
USCA1 Opinion

	




          January 27, 1995  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                  __________________          No. 94-1490                                 FLEET NATIONAL BANK,                                      Plaintiff,                                          v.                            ANCHOR MEDIA TELEVISION, INC.,                             AND KOVR OF DELAWARE, INC.,                               Defendants, Appellants.                                  __________________                             NARRAGANSETT CAPITAL, INC.,                                 AND EDWIN PFEIFFER,                                Defendants, Appellees.                                  __________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of  this court  issued on January  26, 1995,  is          amended as follows:               The second sentence of  the first full paragraph on  page 25          should  be deleted,  and  the following  two sentences  should be          inserted in its place:               And  the  only  other  evidence  of   a  representation               regarding commercialization levels  at KOVR  introduced               by  Anchor  at  the  second  trial  was  the  so-called               July/August  1988  day-part  summary, a  document  that               summarized  commercialization  levels  and  commercial-               generated income by day and time (e.g., 7/25, 8:00-9:00               p.m.)  for July and August 1988.   The July/August 1988               day-part summary allegedly misrepresented that KOVR was               undercommercialized  in  July   and  August  1988   and               ___________________               understated  commercial-generated  income  during  this               same period.                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1490                                 FLEET NATIONAL BANK,                                     Plaintiff,                                           v.                           ANCHOR MEDIA TELEVISION, INC.,                              AND KOVR OF DELAWARE, INC.,                               Defendants, Appellants.                                 ___________________                             NARRAGANSETT CAPITAL, INC.,                                  AND EDWIN PFEIFFER,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Stephen M. Sacks, with whom Tim  Atkeson, Arnold & Porter, Anthony            ________________            ____________  _______________  _______        F. Muri, and Goldenberg & Muri were on brief for appellants.        _______      _________________            Charles I. Poret, with whom Richard  M. Sharfman, Mark J.  Kenney,            ________________            ____________________  _______________        A.  Lauriston  Parks,  Sharfman,  Shanman,  Poret  &  Siviglia,  P.C.,        ____________________   ______________________________________________        Severson & Werson, and  Hanson, Curran, Parks & Whitman, were on brief        _________________       _______________________________        for   defendants-appellees  Narragansett   Capital,  Inc.   and  Edwin        Pfeiffer.                                 ____________________                                   January 26, 1995                                 ____________________                      BOWNES,  Senior  Circuit Judge.    In  this appeal,                      BOWNES,  Senior  Circuit Judge.                               _____________________            appellants  Anchor  Media  Television,  Inc.  ("Anchor"), and            KOVR-TV of Delaware, Inc. ("KOVR"), contend that the district            court committed several legal and discretionary errors in the            course of two trials of their  claims of fraud and breach  of            contract   against   appellees  Narragansett   Capital,  Inc.            ("Narragansett"),  KOVR's former  owner, and  Edwin Pfeiffer,            KOVR's former general manager.  After carefully reviewing the            record and considering appellants' arguments, we affirm.                                            I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      The   complicated   factual   predicate   of   this            litigation  has been  meticulously rehearsed  in a  published            opinion  by  the district  court.   See  Fleet Nat'l  Bank v.                                                ___  _________________            Anchor Media Television, Inc., 831 F. Supp. 16, 21-31 (D.R.I.            _____________________________            1993).    It  will be  reiterated  here  only  to the  extent            necessary to resolve the issues before us.                      The case  arises  out  of  Narragansett's  sale  to            Anchor of KOVR, an  ABC-affiliate television station  located            in Sacramento,  California.   Anchor was awarded  the station            after submitting the  high bid  at a closed  auction held  in            late September  1988.  The sale price  eventually agreed upon            by the parties was $162 million.  The deal  was structured as            a  merger of an Anchor subsidiary into the corporate owner of            KOVR, and became final on January 25, 1989.  The terms of the                                         -2-                                          2            merger  were  memorialized   in  a  merger  agreement   ("the            Agreement") dated October 12, 1988.  The case came before the            district court  as an interpleader action  filed by plaintiff            Fleet National Bank ("Fleet").  Fleet controlled a $5 million            escrow account established by the Agreement to address claims            that might arise from  KOVR's sale.  In its  complaint, Fleet            asked the  district court  to determine proper  allocation of            the  escrow funds.   Anchor  and Narragansett,  among others,            were named as defendants to the action.                      Subsequently,  Anchor  filed  cross-claims  against            Narragansett and Pfeiffer,  alleging breach of  the Agreement            and  common  law  fraud.1     Underlying  these  claims  were            allegations  that Narragansett had fraudulently increased its            cash  flow in  the  months preceding  the  auction by:    (1)            actually running  more commercials than was  customary in the            industry  while  representing  that  it  was   running  fewer            commercials  than  was customary  ("the overcommercialization            allegation"); (2) running local commercials at a time when it            was  contractually obliged  to  be running  an ABC  newsbrief            ("the   ABC   newsbrief  allegation");   (3)  surreptitiously            shifting  to  subsequent  years  certain  operating  expenses                                            ____________________            1.  Pfeiffer also  brought a  cross-claim against  Anchor for            breach of  his employment  contract.  The  subject matter  of            this claim is not before us.                                           -3-                                          3            incurred  as  a  result  of  a contract  with  Nielson  Media            Research2  ("the  Nielson  allegation");  and   (4)  charging            political  candidates   too  much  money   to  run  political            advertisements  ("the political advertising allegation").  We            discuss the particulars of these allegations infra.                                                         _____                      Anchor claimed that these  practices had a damaging            effect  upon  its  bid,   which  was  largely  formulated  in            accordance  with  standard  industry  valuation  practices --            i.e.,   by  taking  the   projected  year-of-sale  cash  flow            (essentially, profit)  and multiplying  it by a  number ("the            multiplier")  which  appropriately   accounted  for   certain            characteristics inhering in the target market.  In projecting            year-of-sale cash flow, Anchor  used actual cash flow figures            from January 1,  1988 through August 31,  1988, and financial            information  which  enabled  it  to project  cash  flow  from            September 1,  1988 through the end  of the year.   All of the            information on which Anchor relied in formulating its bid was            generated prior to September 28,  1988, the day on which  the            bid was submitted.                      Put  in   concrete   terms,  Anchor   argued   that            Narragansett's  fraudulent inflation  of its  1988 cash  flow            (quantified  at trial  as being  at least  $1,943,000) caused            Anchor to bid at least $27 million more for  the station than                                            ____________________            2.  Nielson Media Research is  a rating service that monitors            audience  viewership of  a television  station.   Fleet Nat'l                                                              ___________            Bank, 831 F. Supp. at 28.            ____                                         -4-                                          4            it would have absent  the fraud.  Anchor reached  this number            by taking  the amount  of improperly-obtained 1988  cash flow            and multiplying it  by 13.6,  the multiplier it  had used  in            valuing the  Sacramento market.    This "effect  on the  bid"            constituted Anchor's theory of damages.3                                            ____________________            3.  We  have  some doubts  about  the  viability of  Anchor's            "effect on the  bid" damages  theory in the  context of  this            case.  The parties agree that Rhode Island law, which governs            Anchor's fraud  claim, applies  the "benefit of  the bargain"            rule  in assessing damages  for fraudulent misrepresentations            inducing a party  to contract for  the purchase of  property.            See Barnes  v. Whipple, 68  A. 430  (R.I. 1907).   Under this            ___ ______     _______            rule,  the defrauded  purchaser  is entitled  to recover  the            difference between the actual value of the purchased item and            its value  had the seller's  representations been true.   See                                                                      ___            Learjet  Corp. v. Spenlinhauer,  901 F.2d 198,  203 (1st Cir.            ______________    ____________            1990)  (applying  Kansas  law);  see  also  J.  F.  Rydstrom,                                             ___  ____            Annotation, "Out of Pocket" or "Benefit of Bargain" as Proper                         ________________________________________________            Rule  of  Damages  for  Fraudulent  Representations  Inducing            _____________________________________________________________            Contract  for the Transfer of Property, 13 A.L.R. 3d 875, 885            ______________________________________            (1967).  This value  differential is measured at the  time of            the sale.  Learjet Corp., 901 F.2d at 203.                       _____________                When (as is usually the case) the negotiation of the sale            price immediately precedes the  consummation of the sale, the            effect of  the  seller's fraud  on  the purchase  price  will            almost invariably  quantify the difference between the actual            value  of   the  purchased  item   and  its  value   had  the            representations been  true.  Here, however,  the consummation            of  the sale (i.e., the merger) took place nearly four months            after the negotiation of the sale price, at a time when fluid            _____            market conditions  (there was much testimony  to this effect)            might have led a buyer to utilize a different multiplier than                                                _________            the  one Anchor used in  formulating its bid.   Moreover, the            merger took place in  a calendar year different from  the one                                                  _________            in which the  sale price  was negotiated.   A buyer  applying            Anchor's  valuation theory  at the  time of  merger therefore                                        __ ___  ____ __  ______            would presumably have been looking  at a different period  of            time in projecting  cash flow  than the one  at which  Anchor            looked.  Thus, it strikes us as somewhat speculative to infer            that the effect Narragansett's fraud had on Anchor's 1988 bid            accurately quantifies the difference between the actual value            of KOVR on January 25, 1989  (the date of the merger) and its            putative    value   on    that   date    had   Narragansett's            representations been true.                                         -5-                                          5            A.  The First Trial            A.  The First Trial            ___________________                      A jury trial commenced on April 2, 1991, and lasted            fourteen  trial  days.   In  the  course  of  the trial,  the            district court ruled, as a matter of law and for a variety of            reasons,  that a reasonable jury  could not find  a breach of            the  Agreement  or  fraud  on  the  basis  of  the  political            advertising allegation.  The court did, however, allow Anchor            to present to the jury, as the predicate for its contract and            fraud     claims,     the     evidence     underlying     its            overcommercialization,    ABC    newsbrief,    and    Nielson            allegations.4   At the  trial's conclusion, the  jury awarded            Anchor $4.5 million for breach  of contract and $13.5 million            for fraud.   It also  awarded Anchor $1  million in  punitive            damages.                        Subsequent to this verdict, and  in accordance with            then-Fed. R.  Civ. P. 50(b), Narragansett  and Pfeiffer moved            for  judgment   notwithstanding  the  verdict   or,  in   the                                            ____________________                In any event, Narragansett has  not raised the absence of            proof  of damages  as an  alternative ground  for affirmance.            Because  this issue  is  somewhat involved  and has  not been            argued, and  because we believe that  affirmance is otherwise            compelled on the record and briefs before us, we do not delve            further into the damages question at this time.               4.  In so  stating, we  reject Anchor's contention  on appeal            that the  Nielson allegation did  not constitute part  of its            breach of contract  claim.   In fact, we  find this  argument            difficult to fathom.  In his closing argument, Anchor's trial            counsel   clearly  asserted   that  the   alleged  subterfuge            involving the  Nielson contract  constituted a breach  of the            Agreement.                                         -6-                                          6            alternative, for a new  trial.  For reasons not  disclosed by            the  record,  the  district  court  kept  this  motion  under            advisement  for more than two years, until June 1993, when it            issued Fleet Nat'l Bank.  See 831 F. Supp. 16.                     ________________   ___                      In  addressing  the  Rule 50(b)  motion,  the court            first held that Narragansett and Pfeiffer were entitled  to a            new trial on  Anchor's breach of contract claim.   See id. at                                                               ___ ___            34-38.    While  the  court  believed  that  there  had  been            sufficient  evidence to support  the jury's  contract verdict            based  on  the ABC  newsbrief  allegation, id.  at  34-36, it                                                       ___            determined that the evidence did not permit a reasonable jury            to  find  breach  of contract  on  the  basis  of either  the            overcommercialization  or Nielson  allegations, id.  at 36-37                                                            ___            and  43 n.6.  In  making this determination,  the court ruled            that   Narragansett   and   Pfeiffer   had   not   made   any            representations or warranties in the Agreement  regarding the                                          __ ___ _________            number  of commercials KOVR had broadcast in 1988, id. at 36-                                                               ___            37, and  that the Nielson  allegation was not  viable because            Anchor  had  failed  to  prove justifiable  reliance  on  the            alleged  misrepresentation, id. at 43  n.6.  A  new trial was                                        ___            ordered because  the general verdict  form did not  allow the            court to ascertain whether the jury had relied on the legally            defective allegations in reaching  its contract verdict.  Id.                                                                      ___            at  37-38  (citing,  inter  alia, Sunkist  Growers,  Inc.  v.                                 _____  ____  _______________________            Winckler & Smith Citrus Prods. Co., 370 U.S. 19, 29-30 (1962)            __________________________________                                         -7-                                          7            and Brochu v. Ortho  Pharmaceutical Corp., 642 F.2d  652, 662                ______    ___________________________            (1st Cir. 1981)).                      The court also held that Narragansett was  entitled            to a  new trial on Anchor's  fraud claim.  See  id. at 38-44.                                                       ___  ___            While  the  court believed  that  there  had been  sufficient            evidence to  support the jury's  verdict on  this claim  with            regard  to  the   ABC  newsbrief  and   overcommercialization            allegations, it ruled  that the defective Nielson  allegation            may have poisoned the general fraud verdict beyond cure.  Id.                                                                      ___            at 42-43.                       Finally,  the  court  negated  the  jury's punitive            damages award  as lacking  evidentiary support.   Id.  at 45.                                                              ___            Anchor does not challenge this ruling on appeal.            B.  The Second Trial            B.  The Second Trial            ____________________                      In accordance with the district  court's opinion, a            second jury  trial commenced  on March  21, 1994, and  lasted            eleven trial days.  Prior to submitting the case to the jury,            the  court ruled  as a  matter of  law, see  Fed. R.  Civ. P.                                                    ___            50(a), that Anchor's  overcommercialization allegation  could            not be presented to the  jury in support of its fraud  claim,            and  that  Anchor's ABC  newsbrief  allegation  could not  be            presented to the jury in support  of its contract claim.  The            court based  these rulings on determinations  that Anchor had            not    proven     damages    in    connection     with    its            overcommercialization  allegation,  and that  Anchor  had not                                         -8-                                          8            provided  Narragansett and  Pfeiffer with  notice of  the ABC            newsbrief  allegation  within  the  fifteen-day  time  period            contemplated  by the  Agreement.5   The  court also  rebuffed            Anchor's   attempt  to   revive  its   political  advertising            allegation at  this time.   Thus, only Anchor's  fraud claim,            now based solely on the ABC newsbrief allegation, went to the            jury.  The jury  returned a verdict in favor  of Narragansett            and Pfeiffer on  this claim.   After the  verdict, the  court            took  the  apparently  unprecedented  step  of  granting  the            verdict's beneficiaries judgment  as a matter  of law on  the            same claim.  In so doing, the court stated that it was ruling            on  the reserved  motion  so  that  any  error  in  the  jury            instructions  could be  ignored  in  subsequent  proceedings.            This appeal followed.                                         II.                                         II.                                         ___                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                      We  first  deal  with  a   technical,  nomenclature            matter.    Rule  50 was  amended  during  the  course of  the            proceedings  before  the  district  court.    The  amendments            abandoned the terms "directed verdict" and "judgment n.o.v.,"            which were commonly associated with the former Rule, in favor            of the phrase  "judgment as a matter of law."   See generally                                                            ___ _________                                            ____________________            5.  Section 8.5  of the Agreement  required any party  with a            claim arising out of the Agreement to send  a notice of claim            to the breaching party within fifteen business days of coming            to the belief that it had suffered damages in connection with            the claim.                                         -9-                                          9            Fed. R. Civ. P. 50 advisory committee's note.  The amendments            did  not,  however,  affect  either  the  standard  by  which            district courts review motions brought  under the Rule or the            standard  by which we review a district court's rulings.  See                                                                      ___            id.  ("If  a motion  is  denominated  a motion  for  directed            ___            verdict  or for  judgment  notwithstanding  the verdict,  the            party's  error is  merely formal.   Such  a motion  should be            treated  as  a motion  for judgment  as  a matter  of  law in            accordance  with this  rule.").   For  simplicity's sake,  we            therefore  refer to  Narragansett's  and  Pfeiffer's  various            motions,  however  denominated  at  the time  of  filing,  as            motions for judgment as a matter of law.                      To  the  extent  that  Anchor  is  challenging  the            district court's  post-trial  rulings that  Narragansett  and            Pfeiffer  were entitled  to judgment  as a  matter of  law on            certain issues, our review is de  novo.  See Lama v.  Borras,                                          __  ____   ___ ____     ______            16 F.3d 473, 477 (1st Cir. 1994) (affirming denial of a post-            verdict Fed. R. Civ. P. 50(b) motion for judgment as a matter            of law); Rolon-Alvarado v.  Municipality of San Juan,  1 F.3d                     ______________     ________________________            74,  77 (1st Cir.  1993) (affirming grant of  Fed. R. Civ. P.            50(a) motion for judgment as a  matter of law at the close of            plaintiff's case).   Thus, we will affirm  these rulings only            if, after  scrutinizing  the proof  and inferences  derivable            therefrom  in  the  light   most  hospitable  to  Anchor,  we            determine that a reasonable factfinder could have reached but                                         -10-                                          10            one conclusion:  that Narragansett and Pfeiffer were entitled            to judgment.   See Lama, 16 F.3d at 477.  Because the court's                           ___ ____            order  granting Narragansett  and  Pfeiffer a  new trial  was            based solely upon its legal conclusions that defective claims                  ______            had been allowed  to go to the  jury, we first  determine the            correctness of the court's rulings in this regard.                      If  we decide  that the  court's legal  conclusions            were  correct,   our   review  becomes   significantly   more            circumscribed.     Where  the   trial  court   has  correctly            determined that legal error infected a claim presented to the            jury, we will defer to the  court's judgment that a new trial            was called for on  that claim absent an abuse  of discretion.            See  Allied Chem.  Corp. v.  Daiflon, Inc.,  449 U.S.  33, 36            ___  ___________________     _____________            (1980) (per curiam); see also Payton v. Abbott Labs. 780 F.2d                    ___ ______   ___ ____ ______    ____________            147, 152 (1st  Cir. 1985); 11  Charles A. Wright &  Arthur R.            Miller,  Federal Practice  and Procedure,    2818,  at 119-20                     _______________________________            (1973) (deference  is appropriate because  "[t]he trial judge            was on the spot and is better able than an appellate court to            decide whether  the error affected the  substantial rights of            the parties").                        Deference in this  case is particularly appropriate            for  two reasons.    First,  in  its published  opinion,  the            district court explicitly cited as controlling  authority two            cases  which make  clear  that courts  should set  aside jury            verdicts  in only the most  compelling of circumstances.  See                                                                      ___                                         -11-                                          11            Fleet  Nat'l  Bank, 831  F. Supp.  at  32 (citing  Coffran v.            __________________                                 _______            Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st Cir.) (trial judge            ______________________            may not set aside jury verdict merely because s/he would have            reached a different conclusion  than the jury), cert. denied,                                                            _____ ______            459 U.S. 1087 (1982), and Borras v. Sea-Land Serv., Inc., 586                                      ______    ____________________            F.2d 881, 886 (1st Cir. 1978) (trial court may set aside jury            verdict only  where verdict  (1) is  against clear weight  of            evidence; (2) is based  upon evidence which is false;  or (3)            will  result in a miscarriage  of justice)).   And second, in            that same opinion, the  court clearly stated its  reasons for            ordering a new trial.   See id. at 37-38 and 43  (court could                                    ___ ___            not  tell   whether  jury  had  awarded   Anchor  damages  on            erroneously   submitted   evidence   or  improperly   allowed            arguments).                      Finally,  we review  the  district court's  rulings            excluding  evidence  offered by  Anchor  under  the abuse  of            discretion standard.  E.g., Fairfield 274-278 Clarendon Trust                                  ____  _________________________________            v. Dwek, 970 F.2d 990, 995 (1st Cir. 1992).  Moreover, we are               ____            free  to   affirm  the   trial  judge's  decisions   "on  any            independently sufficient ground made manifest by the record."            See,  e.g., Ticketmaster-New  York, Inc.  v. Alioto,  26 F.3d            ___   ____  ____________________________     ______            201, 204 (1st Cir. 1994).                      With these  criteria  in mind,  we review  Anchor's            claims.                                            III.                                         III.                                         ____                                         -12-                                          12                                      DISCUSSION                                      DISCUSSION                                      __________                      Anchor makes  a number  of arguments, the  order of            which we  rearrange for ease  of analysis.   As to  the first            trial, Anchor contends:  (1) the court erred in deciding that            the evidence was  insufficient for a reasonable  jury to have            found fraud  based on the  Nielson allegation;  (2) the  jury            could not, at any  rate, have relied upon this  allegation in            reaching its contract and fraud verdicts;6 and  (3) the court            erred in ruling post-trial  that Anchor should not have  been            allowed  to  raise  the  issue  of  overcommercialization  in            connection with its breach of contract claim.                        As to  the second trial,  Anchor asserts:   (1) the            district  court  improperly  prohibited  its  witnesses  from            testifying regarding customary levels of commercialization in            the industry;  (2) the court  otherwise erred in  taking from            the jury  the fraud claim based  on the overcommercialization            allegation; (3)  the court erroneously  precluded Anchor from            renewing  its  claims  based  on  the  political  advertising            allegation; (4)  the court improperly excluded certain "state            of mind"  evidence relevant  to the question  of when  Anchor            learned  that  it had  suffered damages  as  a result  of the            improper  running  of   local  commercials  during  the   ABC                                            ____________________            6.  We  have  already  rejected  Anchor's  argument that  the            district court erred in  assuming that the Nielson allegation            partially  undergirded the  breach  of contract  claim.   See                                                                      ___            supra note 4.            _____                                         -13-                                          13            newsbrief time slot; (5) the court  otherwise erred in taking            from the jury the breach  of contract claim based on  the ABC            newsbrief allegation; (6) the  court erred in instructing the            jury on the  one issue --  fraud based on  the ABC  newsbrief            allegation -- the jury was permitted to consider; and (7) the            court was without the power to grant  judgment as a matter of            law to Narragansett  and Pfeiffer after the jury had returned            a verdict in their favor on this issue.               A.  Alleged First Trial Errors            A.  Alleged First Trial Errors            ______________________________                      1.  Legal Viability of the Nielson Allegation                      _____________________________________________                      Anchor   first  argues  that  the  court  erred  in            determining  that  the  evidence   was  insufficient  for   a            reasonable jury  to have  found  fraud based  on the  Nielson            allegation.   As  previously stated,  the Nielson  allegation            involved  the claimed  surreptitious  shifting to  subsequent            years of certain 1988 operating expenses incurred as a result            of  a   contract  between  Narragansett   and  Nielson  Media            Research.  The specifics of the allegation are as follows.                      Sometime after  August 3, 1988, at  the time Anchor            was preparing to submit its bid, Narragansett supplied Anchor            with  a box  that contained  hundreds of  contracts involving            KOVR.  One  of these was the Nielson contract,  which set the            monthly  amount  that KOVR  would  pay  for Nielson's  rating            service.   Attached to the contract  was a two-page appendix.            On the first  page of  the appendix, in  a section  captioned                                         -14-                                          14            "Base  Rate per Month," the figure "$10,000" was typed in the            space provided  for the  time period May  1988 through  April            1989.    An  asterisk   was  next  to  this  figure,   and  a            corresponding  note, typed  at the bottom  of the  same page,            read  "see attached  letter  dated 4/7/88."    No letter  was            attached to the contract.                      The  second   page  of  the  appendix   included  a            computation worksheet.   The  worksheet included a  space for            "Base Rate per Month."  The figure "$3,000" was typed in this            space.   Further down the page was a space captioned "Monthly            Adjustment (estimated) as of May 1988."  The figure "$90.00,"            which represented 3% of  the base monthly rate, was  typed in            this space.   Directly  beneath  this was  a space  captioned            "Estimated  Monthly Net Charge as  of May 1988."   The figure            "$3,090.00," which  represented the Base Rate  per Month plus            the Monthly Adjustment, was typed in this space.                      The  discrepancy  between  the  base  monthly rates            provided  for on the first  and second pages  of the appendix            was explained  in the 4/7/88 letter,  which Anchor discovered            only  after taking control of KOVR.  This letter memorialized            Nielson's agreement to Narragansett's  request to defer until            the  following year $7,000 per month in payments owed for the            period  May  through  December  1988.   Anchor  alleged  that            Narragansett's failure  to include  the 4/7/88 letter  in the            box  of contracts  involving  KOVR amounted  to a  fraudulent                                         -15-                                          15            concealment of the deferral of 1988  operating expenses in an            attempt   to   inflate  1988   cash   flow.     The   alleged            misrepresentations  were  the  "$10,000"  base  monthly  rate            figure  typed on  the  first  page  of the  Nielson  contract            appendix,  and  subsequent  representations  by  Narragansett            officials  (including   Pfeiffer),  both  oral  and   in  the            Agreement, that Narragansett had  provided Anchor with a true            and complete set of contracts relating to KOVR.                      In its order on the motions filed subsequent to the            first trial, the district court stated that, in order to make            out a  fraud  claim under  Rhode  Island law  (which  governs            here),  Anchor was  required to  prove that  Narragansett and            Pfeiffer knowingly misrepresented a material fact with intent            to deceive,  thereby inducing  Anchor to rely  justifiably on            the  misrepresentation to  its  detriment.   See Fleet  Nat'l                                                         ___ ____________            Bank, 831 F. Supp. at 38.  The court then  concluded that, in            ____            light  of the  asterisk referring  interested readers  to the            4/7/88  letter and the two  statements on the  second page of            the  Nielson contract  appendix  referencing  a  $3,000  base            monthly  rate for  May 1988,  no  reasonable jury  could have            found  that   Anchor  justifiably   relied  on   the  $10,000            representation on  the first  page of the  Nielson contract's            appendix.  See Fleet Nat'l Bank, 831 F. Supp. at 42-43.                       ___ ________________                      Regardless   of   whether  Anchor's   reliance  was            justifiable,  we  regard   as  independently  supported   the                                         -16-                                          16            district court's conclusion that the fraud claim based on the            Nielson  allegation was not  legally viable.   See Alioto, 26                                                           ___ ______            F.3d at 204.   Under  Rhode Island law,  liability for  fraud            cannot attach  unless  the  misrepresentation  at  issue  was            intentionally  made with  an  intent to  deceive.   See  East                                                                ___  ____            Providence Loan  Co.,  236  A.2d  at 641;  see  also  Cliftex            ____________________                       ___  ____  _______            Clothing  Co.,  Inc. v.  Di Santo,  148  A.2d 273,  275 (R.I.            ____________________     ________            1959); Campanelli v. Vescera, 63  A.2d 722, 723 (R.I.  1949);                   __________    _______            Cheetham v. Ferreira, 56 A.2d  861, 864 (R.I. 1948).  In  our            ________    ________            view,  the same  representations  and references  (i.e.,  the            asterisk,   reference  to  the  4/7/88  letter,  and  correct            statements of the  base monthly rate) which  led the district            court  to determine  that  Anchor's reliance  on the  $10,000            figure  was not  justifiable compel  the conclusion  that the            alleged misrepresentations  were not intentionally  made with            an intent to  deceive.  Simply  put, we do  not think a  jury            could reasonably  infer  such an  intent  where there  is  an            explicit reference  to  the  term-altering  document  --  the            4/7/88  letter --  on the  same page  as the  crucial alleged                               __ ___  ____ ____            misrepresentation, where the true  base monthly rate is twice                                                                    _____            set  forth on the very  next page of  the addendum, and where                              ____  ____ ____            there  is no evidence that  the exclusion of  the letter from            the   box  of  documents   involving  KOVR  was  intentional.            Accordingly, we  affirm the court's  grant of  judgment as  a                                         -17-                                          17            matter of law to Narragansett and  Pfeiffer on Anchor's fraud            claim based on the Nielson allegation.                      2.  Effect of the Nielson Allegation on the Verdict                      ___________________________________________________                      Anchor  makes  an  alternative  argument  that  the            Nielson allegation,  and its  supporting evidence, could  not            possibly have influenced the jury's verdict on its  breach of            contract  and   fraud  claims.    Anchor   contends  that  it            introduced  little  evidence   in  support  of  the   Nielson            allegation at trial, and that it did not quantify the damages            arising  out of  it  during its  closing.   Relying  on  this            contention,  Anchor  asserts  that  the  district  court,  by            jettisoning  the contract  and fraud  verdicts,  allowed "the            tail to wag the dog."                       Although the Nielson allegation was not the primary            focus  of Anchor's case, a  review of the  first trial record            shows  that  Anchor specifically  mentioned  it  in both  its            opening and  closing arguments.   Moreover, Anchor  supported            the allegation by having  Patrick Murphy, its Chief Financial            Officer,  testify   to  the  incompleteness  of  the  Nielson            contract and explain  to the  jury that the  omission of  the            4/7/88  letter  from  the  box of  contracts  involving  KOVR            fraudulently "presented to  us a larger  cash flow than  what            they should have because  of the shifting of expenses."   And            while Anchor  did  not  quantify  for the  jury  the  damages            arising out  of the  Nielson allegation,  it did provide  the                                         -18-                                          18            jury with a  damages theory  (i.e., improperly-obtained  1988            cash flow multiplied  by 13.6, the multiplier Anchor  used in            arriving  at  its bid)  by which  the  jury could  easily and            rationally have quantified the damages for itself.  In  light            of all this, and in the  absence of any suggestion on  appeal            that a remittitur would have been appropriate, we  cannot say            that the district court  abused its discretion in determining            that the general fraud and contract verdicts  returned at the            conclusion  of  the  first  trial  may  have  been  incurably            infected  by  the   legally  deficient  Nielson   allegation.            Accordingly, we affirm the district court's decision to award            Narragansett and Pfeiffer new trials on Anchor's contract and            fraud claims.                      3.   The  Breach  of Contract  Claim  Based on  the                      ___________________________________________________                      Overcommercialization Allegation                      ________________________________                      As  we have noted,  a second basis  for the setting            aside of the contract verdict  was the district court's post-            trial  determination that  there were  no representations  or            warranties  in  the   Agreement  regarding   the  number   of            commercials   KOVR  had  been   running  prior   to  Anchor's            submission of its bid.  Anchor claims that the court erred in            reaching   this   conclusion,   denoting  three   contractual            provisions which,  in its view, a reasonable juror could have            construed as pertaining to 1988 commercialization levels.                       The first  of these provisions, which  can be found            at paragraph 5.1(a) of the  Agreement, and which is captioned                                         -19-                                          19            "Conduct  of  the  Business  Until Effective  Time,"  states:            "Except as  [Anchor] may otherwise consent  in writing, until            the  Effective  Time  [Narragansett]  will  (i)  operate  its                                                  ____            business only in the usual, regular and ordinary manner . . .            ."  (Emphasis supplied).   Plainly,  through its  use of  the            future  tense "will,"  this  representation  covers only  the            period of time between the date of the Agreement, October 12,            1988, and the date the  merger became effective, January  25,            1989.    Thus,  despite  Anchor's  attempts  to  convince  us            otherwise,7  paragraph  5.1(a)  simply  cannot  be  read   as            pertaining  to the period of time (i.e., that portion of 1988            prior  to Anchor's submission of  its bid) when  the sale and            _____  __            running of  too many commercials at KOVR  might have affected            the  amount Anchor bid for the station.  And because Anchor's            damages  theory  involved  only  the effect  of  artificially            inflated  1988 cash flow on its bid, conduct which took place                                     __ ___ ___            after the submission of the  bid is completely irrelevant  to            its claims.                      The second provision, found at paragraph 5.1(e) and            captioned "Preservation  of Business,"  does not  help Anchor            for the same reason.   The provision states:  "[Narragansett]                                            ____________________            7.  In  what  appears to  be  an attempt  to  avoid paragraph            5.1(a)'s  temporal  limitations,  the citation  to  paragraph            5.1(a)  in Anchor's  brief omits  paragraph  5.1(a)'s caption            ("Conduct of  Business Until Effective Time")  and alters the            phrase  "will (i) operate" to read "operat[ed]."  If this was            deliberate,  it   was  deceptive;   if  a  mistake,   it  was            inexcusable.                                         -20-                                          20            shall  conduct the  business  and operations  of the  Station            _____            diligently and  in the  ordinary course in  substantially the            same manner  as heretofore conducted."   (Emphasis supplied).            Through its  use of the future tense  "shall," this provision            also only covers a  period of time subsequent to  October 12,            1988, the date of  the Agreement.  And as we  have explained,            any improper actions taken by Narragansett or Pfeiffer during            this  time period  are  irrelevant under  the damages  theory            pursued by Anchor.                      The   final  provision   relied  upon   by  Anchor,            paragraph  4.1(f), simply  cannot be construed  as warranting            "customary"  commercialization  levels  at KOVR.    Captioned            "Absence of  Certain Changes  or Events," the  provision sets            forth a number of  illustrative asset-dissipating and capital            structure-altering  events  and  transactions, warranting  an            absence of such events or transactions "since the date of the            Unaudited  Financial  Statements  [August  31,  1988]."   The            proviso upon which Anchor seizes states that "the Company has            not  . .  .  (v)  entered  into  . .  .  any  other  material            commitment, contractual obligation or transaction  other than            in the ordinary course of business . . . ."                        Leaving  aside  the   fact  that  Anchor  did   not            introduce specific evidence of overcommercialization  at KOVR            from August  31, 1988 through  September 28,  1988 (the  only            period of time prior  to Anchor's submission of its  bid that                                         -21-                                          21            this provision can be read to cover), we are at a loss to see            how it would be reasonable to regard the sales of commercials            challenged  here  as  being  transactions  outside  of KOVR's            "ordinary  course  of  business."    As  the  district  court            observed,  paragraph 4.1(f)'s  "ordinary course  of business"            proviso, when read in context, should be construed  as simply            warranting  that  Narragansett  had   not  entered  into  any            transactions (1) of an unusual type for a television station;            or (2) that would  tend to unduly dissipate KOVR's  assets or            alter  its capital structure.   See Fleet Nat'l  Bank, 831 F.                                            ___ _________________            Supp. at 37.   Certainly,  sales of commercial  time are  not            unusual transactions  for a  television station; indeed,  the            revenues  generated  by  such sales  constitute  a  station's            lifeblood.  Moreover,  the record is devoid  of evidence that            the number of such sales entered into by  Narragansett during            the relevant time  period --  even if in  excess of  industry            norms  -- threatened  to  unduly dissipate  KOVR's assets  or            alter its capital structure.                         To  be sure,  the actual  meaning of  a contractual            provision  which  can  reasonably  accommodate  two  or  more                                   __________            interpretations  should be  left  to the  jury.   See,  e.g.,                                                              ___   ____            Bushkin Assocs.,  Inc. v. Raytheon Co., 815  F.2d 142, 148-49            ______________________    ____________            (1st  Cir.  1987)  (applying  Massachusetts law).    But  the            question  whether  a  provision  can  reasonably  support   a            proffered interpretation is a legal one, to be decided by the                                         -22-                                          22            court.   See Fashion House,  Inc. v. K  Mart Corp.,  892 F.2d                     ___ ____________________    _____________            1076,  1083   (1st   Cir.  1989)   (applying  Michigan   law)            ("Determining whether or not a contract is ambiguous is, like            other questions  of contract  construction, a matter  for the            court.").  Here, we think that the court correctly determined            that Anchor's proffered  interpretation of paragraph 4.1(f)'s            "ordinary  course of  business"  proviso --  which reads  the            proviso  as warranting customary  commercialization levels at            KOVR during 1988 -- was not one that a reasonable juror could            accept.  Accordingly, we affirm the court's ruling.                      In  sum,  we agree  with  the  district court  that            Anchor should not have been  permitted to present the Nielson            allegation  to the jury, and that Anchor should not have been            allowed  to  raise  the  issue  of  overcommercialization  in            connection with  its breach of  contract claim.   We  further            rule  that  the   court  did  not  abuse  its  discretion  in            determining  that these  improperly asserted  allegations may            well  have affected  the  jury's general  contract and  fraud            verdicts at the first trial.  We therefore affirm the court's            post-trial order, see Fleet  Nat'l Bank, 831 F. Supp.  16, in                              ___ _________________            all respects.8                                            ____________________            8.  Because of these rulings, we need not discuss whether the            court's  new   trial  order   on  the  fraud   claim  against            Narragansett can be alternatively upheld  on the basis of the            court's post-trial  determination  that it  should  not  have            submitted  to   the  jury  the  question   of  Narragansett's            vicarious   liability  as   Pfeiffer's   alter  ego   or  co-            conspirator.  See Fleet Nat'l Bank, 831 F. Supp. at 44-45.                          ___ ________________                                         -23-                                          23            B.  Alleged Second Trial Errors            B.  Alleged Second Trial Errors            _______________________________                      1.    Exclusion  of  Witness   Testimony  Regarding                      ___________________________________________________                      Customary  Levels  of   Commercialization  in   the                      ___________________________________________________            Industry       Anchor  complains that,  at the  second trial,            ________            the   district  court   improperly  excluded,  for   lack  of            foundation,  testimony  by  Anchor's  Senior  Vice President,            Lawrence    Clamage,    regarding    customary   levels    of            commercialization in  the industry.  Anchor  underscores this            plaint by pointing out that Clamage was permitted to testify,            over  objection, to  industry norms  in the first  trial, and            that the court offered  no rationale for its  contrary ruling            at  the second trial.  Anchor further contends that the court            committed legal error in not allowing it to read  to the jury            testimony regarding  industry norms given at  the first trial            by John  Sheehan, who was  unavailable for the  second trial.            In the alternative, Anchor asserts that the court  abused its            discretion  by  denying  it  a one-day  continuance  so  that            Sheehan  could appear.  Anchor claims that all three of these            erroneous,  discretionary  rulings  were  highly  prejudicial            because  the court's award of judgment as  a matter of law on            Anchor's  fraud  claim  based  on  overcommercialization  was            premised upon  an absence of  evidence by which  Anchor could            "structure the amount of damages for overcommercialization."                      While  the  equities  of  the  situation  involving            Sheehan are not nearly as one-sided as Anchor represents them                                         -24-                                          24            in its  brief,9 we  can understand Anchor's  frustration with            the court's  failure to  explain why Clamage's  testimony was            admissible  in  the  first  trial  but  not  in  the  second.            Especially in light of the two-year delay in deciding the new            trial  motion,  we  think  that Anchor  was  entitled  to  an            explanation for the court's change of mind.   The fact of the            matter is, however, that evidence regarding commercialization            norms in the industry was completely irrelevant in the second            trial.                        As we have explained, the court properly ruled that            the Agreement could not  be construed as warranting customary            commercialization  levels  during   the  time  period  Anchor            examined  in developing its bid.  And the only other evidence            of a  representation  regarding commercialization  levels  at            KOVR introduced by  Anchor at  the second trial  was the  so-            called July/August  1988  day-part summary,  a document  that            summarized commercialization  levels and commercial-generated            income  by day and time (e.g., 7/25, 8:00-9:00 p.m.) for July            and  August  1988.   The  July/August  1988 day-part  summary            allegedly misrepresented that KOVR was undercommercialized in                                                   ___________________            July  and August  1988  and understated  commercial-generated                                            ____________________            9.  Anchor  had more  than a month's  notice that  the second            trial  would begin on March  21, 1994.   Despite this notice,            Anchor apparently did not ascertain Sheehan's availability as            a witness until it was in the middle  of presenting its case.            Indeed,  Anchor  did  not  communicate with  Sheehan  at  all            between  January 27,  1994 and  March 25,  1994, the  date on            which it learned of Sheehan's unavailability.                                         -25-                                          25            income  during this same period.  Thus, there was no evidence            in the second trial  of a representation to Anchor  that KOVR            was commercialized in accordance with industry norms in 1988,            and  Anchor  had no  basis for  arguing  that it  was damaged            because it bid too much in reliance on such a representation.            Accordingly, we affirm the court's exclusion of the testimony            regarding industry  standards on the independent  ground that            it was irrelevant.  See Alioto, 26 F.3d at 204; see also Fed.                                ___ ______                  ___ ____            R.Evid.402("Evidence whichisnotrelevantis notadmissible.").10                                            ____________________            10.  After  the  district court  excluded  evidence regarding            industry  norms  at  the   second  trial,  Anchor  argued  an            alternative "expectancy"  damages theory.   Under  this late-            arising  theory,  Anchor sought  to  recover  the revenue  it            expected  to generate  by running  more commercials  on KOVR,            which  it  had  been  fraudulently  induced  to  believe  was            substantially  undercommercialized at the  time of  the sale.            In a throw-away line in its reply brief, Anchor contends that            evidence of industry  norms was relevant to  proof of damages            under its expectancy damages theory.                 An  expectancy damages  theory which  would look  to the            difference  between the revenue  Narragansett falsely claimed            to have been  generating in July/August 1988, and the revenue            that a  station  commercialized in  accordance with  industry            norms  would  have  been  generating  at  that time,  is  not            implausible.  Indeed,  it strikes  us as being  much more  in            line with  the fraud  damages to  which  Anchor actually  was            entitled  under Rhode Island law than the "effect on the bid"            theory pursued throughout this litigation.  See supra note 3.                                                        ___ _____            The problem is, however, that Anchor never sought to quantify            its expectancy damages in this way until its reply brief.  In                                               _____            fact, Anchor represented  to the district  court on at  least            three  occasions   that  evidence  of   industry  norms   was            irrelevant  to its  expectancy  damages theory.   See  Second            __________                                        ___            Trial Transcript, 3/29/94, at 13 (two representations to this            effect),  and  3/30/94  at 18.    Instead,  Anchor  sought to            quantify its expectancy damages as the difference between the            actual 1988 revenues generated by the overcommercialized KOVR            (a  fact of which it  learned only subsequent  to taking over                                               __________  __            the station), and  the far lower revenues the  false day-part            summary indicated that  KOVR was realizing.   We discuss  the                                         -26-                                          26                      2.  The Fraud Claim Based on the Over-                      ______________________________________                      commercialization Allegation                      ____________________________                      As noted, subsequent to  the conclusion of Anchor's            case  in  the  second   trial,  the  district  court  granted            Narragansett and  Pfeiffer judgment  as a  matter  of law  on            Anchor's  fraud  claim  based  on  the  overcommercialization            allegation  for failure  to prove  damages.   Anchor contests            this  ruling, arguing  that it  proved expectancy  damages by            demonstrating  the  difference  between  the  actual  revenue            generated  by the "too many" commercials run in 1988, and the            lower revenue  the July/August 1988 day-part  summary falsely            indicated was being generated.  See supra note 10.                                            ___ _____                      Throughout   both   trials,   Anchor   consistently            maintained that KOVR was  covertly running commercials far in            excess  of  industry  norms  during the  time  period  Anchor            examined in  formulating its  bid.  Anchor  also consistently            contended that, after taking over the station in 1989, it had            to  reduce commercialization  levels  in order  to bring  the            station  into conformity  with industry  norms.   Given these            positions, Anchor would have been estopped from raising, near            the conclusion of its  case in the second trial,  an explicit                                            ____________________            legal viability of this quantification in the next section of            our opinion; suffice it  to say at this point that Anchor has            waived  any  argument that  evidence  of  industry norms  was            relevant  to  its  expectancy  damages theory.    See,  e.g.,                                                              ___   ____            Sandstrom  v. Chemlawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)            _________     ______________            (deeming  waived an argument not made below or in appellant's            opening brief).                                              -27-                                          27            alternative  argument  that it  expected to  commercialize at            levels commensurate  with those actually employed  at KOVR in                   ____________  ____            1988.  Cf. Desjardins  v. Van Buren Community Hosp.,  37 F.3d                   ___ __________     _________________________            21, 23 (1st  Cir. 1994) (doctrine  of judicial estoppel  "may            apply to  bar a litigant  from engaging in  intentional self-            contradiction  as a  means  of  obtaining unfair  advantage")            (citations omitted).  Such an argument was, however, implicit            in Anchor's alternative damages theory.                        In   quantifying   its   expectancy    damages   by            subtracting the  lower, misrepresented revenues  set forth in            the July/August day-part summary from the higher, actual 1988            revenues  that  KOVR  was   generating,  and  in   explicitly            repudiating  any  suggestion that  the  lower, misrepresented            revenues more properly should be subtracted from the revenues            the station  would have generated had  it been commercialized            in  accordance with industry  norms, Anchor implicitly argued            that,  at  the time  it bought  the  station, it  expected to            generate the  same commercial revenues it  later learned that                                                       _____            the station had generated  in 1988.  Absent a proffer that it            somehow anticipated earning these revenues by commercializing            in accordance with industry norms, however, (and there was no            such proffer  here), the only way Anchor  could have expected            to earn  the higher revenues  was if it  expected to  run the            same  number of  commercials  that Narragansett  actually had            been  running in July/August 1988.  In other words, given the                                         -28-                                          28            state of the record at the second trial, necessarily subsumed            within  Anchor's  alternative  damages  theory  was  a  tacit            argument -- i.e., that Anchor expected to run the same number            of  commercials that  Narragansett  had been  running at  the            relevant  time in 1988 --  which was completely  at odds with            the stance Anchor had  taken regarding 1988 commercialization            levels.        The district court did  not err in prohibiting            Anchor from altering its litigation position in this way.  It            follows, therefore, that the court did not err in ruling that            Anchor had failed to prove expectancy  damages arising out of            any fraudulent misrepresentation of  commercialization levels            by  Narragansett or Pfeiffer.  See Campanelli, 63 A.2d at 724                                           ___ __________            (proof of fraud includes  proof of damage-causing reliance by                                               ______________            plaintiff); Cheetham, 56 A.2d  at 863 (purchaser defrauded to                        ________            his/her  disadvantage  has fraud  action  under  Rhode Island                     ____________            law).          3.  The Political Advertising Allegation                           ________________________________________                      Having granted Narragansett  and Pfeiffer  judgment            as  a matter  of law  on Anchor's  contract and  fraud claims            based  on  the  political advertising  allegation  during the            first   trial,  the  district   court  summarily11  precluded            Anchor from arguing at the second trial that Narragansett had            artificially inflated 1988 revenues by overcharging political                                            ____________________            11.  Prior  to opening  arguments  in the  second trial,  the            court  stated that it was "likely" to rule out the allegation            for the  same reasons that it  had ruled it out  at the first            trial.  The next day, without elaborating, the court notified            the parties that the allegation was indeed out of the case.                                          -29-                                          29            candidates for commercial time.  Anchor assigns error only to                                                                  ____            this second trial ruling, arguing that it was improper unless            "there  is no theory of the facts under which the allegations            of  the  complaint state  a cause  of  action.   Vartanian v.                                                             _________            Monsanto  Co., 14 F.3d 697,  700 (1st Cir.  1994)."  Anchor's            _____________            argument completely  overlooks the procedural posture  of its            political advertising allegation at the second trial.                      Perhaps   nothing    better   highlights   Anchor's            misapprehension of this issue  than its citation to Vartanian                                                                _________            as  supporting authority.    The above-quoted  language  from            Vartanian  summarizes the  standard  by which  we review  the            _________            propriety  of the  a district  court's dismissal  of a  claim            under  Fed.  R.  Civ. P.  12(b)(6).    The  exclusion of  the            political advertising allegation at the second trial was not,                                                                     ___            however, a Rule 12(b)(6) dismissal.  When the court ruled the            allegation  out of the second  trial, Anchor had already been            afforded a complete opportunity to substantiate and argue it,            and  the court had  deemed it insufficient  to go to  a jury.            Thus, despite  Anchor's attempts to depict  it otherwise, the            court's exclusion  of  the political  advertising  allegation            from the second trial was tantamount to a denial of a Fed. R.            Civ. P. 60(b)  motion to set  aside a properly-entered  prior            order.   See  Fed.  R.  Civ.  P.  60(b)  (setting  forth  the                     ___            circumstances  in  which a  court may  relieve  a party  or a                                         -30-                                          30            party's  representative  from  a  final  order).12    And  we            review  such denials only for  an abuse of  discretion.  See,                                                                     ___            e.g., de la Torre v. Continental  Ins. Co., 15 F.3d 12, 14-15            ____  ___________    _____________________            (1st  Cir. 1994) (orders denying relief under Fed. R. Civ. P.            60(b) -- which  allows for "extraordinary relief".  . . "only            under exceptional  circumstances" --  reviewed solely  for an            abuse of discretion) (citations omitted).                      Because it failed to understand the procedural path            it had to follow, Anchor did not present the trial court (and            has  not presented us) with an argument that a revival of its            political  advertising allegation  was required under  any of            the  criteria  --   e.g.,  mistake,  inadvertence,  surprise,            excusable  neglect, newly-discovered evidence, fraud, etc. --            delineated in  Rule 60(b).   Instead, Anchor argues  that, by            the time  of  the  second  trial, it  "had  reconsidered  its            arguments on  [the  political advertising]  issue  and  [had]            marshalled new evidence in support  of its claim."   Plainly,            this is  an inadequate  foundation upon  which  to premise  a            request for relief under Rule 60(b).  Cf. Rothwell Cotton Co.                                                  ___ ___________________            v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.) ("Rothwell's               _______________            brief  is long  on support  for why  summary judgment  is not                                            ____________________            12.  Apparently   believing  itself  entitled  to  renew  its            political advertising  allegation at  the second trial  as of            right, Anchor never formally moved  the court for relief from            the prior order under  Rule 60(b).  Its arguments  in support            of its position were  instead set forth in its  opposition to            Narragansett's  pretrial  motion  in  limine  to  exclude the                                              __  ______            allegation from the second trial.                                          -31-                                          31            appropriate in light of all the  evidence and legal arguments            it  now presents, but short on explaining why Rothwell should            be  able to begin presenting  those arguments --  in waves --            almost six  weeks after the district court  had already ruled            against Rothwell."),  reh'g denied, opinion amended, 835 F.2d                                  _____ ______  _______ _______            710  (7th Cir.  1987).   Furthermore, our  own review  of the            record  reveals  no "exceptional  circumstances"  which would            have  made   relitigation   of  the   political   advertising            allegation  appropriate.    Accordingly, the  district  court            acted well  within its discretion in  prohibiting Anchor from            pursuing this allegation at the second trial.                      4.  Remaining Appellate Issues                      ______________________________                      The  four remaining  arguments  Anchor  presses  on            appeal  relate  to  decisions  the  district  court  made  in            connection  with the ABC newsbrief allegation.   See supra at                                                             ___ _____            13-14.   We  need not and  do not  reach the  merits of these            arguments,  because our review  of the  record compels  us to            conclude that, for an independent reason, Anchor's claims for            breach  of  contract and  fraud  based on  these  claims were            legally deficient.  See Alioto, 26 F.3d 204.13                                ___ ______                                            ____________________            13.  While we do not address  the merits of Anchor's argument            that the court  was without the power to  grant judgment as a            matter of law to  Narragansett and Pfeiffer on the  one issue            that  went to the jury after the  jury had returned a verdict                                   _____            in their favor, we do note that this type of order is utterly            superfluous.  The  beneficiary of a  jury verdict may,  after            all, always  assert on appeal  (as an  alternative basis  for            upholding the verdict) a properly preserved argument that the            claim underlying the  verdict was legally deficient.  And we,                                         -32-                                          32                      As already explained,  the essence of Anchor's  ABC            newsbrief  allegation  was  that   Narragansett  fraudulently            increased its cash  flow in the months  preceding the auction            by  running   local  commercials  at  a  time   when  it  was            contractually obliged to be running an ABC newsbrief.  Anchor            quantified the damages arising out of this fraudulent conduct            in accordance with  its "effect on  the bid" damages  theory.            See  supra at 4-5.   That is  to say, Anchor  argued that the            ___  _____            proper measure of damages  arising from this conduct was  the            amount  of 1988  revenue generated  by the  improper practice            times the  multiplier (13.6)  Anchor used in  formulating its            bid.                      As   the   district   court   noted   in   granting            Narragansett and Pfeiffer  judgment as a matter  of law after            the jury verdict on the fraud claim based on this allegation,            see supra  at 9  and note 13,  the problem with  this damages            ___ _____            theory in context is that most, if not all, of the revenue at            issue still would have  been generated in the absence  of the            alleged fraud.   Anchor's  own damages witness,  Martin Ross,            admitted:  (1) few, if any, local commercials are sold to run            at a specific point  in time; (2) most local  commercials are                                            ____________________            of  course, would  review such  a legal  argument de  novo --                                                              __  ____            i.e., without  deference to the  trial court's opinion  as to            its merits.  Thus, there is no practical reason for the court            to resolve a reserved motion for judgment as a matter  of law            where the jury has found in favor of the party or parties who            initially filed the motion.                                              -33-                                          33            "preemptable"  (i.e.,  able  to  be  run,  in  the  station's            discretion,  outside of the general time frame for which they            have  been sold); and (3)  on a given  day, "there's probably            always going to be  some commercial availability."  Moreover,            Mr. Ross conceded that Anchor had failed to go through KOVR's            1988 program  logs and determine which  of the improperly-run            commercials  could   not  have   been  run   elsewhere,  thus            generating irreplaceable revenue.                      Anchor does not dispute  any of this.  In  fact, it            appears to recognize that  its bid was not  actually affected            by  fraud  in connection  with  the  ABC  newsbrief (and  any            concomitant  breach of  the Agreement  such fraud  would have            engendered)  except to  the extent  that the  fraud generated            irreplaceable  revenue.   Anchor  argues,  however, that,  in            _____________            order to prove  its damages, all  it had to  do was  quantify            Narragansett's ill-gotten revenue.   In its view, once it had            quantified   such  revenue,  it   became  Narragansett's  and            Pfeiffer's burden  to prove the  extent to which  the revenue            was replaceable (as part  of their burden of  proving failure            to mitigate damages).                      This argument  is unconvincing.   The law  does not            contemplate  that a  party victimized by  fraud or  breach of            contract prove, without reference to  the rest of the record,            the narrow effects of  the fraud or breach; it  requires that            party to  prove, as  an element  of its  case, the  extent to                             __  __ _______  __ ___  ____                                         -34-                                          34            which it was damaged by the fraud or breach.   In the face of                         _______            the uncontroverted  evidence  showing that  KOVR still  would            have generated  most of the  revenues it obtained  by running            local commercials when  it should have  been running the  ABC            newsbrief, it  is apparent that  Anchor, by proving  only the            amount of revenue traceable  to the improper practice, failed            to provide  the jury  with a basis  upon which  to premise  a            reasoned  damages finding.   Thus, Anchor failed  to prove an                      _______            element of its case.                      While ingenious,  it is incorrect  to suggest  that            Narragansett  and Pfeiffer  bore  the burden  of proving  the            extent to which the ill-gotten income was replaceable as part            of  their duty  to prove  failure to  mitigate damages.   The            doctrine of mitigation of damages  imposes on a party injured            by either a breach of contract or a tort the duty to exercise            reasonable  diligence  and  ordinary  care  in attempting  to            minimize its damages.  Black's  Law Dictionary 1002 (6th  ed.                                   _______________________            1990).  The doctrine thus presupposes, as a threshold matter,                                      ___________            the existence of  a causal nexus  between the damages  sought            and the breach or tort, looking at whether and to what extent            an intervening cause (i.e., a plaintiff's own negligence) may            have contributed to these damages.  Here, the question is not            whether and  to what extent Anchor's  own conduct contributed            to  its damages;  it  is, rather,  the threshold  question of            whether the damages  Anchor sought were caused by the conduct                                         -35-                                          35            of  which Anchor  complained.   Accordingly, the  doctrine of            mitigation of damages is completely inapposite.                      In sum,  we think  it clear that  Anchor's contract            and fraud  claims based on the ABC  newsbrief allegation were            deficient  because of  an absence  of proof  of damages.   We            therefore reject Anchor's  remaining appellate arguments, all            of which pertain  to the district  court's handling of  these            claims.                                         IV.                                         IV.                                         ___                                      CONCLUSION                                      CONCLUSION                                      __________                      For the  reasons stated above, the  judgment of the            district court is affirmed in all respects.                      Affirmed.  Costs to appellees.                      Affirmed.  Costs to appellees.                      ______________________________                                         -36-                                          36
