni Brothers, Inc. (Perdoni), a Massachusetts-based construc-          tion firm,  to manufacture  and deliver 121  custom-designed man-          holes, at  a total contract price of $51,670.47, for installation          in a new sewer system in the Town of Ashland, Massachusetts.  CSI          contends that  the district  court committed reversible  error in          denying  its post-verdict motion for judgment as a matter of law.          See Fed. R. Civ. P. 50.   For the reasons hereinafter  discussed,          ___          we affirm the district court judgment.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    The first  five manholes were delivered  to the Perdoni          job site by CSI on July 2, 1985.  The remaining 116 manholes were          delivered intermittently in  twenty-six shipments extending  over          the next thirteen months and invoiced by individual shipment.                      Dissatisfied with  the CSI  manholes (which  leaked and          had to be  patched),1 Perdoni  brought this  diversity action  in                                        ____________________               1Sewer  line manholes must be watertight.  A common point of          leakage  is  the area  where the  sewer  lines enter  the manhole          structure.   Precise casting,  as well as  installation of rubber          "boots" to ensure a tight  fit between the wall of  the structure          and the sewer line  itself, is necessary to ensure  the integrity          of the manhole.  At trial,  Perdoni adduced evidence that CSI had          used a defective hole former to cast the manholes for the Ashland          project.  Consequently,  the pipe  openings in the  sides of  the          manholes were misshapen and the seals between the boot and rim of          the openings were not watertight.                                          2          federal district  court on April 25, 1990,  demanding $134,000 in          compensatory  damages for  breach  of the  implied warranties  of          merchantability  and  fitness for  a particular  purpose (implied          warranty  claims), see Mass. Gen. L. ch. 106    2-314, 2-315, and                             ___          additional  damages based  on a  deceptive trade  practices claim          under  Mass. Gen. L. ch. 93A ("Chapter 93A").  CSI counterclaimed          for $18,561 allegedly due from Perdoni on the Ashland project and          another contract.                      Trial  was held  before  a magistrate  judge, with  the          consent of the  parties.  See  28 U.S.C.    636(c).  The  implied                                    ___          warranty claims were tried to a jury, while the Chapter 93A claim          was tried to the  presiding magistrate judge.   It was not  until          after the  close of  all the  evidence that  CSI first moved  for          judgment  as a  matter  of law  on  the implied  warranty  claims          relating to 108 of the 121 manholes.  The uncontroverted evidence          demonstrated  that  only 13  manholes had  been delivered  by CSI          within four years of the commencement of the present action.  CSI          accordingly  contended  that  Perdoni's implied  warranty  claims          relating to  the other 108 manholes were  time-barred under Mass.          Gen. L. ch.  106   2-725(1) (prescribing  four-year limitation on          Uniform Commercial Code warranty actions); id.   2-725(2) (action                                                     ___          for  breach of warranty under UCC accrues on "tender of delivery"          of goods).  The magistrate judge denied CSI's motion for judgment          as a matter of law.                      Thereafter,  the magistrate  judge  convened  a  charge          conference  to  consider  the  jury  instructions,  including the                                          3          instruction on the statute-of-limitations defense.  Neither party          requested an  instruction on the law  governing the severability-                                           ___          entirety  issue.    Although  Perdoni  unsuccessfully  sought  an          instruction that  the contract should be  considered an entirety,          CSI  made no corresponding  request for  an instruction  that the          contract be considered  severable.  Consequently,  the magistrate          judge  simply  instructed the  jury that  CSI  had the  burden of          proving that the  action was time-barred, and that  the four-year          limitation period ran from the "time of delivery."  Although both          parties argued the severability-entirety issue, the court made no          explicit reference to it  and neither party objected to  the jury          instruction as given.2        The jury found in favor of Perdoni-                                        ____________________               2The  instruction  relating to  the  statute  of limitations          follows:                    [T]here is also an issue arising from [CSI's]                    asserted defense  based on . .  . the statute                    of limitations.                         This is simply  a provision that  a suit                    be commenced on certain types of claims with-                    in  a prescribed  period of  time, otherwise,                    the  suit  is barred  or  precluded.   For  a                    breach  of  warranty  claim,  the  applicable                    statute  of limitations  for  an action  on a                    contract for the sale of goods is four years.                         That means  that  a plaintiff  has  four                    years to bring  a suit for  a breach of  war-                    ranty.   The time  limit placed upon  Perdoni                             ___ ____  _____ ______ ____  _______                    began to run  at the time of delivery  of the                    _____ __ ___  __ ___ ____ __ ________  __ ___                    manholes, regardless of whether  Perdoni knew                    _________ __________ __ _______  _______ ____                    of the breach.  Thus within four years of the                    __ ___ ______                    time which Perdoni received the  manholes, it                    must have commenced this lawsuit.                                       *   *   *                         It is  [CSI's] burden to show that Perd-                    oni has  not  complied with  the  statute  of                    limitations,  thus [CSI]  has  the burden  of                    establishing  that Perdoni filed  a suit more                    than  four years  after the  delivery of  the                                          4           for  $48,961, and in  favor of CSI  for $18,561 on  its counter-          claim.   CSI then  renewed its Rule  50 motion for  judgment as a          matter of law  and, alternatively,  moved for a  new trial  under          Fed. R. Civ.  P. 59.   The magistrate judge  did not address  the          merits  of the CSI motion,  however, ruling instead  that CSI had          waived its severability claim,  both by failing to object  to the          jury instruction and by  failing to raise the  severability argu-          ment  in  its pre-verdict  Rule  50  motion.3   Nonetheless,  the                                        ____________________                    manholes, and if Perdoni did not commence the                    suit within the four-year period, Perdoni may                    not recover on its warranty theories.          Trial Tr. at 168 (April 16, 1993) (emphasis added).               3The magistrate judge noted that:                         This Court instructed  [the jury]  that,                    as an affirmative defense, CSI had the burden                    of proving . . . that Perdoni filed the  suit                    more than  four years  after delivery  of the                    manholes.    CSI  did  not  object  to   this                    instruction.      Nor  did   CSI   submit  an                    instruction based on the law governing divis-                    ibility  of  performance,  entire  contracts,                    separate contracts and installment contracts.                    CSI  was  apparently  content  to  treat  the                    question  of  what  constitutes  the  time of                    delivery as  an issue of fact.   CSI did move                                                     ___                    for a  directed verdict  on this  issue, but,                    again,  this  motion  was  predicated  on the                    evidence  being  clear as  to  the  tender of                    delivery and included no  argument as to  the                                 ________ __  ________ __ __  ___                    law  governing  divisibility of  performance,                    ___  _________  ____________ __  ___________                    entire  contracts,   separate  contracts  and                    ______  __________   ________  _________  ___                    installment   contracts.     CSI's   pretrial                    ___________   _________                    memorandum  was  no  more  edifying  on  this                    point.  . . . This court finds it late in the                    day to be raising  the legal issue, and deems                    the issue waived.          Perdoni  Bros., Inc.  v. Concrete  Sys., Inc.,  Civ. 90-11046-WF,          ____________________     ____________________          Memorandum  Order at  7-8 (D.  Mass.  August 27,  1993) (emphasis          added).                                          5          magistrate  judge,  sitting as  trier  of  fact, found  Perdoni's          Chapter  93A claim time-barred as it pertained  to 108 of the 121          manholes.  CSI appealed the denial of its post-verdict motion for          judgment as a  matter of law  or for a new  trial on the  implied          warranty claims.  See Fed.  R. Civ. P. 50(b), 59.   CSI's primary                            ___          appellate  target is  the district  court's waiver ruling  on the          severability issue.                                            II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    Leaving  aside  CSI's failure  to  object  to the  jury          instruction  on the statute-of-limitations  defense, the district          court  waiver ruling is fully supported by CSI's failure to raise          the severability argument in  its pre-verdict motion for judgment          as a matter of law.  The  law is crystal clear that a "party  may          not base  its motion for a  judgment n.o.v. on a  ground that was          not  argued  in its  motion for  directed  verdict."   Sweeney v.                                                                 _______          Westvaco  Co., 926 F.2d 29,  37 (1st Cir.)  (citing Systemized of          _____________                                       _____________          New  England, Inc. v.  SCM, Inc., 732  F.2d 1030,  1035 (1st Cir.          __________________     _________          1984)), cert. denied, 112  S. Ct. 274 (1991); see  also 9 Charles                  _____ ______                          ___  ____          A. Wright & Arthur R. Miller, Federal Practice & Procedure   2537                                        ____________________________          (1971) ("Since it is technically only a renewal of the motion . .          . made  at the close of evidence, [a post-verdict Rule 50 motion]          cannot assert  a ground that was not included in the motion for a          directed verdict."); 5A James  W. Moore, Moore's Federal Practice                                                   ________________________            50.08 (2d ed. 1994) (same).  Sweeping invocations of conclusory                                          6          theories or abstract  principles will not  suffice:  "The  motion          must  . .  . be  made with  sufficient specificity  to  allow the          district  court  to  understand  precisely why  the  evidence  is          insufficient."   Wells Real Estate, Inc. v. Greater Lowell Bd. of                           _______________________    _____________________          Realtors,  850 F.2d 803, 810  (1st Cir.), cert.  denied, 488 U.S.          ________                                  _____  ______          955 (1988); Pstragowski v.  Metropolitan Life Ins. Co., 553  F.2d                      ___________     __________________________          1, 3  (1st Cir. 1977) (where Rule 50 motion  was silent as to the          legal  theory that plaintiff  was obliged to  establish malice on          the part of  the defendant, there  was no basis for  an appellate          challenge  to the sufficiency of  the evidence on  the element of          malice).    Ultimately, of  course,  "[a]ppellate  review may  be          obtained only on  the specific  ground stated in  the motion  for          directed verdict." Wells Real Estate, 850 F.2d at 810; Pstragows-                             _________________                   __________          ki, 553 F.2d at 3 (same).            __                    The pre-verdict motion for judgment as a matter of law,          see  Fed. R. Civ. P. 50(a),(b), stressed the undisputed fact that          ___          108 manholes were delivered  more than four years prior  to suit,          but  presented no  authority or  argumentation whatever  that the          contract should be considered severable (i.e., that Massachusetts                                                   ____          law  permitted  or  required  that the  individual  shipments  of          manholes  receive  separate  treatment for  statute-of-limitation          purposes, rather than  as an entire  contract for 121  manholes).          The consequences of CSI's cryptic approach were foreordained.                      Most importantly, the  district court  was never  fore-          warned  of  the  legal basis  for  the  severability claim  first          surfaced  by CSI following the  adverse jury verdict.   Under our                                          7          precedent, therefore, on appeal CSI was not entitled to challenge          the sufficiency  of the evidence  supporting the jury  verdict on          the  limitations issue.   See Wells Real Estate,  850 F.2d at 10;                                    ___ _________________          Pstragowski, 553 F.2d at 3.  The magistrate judge correctly ruled          ___________          that CSI was bound by its own pre-verdict decision to entrust its          severability claim to the  jury with no further legal  definition          than  the  unchallenged  instruction  that  "accrual"  under  the          Massachusetts UCC occurs at  the "time of delivery."   See United                                                                 ___ ______          California Bank  v. Eastern Mountain  Sports, Inc., 546  F. Supp.          _______________     ______________________________          945,  964 (D. Mass. 1982) ("Under Massachusetts law, 'it is clear          that  a  cause of  action .  . .  accrues  when delivery  is made          regardless of  the buyer's  knowledge of the  breach.'") (quoting          Wolverine Ins. Co. v.  Tower Iron Works, 370  F.2d 700, 702  (1st          __________________     ________________          Cir.  1966)), aff'd,  705 F.2d  439 (1st  Cir. 1983);  accord Bay                        _____                                    ______ ___          State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co.,          _____________________________________    _______________________          533 N.E.2d 1350, 1353 (Mass. 1989).4                    Under  Article 2  of the  Uniform Commercial  Code, the          severability  or  entirety of  a contract  of  sale turns  on the                                        ____________________               4Counsel argued  the  severability-entirety issue  in  their          closings.  CSI  argued that  the parties'  performance under  the          contract demonstrated  their practice of treating each separately                                       ________          invoiced shipment  of manholes  as a distinct  transaction.   See                   ________                                             ___          Trial. Tr. at 141 ("really what is occurring here is  a series of          contracts  . .  . .   All the manholes  were made to  order.  The          manholes that were  shipped . . . in 1986 have no relation to the          manholes that were delivered as of November 14, 1985.")  Perdoni,          on  the other  hand, urged  the jury  to view  the contract  as a          unitary  whole, and to recognize that Perdoni required all of the          manholes in order to complete  its contract project.  Id. at  157                                                                ___          ("if you ordered  12 eggs, and you get 10,  you don't say, 'Thank          you for delivering my eggs.' . . . .  [T]he full quantity ordered          was not delivered until July of 1986.").                                          8          intent of the contracting parties, see, e.g., Carlo Bianchi & Co.                                             ___  ____  ___________________          v.  Builders' Equip. & Supplies Co., 199  N.E.2d 519, 528  (Mass.              _______________________________          1964) (severability  or entirety of contract  dependent on intent          of parties) (citing,  inter alia, Bianchi Bros., Inc. v. Gendron,                                _____ ____  ___________________    _______          198  N.E. 767, 770 (Mass. 1935)); Belanger v. Haverlock, 537 A.2d                                            ________    _________          604 (Me.  1988) (same); Lake  LBJ Mun. Util.  Dist. v.  Coulson &                                  ___________________________     _________          C.A.E.,  Inc.,  771 S.W.2d  145  (Tex. 1988)  (same);  Scruggs v.          _____________                                          _______          Quality Elec. Serv., Inc.,  320 S.E.2d 49 (S.C. 1984)  (same); In          _________________________                                      __          re Estate of  Wilson, 405  N.E.2d 220 (N.Y.  1980); 1901  Wyoming          ____________________                                _____________          Ave. Coop. Assoc. v. Lee, 345 A.2d 456 (D.C. 1975);  see also 17A          _________________    ___                             ___ ____          Am.  Jur.  2d    415  (1991) ("Whether  a contract  is  entire or          severable is  a question of  fact"), a quintessential  jury ques-          tion.  There can be no question that CSI elected to forego a more                                                   _______          definitive jury instruction on  the law governing the severabili-          ty-entirety  issue  pressed on  appeal.   As  was its  right, CSI          simply attempted to persuade the jury that the parties intended a          severable  contract.  Having once embarked on this course, howev-          er, CSI was not entitled to set out on a new one after its chosen          litigation  tactic failed.  See Brody v.  President &  Fellows of                                      ___ _____     _______________________          Harvard College, 664  F.2d 10,  12 (1st Cir.  1981) (noting  that          _______________          litigants  ordinarily are  bound by  their tactical  decisions at          trial), cert. denied, 455  U.S. 1027 (1982).  Thus,  the district                  _____ ______          court did  not err in denying the motion for judgment as a matter          of law, since CSI "forfeited its right to raise the [severability          claim]  by waiting to  raise it until after  the jury reached its                                          9          verdict." Sweeney, 926 F.2d at 37.5                    _______                    Next,  even assuming  that  it failed  to preserve  its          severability claim for  appeal, CSI  argues that a  new trial  is          required due to alleged  inconsistencies between the jury's award          of damages  on  the implied  warranty claims  and the  magistrate          judge's  resolution of  the limitations  defense relating  to the          Chapter 93A claim.  We do not agree.                     First, as no special interrogatory was submitted to the          jury on the limitations defense  relating to the implied warranty          claims, it  would be  conjectural  to conclude  that the  damages          awarded by the jury and the finding  made by the magistrate judge          are irreconcilable.  See Fed. R. Civ. P. 49(a) (right to trial on                               ___          particular issue  waived absent  request for specific  jury find-          ing);  Kavanaugh v. Greenlee  Tool Co., 944 F.2d  7, 11 (1st Cir.                 _________    __________________          1991) (applying  Rule 49 waiver  provision).  In  determining the          intent  of the  contracting parties  in this  case, the  jury may          either have found (1) that the contract was severable, and made a          generous award of  damages (i.e.,  37% of the  total damages  re-                                      ____          quested by Perdoni on only 11% of the units supplied  by CSI); or          (2) that the contract was not severable, and made a  meager award          (i.e., 37% of the total damages  requested by Perdoni on 100%  of           ____          the units supplied by CSI).  The  inconsistency posited by CSI is                                        ____________________               5As CSI advances the same arguments in support of its appeal          from  the denial  of its  Rule 59  motion, we  conclude that  the          district  court  likewise acted  well  within  its discretion  in          denying CSI's  motion for new trial  on the merits.   See Phav v.                                                                ___ ____          Trueblood, Inc., 915  F.2d 764,  766 (1st Cir.  1990) ("abuse  of          _______________          discretion" standard governs review of denial of Rule 59 motion).                                          10          predicated on the assumption that the jury made a meager award of          damages,  yet there  is no  record basis  for such  a conclusion.          Given the  strong presumption  of regularity attending  jury ver-          dicts,  see, e.g., Veiga v.  McGee, 26 F.3d  1206, 1215 (1st Cir.                  ___  ____  _____     _____          1994)  (noting that reviewing  court is compelled  to uphold jury          verdict under Rule 50 "even in a close case" unless no reasonable          jury  could  have reached  the  same conclusion),  we  decline to          disturb the  verdict on  the basis of  the assumed  inconsistency          posited by CSI.                    Second, CSI posits an inconsistency between the results          reached  by  different  decisionmakers  on  distinct claims,  and          incorrectly assumes that the  jury verdict must yield.   Where an          irreconcilable  inconsistency exists between a bench decision and          a  jury verdict  on  different claims  arising  out of  the  same          transaction, the jury finding must take precedence in the Seventh          Amendment context:  "when a party has a right to a  jury trial on          an issue  involved in a legal claim, the judge is of course bound          by  the  jury's determination  of that  issue  as it  affects his          disposition  of an  accompanying  equitable claim."   Lincoln  v.                                                                _______          Board of Regents, 697 F.2d 928, 934 (11th Cir.) (citing Curtis v.          ________________                                        ______          Loether,  415 U.S.  189, 196  n.11 (1974);  Dairy Queen,  Inc. v.          _______                                     __________________          Wood,  396 U.S. 469, 470-73  (1962)), cert. denied,  464 U.S. 826          ____                                  _____ ______          (1983); Los Angeles Police Protective  League v. Gates, 995  F.2d                  _____________________________________    _____          1469, 1473  (9th Cir.  1993) (same);  Fowler  v. Land  Management                                                ______     ________________          Groupe, Inc., 978 F.2d 158,  163 (4th Cir. 1992) (same); Wade  v.          ____________                                             ____          Orange  Cty. Sheriff's Office, 844  F.2d 951, 954  (2d Cir. 1988)          _____________________________                                          11          (same);  see also Walsh  v. Chestnut Hill  Bank & Trust  Co., 607                   ___ ____ _____     ________________________________          N.E. 2d  737, 740-41 (Mass.  1993) (noting "equitable"  nature of          claims under Chapter 93A; no right to jury  trial).  Moreover, in          the  Chapter 93A context, the court has recognized that judge and          jury,  sitting   as  independent   triers  of  fact,   may  reach          conflicting conclusions.   Wallace Motor Sales,  Inc. v. American                                     __________________________    ________          Motors  Sales  Corp.,  780 F.2d  1049,  1063-67  (1st Cir.  1985)          ____________________          (rejecting  claim that  judge's findings  must always  conform to          those of the jury;  upholding findings made by district  judge on          Chapter  93A  claim and  by jury  on  Dealers Act  claim); accord                                                                     ______          Fowler, 978 F.2d at 162-63 (concluding that under certain circum-          ______          stances  "it is  entirely  acceptable that  the two  fact-finders          reach  conflicting  conclusions  on  the issues").    Thus,  even          assuming  inconsistent  findings, CSI's  claim  must  fail.   Cf.                                                                        ___          Kavanaugh,  944  F.2d  at  9 (noting  this  court's  "substantial          _________          reluctance to consider inconsistency [within] civil jury verdicts          a basis for new trials.")                    Finally, permitting  CSI to employ the  bench ruling on          the severability  issue as a lever  with which to upset  the jury          verdict would circumvent the important  Rule 50 corollary that "a          party who  move[s] for a  directed verdict  may obtain  appellate          review  only  on the  specific  ground  stated  in  the  motion."                  ____          Pstragowski, 553 F.2d at 3 (emphasis added); accord Fleming James          ___________                                  ______          Jr. et al., Civil Procedure   7.30 (4th ed. 1992) (observing that                      _______________          post-judgment motions for judgment as a matter of law are "limit-          ed to the assertion  of issues or grounds specifically  raised in                                          12          the prior motion"); see also Doty v. Sewall, 908 F.2d 1053,  1057                              ___ ____ ____    ______          n.4  (1st Cir. 1990) (noting that failure to bring issue underly-          ing new trial claim to district court's attention  is significant          because "'[b]y doing so . . . [the party] got a chance to see the          verdict and then to seek to overturn it.'") (quoting Caldarera v.                                                               _________          Eastern  Airlines,  Inc.,  705 F.2d  778,  782  (5th  Cir. 1983).          ________________________          Challenges to jury verdicts  must be evaluated against  the back-          drop of  the case "as submitted" to the jury.  See, e.g., Griffin                                                         ___  ____  _______          v. Matherne,  471 F.2d  911,  915 (5th  Cir. 1973),  quoted in  1             ________                                          ______ __          Steven  A.  Childress &  Martha  S. Davis,  Federal  Standards of                                                      _____________________          Review   3.10  (2d ed. 1992).          ______                    Affirmed.6                    Affirmed.                                        ____________________               6Although counsel fees have been  awarded on occasion for an          appellate  defense of  a judgment  on a  Chapter 93A  claim, see,                                                                       ___          e.g., Manzaro  v. McCann, 401 Mass. 880,  885 (1988), there is no          ____  _______     ______          basis for a fee award to Perdoni, since CSI did not challenge the          district court judgment on the Chapter 93A claim.                                            13
