

November 9, 1995      [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 95-1469

                          PAUL S. DOPP,
                      Plaintiff, Appellant,

                                v.

                         JAY A. PRITZKER,
                       Defendant, Appellee.

                                             

                           ERRATA SHEET                                     ERRATA SHEET

     The opinion of  this court  issued on October  26, 1995,  is
corrected as follows:

On cover sheet   change "Mahoney" to "Mahony"

October 26, 1995      [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 95-1469

                          PAUL S. DOPP,
                      Plaintiff, Appellant,

                                v.

                         JAY A. PRITZKER,
                       Defendant, Appellee.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]                                                                    

                                             

                              Before

                Selya and Boudin, Circuit Judges,                                                          

                   and Saris,* District Judge.                                                       

                                             

     Roger R. Crane, Jr.,  with whom Todd B. Marcus  and Bachner,                                                                           
Tally, Polevoy &amp; Misher LLP were on brief, for appellant.                                     
     Gael Mahony, with  whom Frances s.  Cohen, Joshua M.  Davis,                                                                          
Hill &amp; Barlow, Salvador Antonetti-Zequeira, and Fiddler, Gonzalez                                                                           
&amp; Rodriguez were on brief, for appellee.                     

                                             

                                             

               
*Of the District of Massachusetts, sitting by designation.

          SELYA, Circuit Judge.   This case comes to  us not as a                    SELYA, Circuit Judge.                                        

stranger.  Following a jury verdict finding the defendant, Jay A.

Pritzker,  liable to  his  erstwhile partner,  plaintiff Paul  S.

Dopp,  in the sum of  $2,000,000, the district  court disposed of

several post-trial motions.  See Dopp  v. HTP Corp., 755 F. Supp.                                                             

491  (D.P.R. 1991) (Dopp I).   On appeal, we upheld the liability                                    

verdict  but vacated both the  jury's damage award  and the trial

court's rulings in connection with equitable relief.  See Dopp v.                                                                        

HTP Corp., 947 F.2d 506 (1st  Cir. 1991) (Dopp II).  The district                                                           

court  then   conducted  a  second  trial   to  determine  Dopp's

entitlement to various  forms of  redress.  The  jury returned  a

series  of special  findings  and the  district  court entered  a

revised  judgment.   See  Dopp v.  HTP  Corp., 831  F.  Supp. 939                                                       

(D.P.R. 1993) (Dopp III).                                 

          Both sides expressed dismay  with the revised judgment.

After  hearing  a gaggle  of  appeals, we  affirmed  the district

court's  denial of a resultory remedy; upheld the jury's award of

full damages  (originally,  $17,000,000) on  condition  that  the

plaintiff remit  the excess  over $14,171,962; ordered  a limited

new trial absent a  remittitur; and set aside the  sanctions that

the  district court had imposed  pursuant to P.R.  Laws Ann. tit.

32, app. III, R.44.1(d) &amp; 44.3(b) (1984 &amp; Supp. 1989).   See Dopp                                                                           

v.  Pritzker, 38  F.3d 1239  (1st  Cir. 1994)  (Dopp IV).   These                                                                 

rulings necessitated a remand.

          Our  warning that  this  seemingly  endless  litigation

showed signs of having "taken on a life of its own," id. at 1255,                                                                  

                                3

proved prophetic.   When  the  parties returned  to the  district

court, the wrangling continued.  Judge Pieras issued a battery of

orders in an  effort to close  the case.   Dopp now appeals.   He

strikes  six  separate  chords.   We  write  somewhat  sparingly,

confident that the reader  who hungers for more detail  will find

no shortage of it in earlier opinions.

          First:  On remand, Dopp beseeched the district court to                    First:                         

add  prejudgment interest to the damage award.  The court refused

to do so.  Dopp assigns error.  We see none.

          This is "a diversity case in which the substantive  law

of Puerto Rico supplies the basis of decision."  Dopp IV, 38 F.3d                                                                  

at 1252.  Thus, a federal  court must give effect to Rule 44.3(b)

of the Puerto Rico Rules of Civil Procedure.  Under that rule, if

a  plaintiff  recovers  money  damages and  the  court  finds the

defendant to have been  guilty of obstinacy, the court  must then

add prejudgment  interest to the verdict.   See id.; see  also De                                                                           

Leon Lopez v. Corporacion  Insular de Seguros, 931 F.2d  116, 126                                                       

(1st Cir.  1991); Fernandez v. San Juan Cement Co., 118 P.R. Dec.                                                            

713 (1987).

          Here,  however, there  is  no basis  for  a finding  of

obstinacy.  See Dopp IV, 38  F.3d at 1253-55.  Accordingly,  when                                 

Dopp, in the  aftermath of  our latest opinion,  asked the  lower

court  to add prejudgment interest, the court demurred.  It ruled

that,  absent  obstinacy,  Puerto  Rico law  furnished  no  other

vehicle  by  which a  court     as opposed  to  a  jury or  other

                                4

factfinder    could impose prejudgment interest in a case of this

genre.1   We  agree:   where  prejudgment  interest is  available

under  Puerto Rico  law,  the Civil  Code expressly  so provides.

See, e.g., P.R. Laws Ann. tit. 31,    3025, 3514;  P.R.R. Civ. P.                   

44.3(b).   Here, Dopp points  to no  provision in the  Civil Code

authorizing the  add-on that he  seeks.  The absence  of any such

provision is, as the  district court recognized, fatal  to Dopp's

claim.

          Second:   In  a related  vein, Dopp  contends that  the                    Second:                          

district court should  have acted  ex cathedra, as  it were,  and                                                        

increased  the dollar amount of  the verdict to  reflect delay in

payment.  This contention is triply flawed.

          In the  first place, Dopp rests  his argument primarily

on a  statute that he  did not  mention below.2   Yet, "[i]f  any

principle is settled in this circuit, it is that, absent the most

extraordinary circumstances, legal  theories not raised  squarely

in  the lower  court  cannot be  broached for  the first  time on
                                                  

     1At  the  time  of  the  second  trial,  the  jury  was  not
instructed to consider  the time value of money as  an element of
Dopp's damages, and  Dopp did  not preserve an  objection to  the
omission of such  an instruction.  He  has, therefore, foreclosed
that avenue.  See Toscano v. Chandris, S.A., 934 F.2d 383, 384-85                                                     
(1st Cir. 1991).

     2The  statute,  P.R. Laws  Ann. tit.  31,    7,  provides in
pertinent part:

               When there is  no statute applicable  to
          the case at issue,  the court shall decide in
          accordance  with  equity,  which  means  that
          natural justice, as  embodied in the  general
          principles of jurisprudence  and in  accepted
          and established usages and customs,  shall be
          taken into consideration.

                                5

appeal."   Teamsters, Chauffeurs,  Warehousemen &amp;  Helpers Union,                                                                           

Local No.  59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.                                                

1992).  The  circumstances here are not out of  the ordinary.  To

seal the  bargain, Dopp  offered no  argumentation based on  this

statute in his opening appellate brief.   It is hornbook law that

an argument omitted from  an appellant's opening brief is  deemed

waived, notwithstanding its belated emergence in the reply brief.

See, e.g., Sandstrom v. Chemlawn Corp., 904 F.2d 83, 87 (1st Cir.                                                

1990).

          In the second place, this argument is barred by the so-

called mandate  rule.  In  attempting to sustain  the $17,000,000

damage award, Dopp asserted a variety of theories that he claimed

justified the higher award.  See Dopp IV, 38 F.3d at 1248-51.  We                                                  

rejected his  asseverations.   Under  the  mandate rule     which

provides in substance that "[a] decision of an appellate tribunal

on a particular issue,  unless vacated or set aside,  governs the

issue  during all  subsequent stages  of  litigation in  the nisi

prius court, and thereafter on any further appeal," United States                                                                           

v. Rivera-Martinez,  931 F.2d  148,  150 (1st  Cir. 1991),  cert.                                                                           

denied, 502 U.S. 862 (1992)   Dopp is precluded from relitigating                

the  point.   The bar  erected by  the mandate rule  remains firm

despite the fact that a party, the second time around, drapes his

contention in  slightly  different garb.   See  United States  v.                                                                       

Bell,  988  F.2d 247,  250-51 (1st  Cir.  1993); see  also United                                                                           

States v. Connell, 6 F.3d 27, 30 (1st Cir. 1993) (explaining that                           

interests  of  consistency  and  judicial  economy  dictate  that

                                6

litigants  not  be  allowed  "[s]erial  bites  at  the  appellate

apple").

          In  the third place, the Puerto  Rico Supreme Court has

never applied section  7 in  the manner that  Dopp suggests,  and

none of  the Puerto Rico  cases that  he cites indicate  that the

commonwealth's  courts would  be willing  to take such  a lengthy

stride  in a contract case based on a commercial transaction gone

sour.3   Having in mind  that Dopp  chose the federal  forum, the

lack of precedent sounds a death knell for his claim.  See Martel                                                                           

v. Stafford, 992 F.2d 1244, 1247 (1st Cir. 1993) (explaining that                     

a plaintiff who  opts for a  "federal forum  in preference to  an

available state forum may  not expect the federal court  to steer

state  law into unprecedented configurations"); Porter v. Nutter,                                                                          

913 F.2d 37, 41 (1st Cir. 1990) (similar); Kassel v. Gannett Co.,                                                                          

875 F.2d 935, 949-50 (1st Cir. 1989) (similar).

          Third:   Dopp  insists that  the district  court should                    Third:                         

have permitted him  to decide  anew whether he  would accept  the

remittitur  after  it  had  denied his  motions  for  prejudgment

interest  and enhancement  of the  verdict.   We think  not.   On

remand, Dopp faced a simple choice:  he could take his chances on

                                                  

     3Dopp  relies principally on two cases.  The first, Rojas v.                                                                        
Maldonado, 68 P.R. 757 (1948), is a wrongful death action dealing                   
with  the  measurement and  translation  of  a bereaved  parent's
suffering into money  damages.   The case has  no application  to
contract  damages (which,  under  Puerto  Rico  law,  are  to  be
measured as of the date of the actionable breach).  Dopp's second
offering,  Suro v. E.L.A.,  111 P.R. Dec.  564 (1981),  is also a                                   
wrongful death action.  It deals with how a court  should measure
a  decedent's lost future earnings.   See id.  at 569-70, 574-75.                                                       
The Suro opinion has no relevance to the issue at hand.                  

                                7

another trial or he could accept the remittitur and have judgment

entered in  the reduced amount.   The district  court supportably

found  that  Dopp elected  the latter  course.   This  finding is

reviewable  only for abuse of discretion.  See De Leon Lopez, 931                                                                      

F.2d at  120 n.3.   Given Dopp's  serial filings in  the district

court, we discern no hint of  abuse either in the finding that he

elected the remittitur or in the timing of his election.

          Fourth:    Money  judgments in  federal  civil  actions                    Fourth:                          

ordinarily carry postjudgment interest  until paid, see 28 U.S.C.                                                                 

  1961(a),4  and the parties    who agree on little  else   agree

that  this   case  comes  within   the  statute's  sweep.     Not

surprisingly,  there is a rub:   Dopp seeks postjudgment interest

on the first  $2,000,000 in  damages not from  December 13,  1993

(the date on  which the  district court entered  judgment on  the

more  recent jury verdict) but  from March 23,  1990 (the date on

which the district  court entered  judgment on  the initial  jury

verdict).  He has no such entitlement.

          The relevant  facts are  as follows.   The  first trial

resulted  in a jury verdict of $2,000,000, and the district court

entered judgment in that amount.  We vacated the judgment  in all

"its relief-related  aspects."   Dopp II, 947  F.2d at 520.   The                                                  
                                                  

     4The statute reads in relevant part:

          Interest   shall  be  allowed  on  any  money
          judgment  in  a  civil  case recovered  in  a
          district court. . . .  Such interest shall be
          calculated from the date  of the entry of the
          judgment. . . . .

28 U.S.C.   1961(a) (1988).

                                8

parties then retried  the case  on damages and  the jury  awarded

Dopp $17,000,000 (later reduced  to $14,171,962).  Dopp theorizes

that postjudgment interest should  accrue on the first $2,000,000

in damages from the date of the vacated judgment rather than from

the  date of the larger  judgment that was  entered following the

second  jury verdict.    For his  part,  Pritzker maintains  that

postjudgment interest should run only from the latter date.

          The premier authority  on this point is Kaiser  Alum. &amp;                                                                           

Chem.  Corp.  v.  Bonjorno, 494  U.S.  827  (1990).   In  Kaiser,                                                                          

following a jury  verdict for the  plaintiff, the district  court

granted the defendant's  motion for  a new trial  limited to  the

issue of damages on the ground that the evidence did not  support

the  award.   The  second trial  produced  a larger  verdict that

proved impervious to appellate review.  Interpreting  28 U.S.C.  

1961(a),  see supra  note  4, the  Supreme  Court concluded  that                             

postjudgment interest  on the  entire award should  be calculated

from the entry of the second judgment.  The  Court reasoned that,

when  a damage  award  is "not  supported  by the  evidence,  the

damages have not been ascertained in any meaningful way."  Id. at                                                                        

836.  In such circumstances,  "[i]t would be counterintuitive, to

say  the least,  to believe  that Congress  intended postjudgment

interest to be calculated from such a judgment."  Id.                                                               

          Kaiser  controls  here.    The first  trial  yielded  a                          

verdict  from which we found it "[i]mpossible  . . . to determine

what sort of damages the jurors thought they were awarding or how

they arrived at the  stated figure of $2,000,000."   Dopp II, 947                                                                      

                                9

F.2d at  513.   In other words,  the judgment,  like the  current

crush of  tabloid stories recounting Elvis  sightings, lacked any

visible means  of support.   These indicia are  characteristic of

cases in  which postjudgment  interest can  only accrue from  the

date of the second judgment.  See Cordero v. De Jesus-Mendez, 922                                                                      

F.2d  11, 16  (1st Cir.  1990) (explaining  that, when  the first

judgment is not  "basically sound" and  "lacks an evidentiary  or

legal basis," postjudgment interest should run only from the date

of the second judgment).

          We  need  not  beat  this  drum  incessantly.    As  we

indicated at the  time, the  first judgment was  so riddled  with

uncertainty  that we  could  not "decipher  the character  of the

damage  award."   Dopp II,  947 F.2d  at 514.   We  confessed our                                   

inability  to  divine  whether  the  sum  awarded   by  the  jury

represented full or accessory damages; what election of remedies,

if  any, the  plaintiff had  made; and  the extent  to which  the

verdict represented inconsistent or duplicative remediation.  See                                                                           

id.  at 515-16.    The  lack of  clarity  that marked  the  first             

judgment,   coupled  with   our   determination  that   all   the

participants had  a hand in producing the  chaos, see id. at 516,                                                                   

suggests that  the damages were  not ascertained in  a meaningful

way in March  of 1990.   One simply cannot  say on this  scumbled

record either that the evidence supported the initial judgment on

damages  or that the second  judgment was a  mere modification of

the first.

          Dopp seeks to avoid this result by reliance upon Bailey                                                                           

                                10

v.  Chattem, Inc., 838 F.2d 149, 153-55 (6th Cir.), cert. denied,                                                                          

486  U.S. 1059  (1988).   The Bailey  court decided,  on specific                                              

facts, that where the damages  found in a second trial include  a

lesser  amount found by the jury in the first trial, postjudgment

interest  on the  lesser  amount may  run from  the  date of  the

original judgment.   See id.  at 154.   Assuming, arguendo,  that                                                                    

Bailey's reasoning  survives the  Court's subsequent decision  in                

Kaiser   a matter on which we take no view   the opinion is of no                

assistance to Dopp's cause.  In Bailey, unlike in this  case, the                                                

first judgment was  precise in  terms of exactly  what the  money

damages represented, and it was vacated only because the court of

appeals  found  the trial  judge's  instruction  on a  particular

element of damages  to be inadequate.   See id.   Apart from  the                                                         

errant  instruction, it was  crystal clear what  the evidence had

proven with  regard to  the defendant's liability,  what remedies

were being sought, and what damages were in fact determined to be

due.5

          Of course,  it is possible  that this court  could hark

back  to  the  jury's  original  verdict,  speculate  about  what

actually  had been  determined, and  surmise, in  light of  human
                                                  

     5To  supplement Bailey, Dopp hawks a string of Tenth Circuit                                     
cases that stress  the importance, in applying section 1961(a) to
serial judgments, of  assessing the extent to  which the original
judgment  has been reversed.  See, e.g., Northern Natural Gas Co.                                                                           
v. Hegler, 818 F.2d  730, 737 (10th Cir. 1987),  cert. dismissed,                                                                          
486 U.S. 1063 (1988); Ashland Oil, Inc. v. Philips Petroleum Co.,                                                                          
607 F.2d  335, 336 (10th Cir.  1979), cert. denied, 446  U.S. 936                                                            
(1980).  These cases afford Dopp scant succor.  Here, even though
we  upheld  the  jury's  liability determination,  we  found  the
initial  damage award to be completely inscrutable and vacated it
entirely.

                                11

experience, what the  jury was  saying about the  harm caused  by

Pritzker.  Later,  with the  benefit of hindsight  informed by  a

retrial, a  second appeal,  and countless legal  maneuverings, we

could  attempt to peel off the layers of litigation and return to

the starting place with some better inkling of what that long-ago

verdict  might have  meant.   But reasoning  backward is  not our

proper  function.    The hallmarks  of  the  first judgment  were

ambiguity  and  uncertainty,  and   Dopp  has  not  produced  any

dependable means  of dispelling  the mist.   Because  the damages

were not ascertained  in any  meaningful way by  the first  jury,

postjudgment  interest runs  only  from the  date  of the  second

judgment.

          Fifth:     Dopp's  next  point  implicates  his  former                    Fifth:                         

counsel, the law firm of  Ledesma, Palou &amp; Miranda (LP&amp;M).   LP&amp;M

represented  Dopp pursuant  to a  contingency fee  agreement (the

Agreement) throughout the protracted  litigation between Dopp and

the Pritzker interests.  Under the Agreement, LP&amp;M was to receive

25%  of "all amounts recovered" in the litigation.  Following the

second jury  verdict, the district court indicated  that, if Dopp

elected  full damages as his  anodyne of choice,  the court might

"enter a  Judgment which will  include the payment  of attorneys'

fees to [LP&amp;M]."   Dopp III, 831  F. Supp. at 959  n.30; see also                                                                           

id. at 960  n.31.   Although this suggestion  slipped from  sight             

during the ensuing appeal,  it proved to be a harbinger of things

to come.

          We issued our opinion  in Dopp IV on October  28, 1994.                                                     

                                12

A petition  for rehearing  consumed  some additional  time.   Our

mandate then issued.   On February 10, 1995, Dopp,  through LP&amp;M,

filed a motion in the district court.  In it, he acknowledged the

lid that  this court  had placed  on full damages  ($14,171,962),

calculated the portion of the award that Pritzker was entitled to

extinguish by  reason of  certain litigated credits,6  and prayed

that the district court order immediate payment of the net amount

remaining.    The  motion  included,  as  part  of  an  intricate

explanation  concerning  how  best  to  calculate  the  litigated

credits, a line  item in the amount  of $3,542,990.50    a figure

equal to 25%  of the  reduced award  of full  damages    labelled

"Ledesma,  Palou &amp;  Miranda."   On March  10, 1995,  the district

court  entered  a  final  judgment  which,  among  other  things,

purported  to deduct  $3,542,990.50 from  Dopp's recovery  and to

redirect that amount to LP&amp;M.

          In the meantime, trouble erupted in paradise.  On March

14, LP&amp;M, despite  having done  yeoman work for  Dopp, moved  for

leave  to  withdraw  as  his  counsel.    Dopp,  acting  pro  se,

simultaneously  filed a  pleading signifying  his desire  to drop

several pending  motions  (including  the  motion  for  immediate

payment).  The district court granted LP&amp;M's motion  to withdraw,

but  denied Dopp's  omnibus pleading  as moot,  stating  that the

March 10 judgment "addressed all pending issues."
                                                  

     6We  discussed  the  complicated  questions  surrounding the
litigated credit issue  at some  length in Pritzker  v. Yari,  42                                                                      
F.3d 53, 65-74  (1st Cir. 1994),  cert. denied, 115  S. Ct.  1959                                                        
(1995).   It  would  serve no  useful  purpose to  rehearse  that
discussion here.

                                13

          Dopp assigns error to the portion of the final judgment

that earmarks funds  for LP&amp;M.   In his  view, the direction  for

payment  is unconstitutional because LP&amp;M  is not a  party to the

action, and any  judgment purportably rendered  for or against  a

non-party is void.

          We  need not  probe this  point too  deeply.   The fees

claimed  by LP&amp;M are hotly disputed (earlier this year, LP&amp;M sued

Dopp for payment  in a  separate suit that  is currently  pending

before  a different judge of the district court), the court below

made no  findings to  underbrace  the direction  for payment  (we

cannot tell, for example, what the court knew of the fee dispute,

or the basis on which it resolved any controversy), and the court

offered  no rationale  for its  order.7   Moreover, LP&amp;M  has not

intervened  in  this  action  and  the  district  court  has  not

appropriately asserted in personam jurisdiction over it.                                            

          These  omissions cast  a pall  over the  court's order.

The tenet is that remand is required when a district court offers

no explanation  of a ruling, makes no findings, and the basis for

the ruling cannot confidently be discerned on appeal.  See, e.g.,                                                                          

Pearson v. Fair, 808 F.2d 163, 165 (1st Cir. 1986)  (per curiam);                         

see also  Domegan v.  Fair, 859 F.2d  1059, 1066 (1st  Cir. 1988)                                    

(warning  that,  without  any  explication  of  a  trial  judge's

                                                  

     7It  is possible,  of course,  that Dopp lured  the district
court  into following this course  by inserting the  line item in
his motion for payment.  See supra p. 12.   Even if this were so,                                            
however, we would  not find  an estoppel because  the motion  for
payment was  crafted  by the  beneficiary  of the  direction  for
payment, LP&amp;M, then acting as Dopp's counsel.

                                14

reasoning, the court of appeals is "sometimes forced to remand in

order to apprehend  the basis  for decision below").   Here at  a

bare  minimum,   several  things   must  happen  before   we  can

intelligently review the propriety  of the direction for payment.

First, the law  firm must  intervene in the  action or  otherwise

assert a  claim of right  to a portion  of the judgment  (say, by

garnishment  or impressment  of a  lien).   Second, Dopp  must be

given notice  and  an  opportunity  to  contest  the  law  firm's

claim.8  If, after  these two things have been  accomplished, the

court concludes that a  direction for payment is proper,  it must

set forth  specific findings  and elucidate its  ratio decidendi.                                                                          

Since none of these essential ingredients have yet been prepared,

we  vacate the direction for  payment and remand  to the district

court for further proceedings limited to that issue.9

          Sixth:  Last and  least, Dopp asks us to  pass upon the                    Sixth:                         

bill of costs he submitted below.   Because the district court to

our  knowledge  has not  yet  addressed  that submission,  Dopp's

request  to this  court is premature.   See Mason  v. Belieu, 543                                                                      
                                                  

     8We take no position on the  merits of the fee dispute or on
the degree to which that dispute may or may not be susceptible to
resolution within the four corners of the instant case.

     9Although the size of LP&amp;M's fee arguably affects the amount
of at  least one  litigated credit  and, thus, could  conceivably
have  an impact on Pritzker's  net payment to  Dopp, Pritzker did
not  cross-appeal either from  the trial court's  allocation of a
sum  certain to  LP&amp;M or  from its  computation of  the litigated
credits.    Before  us,  Pritzker maintains  the  same  hands-off
attitude, stating  that he "takes  no position in  th[e] dispute"
over the propriety of including LP&amp;M  within the judgment proper.
Appellee's Brief at 15 n.8.  Thus, on remand, the  district court
need not  consider Pritzker's interests in  its further treatment
of this issue.

                                15

F.2d 215, 222 (D.C. Cir.), cert. denied, 429 U.S. 852 (1976).                                                 

          We need go no  further.  The district court did not err

in  determining  that the  award of  full  damages, as  capped on

appeal, should not  be augmented by  the addition of  prejudgment

interest or  enhanced to reflect the  delay in payment.   Nor did

the court err in determining that the plaintiff made  a valid and

binding  election to  accept the  remedy of  full damages  and to

remit the excess of  the award over $14,171,962.   We, therefore,

affirm the court's rulings in these respects.  At the  same time,

we direct that postjudgment interest on the reduced award  should

accrue, at the federal  statutory rate, see 28 U.S.C.    1961(a),                                                     

from  December 13, 1993.  Finally, we vacate the judgment insofar

as  it  calls  for Pritzker  to  pay  a portion  of  the proceeds

directly to LP&amp;M, and we remand for further proceedings solely in

regard to  that aspect of the  matter.  Costs on  appeal shall be

taxed in favor of the appellee.

It is so ordered.          It is so ordered.                          

                                16
