
USCA1 Opinion

	




          June 24, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1113                                      ROBERT KING,                                Plaintiff, Appellant,                                          v.                  MARTIN FEED MILLS LIMITED, TIM MARTIN, TONY LLOYD,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Breyer, Circuit Judge,                                        _____________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Carlton J. Dasent on brief for appellant.            _________________            Harry C. Mezer, P.C.,  on Memorandum of Law  in Support of  Motion            ____________________        for Summary Affirmance, for appellee.                                 ____________________                                 ____________________                 Per Curiam.   The plaintiff-appellant, Robert King,  has                 __________            appealed a judgment in defendants-appellees'  favor, claiming            error in jury instructions  given and not given and  error in            the formulation of special jury questions.  Despite the court            rules,  see, e.g.,  Fed. R.  App. P.  10(b), setting  out the                    _________            appellant's  obligation   to  provide   this  court   with  a            sufficient  supporting record, this court's extensive caselaw            in  this  regard, see,  e.g.,  Valedon  Martinez v.  Hospital                              __________   _________________     ________            Presbiteriano, 806 F.2d 1128,  1135 (1st Cir. 1986), and  the            _____________            obvious necessity  of providing a transcript  to support such            claims of error,  the appellant has not done so.   Indeed, he            has  even  expressly decried  the  necessity  of providing  a            transcript in this case.                 "We have held repeatedly that we will not review a claim            of  error if the appellant has failed to include a transcript            of the pertinent proceedings  in the record on appeal."   Id.                                                                      ___            (citing our caselaw).  We  are unable meaningfully to  review            appellant's claims  because, as in Valedon  Martinez, "in the                                               _________________            absence  of a transcript we simply are unable to evaluate the            adequacy of the district  court's instruction or to determine            whether appellant  interposed a proper  objection."  Id.   So                                                                 ___            too,  we  are  unable  to  determine  whether  the  appellant            properly raised  and preserved issues as  to instructions not            given  or  to  preferred  formulations of  the  special  jury            questions.   The  appellant's  brief, in  fact, is  strangely            silent as to whether he raised any objections.  "No party may            assign  as error  the  giving  or  the  failure  to  give  an            instruction unless that party objects thereto before the jury            retires to  consider  its  verdict,  stating  distinctly  the            matter objected to and  the grounds of the objection."   Fed.            R. Civ. P.  51.  We  have required  "firm adherence" to  this            rule.  Transnational Corp. v. Rodio & Ursillo, Ltd., 920 F.2d                   ___________________    _____________________            1066, 1069 (1st Cir. 1990).                 On   occasion,  despite  the   absence  of   a  relevant            transcript, we  have considered an appellant's  claims to the            extent  possible on the limited record before us.  See, e.g.,                                                               _________            Valedon Martinez v. Hospital Presbiteriano, 806 F.2d at 1135.            ________________    ______________________            In  this   case,  our  review  finds   appellant's  arguments            deficient and without hint of possible merit.                 Appellant complains that  his breach  of contract  claim            was not heard  by the jury.1   This complaint is  puzzling as            the first special question presented to the jury was:                      Was there  in 1990  an  agreement for  an                      exclusive     distributorship     between                      plaintiff,  Robert  King  and  defendant,                      Martin Feed Mills, Ltd.?                                            ____________________            1.  Appellant also complains that the jury was not allowed to            hear  testimony from his  alleged experts on  the question of            damages for breach of  contract.  The clerk's notes  from the            trial indicate that one of these witnesses testified and that            the testimony of  the second  witness was excluded.   In  the            absence   of  a   transcript,  we   can  derive   no  further            enlightening  information.   At  any rate,  the exclusion  of            evidence  on damages in harmless where, as here, the judgment            on liability in defendants' favor must stand.                                         -3-            The jury  answered "No," suggesting that  the jury considered            the issue  of the existence of  a contract and  found that no            contract existed.                 Insofar  as appellant's complaint may be directed toward            the issue of  improper termination, this issue  was not heard            by the  jury because the  district court  directed a  verdict            against  him.     Yet,   appellant's  brief  does   not  even            acknowledge  the  directed verdict,  much  less  set out  the            standard  of review.  On  appeal from a  directed verdict, we            look  at  the evidence  in the  light  most favorable  to the            losing party  and determine  whether a reasonable  jury could            only have  reached the  same conclusion  as the  trial court.            Newharbor  Partners, Inc. v. F.D. Rich Co., 961 F.2d 294, 298            _________________________    _____________            (1st  Cir. 1992).  A party challenging a directed verdict may            not  rest on  conjecture  or speculation,  but  must rely  on            evidence which consists of "'more than  fragmentary tendrils:            a mere scintilla  of evidence  is not enough  to forestall  a            directed  verdict,' especially  on an  issue as to  which the            burden of proof  belongs to  the appellant."   Id.  (citation                                                           ___            omitted).  Appellant cannot  succeed in convincing this court            that the district court  erred in taking this issue  from the            jury without  providing us with the evidence  which he claims            suffices  to  merit  jury  review.    And,  of  course,  that            evidence,  if it  existed,  would, of  necessity, lie  in the            trial transcript.                                         -4-                 Appellant  also  contends  that  it was  error  for  the            district  court judge to have "instructed the jury that there            was a Counterclaim  and she requested that  the jury consider            this Counterclaim against  the plaintiff."   Appellant argues            that the  defendants did  not file  any counterclaim  with or            subsequent to their answer.  This is of no moment.                      When issues not  raised by the  pleadings                      are tried  by express or  implied consent                      of the parties, they shall  be treated in                      all respects  as if they have been raised                      in the pleadings.  Such amendment  of the                      pleadings  as may  be necessary  to cause                      them to  conform to the  evidence and  to                      raise  these  issues  may  be  made  upon                      motion of  any party  at  any time,  even                      after judgment; but  failure so to  amend                      does not affect the  result of the  trial                      of these issues.            Fed.  R.  Civ. P.  15(b).   The  record contains  the court s            scheduling  order of July 14, 1992, and its pretrial order of            November  17, 1992,  in which  the parties   agreed-to issues                                               __________________________            included:                      Whether  defendant  improperly terminated                      the distributorship  or whether plaintiff                                              _________________                      had  before  the   date  of   termination                      _________________________________________                      breached  the agreement by failing to pay                      _________________________________________                      his debts to defendant?                      ______________________            It  is   evident  that  the   defendants'  counterclaim   for            nonpayment  of   debts  was  properly  part   of  this  case.            Moreover,  in  any  event,  the  record  indicates  that  the            district court directed  a verdict for  the appellant on  the            counterclaim.                                         -5-                 In sum, the  defendants' request for summary  affirmance            is well warranted.                 The judgment of the district court is affirmed.  Loc. R.                                                       _________            27.1.                 We award double costs to the defendants-appellees.  Fed.                          ____________            R. App. P. 38.                                         -6-
