265 F.3d 27 (1st Cir. 2001)
MERRILL W. KEARNEY, Plaintiff, Appellant,v.J.P. KING AUCTION COMPANY, INC.,  J. CRAIG KING,  Defendants, Appellees.
No. 00-1837 & No. 00-1910
United States Court of Appeals For the First Circuit
Heard May 9, 2001Decided September 13, 2001Amended September 28, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge] [Copyrighted Material Omitted]
Thomas P. Hineman and Mark K. McDonough, with whom Kevin M.  Cuddy and Cuddy & Lanham were on brief for appellant.
John W. McCarthy, with whom Brent A. Singer and Rudman &  Winchell, LLC were on brief for appellees.
Before  Torruella, Circuit Judge, Campbell, Senior Circuit Judge, and Schwarzer,* Senior District Judge.
CAMPBELL, Senior Circuit Judge.


1
This appeal from  adverse rulings in the district court concerns the sale of  eighty acres of undeveloped waterfront land in Lubec, Maine. Owned by plaintiff-appellant Merrill Kearney, the land was sold  at auction on his behalf by defendant-appellee J.P. King Auction  Company ("King Auction") on May 14, 1997.


2
The auction did not go well.  Only two bidders were  present and one withdrew when the price per acre rose to $100. The remaining bidder offered $8,000, a hugely undervalued price  by both parties' estimates.  (Kearney, himself, had only several  months earlier purchased the land for $90,000.)  Forced by the  Maine Superior Court to convey the land for $8,000 to the bidder  at the auction, Kearney sued King Auction alleging breach of  contract, negligence, breach of fiduciary duty, negligent  misrepresentation, fraudulent misrepresentation, punitive  damages, negligent infliction of emotional distress, intentional  infliction of emotional distress, and unfair trade practices.1 The district court entered summary judgment in favor of King  Auction on all counts but breach of fiduciary duty, negligent  infliction of emotional distress and unfair trade practices. Plaintiff now appeals from that ruling, but only with respect to  his claims of fraudulent and negligent misrepresentation and  punitive damages.  The breach of fiduciary duty claim was tried  to the jury, which found for King Auction.2  Plaintiff appeals  from that result, alleging error in the trial court's exclusion  of certain evidence.


3
We consider, first, the district court's dismissal of  claims upon summary judgment, and second, the correctness of the  district court's ruling excluding evidence at trial.  Discerning  no error, we affirm in all respects.3

I. Factual Background4

4
In February 1997, Kearney purchased eighty acres of  undeveloped waterfront land in Lubec, Maine, for $90,000.  By  his own account, he had spent considerable time surveying the  land before negotiating from $300,000, the original asking  price, to the final sale price of $90,000.  He thereupon  attempted to sell the land himself for a profit, placing  advertisements in various national and international newspapers  such as the Wall Street Journal and the Hong Kong Daily. Shortly thereafter, Donald Long, a Canadian businessman and  acquaintance of Kearney's, offered to buy the eighty acres for  $1.8 million.  The two men entered into an informal written  agreement at the end of February 1997.5


5
Before formalization of the deal between Long and  Kearney, Michael Keracher from King Auction called Kearney with  an offer to evaluate the land.  Keracher had seen Kearney's  advertisement and thought King Auction could sell Kearney's land  for him at a competitive price.  During that first conversation,  Kearney told Keracher that he had an offer from Long for $1.8  million, which hadn't been "completely finalized."  Kearney  testified that Keracher told him that "the property was just  worth a lot more money that what [Kearney] was getting out of  it . . . .  He said, I will fly up right now . . . and look at  it and I can give you an evaluation of what I think . . . . [I]t would be worth your while, because it isn't going to cost  you anything for me to check it out . . . ."  Kearney testified  that he was inclined to show Keracher the land, but not before  speaking with Long.


6
Long did not insist that the agreement between him and  Kearney was binding to the extent of precluding Kearney from  showing Keracher the land.  Long did express his skepticism,  however, with regard to Keracher's offer to sell the land for  more than the $1.8 million Long had offered.  Kearney testified  that Long "wanted to know how anybody else could get so much  money out of it, and he wanted to meet with him [Keracher]."  So  Keracher flew up to Maine from Alabama a few days later to visit  with Kearney and Long and to see the eighty acres in Lubec.


7
Keracher spent no more than one hour on the property,  which was covered with more than twenty inches of snow at the  time.  Keracher testified that he did not speak with local real  estate agents or visit any other parcels of land nearby. Kearney testified that Keracher "mentioned numbers, three to ten  million dollars for the property" and that "[Keracher] felt it  would bring a minimum of three million dollars."  Although  Kearney fell short of testifying that he understood Keracher to  be guaranteeing an auction price of at least three million  dollars, Kearney did say that Keracher "just said many, many  times . . . I'm sure it would bring in three million dollars." When Kearney was asked "did you believe that you were being  guaranteed that he would get a price like that?", Kearney  responded, "I believed that he was going to get three million  dollars or more out of it . . . .  I felt that, sure enough,  they [King Auction] were going to get me over -- if they were  going to get me over 1.8 million that it would be my interest to  go with them."  Long testified to essentially the same  statement.  Long explained that although Keracher "would not  guarantee it, . . . he said he would get a minimum of 3.5  [million dollars], and he thought up to ten million dollars."


8
After viewing the property, Kearney drove Keracher  further north to Fredericton, in New Brunswick, Canada, to visit  Long who was waiting for them in a Sheraton Hotel.  Kearney  described the meeting in the hotel room during which Long asked  Keracher how King Auction "could get so much money out of th[e]  property."  Both Kearney and Long describe Keracher's  explanation as being that King Auction drew "heavy hitters,"  people both Keracher and Long described as "Hollywood people"  and "big movie stars . . . [who] like places like that that's  isolated."  The implication was that those "heavy hitters" would  bid up the price of the land.  Long reiterated, however, that  even though "[Keracher] was quite sure that he could get [$3-$10  million] out of it . . . it was an auction, so - you know-." Asked if Long meant that he understood there to be no  guarantees, Long replied "Well, that was . . . my opinion."


9
Keracher denied speaking to Kearney or to Long about  the dollar amount the land could bring at auction.  He explained  that "[w]e never do that," speaking to the King Auction policy  that forbids agents from evaluating the object to be auctioned. "That is one thing that we are told by King [Auction], by our  company, you never mention value.  You can't."  Keracher did say  that he recalls telling both Long and Kearney that the land was  unique because of its size and its location on the ocean.  He  said that he had "looked at materials, advertisements, other  advertisements for land for sale in Maine, and had only been  able to come across smaller parcels, five acres, three acres,  two acres, ten acres.  And [Kearney's land] was unique in that  respect, that it was a larger parcel.  It was eighty acres of  what they said was ocean front property."  Keracher also  testified that he told Kearney that  King Auction had been  successful in selling "premier properties" such as his --  premier properties being defined by King Auction as worth over  a million dollars -- and that King Auction sells such properties  on a regular basis.  Keracher gave Kearney a list of people who  had sold their property through King Auction in the past as  references, encouraging Kearney to call them.


10
At the end of the meeting between Long, Kearney and  Keracher, Long agreed to let Kearney out of their informal  contract.  Kearney and Keracher then drove to the Bangor, Maine  airport to return Keracher to Alabama.  During that drive,  Kearney and Keracher discussed the details of the auction, in  particular, what kind of auction it would be and who would pay  the up-front costs.  Keracher estimated the cost of the auction  and advertising would run around $40,000.  Kearney did not want  to pay it all, and the two men discussed the possibility of  splitting the cost.  The two men also discussed the possibility  of the auction being an absolute auction, an auction with a  reserve, or an auction with a published reserve.  Keracher  described an auction with reserve as less risky because the  seller "can either accept or reject the highest bid."  Likewise,  an auction with a published reserve announces in advance that  the seller is not going to sell the property for less than a  certain amount of dollars.  The absolute auction as described by  Keracher to Kearney "attracts the most interest because people  read that its going to sell without reserve . . . and you can  expect to bring in more bidders, and because of more bidders  you'll have more competition, and hopefully you'll get . . . the  market value of the property."  The risks of the absolute  auction described by Keracher to Kearney were that the seller  "take[s] what it brings . . . no matter what [King Auction]  do[es], no matter how beautiful a brochure [King Auction]  print[s], no matter how many ads [King Auction] place[s], at  some point in time [the] property must stand on its own.  It  will bring what it's worth."


11
By plaintiff's own account, the drive to Bangor airport  did not resolve the details of the auction.  Both Kearney and  Keracher testified that no final agreement had been reached. Not until further telephone calls and discussions regarding the  above mentioned decisions, did Kearney and Keracher agree that  they would split the cost of the auction and that the auction  would proceed as an absolute auction rather than one with a  reserve.  Kearney did say that Keracher expressed his preference  to proceed with an absolute auction, feeling that it would  attract more bidders.  To the same end, Keracher testified that  Kearney "may have said . . . [that he was] not afraid of an  absolute auction."6


12
After a month and a half of sending various copies of  the auction contract to each other, on April 17, 1997, Kearney  signed King Auction's agreement, initialing every page.  Kearney  said he did not read the contract "word for word, but I looked  through it."  Kearney explains that he did not read the contract  thoroughly because he had confidence in Keracher - "I had a  hundred percent trust in him . . . [he] was a professional, and  he was an expert in what he was doing."


13
The contract specifies the duties of King Auction, such  as to "prepare and distribute advertising and sales literature  in a manner reasonably calculated to advise persons who might be  interested in the PROPERTY and the sale thereof" and to "prepare  a full-color, descriptive sales brochure with photographs of the  property."  The contract also contains a disclaimer that the  seller, Kearney,


14
acknowledges and understands that neither  KING nor any of its agents, employees, or  representatives have guaranteed or promised  that the PROPERTY, in whole or in part,  shall produce a specific price or that a  certain minimum price will be bid at the  AUCTION.  SELLER is not relying on KING for  advice on the following: legal; accounting;  taxes; or the laws, rules or regulations of  any government.  This AGREEMENT contains the  entire understanding of the parties, and all  prior understandings and negotiations have  been merged herein.  SELLER is not relying  upon any statements or representations made  by or on behalf of KING that are not  specifically set forth in this AGREEMENT.


15
In fulfillment of its duties, King Auction then  advertised the auction in nation-wide newspapers and magazines,  prepared full-color brochures, and mailed several thousand  brochures to people on their mailing list.  Keracher's  undisputed deposition testimony was that approximately 130  people responded to the advertisements requesting brochures and  fifty people responded after receiving those brochures.  Of  those, between eight and twelve people paid twenty-five dollars  each to receive full property information packages.  None,  however, showed up at the auction.


16
Only two people attended the auction to bid on the  property.  At this point, Keracher alleges that he asked Kearney  if he wanted to continue with the auction and Kearney said yes. Kearney contends to the contrary, testifying that it was he who  wanted to stop the auction but Keracher would not listen and  proceeded anyway.  Kearney claims that at that point he felt  that King Auction failed to successfully advertise to attract  bidders.  He said that he also felt that King Auction failed to  honor his wishes as his agent to stop the auction when only two  bidders showed up.  When the auction started and one bidder  dropped out after the price per acre rose to $100, the  auctioneer attempted to change the auction from absolute to  reserve.  This attempt failed.  The first bidder, successfully  bidding $8,000 for the property, sued Kearney in Maine Superior  Court winning a judgment that ordered Kearney to convey the  land.


17
This lawsuit by Kearney against King Auction followed. All other claims being disposed of prior to trial, the jury  decided only Kearney's claim against King Auction for breach of  fiduciary duty.  It found no such breach, apparently believing  that King Auction, despite holding the auction when only two  bidders were present, nevertheless fulfilled its fiduciary duty  to Kearney.  Judgment was entered for King Auction.

II.  Motion for Summary Judgment
A.   Misrepresentation Claims

18
Kearney's misrepresentation claims were premised on  Keracher's statements to him that (1) at auction Kearney's  eighty acres in Lubec would sell for between $3 and $10 million,  and (2) the auction would attract "heavy hitters."7  The  defendants contend that these statements, assuming they were  made, are not actionable under Maine common law as they are not  statements of present fact but expressions about belief about  and hope for the future.  Defendants further contend that the  record at summary judgment fails to create a jury question as to  Kearney's justifiable reliance on these statements to support  either cause of action.8  Determining, as we do, that defendants  are correct with regard to their first contention - that, as a  matter of Maine law, neither statements are of present fact,  hence, not actionable under Maine law as misrepresentations - we  affirm the district court's judgment.9


19
Last year, in Vielleux v. Nat'l Broadcasting Co., 206  F.3d 92 (1st Cir. 2000), this court considered the evolving  Maine common law of misrepresentation when the basis of the  claim is a statement that might be construed as an opinion or  promise of future performance.


20
Traditionally, an action for deceit could be  brought under Maine law only if the  challenged misrepresentation was of past or  existing fact, not just of opinion or of  promises for future performance.  See Wildes v. Pens Unlimited Co., 389 A.2d 837, 840  (Me. 1978).  Even "a preconceived intention  not to perform" was said to be incapable of  turning a breach of a promise . . . to do  something in the future into an action for  deceit.  Shine v. Dodge, 130 Me. 440, 157 A.  318, 319 (Me. 1931).


21
In the Wildes case, however, the Maine  Supreme Judicial Court pointed to a sentence  in Shine, supra, as broadening the blanket  rule.  Allowing a finding of deceit to be  based on a disingenuous promise of  employment, the Wildes court quoted Shine: "The relationship of the parties or the  opportunity afforded for investigation and  the reliance . . . may transform into an  averment of fact that which under ordinary  circumstances would be merely an expression  of opinion."  389 A.2d at 840 (quoting Shine, 157 A. at 318).


22
Vielleux, 206 F.3d at 119-20.  This court's conclusion in Vielleux was that "in appropriate circumstances, promises  concerning future performance may be sufficiently akin to  averments of fact as to be actionable under Maine  misrepresentation law."  Id.  As the two statements at issue are  both statements about the hoped-for outcome of the auction, i.e., a future event at which Keracher arguably promised "heavy  hitters" would be present and that the land would sell for  between $3 and $10 million, the question is whether this case  presents the "appropriate circumstance[]" in which Keracher's  "promises concerning [the outcome of the auction] may be  sufficiently akin to averments of fact as to be actionable under  Maine law," id.  In other words, we must decide whether the  interaction between Kearney and Keracher was such that Kearney  "justifiably understood [Keracher's promises of future  performance] as being of fact and not mere opinion."  Wildes,  389 A.2d at 840.


23
The Maine cases in which statements of opinion "have  been justifiably understood as being of fact" have arisen under  circumstances in which the plaintiff is "at the mercy of the  defendant," such as in employment situations where an employer,  with full knowledge of imminent corporate downsizing,  nevertheless promises a position to a new salesperson.  Id. at  840-41.  See also Boivin v. Jones & Vining, Inc., 578 A.2d 187,  188-89 (Me. 1990) (upholding a jury verdict in favor of  plaintiff-employee for misrepresentation claim the basis of  which was defendant-employer's promise of continued employment  made with knowledge that such continued employment was likely  unfeasible).  We drew upon this reasoning in Veilleux as support  for upholding (in relevant part) a jury verdict in favor of  plaintiffs' claim for a misrepresentation where the plaintiffs  were not employees suing their employer over promises of further  employment, but, when the statements were made, were in a  similarly vulnerable position.


24
In Veilleux, the defendants were truck drivers who were  being featured in a television news program and were promised by  the defendant news station that, among other things, an  organization antagonistic to their profession (Parents Against  Tired Truckers (PATT)), would not be included in the program. One factor influencing this court's conclusion that the jury  could reasonably construe that promise as an averment of present  fact was that the news station's statements concerned "aspects  of the program within [its] exclusive control [and] upon which  [plaintiff] reasonably could have relied."  Veilleux, 206 F.3d  at 120.  We went on to explain that "[the plaintiff] was not in  a position to know about, investigate or influence defendant's  inclusion of PATT in the program; he was 'at the mercy of the  defendant[s]' with regard to their representations."  Id. (citing Wildes, 389 A.2d at 840) (citations omitted).  Equally  important, however, to this court's conclusion in Veilleux that  the relevant statement was an actionable misrepresentation more  closely akin to an averment of present fact than of future  performance was that at the time the statement was made,


25
a jury could reasonably find . . . that the  defendants deliberately concealed from [one  plaintiff], at the time they told him that  PATT would not be included, the fact that  they had already filmed and recorded taped  comments highly critical of truckers from  PATT's co-founders . . . in preparation for  use in the projected program . . . .  The  program was therefore already a work in  progress when the misrepresentation was  made. A promise not to include PATT and the  concealment of prior PATT filming can be  regarded under the rational of Wildes and Boivin as pertaining to existing "facts"  rather than mere opinions or projections. Accordingly, we do not think the fact that  defendants' alleged representation to  exclude PATT also pertained to a time in the  future (i.e., when the completed program  would be aired) prevents it from being  actionable as a misrepresentation of fact  under recent Maine law.


26
Veilleux, 206 F.3d at 120-21.


27
None of the factors present in Veilleux   a  defendant's exclusive control over and deliberate concealment of  critical information -- which factors track those considered and  relied upon by Maine courts, are present in this case.  With  regard to the first statement about the market value of land to  be garnered at auction, the relationship between Kearney and  King Auction was not vulnerable or one-sided such that Kearney  could not undertake his own investigation into the market value  of his property or the range of values of land sold by King at  auction.  On the contrary, the evidence was undisputed that  Keracher encouraged Kearney to inquire into King Auction's  references, those presumably being individuals on behalf of whom  King Auction sold premier properties and individuals who  purchased such properties at auctions organized by King Auction. Moreover, Kearney had been to a couple of auctions himself and  had experience with evaluating, buying and selling land in  Maine.  He, as much as King Auction, should have been able to  investigate whether or not the $3 to $10 million figure was a  reasonable one for the price of waterfront land in Lubec, Maine. Nor was there any evidence that Keracher was deliberately  concealing something from Kearney that would make Keracher's  estimate of $3 to $10 million more like an averment of present  fact than of future aspirations.  This statement is in stark  contrast to the one at issue in Veilleux where the promise not  to include the PATT footage was made after that footage had  already been filmed.


28
As for the second statement about "heavy hitters",  there is little evidence in the record tending to establish that  Keracher was lying when he said that King Auction's auctions  attract "heavy hitters."  Whereas plaintiff provided no evidence  that those "heavy hitters" did not exist or did not attend other  King Auction auctions, it is undisputed that King Auction  provided plaintiff a list of references of former clients and  attendees, the relative wealth of which plaintiff could have  investigated to assure himself of the truth of Keracher's "heavy  hitters" statement.  For ought that appears, King Auction's  other auctions had attracted "heavy hitters" however  unsuccessful the later situation in Kearney's case.  To be sure,  the fact that Kearney's own auction played to a total absence of  the so-called "heavy hitters" may be some evidence of the  falsity of King Auction's statement that its auctions drew  "heavy hitters."  Standing alone, however, it is not enough to  create a jury question on the issue of misrepresentation.


29
Moreover, it is important to note that in stating that  King Auction's auctions attract "heavy hitters," Keracher did  not guarantee Kearney that those "heavy hitters" would show up  at his auction.  A reasonable interpretation of the statement,  especially in light of the auction contract both parties signed  (e.g., defining King Auction's duty, in part, to "prepare and  distribute advertising and sales literature in a manner  reasonably calculated to advise persons who might be interested  in the PROPERTY and the sale thereof"), is that King Auction's  client list and reputation was such that its auctions could  attract wealthy bidders who are prepared to pay a high price for  premier properties.  It should have been obvious, however, from  the signed auction contract negotiated by both parties and the  nature of voluntary auctions themselves, that King Auction had  no real control over who chose to attend any of its auctions,  aside from doing its best to publicize the event and market the  property, duties which Kearney failed to show that King Auction  did not fulfill.  On the contrary, the undisputed evidence  demonstrated that King Auction prepared and placed nation-wide  advertisements, printed and sent to individuals on its mailing  list brochures describing the property, followed up with those  individuals requesting further information with full-color  brochures.10  Plaintiff's only counter-evidence was his own  deposition testimony in which he states, without foundation,  that he felt that King Auction failed to successfully attract  bidders.  This self-serving and conclusory statement of opinion  has no probative value as to the truth of Keracher's statement  that King Auction's auctions attract "heavy hitters", the  question a jury was to have decided had the misrepresentation  claim survived.


30
In any event, both statements at issue here are akin  to those in this court's decision in Schott Motorcycle Supply,  Inc. v. American Honda Motor Co., 976 F.2d 58 (1st Cir. 1992) -  statements found to be nonactionable misrepresentations under  Maine law.  In Schott, plaintiff, a motorcycle dealership, was  allegedly promised by the defendant, American Honda Motor  Company, that Honda Motor Company would remain just as committed  to the motorcycle industry as it had in the past and that new  Honda products and programs would cause an increase in Honda  sales.  Allegedly relying on these assurances, plaintiff split  into two businesses, one exclusively selling Honda motorcycles,  and the other selling Harley Davidsons and golf carts.  Within  three years, the business that was solely devoted to Honda  motorcycles went under, due in whole part, contended the  plaintiff, to the defendant's false assurances of continued  product development and commitment.  This court, citing Boivin and Shine, supra, affirmed the district court's dismissal of  plaintiff's fraud claim that was based on the above statements  because the "alleged misrepresentations consisted only of  opinions as to future events . . . .  These general statements  in the context of the franchisor-franchisee communications  constitute nothing more than 'puffing' or 'trade talk,' upon  which no reasonable person would rely."  Schott, 976 F.2d at 65  (citations omitted).


31
Like the statements in Schott, the statements at issue  here are no more than averments of the defendants' high  expectations for the auction King Auction was to oversee. Indeed, the district court, in ruling for the defendants on this  issue, cited to Sontag v. Eaton, 387 A.2d 33 (Me. 1978), a case  that merely reaffirms what is black letter law in Maine:  that  a statement made by a seller of land regarding its estimated  value is "dealer's talk" and cannot be actionable fraud should  the market price of the land be in actuality much lower.  See id. at 37 ("[M]isrepresentations as to value and quality of land  made by the vendor, even though made with fraudulent intent, are  not actionable . . . . Such representations are 'dealer's  talk.'").  Although King Auction was not the owner of the land  to be sold, King Auction was "selling" the benefits of its  services on the basis of the perceived quality of Kearney's land  and its expertise in the auction process.  As a businessman who  sells land at auction, Keracher's statements regarding the  potential "heavy hitters" at auction and the land's hoped-for  sale price of $3 to $10 million


32
should have been understood [by Kearney] to  be[] but the use of extravagant language of  the class known to every man of ordinary  experience as "dealer's talk," i.e., "that  picturesque and laudatory style affected by  nearly every trader in setting forth the  attractive qualities of the goods he offers  for sale," and this even among friends.  But  such is not actionable.  The law recognizes  the fact that sellers may naturally  overstate the value and quality of the  articles of property which they have to  sell.  Everybody knows this, and a buyer has  no right to rely on such statements.


33
Id. at 37-38 (citations omitted).  See also id. at 38 (stating  that "[s]ince an express statement by the Eatons that their  property was worth eighty thousand ($80,000) dollars, the  selling price, . . . would not be actionable fraud, but merely  an opinion of the sellers which the buyers must expect to be  likely inflated as puffing or dealer's talk, their failure to  disclose the alleged fact, if true, that the actual investments  in the property did not reflect the true value of the property  would also not be actionable fraud").


34
We conclude, therefore, that no action for  misrepresentation lies under Maine law under these  circumstances.  Summary judgment for the defendants on counts  four (negligent misrepresentation) and five (fraudulent  misrepresentation) was properly granted.

B.   Punitive Damages

35
As plaintiff had no viable misrepresentation claim, supra, his claim for punitive damages for those alleged  misrepresentations also fails.11

III. Evidentiary Ruling at Trial

36
During trial on plaintiff's remaining claim for breach  of fiduciary duty, plaintiff asked to introduce evidence of the  two statements that were the basis of his previously dismissed  misrepresentation claims.  The trial court, questioning the  relevance of the statements to the claim the jury had to decide  (breach of fiduciary duty), ordered arguments and proffers on  the relevance issue for the following morning before the jury  was to be brought in.


37
Plaintiff's position was that the statements were  relevant to the breach of fiduciary duty claim because they were  made during the scope of the agency relationship and, as he  contended they were false or misleading, they bore on the issue  of whether Keracher breached his fiduciary duty to Kearney.12 Defendants' position was that the statements were not relevant  because they could not have been made during the agency  relationship as they were undisputably made on the first day  Kearney and Keracher met and therefore before any fiduciary duty  arose.13  When the court pressed the plaintiff to substantiate  his position that the agency relationship between Kearney and  King Auction began on the very first day Kearney met Keracher,  plaintiff explained "that [a] fiduciary relationship is not a  lightning bolt.  It's more analogous to a web that's being  woven.  And the web began when these gentlemen met and continued  and was reenforced and developed until it matured on May 14 [the  date of the auction].  That is our position."


38
The court continued to be perplexed by plaintiff's  position regarding the statements' relevancy, and asked the  plaintiff directly:  "when is the first manifestation of  agreement between King [Auction] and Kearney that there will be  an auction and a relationship?"  To this, plaintiff's counsel  responded:  "I would represent to you that in . . . the car as  Mr. Kearney drives back from Fredericton to Bangor to drop Mr.  Keracher off at the airport, he will indicate to you that at  that time he had decided that it was -- the property was going to  be auctioned and he and Mr. Keracher discussed the methodology  of the auction . . . .  That's why the conversations progressed  that far, because there had been an agreement in the course of  that car ride . . . ."  Having heard this apparent concession  from plaintiff's counsel that the earliest the agency  relationship began was on the way from Canada to the Maine  airport, the court then asked counsel when the statements were  made, to which he responded "A very precise question, and I have  to give you a precise answer.  We're at the other end of the car  ride.  They're before you get to Bangor.  They are part of what  leads up to coming down to Bangor."


39
Having received this apparent concession that the  statements at issue were made before an agency relationship  between Kearney and King Auction had formed, the district court  ruled the statements irrelevant and inadmissible, stating that  "the fiduciary obligation flows from the agency relationship. That is not established until there is an agreement, whether it  be written or oral.  I understand what [plaintiff's counsel] is  proposing.  But these are matters that go to the inducement, the  entering into the [agency] agreement.  They have already been  ruled upon in the summary judgment context.  The questions  before the jury will be breach of the fiduciary obligations that  flow from the auction agency relationship."  In essence, the  court concluded that without an agency relationship to create a  fiduciary duty at the time the statements were made, the  statements were not relevant to any breach of that duty. Because we can find no error, let alone reversible error, in  this reasoning, we affirm the district court's exclusionary  ruling.


40
Implicit in the district court's exclusionary ruling  was the court's acceptance of the factual predicate that the  agency relationship between the parties had not commenced until  after the statements were made.14  This factual predicate is not  only supported by plaintiff's counsel's concession at trial, it  is independently supported elsewhere in the record.  Viewed as  a factual finding, it was not clearly erroneous.15  Kearney's and  Long's deposition testimony indicated that the statements  regarding the estimated value of land and King Auction's "heavy  hitters" were made just after Keracher had viewed the property  and once again during the meeting with Mr. Long.  This coincides  with plaintiff's concession at trial that the statements were  made before Keracher returned to Bangor to fly home, before, as  plaintiff also concedes, any fiduciary relationship was  manifested between the parties.  It was, therefore, manifestly  reasonable for the district court to find that the statements  were made prior to the beginning of the parties' fiduciary  relationship.


41
This being so, the only remaining question is whether  these statements were nonetheless relevant to the breach of  fiduciary duty claim even though made before the fiduciary  relationship began.  In ruling they were not relevant, the  district court said:  "[T]hese are matters that go to the  inducement . . . [and] [t]hey have already been ruled upon in  the summary judgment context."  In effect, the district court  concluded that plaintiff was impermissibly seeking to revive his  misrepresentation claims, claims that the district court  previously (and, as we have already concluded, correctly)  dismissed.  Plaintiff made no argument in the district court to  refute the court's conclusion along these lines, e.g., that  these statements were relevant, if at all, only to the dismissed  misrepresentation claims and not to the fiduciary duty claim. We discern no abuse of discretion in this ruling.  Iacobucci v. Boulter, 193 F.3d 14, 20 (1st Cir. 1999) (standard of review).16


42
Plaintiff raises for the first time on appeal a legal  theory as to why the statements could be relevant to the  fiduciary duty claim.  He contends that even if the statements  were not actionable misrepresentations when made, once a  fiduciary duty was established and King Auction had reason to  know that Kearney was laboring under the misconception that his  land would fetch $3 to $10 million at auction, King Auction had  a duty as Kearney's agent to correct Kearney's mislaid high-hopes.  Plaintiff bases this argument on the proposition that,  as his fiduciary, King Auction (via Keracher) is obligated to  fully disclose "all facts within [its] knowledge which bear  materially upon [Kearney's] interests."  Goldberg Realty Group v. Weinstein, 669 A.2d 187, 190 (Me. 1996) (citing Jensen v. Snow, 131 A. 415, 418 (1933)).  This rule commonly arises in Maine law with regard to the sale of land by a seller's agent.


43
The rule is premised on the fact that a real  estate agent is not hired simply to locate a  buyer, but to so do as the seller's  fiduciary. . . .  There is no requirement  that the principal prove fraud or malice on  the part of the agent or that the principal  show actual harm caused by breach of the  agent's duty.  In a case alleging  nondisclosure, . . . the only questions are  whether the information was material and  whether it was withheld by the fiduciary. The rule encourages fiduciaries to avoid  temptation altogether by forcing full and  frank disclosures.

Id. (quotation marks omitted).17

44
Plaintiff can secure no benefit from this Maine common  law rule.  Because the appellant never raised this theory of  relevance in the district court, he is precluded from presenting  it for the first time on appeal.  See McCoy v. Massachusetts  Institute of Technology, 950 F.2d 13, 22 (1st Cir. 1991).  See also Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec.  Co., 840 F.2d 985, 990 (1st Cir. 1988) (stating that a party has  a duty "to spell out its arguments squarely and  distinctly . . . [rather than being] allowed to defeat ths  system by seeding the record with mysterious  references . . . hoping to set the stage for an ambush should  the ensuing ruling fail to suit").  This sound rule of waiver  protects district courts from having to second-guess and read  between the lines of the briefing presented to it by opposing  parties.  As we have said, "[o]verburdened trial judges cannot  be expected to be mind readers."  Id.18  Plaintiff's waiver ends  the matter.19


45
Finding no error in the district court's exclusionary  ruling, the verdict is therefore affirmed.  Defendants'  conditional cross-appeal is dismissed as moot.



Notes:


*
 Of the Northern District of California, sitting by  designation.


1
  Suit was brought in United States District Court in the  District of Maine under diversity jurisdiction as King Auction  is an Alabama corporation and Kearney a citizen of Maine.


2
  Before trial, Kearney had voluntarily dismissed his claim  of unfair trade practices.  At trial, the district court granted  King Auction's motion for judgment as a matter of law on  Kearney's claim for negligent infliction of emotional distress,  a determination from which no appeal has been taken.


3
  Defendants filed a cross-appeal conditioned on this court  reversing in some part the judgment of the district court.  As  we affirm that judgment in all respects, defendants' cross-appeal is moot.


4
  The facts described below are taken from the record before  the district court at summary judgment, which contained  extensive deposition testimony and documentary evidence.  In  Part III of this opinion, when we discuss the evidentiary ruling  at trial, we do so in the context of further evidence admitted  during trial, which, in order to keep separate from the analysis  of the evidence at summary judgment, we do not describe until  Part III.


5
  The deal between Long and Kearney was that Long would pay  Kearney $200,000 Canadian as a down payment and would pay off  the balance overtime at seven percent interest. The date of the  agreement was February 28, 1997 and was to be finalized on March  8, 1997.


6
   Apparently, Kearney had described to Keracher two other  property auctions he had attended, one that was cancelled before  it started and another that did not result in a sale.  It was at  the latter auction where he learned of the property at issue.


7
  Although Keracher disputes that he ever made these precise  statements, for purposes of summary judgment, we take the record  in the light most favorable to the Kearney, the non-moving  party. New York State Dairy Foods, Inc. v. Northeast Dairy  Compact Comm'n, 198 F.3d 1,3 (1st Cir. 1999).  Kearney's  testimony, along with Long's, allow us to comfortably conclude  for summary judgment purposes that a fact finder could find that  these statements were made as both of these men say they were.


8
  Claims for fraudulent and negligent misrepresentation,  although obviously distinct, both require that the defendant  have made a false representation of present fact and that the  plaintiff justifiably relied on the representation as true.  As  claims for fraudulent and negligent misrepresentation share  these two elements, we do not distinguish the two for purposes  of this appeal.  We note, too, that the plaintiff in his brief  collapsed his analysis of the two misrepresentation claims for  the same reason.  For the elements of fraudulent  misrepresentation, see, e.g. Glynn v. Atlantic Seaboard Corp.,  728 A.2d 117, 119 (Me. 1999)(citing Letellier v. Small, 400 A.2d  371, 376 (Me. 1979)).  For the elements of negligent  misrepresentation, see, e.g., Bowers v. Allied Inv. Corp., 822  F. Supp. 835, 839 (D. Me. 1993) (citing Diversified Foods, Inc.  v. First Nat'l Bank of Boston, 605 A.2d 609, 615 (Me. 1992)).


9
  Plaintiff contends that we are barred from deciding this  appeal on this ground because King failed to raise this argument  below.  The record at the district court shows, however, that  this argument was before the trial court and that it was at  least one basis of its ruling granting King's motion for summary  judgment.
With respect to the fraud claim, the district court ruled  that Kearney failed to proffer sufficient evidence from which a  reasonable jury could find that King Auction recklessly  disregarded the truth of the above statements.  The district  court said that although King Auction was wrong, "being wrong  does not make its statements intentional misrepresentations. ...  Additionally, it is dubious whether Kearney could justifiably  rely on King's representations.  See generally Eaton v. Sontag,  387 A.2d 33, 37-9 (Me. 1978)("dealer's talk")."  Kearney v. J.P.  King Auction Co., Inc., No. 99-137-B, 2000 WL 761793, at *3 (D.  Me. 2000, March 2, 2000)(some citations omitted).  With respect  to the negligence claim, the district court concluded that there  was no evidence from which a reasonable jury could find that  "the information supplied was false or that Kearney could  reasonably rely upon it."  Id.  Both of these rulings were in  response to substantially the same arguments raised on appeal by  King: that (1) the statements are nonactionable statements of  opinion and (2) Kearney could not justifiably rely on either  statement.
Moreover, an appellate court is not constrained to affirm  on the grounds relied upon below.  See Mesnick v. General  Electric Co., 950 F.2d 816, 822 (1st Cir. 1991) ("Since  appellate review of a grant of summary judgment is plenary, the  court of appeals, like the district court, must view the entire  record in the light most hospitable to the party opposing  summary judgment, indulging all reasonable inferences in that  party's favor . . . .  An appellate panel is not restricted to  the district court's reasoning but can affirm a summary judgment  on any independently sufficient ground.")(citations and  quotation marks omitted).


10
  That King Auction would retain a percentage of the price  of the sale also suggested that it would have been against its  interest not to try to market the auction as best it could.


11
  In any case, the evidence before the district court at  the time of its summary judgment ruling fails to meet Maine's  malice standard for punitive damages.  "Maine law requires a  plaintiff to prove by clear and convincing evidence that the  defendant was motived by 'ill will' toward the plaintiff, or  acted so 'outrageously' that malice could be inferred." Veilleux, 206 F.3d at 135 (citing Tuttle v. Raymond, 494 A.2d  1353, 1361 (Me. 1985)).  See also Boivin (reversing a jury  verdict for punitive damages despite upholding the jury finding  for fraud based on false assurances of future employment).


12
  Presumably, plaintiff relies here on a fiduciary's duty  of good faith and, in some instances, material disclosure.  See, e.g., Glynn v. Atlantic Seaboard Corp., 728 A.2d 117 (Me.  1999)(in case alleging, among other things, corporate fraud  among officers, stating that "[w]here a fiduciary relationship  exists between the parties, omission by silence may constitute  the supplying of false information")(quotation marks omitted); Estate of Whitlock, 615 A.2d 1173, 1178 (Me. 1992)(in a case  alleging fraud on the part of a trustee of an estate, stating  "[t]h[e] duty to make full disclosure and otherwise to exhibit  extreme good faith runs through the whole law of fiduciary and  confidential relations ...")(citing George G. Bogert, Trusts and  Trustees § 544, at 407-08 (2d ed. 1978)).


13
   This position was in addition to defendants' assertion  that the statements, assuming they were made, were not false or  misleading.


14
  The parties devoted considerable time in the district  court arguing about when precisely the fiduciary duty between  Kearney and King Auction arose. King Auction argued that the  fiduciary relationship began only with the signing of the agency  contract.  Plaintiff argued that the fiduciary relationship  began much earlier, sometime in the car ride back to Bangor. The district court did not resolve the dispute, and neither do  we, because even if the relationship began during the ride back  to Bangor, the statements sought to be admitted into evidence  were made before that relationship arose.


15
  We review preliminary findings of fact that form the  basis of evidentiary rulings for clear error.  Baker v. Dalkon  Sheild Claimants Trust, 156 F.3d 248, 252 (1st Cir. 1998)


16
  In any case, an erroneous evidentiary ruling requires  vacation of a jury verdict (the remedy sought here) only if the  ruling excludes evidence and "the exclusion results in actual  prejudice because it had a substantial and injurious effect or  influence in determining the jury's verdict." United States v. Shay, 57 F.3d 126, 134 (1st Cir. 1995) (internal quotation marks  omitted).  Neither party has argued, one way or the other, that  the ruling had such a "substantial or injurious effect" on the  jury verdict.  We eschew any such argument on their behalf.


17
  Although we affirm the jury verdict for King Auction, we  note that under Maine law the only apparent remedy for breach of  fiduciary duty in this context would appear to be the return of  the broker's commission, here some small percentage of the  $8,000 for which the land sold.  See Goldberg Realty Group, 669  A.2d at 190 (reaffirming previous holding "that the broker  forfeits any right to a commission if he breaches [fiduciary]  duty" of material disclosure).


18
  Plaintiff confuses this waiver principle with the rule  allowing the court of appeals to affirm a district court's  granting of summary judgment on a different basis than that  relied on below.  The former prevents an appellant from  overturning the district court on the basis of an argument never  presented to the district court, furthering considerations of  judicial economy and basic fairness; the latter furthers the  same goals and reaffirms the long-standing Supreme Court  precedent that "[w]here the decision below is correct[,] it must  be affirmed by the appellate court though the lower tribunal  gave a wrong reason for its action." Riley Co. v. Commissioner,  311 U.S. 55, 59 (1940)(citing Helvering v. Gowran, 302 U.S. 238,  245 (1937)("In the review of judicial proceedings the rule is  settled that, if the decision below is correct, it must be  affirmed, although the lower court relied upon a wrong ground or  gave a wrong reason.")).  See also Mesnick, 950 F.2d at 822 ("An  appellate panel is not restricted to the district court's  reasoning but can affirm a summary judgment on any independently  sufficient ground."); Chongris v. Board of Appeals, 811 F.2d 36,  37 n. 1 (1st Cir. 1987)(citing "ample precedent [in this  circuit] for this sort of fluctuation").


19
  We note, however, without deciding the issue, that even  if there was no waiver here, it is by no means certain that  plaintiff would prevail were we to reach the merits of his  relevancy argument.  For one thing, it is not clear that the  Maine common law rule on which plaintiff relies applies equally  in the present context as it does in the seller-real estate  agent context.  For another thing, the statements' relevance  depends upon a strained interpretation of Keracher's deposition  testimony in which he says "I told Mr. Kearney, and would tell  him again, especially as we got nearer to the auction, if he  wanted to sell this property to anyone for $1.8 million, I would  say do it, because ... our company would be paid a commission."  Far from suggesting (as plaintiff urges it does) that Keracher  had failed to accurately apprise Kearney of material information  regarding the potential sale price of his land, this statement  tends to suggest that Keracher, in performing his fiduciary  duty, strove to counsel Kearney in such A way as to comport  with Kearney's wishes and interests.  Finally, as we stated, supra note 16, even assuming the district court erred in  excluding the statements as irrelevant, plaintiff is faced with  the further hurdle of showing that excluding the evidence  resulted in "actual prejudice because it had a substantial and  injurious effect or influence in determining the jury's  verdict."  Shay, 57 F.3d at 134 (internal quotation marks  omitted).  Plaintiff has failed to argue for, let alone make, a  showing of actual prejudice.


