
USCA1 Opinion

	




          November 25, 1994 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2373                                    PAUL S. DOPP,                                Plaintiff, Appellant,                                          v.                                    JAY PRITZKER,                                 Defendant, Appellee.                              _________________________          Nos. 94-1130               94-1131                                    PAUL S. DOPP,                                 Plaintiff, Appellee,                                          v.                                    JAY PRITZKER,                                Defendant, Appellant.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion of  the court  issued on  October 28,  1994, is          corrected as follows:               1.  On page 25, line 13   delete signal for footnote 12, and          add the following at the end of the sentence (after "$600,000."):          Under the SSA,  Pritzker could have exercised  the buy-out option          as  late  as  10  years  after  the  formation  of  the  contract          (withholding any payment until  then).  There is evidence  in the          record, through an expert witness presented by Pritzker, that the          prospect  of so  long  a delay  would  justify a  somewhat  lower          figure,  reflective  of  a  time-related discount.    The  expert          testified that this reduction to present value could have brought          the present value of the redemption price as of December 3, 1984,          as low as $114,638.               2.   Delete  footnote 12  in its  entirety and  renumber all          subsequent footnotes accordingly.               3.   On  page 26,  line  3    change "the  . .  .  price" to          "$114,638."               4.  On page 26, line 4,  page 27, line 10, page 29, line  7,          and page 29, line 12   change "$13,686,600" to "$14,171,962."               5.    On  page   29,  line  10     change   "$3,313,400"  to          "$2,828,038."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2373                                    PAUL S. DOPP,                                Plaintiff, Appellant,                                         v.                                     JAY PRITZKER,                                 Defendant, Appellee.                              _________________________          Nos. 94-1130               94-1131                                    PAUL S. DOPP,                                 Plaintiff, Appellee,                                          v.                                    JAY PRITZKER,                                Defendant, Appellant.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                              _________________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                             and Zobel,* District Judge.                                         ______________                              _________________________               Ruben  T.  Nigaglioni,  with  whom Diana  Mendez-Ondina  and               _____________________              ____________________          Ledesma, Palcu & Miranda were on brief, for plaintiff.          ________________________               Gael Mahony, with  whom Frances S. Cohen, David  A. Hoffman,               ___________             ________________  _________________          Joshua  M. Davis,  Hill  &  Barlow, Salvador  Antonetti-Zequeira,          ________________   _______________  ____________________________          Ricardo Ortiz-Colon,  and Fiddler,  Gonzalez & Rodriguez  were on          ___________________       ______________________________          brief, for defendant.                              _________________________                                   October 28, 1994                              _________________________          _______________          *Of the District of Massachusetts, sitting by designation.                    SELYA, Circuit Judge.  In these appeals, we revisit the                    SELYA, Circuit Judge.                           _____________          remedial  phase  of  a  protracted  dispute  in  which  the  main          protagonists are a pair  of erstwhile partners, Paul S.  Dopp and          Jay  A. Pritzker.   The  litigation stems  from an  oral contract          between the two men  concerning the purchase of the  Dorado Beach          Hotel Corporation  (DBHC), a company that controlled a complex of          hotels and golf courses situated on  1,000 beachfront acres along          the north shore of Puerto Rico.                    In an earlier opinion we  upheld a jury verdict finding          Pritzker liable to Dopp, but vacated both the jury's damage award          and  the  trial  court's  rulings in  connection  with  equitable          relief.   See Dopp  v. HTP  Corp., 947 F.2d  506 (1st  Cir. 1991)                    ___ ____     __________          (Dopp II).  On remand, the district court held a  second trial to           _______          determine Dopp's entitlement to various forms of relief.  After a          jury returned a series  of special findings, see Fed.  R. Civ. P.                                                       ___          49(a), the district court entered a revised judgment.                    Both  sides now appeal.1  Their appeals require that we          examine:   (1) whether  the district  court lawfully  denied Dopp          resolution  (a form  of rescission) as  a remedy  for contractual          breach;  (2)  whether  the  jury's assessment  of  full  damages,          $17,000,000,  was either  excessive, as  Pritzker claims,  or too                                        ____________________               1The three  appeals with which  we are concerned  today were          consolidated for  oral argument with three  other appeals arising          out of  the same case.   Since the latter  appeals (Nos. 93-2374,          94-1128, and 94-1129,  respectively) involve segregable issues             they  focus on  a  series of  financing  agreements entered  into          between Dopp  and three financiers, Robert  Yari, Lincoln Realty,          Inc.,  and Baird  Patrick  & Co.,  for  the apparent  purpose  of          funding Dopp's litigatory  efforts    we will address  them in  a          separate and subsequent opinion.                                          4          niggardly, as Dopp  asserts; and (3)  whether the district  court          appropriately  awarded  Dopp  attorneys'  fees   and  prejudgment          interest,  based  on its  determination  that  Pritzker displayed          obstinacy  in  conducting  the   litigation.    After  a  careful          examination  of the record and  the applicable law,  we affirm in          part, reverse in part, and remand.          I.  BACKGROUND          I.  BACKGROUND                    We  divide  this  segment   of  our  opinion  into  two          subparts,  treating  the  facts  and   the  travel  of  the  case          separately.  In doing so, we write somewhat sparingly because the          background of  the litigation  is already well-documented.   See,                                                                       ___          e.g., id. at 508-09; Dopp v.  HTP Corp., 831 F. Supp. 939, 941-42          ____  ___            ____     _________          (D.P.R. 1993) (Dopp III);  Dopp v. HTP Corp.,  755 F. Supp.  491,                         ________    ____    _________          492-94 (D.P.R. 1991) (Dopp I).                                ______                                    A.  The Facts.                                    A.  The Facts.                                        _________                    In  May of 1984, Dopp wangled an option to acquire DBHC          for  the approximate price of $40,500,000.  He secured the option          with a $2,000,000  letter of credit supplied  with the assistance          of Island Resorts,  S.A. (IRSA), a  Panamanian corporation.   The          option agreement specified that the  underlying purchase-and-sale          transaction would be consummated no later than December 3, 1984.                    Though playing for high stakes, Dopp had relatively few          chips of  his own.   Thus, he  immediately set out  in search  of          financial backing.  He encountered heavy seas.  With time running          out,  Dopp turned  to  Pritzker.   The  parties reached  an  oral          agreement on November 30, 1984.  Under its terms, Pritzker agreed                                          5          to  provide the funds needed  to seal the  purchase and reimburse          Dopp's  and IRSA's costs.  In exchange, Dopp agreed that Pritzker          would  receive an 80% equity  interest in a  holding company that          would be formed  to acquire  DBHC's stock, and,  as a  sweetener,          that  a Pritzker affiliate would be given a long-term contract to          manage the hotels coincident with the closing.                    The parties  formed HTP  Corporation (HTP) to  serve as          the holding company.   Dopp controlled 20% of HTP's  stock in the          first  instance, but ceded some shares to IRSA in accordance with          a prior arrangement.  In the end, Dopp retained a 12% interest in          HTP.    Meanwhile,  Pritzker,  through a  nominee,  held  an  80%          interest.2                    On December 3,  1984, Pritzker presented  two documents          to Dopp that supposedly embodied their oral  agreement.  Pritzker          injected  into one  of these  documents   the  stock subscription          agreement  (SSA)    a  clause granting  the majority  shareholder          (Pritzker) an option to retire the stock held by the two minority          shareholders (Dopp and IRSA) for $50,000 per share, or $1,000,000          in the aggregate, at any time within 10 years.  With the purchase          option due  to expire, the move put  Dopp at a huge disadvantage.          He signed the documents.                    After HTP obtained a one-day extension from the seller,          it  closed the underlying transaction  on December 4,  1984.  HTP          bought  DBHC's stock  for  $36,846,000, net  of adjustments;  the                                        ____________________               2For  ease in  reference,  we ignore  the  nominee, a  shell          corporation, and  treat  Pritzker as  if  he, himself,  were  the          majority shareholder.                                          6          seller canceled  the letter  of credit; Pritzker  reimbursed Dopp          and IRSA  for expenses advanced  ($710,000); and Dopp  received a          prearranged $200,000 "consulting fee."                                 B.  The Litigation.                                 B.  The Litigation.                                     ______________                    In  mid-1988, Dopp  initiated a  diversity suit  in the          United  States District  Court for  the District of  Puerto Rico,          naming  Pritzker,  HTP, and  several  others as  defendants.   He          alleged,   inter  alia,  that  the  buy-out  option  in  the  SSA                     _____  ____          contravened  the oral contract, and  that his consent  to the SSA          had been unfairly procured.  After  a 10-day trial, a jury  found          in  Dopp's favor, determining that the parties had formed an oral          contract on November 30, 1984, and that, thereafter, Pritzker had          employed deceit and duress to pressure Dopp into signing the SSA,          thereby   violating  the   oral   contract.     Based  on   these          determinations,  the jury  awarded  Dopp  $2,000,000 in  damages.          Thereafter,  the district  court,  acting in  response to  Dopp's          motion under  Fed. R. Civ.  P. 59(e), declared  the SSA  null and          void in  respect to Dopp's shares  in HTP, but  declined to order          resolution of the oral contract.3                    The  first trial  produced no  fewer than  ten appeals.          After considering them, we upheld the liability determination but          vacated  both the damage award  and the district court's remedial          rulings, see  Dopp II, 947  F.2d at  520.  We  then remanded  for                   ___  _______                                        ____________________               3Resolution  is  a  remedy  that,  under  Puerto  Rico  law,          operates in much the same way as rescission.  See  P.R. Laws Ann.                                                        ___          tit. 31,   3052 (1991); see also Dopp II, 947 F.2d at 510-11.  We                                  ___ ____ _______          discuss the nature of the remedy at greater length in Part II(A),          infra.          _____                                          7          further  relief-related proceedings, indicating that, "assuming a          competent evidentiary  predicate, the jury may  be instructed on,          and asked to  determine, variously:  (1) full damages  . . .; (2)          the amount of  accessory damages, if any, [pursuant to annulment]          . . .; and (3) the amount of accessory damages, if any, [pursuant          to  resolution] .  . . ."   Id.  at 519.   We also  observed that                                      ___          "annulment and resolution are  mutually exclusive remedies,"  and          that  "the plaintiff may  or may not  . . .  satisfy the district          court that he is entitled to  an order for resolution of the Oral          Contract."  Id. at 520.                      ___                    On March 27, 1993,  a second jury rendered a  series of          special findings.   The jury fixed the amount  of full damages at          $17,000,000, and  the amount  of damages ancillary  to resolution          (if resolution were ultimately  ordered) at either $19,621,000 or          $210,071,000,  depending   on  whether  the  court   might  order          resolution  in natura or in kind.  See  Dopp III, 831 F. Supp. at                      __ ______              ___  ________          942 & n.5.  The jury determined that, if  Dopp elected annulment,          there would be no accessory damages.  See id.                                                ___ ___                    On September  9, 1993, the district  court made certain          supplementary  rulings.   Among  other things,  the court  denied          Pritzker's motions for judgment as a  matter of law and for a new          trial;  put a  damper on  Dopp's quest  for  resolution; rejected          Dopp's motion to alter  or amend the judgment; upheld  the jury's          assessment of full damages; and awarded Dopp prejudgment interest                                          8          and attorneys' fees.4  See id. at 943-52.  These appeals ensued.                                 ___ ___          II.  RESOLUTION          II.  RESOLUTION                    In our earlier opinion, we determined that up  to three          main remedies might  be available to  Dopp, namely, annulment  of          the SSA, resolution of the oral  contract, or full damages.  Dopp                                                                       ____          II, 947 F.2d at 519.   We noted that, in the event  Dopp achieved          __          either  annulment  or  resolution,  the  jury  might  also  award          accessory damages.   See id.  We defined the  third remedy, "full                               ___ ___          damages," as comprising  "the amount of damages  which would make          Dopp whole in the absence of either annulment or resolution . . .          ."   Id.  Withal, we cautioned that the availability of any given               ___          remedy  depended  upon  the  existence  (or  nonexistence)  of  a          "competent evidentiary predicate."  Id.                                              ___                    At the second trial, Judge Pieras instructed the jurors          as  to each  of  these  three  remedies  and  commanded  them  to          determine on a contingent  basis the amount of money  damages, if          any, that  each  anodyne  actually  would  entail.    The  jurors          complied.  Following the jury's calculation of potential damages,          the judge asked  Dopp to elect a remedy.   Dopp chose resolution.          Much  to his  dismay, the  district court  ruled that,  given the          evidence, resolution was unobtainable.   Under protest, Dopp then          elected an alternate remedy:  full damages.   He now beseeches us                                        ____________________               4The  district court also made a number of rulings in regard          to third parties  who claimed an interest in the  proceeds of the          litigation through prior arrangements  with Dopp.  See  Dopp III,                                                             ___  ________          831 F. Supp. at 952-59.   We leave these rulings to one  side for          present  purposes, intending, however,  to deal with  them in due          course.  See supra note 1.                   ___ _____                                          9          to reverse the district court's denial of resolution.                    In  order to  respond to  Dopp's importunings,  we must          determine the nature of resolution under Puerto Rico  law, settle          upon the proper  standard of review,  consider whether the  court          below  paid sufficient  homage to  the lessons  of Dopp  II, and,                                                             ________          finally, evaluate the sturdiness of the district court's ruling.                                A.  Legal Principles.                                A.  Legal Principles.                                    ________________                    The remedy of resolution  emanates from article 1077 of          the Puerto Rico Civil Code, which reads in pertinent part:                         The  right to rescind the obligations is                    considered as implied in mutual ones, in case                    one of the obligated persons does  not comply                    with what is incumbent upon him.                         The person prejudiced may choose between                    exacting the fulfillment of the obligation or                    its  rescission,  with indemnity  for damages                    and payment  of interest in either  case.  He                    may  also demand  the rescission,  even after                    having requested its fulfillment,  should the                    latter appear impossible. . . .          P.R. Laws Ann. tit. 31,   3052 (1991).                    It  is  noteworthy  that   "[n]ot  every  breach  of  a          contractual  obligation gives  rise to  a resultory  action under          article 1077."  Dopp II, 947 F.2d at 510-11.  To pave the way for                          _______          the  remedy, the  unfulfilled  obligation must  be reciprocal  in          nature.   See id. at  511.   Reciprocity inheres when  "there are                    ___ ___          obligations and correlative obligations so interdependent between          themselves  that one  is the  consequence of  the other,  and the          performance of said obligation by a contracting party constitutes          the motive of the contract for the other party, and  vice versa."          Ponce v. Vidal,  65 P.R.R. 346, 351 (1945).  That is, reciprocity          _____    _____                                          10          is  basically  a  way  of  saying  that  a  particular obligation          exhibits both  mutuality and essentiality    what one  might term                   ____            ___          "mutual essentiality."  This concept embodies the notion that, in          the absence of a particular mutual obligation, the contract would          never have come into being, and, thus, should cease to exist.                    The Supreme  Court of Puerto Rico  recently fleshed out          this idea, observing that                    not  every failure  to comply  with a  mutual                    obligation   will   have   the    effect   of                    terminating the contract.  For this to be the                    case,   the  unmet  obligation   must  be  an                    essential  obligation  or fulfillment  of the                    obligation  must  constitute the  motive that                    induced the  other  party to  enter into  the                    contract.          Ramirez v.  Club Cala  de Palmas,  ___ D.P.R. ___,  89 J.T.S.  22          _______     ____________________          (1989)  (revised  official  translation).     Put  bluntly,  "the          unfulfilled obligation must be the principal one."  Id.                                                              ___                    The  Ramirez court likewise  emphasized the overarching                         _______          concern of article 1077:   that contracts, if and  when possible,          be preserved  and ultimately  fulfilled.  See  id.   This is  the                                                    ___  ___          "higher interest" served by a narrow construction  of the element          of reciprocity.  Id.  From all that we can discern, then, Article                           ___          1077 is a remedy of last resort, reserved for situations in which          a party's breach dissipates the very essence of a contract.                               B.  Standard of Review.                               B.  Standard of Review.                                   __________________                    We think it follows from this characterization that the          applicability  of article 1077 in  a given case  presents a mixed          question  of law  and fact.   The Puerto  Rico Supreme  Court has          identified reciprocity as the key principle on which article 1077                                          11          rests.   See Vidal,  65 P.R.R. at  351.   And though  reciprocity                   ___ _____          itself  is  wholly  a  legal  construct,  its  existence  in  any          particular contractual setting  is almost entirely contingent  on          the determination  of a series of  essentially factual questions,          e.g., the subject matter of the contract, the context in which it          ____          arose, the  parties' intentions, their course of conduct, and the          like.    See id.  (describing reciprocity  as  a function  of the                   ___ ___          "character" of a particular obligation).                    Indeed, to the extent that reciprocity actually resides          at   the   intersection  of   mutuality  and   essentiality,  its          characterization  as a  mixed question  of law  and fact  becomes          virtually unavoidable.  Essentiality is closely akin to, if not a          species of,  materiality, and  courts and commentators  have long          recognized that materiality is primarily a question  of fact, the          resolution of  which is  necessarily a  function  of context  and          circumstances.  See, e.g.,  Gibson v. City of Cranston,  ___ F.3d                          ___  ____   ______    ________________          ___, ___ (1st Cir. 1994) (No. 94-1375, slip op. at 8-9); see also                                                                   ___ ____          3A Arthur L. Corbin, Corbin on Contracts   700, at 309-10 (1960 &                               ___________________          Supp.  1992) (noting that whether a party's breach "go[es] to the          `essence'"  of the  contract is  a function  of weighing  various          factors); 2 E. Allan Farnsworth, Farnsworth on Contracts    8.16,                                           _______________________          at 443 (1990)  ("Whether a breach  is material  is a question  of          fact.").                    Putting  the  issue into  this perspective  has salient          implications for  appellate oversight.   "The standard  of review          applicable  to mixed  questions usually  depends upon  where they                                          12          fall  along the  degree-of-deference continuum:   the  more fact-          dominated  the question, the more  likely it is  that the trier's          resolution  of it  will be  accepted unless  shown to  be clearly          erroneous."  In re  Howard, 996 F.2d 1320, 1328  (1st Cir. 1993);                       _____________          see also  Williams v. Poulos,  11 F.3d  271, 278 (1st  Cir. 1993)          ___ ____  ________    ______          ("The clearly erroneous standard . . . ordinarily applies when we          review a trial court's  resolution of mixed questions of  law and          fact.").                    Here,  the fact-specific  nature  of  the inquiry  into          resolution demands  that we accept the  district court's findings          unless they are  shown to  be clearly erroneous.5   In  practical          terms,  this means that the findings will hold sway unless, after          reading the whole record and making due allowance for the trier's          superior  insights   into   credibility,  the   reviewing   court          unhesitatingly  concludes that  a  mistake has  been  made.   See                                                                        ___                                        ____________________               5Referring to  the district court's statement  that Dopp was          "not entitled to resolution as a matter of law," Dopp III, 831 F.                                                           ________          Supp. at  959, Dopp suggests that  our review should  be de novo.                                                                   __ ____          See, e.g., McCarthy v.  Azure, 22 F.3d 351,  354 (1st Cir.  1994)          ___  ____  ________     _____          (holding  that  questions  of  law  engender  plenary   appellate          review).  We reject  the suggestion.  On close  perscrutation, it          is plain  that Judge Pieras  reached his conclusion  about Dopp's          lack of entitlement to resolution as a result of a case-specific,          fact-dominated decisional process.  See Dopp III, 831 F. Supp. at                                              ___ ________          946-50.  The words contained in a district court's ruling must be          "read  in  context"  and  judged by  their  "cumulative  import."          United  States v.  Tavano,  12 F.3d  301,  304 (1st  Cir.  1993).          ______________     ______          Mindful  that  the law  does not  require  district courts  to be          letter-perfect in  their syntax  or  choice of  phraseology    in          matters of word usage,  we have repeatedly acknowledged that  "an          appellate court must  not hesitate to excuse  an awkward locution          and give a  busy trial judge  a bit of  breathing room," Lenn  v.                                                                   ____          Portland  Sch. Comm., 998 F.2d 1083, 1088 (1st Cir. 1993) (citing          ____________________          other cases)   we  refuse to sacrifice substance on  the altar of          form.                                          13          Dedham Water Co. v.  Cumberland Farms Dairy, Inc., 972  F.2d 453,          ________________     ____________________________          457 (1st Cir. 1992);  Cumpiano v. Banco Santander P.R.,  902 F.2d                                ________    ____________________          148, 152 (1st Cir. 1990); see also Fed. R. Civ. P. 52(a).  In the                                    ___ ____          last   analysis,  the  clear-error   rubric  betokens  a  "highly          deferential mode[] of review."  Howard, 996 F.2d at 1327.                                          ______                    Of course,  "Rule 52(a)  does not inhibit  an appellate          court's  power to correct errors of law, including those that may          infect a so-called mixed finding of law and fact, or a finding of          fact that  is predicated on  a misunderstanding of  the governing          rule  of law."  Bose Corp. v.  Consumers Union of U.S., Inc., 466                          __________     _____________________________          U.S. 485, 501  (1984).  But,  here, although  Dopp argues for  de                                                                         __          novo review, he has not shown that any error of law influenced or          ____          otherwise  tainted  the   district  court's  findings   of  fact.          Although he repeatedly describes the court's findings in terms of          legal, rather  than factual, error, merely calling a dandelion an          orchid  does not  make it  suitable for  a corsage.   As  we have          remarked before,  "[t]he clearly erroneous rule  cannot be evaded          by the simple expedient of creative relabelling."  Reliance Steel                                                             ______________          Prods. Co. v. National Fire Ins. Co., 880 F.2d 575, 577 (1st Cir.          __________    ______________________          1989).                    We have said  enough on this score.  Since "we will not          permit parties to  profit by dressing factual disputes in `legal'          costumery," id.,  we  think that,  with  one exception,  we  must                      ___          subject the  district court's  denial of  a  resultory remedy  to          clear-error  review.   Before  doing  so, however,  we  visit the          exception.                                          14                            C.  Law of the Case . . . Not!                            C.  Law of the Case . . . Not!                                _________________________                    Dopp boldly contends that  the district court failed to          recognize the law of the case.  A contention that the  law of the          case  precludes reexamination of an  issue raises a pure question          of law, and,  thus, engenders  plenary review.   See McCarthy  v.                                                           ___ ________          Azure, 22 F.3d 351, 354 (1st Cir. 1994); Liberty Mut. Ins. Co. v.          _____                                    _____________________          Commercial Union Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992).          _________________________                    Dopp's  "law of  the  case" argument  prescinds from  a          wildly optimistic  reading of  our earlier  opinion    an opinion          that,  in Dopp's view, directed  the district court  to grant him          resolution.   In  support  of this  claim,  Dopp adverts  to  our          general discussion of article 1077, both in terms of its possible          (past) role  in the  first jury's  determination of damages,  see                                                                        ___          Dopp II,  947  F.2d at  513-14,  and  in terms  of  its  possible          _______          (future)  role in the jury trial to be held following remand, see                                                                        ___          id. at 510-11, 519.          ___                    To be charitable, Dopp reads our language through rose-          colored   glasses,  ignoring  the   forest  and   focusing  self-          interestedly  on  a  few isolated  trees.    In  the bargain,  he          cavalierly   wrests  phrases   from  their   analytical  context,          disregarding the wise adage that the words contained  in judicial          opinions "are to be read in light  of the facts of the case under          discussion."  Armour & Co. v. Wantock, 323 U.S. 126, 132  (1944).                        ____________    _______          The whole  purpose of  our original  analysis  was to  ascertain,          assuming that Article 1077 might have applied, on what theory the          _____________________________________________          judge and jury could have generated the determination of damages.                                          15          We  lamented that  the  actual basis  for  the damage  award  was          "completely  uncertain," Dopp II, 947  F.2d at 513,  and that the                                   _______          record  revealed  "rampant   confusion  over   what  relief   was          warranted,"  id. at  516.   In short,  our earlier  opinion shows                       ___          beyond hope of contradiction that we decided nothing in regard to          the ultimate applicability of a resultory remedy.                    The  sockdolager  is  that  Dopp's "law  of  the  case"          argument  entirely ignores both  our prediction that  at a second          trial Dopp "may or may not .  . . satisfy the district court that          he is entitled  to an order for resolution of the Oral Contract,"          and our straightforward declaration that we "intimate no view" as          to the eventual outcome of this question.  Id. at 520.  The words                                                     ___          could  not be  plainer  or more  explicit.   Given  this  express          disclaimer, it is fanciful for Dopp to suggest  that we bound the          lower court to an award of resolution the second time around.                                    D.  Analysis.                                    D.  Analysis.                                        ________                    Having exposed Dopp's threshold contention as baseless,          we  now confront the critical  question:  did  the district court          commit clear  error in  denying  Dopp the  remedy of  resolution?          Based  on a  painstaking review  of an  amplitudinous record,  we          think not.                    Under  the Civil  Code, resolution  requires more  than          merely  proving  the  nonfulfillment of  some  mutual  obligation          contained  in  a bilateral  contract.    Rather, the  unfulfilled          obligation  must  be "essential"  to  the  contract, or,  phrased          another way, the contemplated  fulfillment of the obligation must                                          16          have constituted the contract's raison d'etre.  The Ramirez court                                          _____________       _______          put  the  point succinctly,  stating  that  resolution cannot  be          grounded in the nonfulfillment of  "accessory" or "complementary"          obligations   obligations that the court described as those which          "do  not  constitute  the  real  consideration  for  executing  a          contract  and which are incorporated into the same to complete or          clarify  the contracting  parties' stipulations."    Ramirez, ___                                                               _______          D.P.R. __,  89 J.T.S. 22 (citing  Del Toro v. Blasini,  96 P.R.R.                                            ________    _______          662 (1968); Velez v. Rios, 76 P.R.R. 806 (1954); Vidal, 65 P.R.R.                      _____    ____                        _____          346   (1945)).    While  the  breach  of  such  an  accessory  or          complementary obligation  "may trigger  an action for  damages or          any other  action that the  circumstances of each  case warrant,"          such a breach may "never" give rise to a rescissory  action.  Id.                             _____                                      ___          (emphasis  in original).   This  is so,  the court  said, because          "[t]he  requirement  that  the   unfulfilled  obligation  be  the          principal one  serves a higher interest  . . . that  promotes the          fulfillment of  contracts, and  that prevents that,  by a  lesser          breach of contract, one  of the parties may release  himself from          the obligation,  either because  he  is no  longer interested  or          because the  contract does not suit him  anymore."  Id. (citing 1                                                              ___          Diez Picaso,  Fundamentos del  Derecho Civil Patrimonial  859 (2d                        __________________________________________          ed. 1983)).                    The  question of  whether  Pritzker's  provision of  an          unencumbered,  as  opposed to  encumbered,  12%  interest in  HTP          constituted either an essential obligation of his bargain, or the          motive  that  induced Dopp  to enter  into  the contract,  is not                                          17          necessarily subject  to a simple, categorical answer.   This very          uncertainty is,  in itself,  a good  indicator that  the district          court's answer, whether affirmative or negative, is not likely to          be clearly erroneous.                    In  any event, we discern  no clear error  here.  Judge          Pieras,  quoting  Dopp's own  testimony,  determined among  other          things that "[p]roviding Dopp  with an unencumbered . .  . equity                                                 ____________          interest  in HTP  is  not a  reciprocal  obligation of  the  Oral          Agreement assumed by the defendant.   Indeed the plaintiff `fully          expected  that  there  would   be  some  reasonable  option'  and          therefore did not  rely on  the absence  of an  option clause  to          enter into  the Oral Agreement."   Dopp III, 831 F.  Supp. at 950                                             ________          (emphasis  in  original).   We  believe that  this  assessment of          Dopp's  actual expectation is  supportable, and that  it alone is          sufficient  to ground  a principled  conclusion that  the parties          regarded the element of  non-encumbrance as an incidental, rather          than  an essential, obligation of their  contract.  If it is true          that  Dopp, prior  and  pursuant to  the  formation of  the  oral          contract,  "fully expected  that there  would be  some reasonable          option"   as  he, himself, testified    and yet proceeded  to the          written contract phase without settling this matter precisely, it          seems eminently reasonable  for a factfinder to conclude that the          element of non-encumbrance could not have been  the raison d'etre                                                              _____________          of the oral contract.                    What is more, the plausibility of this conclusion rests          not  only on  Dopp's  own words,  but  also on  other  witnesses'                                          18          testimony  to the  effect that, when  ownership is  closely held,          buy-out  options  are  a  regular  attribute  of  intra-corporate          arrangements.   For our  part, we regard  this truth  to be self-          evident; indeed, it is difficult to imagine an 80% shareholder of          a close  corporation owning  extremely valuable assets  who would          not  routinely demand  such protection.   Pritzker may  have been          many things,  but, as Dopp well  knew, he was  neither a neophyte          nor  an altruist.  Hence, Dopp could not reasonably have expected          that Pritzker  would forgo so  elementary a precaution  and leave          the minority stock unfettered.                    The  interest in preservation  and ultimate fulfillment          of contracts that drives article 1077, see Ramirez, ___ P.R. Dec.                                                 ___ _______          __, 89  J.T.S. 22,  does not  suggest a  contrary result.   Here,          Pritzker's breach did not  render the contract inherently infirm.          To  be sure, the breach harmed Dopp, but his insistent focus upon          the harm begs the real question.  The critical determinant of the          availability  of a resultory remedy  is neither the  fact nor the          magnitude  of  the inflicted  injury,  but,  rather, whether  the          defaulting  party's breach irretrievably undermined the contract.          In  this instance,  the district  court thought  not; and  we can          scarcely  conclude, based  on  the evidence  presented, that  its          decision was clearly erroneous.                    In a last-ditch effort to  turn the tide, Dopp  insists          that the  unreasonableness of the particular  buy-out clause that          Pritzker   inserted  into  the   SSA  somehow  transmogrifies  an          accessory obligation  into an  essential obligation.   We do  not                                          19          agree.    If  the  obligation  to  produce  an  unencumbered  12%          ownership  interest was not essential  before and at  the time of          the oral  contract    and,  as  we  have pointed  out,  there  is          adequate evidence to support  a conclusion to that effect    then          it does not matter  that the obligation took on  added importance          as time went by and circumstances changed.                     Dopp's other  arguments on  this issue do  not require          comment.    For  the reasons  set  forth  herein,  we uphold  the          district court's finding that  the obligation shirked by Pritzker          lacked mutual essentiality.  Accordingly, we affirm the denial of          resolution.          III.  FULL DAMAGES          III.  FULL DAMAGES                    Because  Dopp was  not legally entitled  to resolution,          his contingent election of an alternative remedy   full damages            is both valid  and binding.   Withal, both  parties question  the          amount of  the damage award.   To  answer these queries,  we must          examine whether the district  court correctly instructed the jury          as  to the  relevant measure of  damages and, if  so, whether the          jury's resultant rendition of full damages passes muster.                         A.  The Trial Court's Instructions.                         A.  The Trial Court's Instructions.                             ______________________________                    Under  Dopp's rather  imaginative theory  of  the case,          full damages, properly computed,  total $60,581,000.  He contends          that  the verdict on full damages undershot this target because a          pinchpenny trial  court charged  the jury  in  too restrictive  a          manner.   Branding  those  instructions as  contradictory to  the          teachings  of Dopp II and characterizing them as "poorly thought-                        _______                                          20          out and convoluted," Dopp  asks us to  set aside the verdict  and          mandate further  proceedings.6   We conclude  that the  court did          not commit reversible error in framing its jury instructions.                    Our analysis begins, as  it must, with the text  of the          district  court's charge.  In  relevant part, the  judge told the          jury:                    First  you must  render a  verdict as  to the                    amount of  the full damages to  which Dopp is                    entitled  based on  Pritzker's breach  of the                    oral contract.  . .  .  Full  damages reflect                    the  amount, if  any,  that  is necessary  to                    compensate Dopp in the event that he does not                    elect  to have  the Court  enter an  order of                    annulment.  They reflect the amount necessary                    to put Dopp in as good a position as he would                    have been if the oral contract had been fully                    performed so  that his shares  were not being                    encumbered by the SSA's  buy-out clause.  The                    amount  of full  damages are  [sic] therefore                    the difference between  the value of what  he                    was promised  under  November 30,  1984  oral                    contract  and the value  of what  he actually                    received from Pritzker  under the December 3,                    1984 stock subscription agreement.          As we read these  words, we believe that the court  indicated, in          essence,  that full  damages consisted  of the  monetary  cost of          encumbrance, that is,  the value  of what Dopp  had a  legitimate          right  to expect (a  12% interest in  HTP, not  encumbered in any          unorthodox  way) less the value  of what he  actually received (a                                        ____________________               6Dopp  also  insists  that   in  addition  to  taking  other          corrective action, we should annul the SSA.  He is barking up the          wrong tree.   If Dopp  desired annulment, he  could have  elected          that remedy below.  See Dopp II, 947 F.2d at 519.  He did  not do                              ___ _______          so.  See Dopp III, 831 F. Supp. at 942.  Absent such an election,               ___ ________          Dopp  cannot pursue  annulment on  appeal.   Nor is  this outcome          unconscionable; as  a general legal principle,  "[p]arties cannot          have their cake and eat  it, too."  United States v.  Weston, 960                                              _____________     ______          F.2d 212, 215 (1st Cir. 1992).                                          21          12%  interest   in  HTP,   subject  to  a   particularly  onerous          encumbrance), measured  at the  time of  the breach  (December 3,          1984).                    Dopp  disagrees.   He  posits  on  appeal,  as  he  did          below,7 that  the true measure  of full  damages is the  value of          the purchase  agreement plus a disgorgement  premium referable to          Pritzker's wrongful possession.  In support of this theorem, Dopp          directs our attention  to certain language contained in  Dopp II,                                                                   _______          to article 1255 of the Civil Code, P.R. Laws Ann. tit. 31,   3154          (1991),  and  to  "[a]n  intuitive  sense  that  an  injustice is          inherent in the District's Court's formulation .  . . ."  Because          these exhortations boil down  to a claim that the  district court          misapprehended the substantive  law on damages,  appellate review          is plenary.   See Losacco v. F.D. Rich Constr. Co., 992 F.2d 382,                        ___ _______    _____________________          384 (1st  Cir.), cert. denied,  114 S. Ct.  324 (1993); see  also                           _____ ______                           ___  ____          McCarthy, 22 F.3d at 354.          ________                    Despite the freedom inherent  in plenary review and the          generosity  of our efforts, we are unable to discern a cognizable          legal  basis  on which  Dopp's remedial  theory  might rest.   In          particular,  we find  baffling Dopp's  invocation of  our earlier          opinion.   Nothing contained therein suggests,  by any stretch of          the  most elastic imagination, that  full damages for purposes of          this  case  could  constitute  anything  more  than the  cost  of                                        ____________________               7Dopp properly  preserved  his rights  anent the  challenged          instructions, making  a timely objection  as required by  Fed. R.          Civ. P. 51.  He also moved to alter or amend the judgment on this          ground, in pursuance of Fed. R. Civ. P. 59(e).                                          22          encumbrance.   Indeed,  we specifically  defined full  damages as          "the amount of damages which would make Dopp whole in the absence          of either annulment or resolution," Dopp II, 947 F.2d at 519, and                                              _______          the   district  court's  formulation   fits  neatly  within  this          integument.  Moreover, it is virtually a hornbook restatement and          application of the concept of contractual wholeness.  See John D.                                                                ___          Calamari & Joseph M. Perillo, The Law of Contracts   14-4, at 591                                        ____________________          (3d ed. 1987)  ("For breach of contract the law  of damages seeks          to place the  aggrieved party  in the same  economic position  he          would  have  had  if  the  contract  had  been  performed.");   3          Farnsworth  on  Contracts,  supra,     12.1,  at  147  ("[C]ourts          _________________________   _____          encourage promisees to rely on promises  . . . [o]rdinarily . . .          by protecting  the expectation  that the  injured party had  when          making the contract by attempting to put the  injured party in as          good a position as that party would have been in had the contract          been performed, that is, had there been no breach.").                    Nor  need  we  tarry   over  Dopp's  second  source  of          "support"  for his theorem.  This so-called source   article 1255          of the Civil Code   is  simply not supportive of Dopp's position.          As  its text makes clear,  article 1255 is  relevant only "[w]hen          the nullity of  an obligation has been declared."  P.R. Laws Ann.          tit. 31,   3514 (1991).  That is not the situation here.                    Dopp's  hole   card     his  stated   reliance  on  his          "intuitive  sense" of "injustice"    does not shore  up his hand.          The  plea that  it embodies  lies beyond  the cognizance  of this          court,  which necessarily deals in the concreteness of fact, law,                                          23          and logic, not the  fluidity of pathos  and intuition.  Absent  a          demonstration of legal  error    and Dopp has  offered none    we          must uphold the district court's charge on damages.8                              B.  The Amount of Damages.                              B.  The Amount of Damages.                                  _____________________                    Using   the  formula   given   in  the   trial  court's          instructions,  the  jury calculated  Dopp's  full  damages to  be          $17,000,000.    Pritzker, for  his  part, is  satisfied  with the          court's  instructions but  not with  the amount  of damages.   He          argues that the verdict  is not rationally based on  the evidence          presented and,  hence, that the district court  erred in refusing          to  grant his motion  for a new  trial.  In  stark contrast, Dopp          contends that the amount  is far too  scant, and that even  "[i]f          the  jury did  exactly that  which the  district court  stated it          could  reasonably  do,"  its  verdict  should  have been  in  the          vicinity of $39,400,000.                    Dopp's  contention  appears  to   be  no  more  than  a          recasting  of his  complaints about  the  charge, see  supra Part                                                            ___  _____          III(A),  and, at this point, the caterwauling may be rejected out          of  hand.     Pritzker's  contention,   however,  raises  serious          concerns.                                        ____________________               8This ruling reflects not only Dopp's inability to discredit          the instructions themselves, but also his failure to substantiate          his  own, alternative theory of damages.   At best, it seems that          his  theory, which proposes  that full damages  should include at          least the value of the  purchase agreement (fixed by the  jury in          its  special findings  at $40,000,000),  might be viable  if Dopp          proved  that  he  had the  capacity  to  close  the deal  without          Pritzker's assistance.  But the record  wholly fails to establish          that  fact.    Indeed,  Dopp  offered  no  such  proof,  and  all          indications are that he  lacked the wherewithal to go  forward if          Pritzker withheld his financial backing.                                          24                    Because  jurors exercise  great  leeway  in  evaluating          claims and assessing  damages, appeals based on  verdict size are          seldom successful.  When a disgruntled defendant complains that a          jury award is overgenerous, the verdict ordinarily stands "unless          it is  grossly excessive, inordinate, shocking  to the conscience          of the court, or so high that it would be a  denial of justice to          permit it to stand."  Segal v. Gilbert Color Sys., Inc., 746 F.2d                                _____    ________________________          78, 80-81 (1st Cir. 1984) (citations and internal quotation marks          omitted).  Even in cases involving purely economic losses (which,          by and large, are  more easily quantifiable in dollars  and cents          than, say,  damages for emotional distress),  appellate review is          extremely  deferential, evincing  a  frank recognition  that "the          jury is  free to  select the  highest figure  for which there  is          adequate evidentiary support."  Kolb v. Goldring,  Inc., 694 F.2d                                          ____    _______________          869,  872 (1st Cir. 1982).  Consequently, "such a verdict will be          reduced  or set aside only if it  is shown to exceed any rational          appraisal or estimate of the damages that could be based upon the          evidence before the jury."   Segal, 746 F.2d at 81  (citation and                                       _____          internal quotation marks omitted).                    The rule that  emerges is that, within  wide limits, an          appellate court  must accept a jury's  seeming extravagance, even          if the court,  left to  its own  devices, would  have returned  a          substantially  smaller  verdict.    See Kolb,  694  F.2d  at 871.                                              ___ ____          Stated  another way,  while "the  jury may  not render  a verdict          based  on  speculation  or   guesswork,"  Bigelow  v.  RKO  Radio                                                    _______      __________          Pictures,  Inc., 327 U.S. 251, 264 (1946), a reviewing court will          _______________                                          25          not tinker with the jury's assessment of money damages as long as          it  does not  fall outside  the broad  universe of  theoretically          possible awards that can be said to be supported by the evidence.          This deferential standard imposes a correspondingly  heavy burden          on  parties  who  challenge  the  amount  of damages  awarded  by          allegedly overgenerous  juries.  And, moreover, the weight of the          burden grows heavier when,  as now, the trial judge  has reviewed          the jury's handiwork and has ratified  its judgment.  See Ruiz v.                                                                ___ ____          Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991).          __________________                    In  this  case,  the  upper  edge  of  the  universe of          sustainable awards is defined by the value  of the asset owned by          Dopp  (the option to  acquire DBHC) as  of December 3,  1984 (the          date  of  Pritzker's breach).9    Based on  the  highest credible          valuations  contained   in  the   record,  and  recognizing   the          possibility of  nonduplicative aggregation, we conclude  that the          jurors could have found DBHC's properties  to be worth as much as          $119,055,000  in late  1984.    This  figure  is  based  upon  an          appraisal of the hotel empire conducted by the Merrill Lynch Real          Estate  Advisory &  Appraisal  Group (Merrill  Lynch),10 read  in                                        ____________________               9On that  date, Dopp owned  an option to  acquire DBHC.   In          entering the  oral contract, however,  Dopp in  effect agreed  to          trade  that  asset for  a 20%  interest  in DBHC's  properties (a          portion of which he would then cede to IRSA).  Thus, DBHC becomes          the proper barometer for measuring value.               10While Merrill Lynch issued its appraisal approximately one          year after the transaction closed, the district court admitted it          into evidence, and we think the jury could reasonably have relied          on it.  See, e.g., Federal Sav.  & Loan Ins. Corp. v. Texas  Real                  ___  ____  _______________________________    ___________          Estate Counselors,  Inc.,  955  F.2d  261, 268  (5th  Cir.  1992)          ________________________          (upholding  factfinder's  reliance  on  later  appraisal  despite          evidence of changed market conditions).                                          26          light  of  testimony by  a  different  expert witness  evaluating          certain excess land not included  in the Merrill Lynch appraisal.          According  to   this  evidence,  the   empire  had  a   value  of          $110,000,000,  and the  excess land  had a  value  of $9,055,000.          Hence, the jury lawfully could have valued  DBHC's properties, as          a whole,  at $119,055,000.  In  turn, this value is  the value of          the  asset   the purchase option    for the acquisition was to be          structured in  such a  way as  to cost  Dopp nothing  (apart from          cession of an  80% interest  in the acquired  properties).11   On          this  basis,  then, a  rational  jury,  apportioning the  overall          value, could have concluded  that Dopp's anticipated 12% interest          in HTP was worth $14,286,600 on the date of the breach.                    Once the  jurors determined  an asset value,  they next          would have needed to determine what portion or percentage of that          value constituted the cost  of encumbrance.  Taking the  evidence          and  arguments advanced at trial most favorably to Dopp, we think          that the  jury lawfully  could have determined  that the  buy-out          option eliminated virtually all the  value of Dopp's 12% interest          in  HTP, save  only  for  the  meagre  price  that  Pritzker  was                                        ____________________               11Pritzker   argues   that  the   purchase   price  (roughly          $40,500,000) must be deducted  from the value of DBHC  before the          value of Dopp's pro rata interest is assayed because the purchase                          ___ ____          price constituted an acquisition cost.  We can discern no logical          basis for such  a deduction.  The  payment represented Pritzker's                                                                 __________          acquisition cost   not  Dopp's.  Dopp  did not contribute to  it;          instead, he  ceded 80% of the  equity in the  acquiring entity to          Pritzker.   That was Dopp's "acquisition cost"    and it is fully          accounted  for by limiting his  recovery to 12%  of DBHC's actual          value    a  value that  did  not somehow  shrink because  HTP  or          Pritzker tendered the purchase price.  Put another way, the value          of DBHC remained more  or less the same regardless  of the amount          expended for its acquisition.                                          27          obligated to pay to redeem Dopp's shares.  We conclude that  this          amount  should be the face value of  the buy-out option:  $50,000          per share, or in the case  of Dopp's shares, $600,000.  Under the          SSA,  Pritzker could have exercised the buy-out option as late as          10  years after the  formation of  the contract  (withholding any          payment until then).  There is evidence in the record, through an          expert witness presented  by Pritzker,  that the  prospect of  so          long a delay would justify a somewhat lower figure, reflective of          a  time-related  discount.     The  expert  testified  that  this          reduction to  present value could have brought  the present value          of  the  redemption price  as  of  December 3,  1984,  as  low as          $114,638.              Thus, the jury could have found that, because of the wrongful          encumbrance, Dopp lost an asset  worth $14,286,600, and, in  lieu          thereof, was left with an asset  worth no more than $114,638.  On          these  assumptions, a  verdict  for compensatory  damages in  the          amount of $14,171,962 is adequately supported by the evidence.                    Beyond  this amount, the  jury's award  is problematic.          We  are unable  either  to explain  the excess  or  to locate  an          evidentiary  hook on  which it might  be hung.   The  court below          tried justifying the added damages in the following manner:                    In calculating the loss  suffered by Dopp . .                    .,  the  jury  need  not  have  limited   its                    consideration  to the actual  value of Dopp's                    unencumbered shares in HTP  as of the date of                    the breach  of the  Oral Contract.   The jury                    was required to determine  Dopp's loss as  of                                                      ____                    the date  of  the breach;  however,  at  that                    moment  Dopp's  loss included  the likelihood                    that   he   would   be   deprived    of   any                    participation in the future profits generated                                          28                    by the properties.  The jury could have taken                    into  account that  a corporation  which owns                    world-class    resort     properties    could                    potentially  generate considerable  profits                      profits which would be denied to Dopp . . . .                    Like  any investment,  Dopp's shares  had the                    potential to  make  money or  to lose  money.                    And they had this  potential ad infinitum . .                                                 __ _________                    . .          Dopp III,  831 F.  Supp. at  945.  In  other words,  the district          ________          court visualized the  premium added by  the jury as  representing          compensation for Dopp's  share of the venture's profits  from the          date of  the verdict "back to  December 3, 1984, the  date of the          breach."  Id.                    ___                    In our view, the  district court's reasoning is flawed.          While past profit potential may very well have been ascertainable          and quantifiable, there is  no indication in the record  that the          jury had before it  specific evidence that would have  allowed it          to engage in this kind of  calculation.  Thus, the inclusion of a          pro  rata  share of  past  profits  as  part  of the  verdict  is          ___  ____          forbidden.   Although  juries generally  enjoy broad  latitude in          determining damages,  their authority is not  without all limits.          In  the case of economic damages, in particular, the jury's award          must  be rooted in an adequate evidentiary predicate.  See Segal,                                                                 ___ _____          746  F.2d  at 81;  Kolb,  694  F.2d at  872.    Since a  thorough                             ____          canvassing of the trial record fails to unearth any such support,          we  are constrained  to conclude  that the  jury, in  exceeding a          $14,171,962 figure,  could not  have done  so on  the basis of  a          wrongful diversion  of profits except by  an impermissible resort          to speculation and surmise.                                          29                    This  conclusion is  staunchly reinforced  by the  fact          that  the  judge's charge  made  no  mention of  Dopp's  putative          participation in  past  profits.    To the  contrary,  the  judge          cautioned the  jurors that  even though  "[y]ou have listened  to          considerable evidence  . . . which  bears on the finances  of the          Dorado  Beach  Hotel  Corporation  during  the  period  following          Pritzker's breach of the oral contract on December 3, 1984  . . .          [f]or  the  purposes  of   assessing  Dopp's  damages,  you  must          disregard this evidence."  It is a bedrock rule that  juries must          act within the parameters of the court's instructions.  See Sparf                                                                  ___ _____          & Hansen v. United States, 156 U.S. 51, 67 (1895).  This rule has          ________    _____________          particular pertinence where, as here, the instructions are crisp,          clear, and  cogent.   Thus, the  district court's charge  totally          undermines its later attempt to salvage the verdict.12                    Dopp also  tries to justify  the excess portion  of the          verdict on other grounds.   His most forceful suggestion  is that          the jury,  in determining full damages,  appropriately could have          considered  the value of the management contract for the hotels            an  asset  worth,  to  Dopp's  way  of  thinking,  an  additional          $35,200,000.    He  argues  that, because  Pritzker  carved  this                                        ____________________               12There is perhaps another reason for rejecting the district          court's explanation:  the necessity to safeguard against the risk          of  duplicative recovery.   After all,  the expert  valuations of          DBHC,  such  as the  Merrill  Lynch  appraisal, already  included                                                          _______  ________          future  profit  projections.     While  we  understand  that  the          projected   profits   included   in  those   valuations   may  be          qualitatively  distinguishable from the  venture profits of which          the  district  court  wrote,  we  also  appreciate  that  a  jury          overwhelmed  by datum  upon datum  of economic  estimations could          quite easily have conflated the two species of gains.                                          30          contract out of  the deal despite  the fact that  it was part  of          DBHC's inherent value, there is "ample evidence" to conclude that          "the $17 million jury's  valuation of Dopp's full damages  is, if          anything,  too  low by  any  standard."    On  close  inspection,          however,  Dopp's "ample  evidence"  proves no  sturdier than  the          proverbial house of cards.13                    In our  estimation, the  management contract is  wholly          irrelevant  to the  issue  of  full  damages.    As  the  parties          themselves expressly agreed in  the oral contract, the management          contract was to be awarded to a Pritzker affiliate, not to either          Dopp  or  DBHC.     Hence,  the  management   contract  bears  no          relationship  whatever to Dopp's damages or to the value of DBHC,          regardless of  whether  it  may have  constituted,  as  Dopp  now          alleges,  "a  value  inherent   to  [sic]  Dopp's   purchase-sale          contract."                      We need go no further on the issue of full damages.  We          hold  that the jury's verdict is  untenable to the extent that it          exceeds   $14,171,962.    Accordingly,   we  have  no  principled          alternative  but  to  direct  the  district  court  to  order   a          conditional new trial for the  sole purpose of redetermining full          damages,  the  condition  being  that  if  Dopp  agrees to  remit          $3,313,400 from the award,  or, put another way, if he  agrees to          accept  a reduction of  the "full damages"  award to $14,171,962,                                        ____________________               13Dopp also  attempts to justify  the jury verdict  based on          "expectations  of profit sharing  and capital appreciation [that]          were destroyed  by Pritzker's imposition of  the buy-out clause."          This  argument  parallels  the  district  court's  rationale, and          founders for the reasons previously discussed.                                          31          then  the verdict, as  reduced, may stand.   Should Dopp  fail to          consent to such a remittitur, then the district court shall order          a  new trial limited  to the issue  of full  damages.14  Although          this remittitur  is  not  insubstantial, we  regard  it  as  both          necessary and appropriate under the circumstances.  See, e.g., K-                                                              ___  ____  __          B Trucking Co. v. Riss Int'l Corp., 763 F.2d  1148, 1162-63 (10th          ______________    ________________          Cir. 1985); Goldstein v.  Manhattan Indus., Inc., 758  F.2d 1435,                      _________     ______________________          1448  (11th Cir.), cert. denied,  474 U.S. 1005  (1985); Dixon v.                             _____ ______                          _____          International Harvester Co.,  754 F.2d 573, 590  (5th Cir. 1985);          ___________________________          Irene D. Sann, Remittiturs (and Additurs) in the Federal  Courts,                         _________________________________________________          38 Case W.  Res. L. Rev. 157,  188 (1987) (observing that,  where          "the  erroneously excessive  portion  of the  jury  verdict is  a          liquidated  amount     that is,  where  the  source  of error  is          identifiable and the measure of damages traceable to the error is          calculable .  . .  a remittitur  of a small  portion of  the jury          verdict would be appropriate because the  error can be identified          and corrected").          IV.  OBSTINACY          IV.  OBSTINACY                    Our final  inquiry centers around  the district court's          award  of attorneys'  fees ($1,500,000) and  prejudgment interest          ($6,843,379.42),  based on  its finding  that  Pritzker displayed          obstinacy.  See Dopp III, 831 F. Supp. at 951 (citing P.R.R. Civ.                      ___ ________                                        ____________________               14If  the issue  of full  damages is  tried anew,  then Dopp          shall again be afforded the opportunity, at the appropriate time,          to elect between full  damages and annulment.  If,  however, Dopp          were  to elect annulment, he would  receive no accessory damages,          as we see no basis for disturbing the special finding of the jury          to this effect, see Dopp III, 831 F. Supp. at 942 n.5.                          ___ ________                                          32          P.  44.1(d), 44.3(b)).15   Pritzker  assigns error,  arguing that          he was  not obstinate within the  meaning of the rules.   We find          merit in Pritzker's plaint and nullify the awards.   Hence, we do          not  reach Dopp's contention that  the court used  too miserly an          interest rate.                                A.  Legal Principles.                                A.  Legal Principles.                                    ________________                    In a diversity  case in  which the  substantive law  of          Puerto  Rico supplies the basis of decision, a federal court must          give effect to Rules 44.1(d) and 44.3(b) of the Puerto Rico Rules          of  Civil Procedure.   See,  e.g., De  Leon Lopez  v. Corporacion                                 ___   ____  ______________     ___________          Insular de Seguros,  931 F.2d 116,  126 (1st  Cir. 1991).   These          __________________          rules  speak in imperatives.  Thus,  the imposition of attorneys'          fees  and prejudgment  interest  is obligatory  once a  threshold          finding  brings the rules  into play.  See  Fernandez v. San Juan                                                 ___  _________    ________                                        ____________________               15Rule 44.1(d) provides in relevant part:                    In  the event  any  party or  its lawyer  has                    acted obstinately or  frivolously, the  court                    shall, in its judgment, impose on such person                    the  payment of  a  sum  for attorney's  fees                    which the court  decides corresponds to  such                    conduct.          P.R. Laws Ann. tit.  32, app. III R.44.1(d) (1984  & Supp. 1989).          With  certain   exceptions  not  applicable  here,  Rule  44.3(b)          provides that:                    [T]he court  will . .  . impose on  the party                    that has acted rashly the payment of interest                    .  .  . from  the  time the  cause  of action                    arises in every  case of collection of  money                    and  from  the time  the  claim  is filed  in                    actions for damages  until the date  judgment                    is pronounced. . . .          P.R. Laws Ann. tit. 32, app. III R.44.3(b) (1984 & Supp. 1989).                                          33          Cement  Co.,  118  D.P.R. 713  (1987).    The  two rules  operate          ___________          differently, however,  in at  least one  salient respect:   while          Rule 44.3(b)  provides for determining the  amount of prejudgment          interest in a mechanical fashion, specifying the period for which          interest is  to be imposed and the interest rate to be used, Rule          44.1(d)   vests  the   court  with  considerable   discretion  in          determining the amount of attorneys' fees to be bestowed.                    A threshold finding of obstinacy brings both rules into          play.   To be sure,  the rules themselves  use slightly disparate          terminology in describing  the prerequisites to their  operation.          Rule  44.1(d)  speaks  of  parties  who  act  "obstinately";  the          official translation  of Rule 44.3(b)  speaks of parties  who act          "rashly";  and the official Spanish  version of Rule 44.3(b) uses          the  word  "temeridad"     a  term  that "is  more  appropriately          translated as `temerity,'" Dopp III, 831 F. Supp. at 951 n.9.  We                                     ________          regard these  linguistic differences as inconsequential,  for the          case law makes it transpicuously clear that the legally operative          conduct  under both  rules is  that of  obstinacy.   See  De Leon                                                               ___  _______          Lopez,  931  F.2d  at  126-27  (citing  other  cases);  see  also          _____                                                   ___  ____          Fernandez, 118  D.P.R. 713  (noting that interest  and attorneys'          _________          fees  will both  be  assessed "when  the  losing party  has  been          obstinate").  We  hold, therefore, that obstinacy is the linchpin          of a determination under both Rule 44.1(d) and Rule 44.3(b).  The          court below, which equated  rashness and temerity with obstinacy,          see  Dopp III, 831 F. Supp. at  951 n.9, thus employed the proper          ___  ________          standard.                                          34                    The   rudiments  of   obstinacy   are   more  or   less          straightforward:                    A  finding  of  obstinacy requires  that  the                    court  determine  a  litigant  to  have  been                    unreasonably adamant or stubbornly litigious,                    beyond   the   acceptable   demands  of   the                    litigation, thereby wasting time  and causing                    the court and the other litigants unnecessary                    expense and delay.          De  Leon Lopez,  931 F.2d at  126; accord La  Playa Santa Marina,          ______________                     ______ _______________________          Inc. v. Chris-Craft Corp., 597 F.2d  1, 7 (1st Cir. 1979); Rivera          ____    _________________                                  ______          v. Rederi A/B Nordstjernan,  456 F.2d 970, 975 (1st  Cir.), cert.             _______________________                                  _____          denied, 409  U.S. 876  (1972); Soto v.  Lugo, 76 P.R.R.  416, 419          ______                         ____     ____          (1954).   The purpose  behind the rules is to penalize  "a losing          party that because of  his stubbornness, obstinacy, rashness, and          insistent  frivolous  attitude  has  forced the  other  party  to          needlessly assume the pains,  costs, efforts, and  inconveniences          of a litigation."   Fernandez, 118 D.P.R. 713; see  also Reyes v.                              _________                  ___  ____ _____          Banco  Santander de P.R., N.A.,  583 F. Supp.  1444, 1446 (D.P.R.          ______________________________          1984).                    In  fine,  the  rules   are  aposematic  in  the  first          instance, and, if  their warnings are  not heeded, the  resultant          imposts are intended to punish the offending party as well  as to          recompense   those   who   are  victimized   by   the  offender's          recalcitrance.  Consequently,  under  the rules  at  issue  here,          attorneys' fees and prejudgment interest cannot be imposed merely          to  reward  a  successful  litigant; rather,  such  premiums  are          payable only if  the offending party's  behavior "result[s] in  a          litigation  that could  have been  avoided";  or if  the behavior                                          35          "prolongs  [the litigation]  needlessly"; or  if it  "obliges the          other party  to embark on  needless procedures."   Fernandez, 118                                                             _________          D.P.R. 713 (citations omitted).                               B.  Standard of Review.                               B.  Standard of Review.                                   __________________                    The  very nature  of a  trial judge's  interactive role          assures  an  intimate familiarity  with  the  nuances of  ongoing          litigation   a familiarity  that appellate judges, handicapped by          the sterility of an impassive record,  cannot hope to match.  The          standard of appellate review often recognizes this disparity.  So          it is here:   "[w]e review the trier's determination of whether a          party has been obstinate in a deferential manner, using an abuse-          of-discretion  approach."  De Leon Lopez, 931 F.2d at 127; accord                                     _____________                   ______          Quinones-Pacheco  v. American Airlines, Inc.,  979 F.2d 1, 7 (1st          ________________     _______________________          Cir. 1992); Marshall  v. Perez  Arzuaga, 828 F.2d  845, 852  (1st                      ________     ______________          Cir. 1987), cert. denied, 484 U.S. 1065 (1988).                      _____ ______                    We  have  fashioned  a framework  for  gauging  claimed          abuses of discretion:                    In making discretionary judgments, a district                    court  abuses its discretion  when a relevant                    factor  deserving  of  significant weight  is                    overlooked,  or when  an  improper factor  is                    accorded  significant  weight,  or  when  the                    court  considers  the   appropriate  mix   of                    factors,  but  commits  a palpable  error  of                    judgment   in   calibrating  the   decisional                    scales.          United States v. Roberts, 978 F.2d 17, 21 (1st Cir. 1992); accord          _____________    _______                                   ______          Foster v. Mydas Assocs., Inc., 943 F.2d 139, 143 (1st Cir. 1991);          ______    ___________________          Independent  Oil &  Chem. Workers  of Quincy,  Inc. v.  Proctor &          ___________________________________________________     _________          Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988).          _______________                                          36                    As  its  language  suggests,   the  abuse-of-discretion          framework constitutes  a substantial obstacle for  appellants who          consider themselves aggrieved  by discretionary decisions of  the          district  court; most such appellants  are destined to leave this          court empty-handed.   This is as it must be,  especially in light          of the vastly different  relationships between the district court          and the events of an actual trial, on the one hand, and the court          of appeals and those same events, on the other hand.  This is not          to imply, however, that an  appellate tribunal may merely rubber-          stamp a district  judge's discretionary  determinations.   Though          abuse of discretion  is a relatively relaxed  standard of review,          it  is  a standard  nonetheless, and  the  court of  appeals will          interject itself if the trial court does not meet its measure.                                    C.  Analysis.                                    C.  Analysis.                                        ________                    The court  below cited three occurrences  in support of          its finding of obstinacy:  (1) the deceit and duress found by the          jury in the first trial to have been practiced by Pritzker during          the early stages of his dealings with Dopp; (2) Pritzker's appeal          from the verdict rendered  by the first jury; and  (3) Pritzker's          steadfast claim that Dopp's full damages amounted to no more than          $35,000.  See  Dopp III,  831 F. Supp.  at 951.   We think it  is                    ___  ________          evident from this account  that the district court lost  its way.          In the pages that follow, we set forth our rationale.                    Perhaps most important, there is no sign that the court          factored into the decisional  calculus the overall nature  of the          litigation,  or  that it  placed  Pritzker's  conduct within  the                                          37          context of the case  as a whole.  Prosopopoeially  speaking, each          case, like each individual, has  a personality distinct from that          of all others.   A case's personality is important  in evaluating          claims  of obstinacy because, just  as obstinacy may  be found to          characterize  a party's conduct at one stage of a particular case          but not  necessarily at another, see Carrillo v. Sameit Westbulk,                                           ___ ________    _______________          514  F.2d  1214, 1220  (1st Cir.),  cert.  denied, 423  U.S. 1014                                              _____  ______          (1975),  so may obstinacy  be found to  characterize a particular          form of  conduct in  one case but  not in another.   In  making a          determination of obstinacy under P.R.R. Civ. P. 44, therefore, it          is  wise  for  the   trier  to  take  into  account   the  case's          personality.16   This  course becomes  imperative when  the court          is  confronted  with   a  case  that  has  a  highly  distinctive          personality.                    This is such a  case.  The district court  described it          as involving "difficult and protracted legal battles."  Dopp III,                                                                  ________          831  F. Supp. at  940.  This  understates the matter.   Here, the          stakes are high, the  issues tangled, the law tenebrous,  and the          litigants relentless.   The nature of the  performance sought and          the  multiplicity  of parties  and  interests  contribute to  the                                        ____________________               16Our own precedents afford a testament to the importance of          correctly  characterizing the  nature of  the litigation  for the          purpose of discerning  obstinacy.   In La Playa  Santa Marina,  a                                                 ______________________          dealer  sued  a  manufacturer.    Following  a bench  trial,  the          district  court found  the manufacturer  liable for  damages, 597          F.2d at 3-4, and, in addition, awarded attorneys' fees due to the          manufacturer's "obvious  temerity in  the defense of  this suit."          Id.  at  7.    We reversed  the  fee  award,  observing  that the          ___          underlying dispute was one  characterized by "close questions and          sharp conflicts in  the evidence on both liability  and damages."          Id.          ___                                          38          case's  uniqueness.  In  view of these  realities, we are  of the          opinion that  the trial  court had  an inescapable  obligation to          gauge  the culpability  of  Pritzker's conduct  accordingly.   In          failing  to  undertake such  an  evaluation,  the district  court          abused its discretion.                    We  believe that  the  court compounded  this error  of          omission by slipping into  various errors of commission.   In the          first  place,  the  court  used  too  wide  a  temporal  horizon.          Obstinacy  depends  on  a  party's   conduct  in  the  course  of                                                        ___________________          litigation.     See,  e.g.,  De  Leon  Lopez,  931  F.2d  at  126          __________      ___   ____   _______________          (indicating that the rules  prohibit obstinacy "during the course          of  a lawsuit").  Thus,  the fact that  Pritzker practiced deceit          and  duress during the events  antecedent to the litigation could          not trigger Rule 44.                    In the second  place, we  do not believe  that, in  the          circumstances  of this  case,  Pritzker's appeal  from the  first          jury's verdict constituted  sanctionable conduct.   The  district          court  thought that it was proper to penalize Pritzker for taking          the appeal  because he "thereby  caus[ed] significant  additional          expenditures by the  plaintiff, only  to have the  amount of  the          verdict  against him increased by the second verdict."  Dopp III,                                                                  ________          831  F. Supp. at 951.  We  find such a conclusion indefensible in          light  of the appeals  simultaneously taken  by Dopp  and several          other  parties  from  the  first  jury  verdict;  the  fact  that          Pritzker's appeal succeeded  at least  in part,  prompting us  to          erase the original  remedial scheme  and to order  a partial  new                                          39          trial;  and,   finally,  the  uncertainty  and   complexity  that          surrounded the issue of Dopp's entitlement vel non to resolution.                                                     ___ ___                    This last point is especially significant because, as a          general  rule, litigation of a  novel but colorable claim cannot,          by itself, provide  the basis  for a finding  of obstinacy  under          P.R.R. Civ.  P. 44.   See, e.g., Riofrio  Anda v.  Ralston Purina                                ___  ____  _____________     ______________          Co., 772  F. Supp. 46, 54 (D.P.R. 1991) ("[W]here, as here, novel          ___          issues are raised, a party cannot be held as obstinate."), aff'd,                                                                     _____          959  F.2d  1149 (1st  Cir. 1992);  Marina  Indus., Inc.  v. Brown                                             ____________________     _____          Boveri  Corp., 114 D.P.R. 64 (1983) (similar); Brea v. Pardo, 113          _____________                                  ____    _____          D.P.R. 217 (1982)  (similar).   Indeed, even if  a party's  claim          ultimately fails, it cannot be deemed frivolous or  obstinate for          that  reason alone.  See Navarro de  Cosme v. Hospital Paiva, 922                               ___ _________________    ______________          F.2d 926, 934 (1st Cir. 1991); Reyes, 583 F. Supp. at 1445; Felix                                         _____                        _____          v. Victory Carriers, Inc., 342 F. Supp. 1386, 1388 (D.P.R. 1972).             ______________________          Such a rule is dictated by both common sense and common fairness.          Obstinacy must be judged primarily as of the time  the conduct is          undertaken,  not  in  hindsight;17  and penalizing  a  party  for          filing a non-frivolous appeal  for no other reason than  that the          party's  position   deteriorated,   rather  than   improved,   in          consequence of the appeal is a paradigmatic misuse of discretion.                    Finally,  we  are   doubtful  that  Pritzker's   myopic          assessment of Dopp's full  damages at $35,000 constituted conduct                                        ____________________               17That is not to say,  however, that a court must close  its          eyes to  subsequent events, for  such events  sometimes can  cast          light on what a party knew, or  should have known, at the time he          acted.                                          40          violative  of Rules  44.1(d)  and  44.3(b).   Though  we  readily          acknowledge  that  Pritzker's  stated  valuation  verges  on  the          ludicrous,  there is nothing  to show  that Dopp    who  even now          challenges a $17,000,000  verdict as too  paltry, see supra  Part                                                            ___ _____          III   ever placed a  more reasonable value on the case, or that a          realistic settlement offer by  Pritzker would have satisfied Dopp          and shortened the proceedings.18                    To  sum up, this case in its present posture epitomizes          the  potential risk  of  overapplication  associated with  Puerto          Rico's  obstinacy  rules.   See  Carrillo, 514  F.2d  at 1219-20.                                      ___  ________          Because the  district court's subsidiary findings  do not support          its ultimate  finding of obstinacy,  and because the  record does          not  otherwise show  that Pritzker  was "unreasonably  adamant or          stubbornly  litigious,  beyond  the  acceptable  demands  of  the                                  _________________________________________          litigation," De  Leon Lopez, 931 F.2d at 127 (emphasis supplied),          __________   ______________          we have no choice but to vacate the award of  attorneys' fees and          prejudgment interest.          V.  CONCLUSION          V.  CONCLUSION                    This case has taken on a life of its own.   Perhaps its          duration is  directly proportional  to the  imputed value  of the          assets at stake,  but, whether or not  esurience is the  cause of          the  prolongation, old age inevitably  overtakes cases as well as                                        ____________________               18Although  Dopp's apparent  intractability does not  in any          way justify  Pritzker's seeming intransigence   two wrongs do not          make a right    an obstinacy determination  must necessarily take          the  whole picture  into account.   After  all, courts  have long          believed that, in assaying such matters, "[t]he lemon  should not          be allowed to  reap a  reward for calling  the grapefruit  sour."          Quinones-Pacheco, 979 F.2d at 8 n.9.          ________________                                          41          people.  Although we are unable fully to inter the  corpus of the          litigation  today, we  have done  what we  can to  move  the case          toward its final resting place.                    For  the  reasons  discussed,  we  affirm the  district          court's denial  of a  resultory remedy; conditionally  affirm the          award   of   full  damages,   subject   to   a  remittitur   (or,          alternatively, a limited new trial) as  described in Part III(B),          supra; and reverse  the award of attorneys' fees  and prejudgment          _____          interest.19                    Affirmed in part, reversed in part, and remanded to the                    Affirmed in part, reversed in part, and remanded to the                    _______________________________________________________          district court  for  further  proceedings  consistent  with  this          district court  for  further  proceedings  consistent  with  this          _________________________________________________________________          opinion.  Mandate shall be  stayed for the time being, and  shall          opinion.  Mandate shall be  stayed for the time being, and  shall          _______   _______________________________________________________          issue simultaneous with the issuance of mandate in respect to the          issue simultaneous with the issuance of mandate in respect to the          _________________________________________________________________          three consolidated  appeals, namely,  Nos. 93-2374,  94-1128, and          three consolidated  appeals, namely,  Nos. 93-2374,  94-1128, and          _________________________________________________________________          94-1129, that are to be the subject of a  separate and subsequent          94-1129, that are to be the subject of a  separate and subsequent          _________________________________________________________________          opinion.  Each party shall bear his own costs.          opinion.  Each party shall bear his own costs.          _______   ___________________________________                                        ____________________               19To  the  extent that  the  parties to  these  appeals have          raised other  arguments, some are  rendered moot by  our rulings,          and others are patently  meritless.  In any event,  none requires          particularized discussion.                                          42
