

November 25, 1994 UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT
                                             

No. 93-2373

                          PAUL S. DOPP,
                      Plaintiff, Appellant,

                                v.

                          JAY PRITZKER,
                       Defendant, Appellee.
                                             
Nos. 94-1130
     94-1131

                          PAUL S. DOPP,
                       Plaintiff, Appellee,

                                v.

                          JAY PRITZKER,
                      Defendant, Appellant.
                                             

                           ERRATA SHEET                                     ERRATA SHEET

     The  opinion of  the court  issued on  October 28,  1994, is
corrected as follows:

     1.  On page 25, line 13   delete signal for footnote 12, and
add the following at the end of the sentence (after "$600,000."):
Under the SSA,  Pritzker could have exercised  the buy-out option
as  late  as  10  years  after  the  formation  of  the  contract
(withholding any payment until  then).  There is evidence  in the
record, through an expert witness presented by Pritzker, that the
prospect  of so  long  a delay  would  justify a  somewhat  lower
figure,  reflective  of  a  time-related discount.    The  expert
testified that this reduction to present value could have brought
the present value of the redemption price as of December 3, 1984,
as low as $114,638.

     2.   Delete  footnote 12  in its  entirety and  renumber all
subsequent footnotes accordingly.

     3.   On  page 26,  line  3    change "the  . .  .  price" to
"$114,638."

     4.  On page 26, line 4,  page 27, line 10, page 29, line  7,
and page 29, line 12   change "$13,686,600" to "$14,171,962."

     5.    On  page   29,  line  10     change   "$3,313,400"  to

"$2,828,038."

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 93-2373

                          PAUL S. DOPP,
                      Plaintiff, Appellant,

                               v. 

                          JAY PRITZKER,
                       Defendant, Appellee.
                                             

Nos. 94-1130
     94-1131

                          PAUL S. DOPP,
                       Plaintiff, Appellee,

                                v.

                          JAY PRITZKER,
                      Defendant, Appellant.
                                             

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

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

                              Before

                  Selya and Cyr, Circuit Judges,                                                         

                   and Zobel,* District Judge.                                                       
                                             

     Ruben  T.  Nigaglioni,  with  whom Diana  Mendez-Ondina  and                                                                      
Ledesma, Palcu &amp; Miranda were on brief, for plaintiff.                                  
     Gael Mahony, with  whom Frances S. Cohen, David  A. Hoffman,                                                                          
Joshua  M. Davis,  Hill  &amp;  Barlow, Salvador  Antonetti-Zequeira,                                                                          
Ricardo Ortiz-Colon,  and Fiddler,  Gonzalez &amp; Rodriguez  were on                                                                  
brief, for defendant.

                                             

                         October 28, 1994

                                             

               
*Of the District of Massachusetts, sitting by designation.

          SELYA, Circuit Judge.  In these appeals, we revisit the                    SELYA, Circuit Judge.                                        

remedial  phase  of  a  protracted  dispute  in  which  the  main

protagonists are a pair  of erstwhile partners, Paul S.  Dopp and

Jay  A. Pritzker.   The  litigation stems  from an  oral contract

between the two men  concerning the purchase of the  Dorado Beach

Hotel Corporation  (DBHC), a company that controlled a complex of

hotels and golf courses situated on  1,000 beachfront acres along

the north shore of Puerto Rico.

          In an earlier opinion we  upheld a jury verdict finding

Pritzker liable to Dopp, but vacated both the jury's damage award

and  the  trial  court's  rulings in  connection  with  equitable

relief.   See Dopp  v. HTP  Corp., 947 F.2d  506 (1st  Cir. 1991)                                           

(Dopp II).  On remand, the district court held a  second trial to                  

determine Dopp's entitlement to various forms of relief.  After a

jury returned a series  of special findings, see Fed.  R. Civ. P.                                                          

49(a), the district court entered a revised judgment.

          Both  sides now appeal.1  Their appeals require that we

examine:   (1) whether  the district  court lawfully  denied Dopp

resolution  (a form  of rescission) as  a remedy  for contractual

breach;  (2)  whether  the  jury's assessment  of  full  damages,

$17,000,000,  was either  excessive, as  Pritzker claims,  or too
                                                  

     1The three  appeals with which  we are concerned  today were
consolidated for  oral argument with three  other appeals arising
out of  the same case.   Since the latter  appeals (Nos. 93-2374,
94-1128, and 94-1129,  respectively) involve segregable issues   
they  focus on  a  series of  financing  agreements entered  into
between Dopp  and three financiers, Robert  Yari, Lincoln Realty,
Inc.,  and Baird  Patrick  &amp; Co.,  for  the apparent  purpose  of
funding Dopp's litigatory  efforts    we will address  them in  a
separate and subsequent opinion.

                                4

niggardly, as Dopp  asserts; and (3)  whether the district  court

appropriately  awarded  Dopp  attorneys'  fees   and  prejudgment

interest,  based  on its  determination  that  Pritzker displayed

obstinacy  in  conducting  the   litigation.    After  a  careful

examination  of the record and  the applicable law,  we affirm in

part, reverse in part, and remand.

I.  BACKGROUND          I.  BACKGROUND

          We  divide  this  segment   of  our  opinion  into  two

subparts,  treating  the  facts  and   the  travel  of  the  case

separately.  In doing so, we write somewhat sparingly because the

background of  the litigation  is already well-documented.   See,                                                                          

e.g., id. at 508-09; Dopp v.  HTP Corp., 831 F. Supp. 939, 941-42                                                 

(D.P.R. 1993) (Dopp III);  Dopp v. HTP Corp.,  755 F. Supp.  491,                                                      

492-94 (D.P.R. 1991) (Dopp I).                                      

                          A.  The Facts.                                    A.  The Facts.                                                 

          In  May of 1984, Dopp wangled an option to acquire DBHC

for  the approximate price of $40,500,000.  He secured the option

with a $2,000,000  letter of credit supplied  with the assistance

of Island Resorts,  S.A. (IRSA), a  Panamanian corporation.   The

option agreement specified that the  underlying purchase-and-sale

transaction would be consummated no later than December 3, 1984.

          Though playing for high stakes, Dopp had relatively few

chips of  his own.   Thus, he  immediately set out  in search  of

financial backing.  He encountered heavy seas.  With time running

out,  Dopp turned  to  Pritzker.   The  parties reached  an  oral

agreement on November 30, 1984.  Under its terms, Pritzker agreed

                                5

to  provide the funds needed  to seal the  purchase and reimburse

Dopp's  and IRSA's costs.  In exchange, Dopp agreed that Pritzker

would  receive an 80% equity  interest in a  holding company that

would be formed  to acquire  DBHC's stock, and,  as a  sweetener,

that  a Pritzker affiliate would be given a long-term contract to

manage the hotels coincident with the closing.

          The parties  formed HTP  Corporation (HTP) to  serve as

the holding company.   Dopp controlled 20% of HTP's  stock in the

first  instance, but ceded some shares to IRSA in accordance with

a prior arrangement.  In the end, Dopp retained a 12% interest in

HTP.    Meanwhile,  Pritzker,  through a  nominee,  held  an  80%

interest.2

          On December 3,  1984, Pritzker presented  two documents

to Dopp that supposedly embodied their oral  agreement.  Pritzker

injected  into one  of these  documents   the  stock subscription

agreement  (SSA)    a  clause granting  the majority  shareholder

(Pritzker) an option to retire the stock held by the two minority

shareholders (Dopp and IRSA) for $50,000 per share, or $1,000,000

in the aggregate, at any time within 10 years.  With the purchase

option due  to expire, the move put  Dopp at a huge disadvantage.

He signed the documents.

          After HTP obtained a one-day extension from the seller,

it  closed the underlying transaction  on December 4,  1984.  HTP

bought  DBHC's stock  for  $36,846,000, net  of adjustments;  the
                                                  

     2For  ease in  reference,  we ignore  the  nominee, a  shell
corporation, and  treat  Pritzker as  if  he, himself,  were  the
majority shareholder.

                                6

seller canceled  the letter  of credit; Pritzker  reimbursed Dopp

and IRSA  for expenses advanced  ($710,000); and Dopp  received a

prearranged $200,000 "consulting fee."

                       B.  The Litigation.                                 B.  The Litigation.                                                   

          In  mid-1988, Dopp  initiated a  diversity suit  in the

United  States District  Court for  the District of  Puerto Rico,

naming  Pritzker,  HTP, and  several  others as  defendants.   He

alleged,   inter  alia,  that  the  buy-out  option  in  the  SSA                                

contravened  the oral contract, and  that his consent  to the SSA

had been unfairly procured.  After  a 10-day trial, a jury  found

in  Dopp's favor, determining that the parties had formed an oral

contract on November 30, 1984, and that, thereafter, Pritzker had

employed deceit and duress to pressure Dopp into signing the SSA,

thereby   violating  the   oral   contract.     Based  on   these

determinations,  the jury  awarded  Dopp  $2,000,000 in  damages.

Thereafter,  the district  court,  acting in  response to  Dopp's

motion under  Fed. R. Civ.  P. 59(e), declared  the SSA  null and

void in  respect to Dopp's shares  in HTP, but  declined to order

resolution of the oral contract.3

          The  first trial  produced no  fewer than  ten appeals.

After considering them, we upheld the liability determination but

vacated  both the damage award  and the district court's remedial

rulings, see  Dopp II, 947  F.2d at  520.  We  then remanded  for                               
                                                  

     3Resolution  is  a  remedy  that,  under  Puerto  Rico  law,
operates in much the same way as rescission.  See  P.R. Laws Ann.                                                           
tit. 31,   3052 (1991); see also Dopp II, 947 F.2d at 510-11.  We                                                  
discuss the nature of the remedy at greater length in Part II(A),
infra.               

                                7

further  relief-related proceedings, indicating that, "assuming a

competent evidentiary  predicate, the jury may  be instructed on,

and asked to  determine, variously:  (1) full damages  . . .; (2)

the amount of  accessory damages, if any, [pursuant to annulment]

. . .; and (3) the amount of accessory damages, if any, [pursuant

to  resolution] .  . . ."   Id.  at 519.   We also  observed that                                         

"annulment and resolution are  mutually exclusive remedies,"  and

that  "the plaintiff may  or may not  . . .  satisfy the district

court that he is entitled to  an order for resolution of the Oral

Contract."  Id. at 520.                         

          On March 27, 1993,  a second jury rendered a  series of

special findings.   The jury fixed the amount  of full damages at

$17,000,000, and  the amount  of damages ancillary  to resolution

(if resolution were ultimately  ordered) at either $19,621,000 or

$210,071,000,  depending   on  whether  the  court   might  order

resolution  in natura or in kind.  See  Dopp III, 831 F. Supp. at                                                          

942 &amp; n.5.  The jury determined that, if  Dopp elected annulment,

there would be no accessory damages.  See id.                                                       

          On September  9, 1993, the district  court made certain

supplementary  rulings.   Among  other things,  the court  denied

Pritzker's motions for judgment as a  matter of law and for a new

trial;  put a  damper on  Dopp's quest  for  resolution; rejected

Dopp's motion to alter  or amend the judgment; upheld  the jury's

assessment of full damages; and awarded Dopp prejudgment interest

                                8

and attorneys' fees.4  See id. at 943-52.  These appeals ensued.                                        

II.  RESOLUTION          II.  RESOLUTION

          In our earlier opinion, we determined that up  to three

main remedies might  be available to  Dopp, namely, annulment  of

the SSA, resolution of the oral  contract, or full damages.  Dopp                                                                           

II, 947 F.2d at 519.   We noted that, in the event  Dopp achieved            

either  annulment  or  resolution,  the  jury  might  also  award

accessory damages.   See id.  We defined the  third remedy, "full                                      

damages," as comprising  "the amount of damages  which would make

Dopp whole in the absence of either annulment or resolution . . .

."   Id.  Withal, we cautioned that the availability of any given                  

remedy  depended  upon  the  existence  (or  nonexistence)  of  a

"competent evidentiary predicate."  Id.                                                 

          At the second trial, Judge Pieras instructed the jurors

as  to each  of  these  three  remedies  and  commanded  them  to

determine on a contingent  basis the amount of money  damages, if

any, that  each  anodyne  actually  would  entail.    The  jurors

complied.  Following the jury's calculation of potential damages,

the judge asked  Dopp to elect a remedy.   Dopp chose resolution.

Much  to his  dismay, the  district court  ruled that,  given the

evidence, resolution was unobtainable.   Under protest, Dopp then

elected an alternate remedy:  full damages.   He now beseeches us

                                                  

     4The  district court also made a number of rulings in regard
to third parties  who claimed an interest in the  proceeds of the
litigation through prior arrangements  with Dopp.  See  Dopp III,                                                                          
831 F. Supp. at 952-59.   We leave these rulings to one  side for
present  purposes, intending, however,  to deal with  them in due
course.  See supra note 1.                            

                                9

to reverse the district court's denial of resolution.

          In  order to  respond to  Dopp's importunings,  we must

determine the nature of resolution under Puerto Rico  law, settle

upon the proper  standard of review,  consider whether the  court

below  paid sufficient  homage to  the lessons  of Dopp  II, and,                                                                     

finally, evaluate the sturdiness of the district court's ruling.

                      A.  Legal Principles.                                A.  Legal Principles.                                                    

          The remedy of resolution  emanates from article 1077 of

the Puerto Rico Civil Code, which reads in pertinent part:

               The  right to rescind the obligations is
          considered as implied in mutual ones, in case
          one of the obligated persons does  not comply
          with what is incumbent upon him.

               The person prejudiced may choose between
          exacting the fulfillment of the obligation or
          its  rescission,  with indemnity  for damages
          and payment  of interest in either  case.  He
          may  also demand  the rescission,  even after
          having requested its fulfillment,  should the
          latter appear impossible. . . .

P.R. Laws Ann. tit. 31,   3052 (1991).

          It  is  noteworthy  that   "[n]ot  every  breach  of  a

contractual  obligation gives  rise to  a resultory  action under

article 1077."  Dopp II, 947 F.2d at 510-11.  To pave the way for                                 

the  remedy, the  unfulfilled  obligation must  be reciprocal  in

nature.   See id. at  511.   Reciprocity inheres when  "there are                           

obligations and correlative obligations so interdependent between

themselves  that one  is the  consequence of  the other,  and the

performance of said obligation by a contracting party constitutes

the motive of the contract for the other party, and  vice versa."

Ponce v. Vidal,  65 P.R.R. 346, 351 (1945).  That is, reciprocity                        

                                10

is  basically  a  way  of  saying  that  a  particular obligation

exhibits both  mutuality and essentiality    what one  might term                                      

"mutual essentiality."  This concept embodies the notion that, in

the absence of a particular mutual obligation, the contract would

never have come into being, and, thus, should cease to exist.

          The Supreme  Court of Puerto Rico  recently fleshed out

this idea, observing that

          not  every failure  to comply  with a  mutual
          obligation   will   have   the    effect   of
          terminating the contract.  For this to be the
          case,   the  unmet  obligation   must  be  an
          essential  obligation  or fulfillment  of the
          obligation  must  constitute the  motive that
          induced the  other  party to  enter into  the
          contract.

Ramirez v.  Club Cala  de Palmas,      D.P.R.    ,  89 J.T.S.  22                                          

(1989)  (revised  official  translation).     Put  bluntly,  "the

unfulfilled obligation must be the principal one."  Id.                                                                 

          The  Ramirez court likewise  emphasized the overarching                                

concern of article 1077:   that contracts, if and  when possible,

be preserved  and ultimately  fulfilled.  See  id.   This is  the                                                            

"higher interest" served by a narrow construction  of the element

of reciprocity.  Id.  From all that we can discern, then, Article                              

1077 is a remedy of last resort, reserved for situations in which

a party's breach dissipates the very essence of a contract.

                     B.  Standard of Review.                               B.  Standard of Review.                                                     

          We think it follows from this characterization that the

applicability  of article 1077 in  a given case  presents a mixed

question  of law  and fact.   The Puerto  Rico Supreme  Court has

identified reciprocity as the key principle on which article 1077

                                11

rests.   See Vidal,  65 P.R.R. at  351.   And though  reciprocity                            

itself  is  wholly  a  legal  construct,  its  existence  in  any

particular contractual setting  is almost entirely contingent  on

the determination  of a series of  essentially factual questions,

e.g., the subject matter of the contract, the context in which it              

arose, the  parties' intentions, their course of conduct, and the

like.    See id.  (describing reciprocity  as  a function  of the                          

"character" of a particular obligation).

          Indeed, to the extent that reciprocity actually resides

at   the   intersection  of   mutuality  and   essentiality,  its

characterization  as a  mixed question  of law  and fact  becomes

virtually unavoidable.  Essentiality is closely akin to, if not a

species of,  materiality, and  courts and commentators  have long

recognized that materiality is primarily a question  of fact, the

resolution of  which is  necessarily a  function  of context  and

circumstances.  See, e.g.,  Gibson v. City of Cranston,      F.3d                                                                

   ,     (1st Cir. 1994) (No. 94-1375, slip op. at 8-9); see also                                                                           

3A Arthur L. Corbin, Corbin on Contracts   700, at 309-10 (1960 &amp;                                                  

Supp.  1992) (noting that whether a party's breach "go[es] to the

`essence'"  of the  contract is  a function  of weighing  various

factors); 2 E. Allan Farnsworth, Farnsworth on Contracts    8.16,                                                                  

at 443 (1990)  ("Whether a breach  is material  is a question  of

fact.").

          Putting  the  issue into  this perspective  has salient

implications for  appellate oversight.   "The standard  of review

applicable  to mixed  questions usually  depends upon  where they

                                12

fall  along the  degree-of-deference continuum:   the  more fact-

dominated  the question, the more  likely it is  that the trier's

resolution  of it  will be  accepted unless  shown to  be clearly

erroneous."  In re  Howard, 996 F.2d 1320, 1328  (1st Cir. 1993);                                    

see also  Williams v. Poulos,  11 F.3d  271, 278 (1st  Cir. 1993)                                      

("The clearly erroneous standard . . . ordinarily applies when we

review a trial court's  resolution of mixed questions of  law and

fact.").

          Here,  the fact-specific  nature  of  the inquiry  into

resolution demands  that we accept the  district court's findings

unless they are  shown to  be clearly erroneous.5   In  practical

terms,  this means that the findings will hold sway unless, after

reading the whole record and making due allowance for the trier's

superior  insights   into   credibility,  the   reviewing   court

unhesitatingly  concludes that  a  mistake has  been  made.   See                                                                           

                                                  

     5Referring to  the district court's statement  that Dopp was
"not entitled to resolution as a matter of law," Dopp III, 831 F.                                                                   
Supp. at  959, Dopp suggests that  our review should  be de novo.                                                                          
See, e.g., McCarthy v.  Azure, 22 F.3d 351,  354 (1st Cir.  1994)                                       
(holding  that  questions  of  law  engender  plenary   appellate
review).  We reject  the suggestion.  On close  perscrutation, it
is plain  that Judge Pieras  reached his conclusion  about Dopp's
lack of entitlement to resolution as a result of a case-specific,
fact-dominated decisional process.  See Dopp III, 831 F. Supp. at                                                          
946-50.  The words contained in a district court's ruling must be
"read  in  context"  and  judged by  their  "cumulative  import."
United  States v.  Tavano,  12 F.3d  301,  304 (1st  Cir.  1993).                                   
Mindful  that  the law  does not  require  district courts  to be
letter-perfect in  their syntax  or  choice of  phraseology    in
matters of word usage,  we have repeatedly acknowledged that  "an
appellate court must  not hesitate to excuse  an awkward locution
and give a  busy trial judge  a bit of  breathing room," Lenn  v.                                                                       
Portland  Sch. Comm., 998 F.2d 1083, 1088 (1st Cir. 1993) (citing                              
other cases)   we  refuse to sacrifice substance on  the altar of
form.

                                13

Dedham Water Co. v.  Cumberland Farms Dairy, Inc., 972  F.2d 453,                                                           

457 (1st Cir. 1992);  Cumpiano v. Banco Santander P.R.,  902 F.2d                                                                

148, 152 (1st Cir. 1990); see also Fed. R. Civ. P. 52(a).  In the                                            

last   analysis,  the  clear-error   rubric  betokens  a  "highly

deferential mode[] of review."  Howard, 996 F.2d at 1327.                                                

          Of course,  "Rule 52(a)  does not inhibit  an appellate

court's  power to correct errors of law, including those that may

infect a so-called mixed finding of law and fact, or a finding of

fact that  is predicated on  a misunderstanding of  the governing

rule  of law."  Bose Corp. v.  Consumers Union of U.S., Inc., 466                                                                      

U.S. 485, 501  (1984).  But,  here, although  Dopp argues for  de                                                                           

novo review, he has not shown that any error of law influenced or              

otherwise  tainted  the   district  court's  findings   of  fact.

Although he repeatedly describes the court's findings in terms of

legal, rather  than factual, error, merely calling a dandelion an

orchid  does not  make it  suitable for  a corsage.   As  we have

remarked before,  "[t]he clearly erroneous rule  cannot be evaded

by the simple expedient of creative relabelling."  Reliance Steel                                                                           

Prods. Co. v. National Fire Ins. Co., 880 F.2d 575, 577 (1st Cir.                                              

1989).

          We have said  enough on this score.  Since "we will not

permit parties to  profit by dressing factual disputes in `legal'

costumery," id.,  we  think that,  with  one exception,  we  must                         

subject the  district court's  denial of  a  resultory remedy  to

clear-error  review.   Before  doing  so, however,  we  visit the

exception.

                                14

                  C.  Law of the Case . . . Not!                            C.  Law of the Case . . . Not!                                                         

          Dopp boldly contends that  the district court failed to

recognize the law of the case.  A contention that the  law of the

case  precludes reexamination of an  issue raises a pure question

of law, and,  thus, engenders  plenary review.   See McCarthy  v.                                                                       

Azure, 22 F.3d 351, 354 (1st Cir. 1994); Liberty Mut. Ins. Co. v.                                                                        

Commercial Union Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992).                                   

          Dopp's  "law of  the  case" argument  prescinds from  a

wildly optimistic  reading of  our earlier  opinion    an opinion

that,  in Dopp's view, directed  the district court  to grant him

resolution.   In  support  of this  claim,  Dopp adverts  to  our

general discussion of article 1077, both in terms of its possible

(past) role  in the  first jury's  determination of damages,  see                                                                           

Dopp II,  947  F.2d at  513-14,  and  in terms  of  its  possible                 

(future)  role in the jury trial to be held following remand, see                                                                           

id. at 510-11, 519.             

          To be charitable, Dopp reads our language through rose-

colored   glasses,  ignoring  the   forest  and   focusing  self-

interestedly  on  a  few isolated  trees.    In  the bargain,  he

cavalierly   wrests  phrases   from  their   analytical  context,

disregarding the wise adage that the words contained  in judicial

opinions "are to be read in light  of the facts of the case under

discussion."  Armour &amp; Co. v. Wantock, 323 U.S. 126, 132  (1944).                                               

The whole  purpose of  our original  analysis  was to  ascertain,

assuming that Article 1077 might have applied, on what theory the                                                       

judge and jury could have generated the determination of damages.

                                15

We  lamented that  the  actual basis  for  the damage  award  was

"completely  uncertain," Dopp II, 947  F.2d at 513,  and that the                                          

record  revealed  "rampant   confusion  over   what  relief   was

warranted,"  id. at  516.   In short,  our earlier  opinion shows                          

beyond hope of contradiction that we decided nothing in regard to

the ultimate applicability of a resultory remedy.

          The  sockdolager  is  that  Dopp's "law  of  the  case"

argument  entirely ignores both  our prediction that  at a second

trial Dopp "may or may not .  . . satisfy the district court that

he is entitled  to an order for resolution of the Oral Contract,"

and our straightforward declaration that we "intimate no view" as

to the eventual outcome of this question.  Id. at 520.  The words                                                        

could  not be  plainer  or more  explicit.   Given  this  express

disclaimer, it is fanciful for Dopp to suggest  that we bound the

lower court to an award of resolution the second time around.

                          D.  Analysis.                                    D.  Analysis.                                                

          Having exposed Dopp's threshold contention as baseless,

we  now confront the critical  question:  did  the district court

commit clear  error in  denying  Dopp the  remedy of  resolution?

Based  on a  painstaking review  of an  amplitudinous record,  we

think not.

          Under  the Civil  Code, resolution  requires more  than

merely  proving  the  nonfulfillment of  some  mutual  obligation

contained  in  a bilateral  contract.    Rather, the  unfulfilled

obligation  must  be "essential"  to  the  contract, or,  phrased

another way, the contemplated  fulfillment of the obligation must

                                16

have constituted the contract's raison d'etre.  The Ramirez court                                                                     

put  the  point succinctly,  stating  that  resolution cannot  be

grounded in the nonfulfillment of  "accessory" or "complementary"

obligations   obligations that the court described as those which

"do  not  constitute  the  real  consideration  for  executing  a

contract  and which are incorporated into the same to complete or

clarify  the contracting  parties' stipulations."    Ramirez,                                                                          

D.P.R.   ,  89 J.T.S. 22 (citing  Del Toro v. Blasini,  96 P.R.R.                                                               

662 (1968); Velez v. Rios, 76 P.R.R. 806 (1954); Vidal, 65 P.R.R.                                                                

346   (1945)).    While  the  breach  of  such  an  accessory  or

complementary obligation  "may trigger  an action for  damages or

any other  action that the  circumstances of each  case warrant,"

such a breach may "never" give rise to a rescissory  action.  Id.                                                                           

(emphasis  in original).   This  is so,  the court  said, because

"[t]he  requirement  that  the   unfulfilled  obligation  be  the

principal one  serves a higher interest  . . . that  promotes the

fulfillment of  contracts, and  that prevents that,  by a  lesser

breach of contract, one  of the parties may release  himself from

the obligation,  either because  he  is no  longer interested  or

because the  contract does not suit him  anymore."  Id. (citing 1                                                                 

Diez Picaso,  Fundamentos del  Derecho Civil Patrimonial  859 (2d                                                                  

ed. 1983)).

          The  question of  whether  Pritzker's  provision of  an

unencumbered,  as  opposed to  encumbered,  12%  interest in  HTP

constituted either an essential obligation of his bargain, or the

motive  that  induced Dopp  to enter  into  the contract,  is not

                                17

necessarily subject  to a simple, categorical answer.   This very

uncertainty is,  in itself,  a good  indicator that  the district

court's answer, whether affirmative or negative, is not likely to

be clearly erroneous.

          In  any event, we discern  no clear error  here.  Judge

Pieras,  quoting  Dopp's own  testimony,  determined among  other

things that "[p]roviding Dopp  with an unencumbered . .  . equity                                                             

interest  in HTP  is  not a  reciprocal  obligation of  the  Oral

Agreement assumed by the defendant.   Indeed the plaintiff `fully

expected  that  there  would   be  some  reasonable  option'  and

therefore did not  rely on  the absence  of an  option clause  to

enter into  the Oral Agreement."   Dopp III, 831 F.  Supp. at 950                                                     

(emphasis  in  original).   We  believe that  this  assessment of

Dopp's  actual expectation is  supportable, and that  it alone is

sufficient  to ground  a principled  conclusion that  the parties

regarded the element of  non-encumbrance as an incidental, rather

than  an essential, obligation of their  contract.  If it is true

that  Dopp, prior  and  pursuant to  the  formation of  the  oral

contract,  "fully expected  that there  would be  some reasonable

option"   as  he, himself, testified    and yet proceeded  to the

written contract phase without settling this matter precisely, it

seems eminently reasonable  for a factfinder to conclude that the

element of non-encumbrance could not have been  the raison d'etre                                                                           

of the oral contract.

          What is more, the plausibility of this conclusion rests

not  only on  Dopp's  own words,  but  also on  other  witnesses'

                                18

testimony  to the  effect that, when  ownership is  closely held,

buy-out  options  are  a  regular  attribute  of  intra-corporate

arrangements.   For our  part, we regard  this truth  to be self-

evident; indeed, it is difficult to imagine an 80% shareholder of

a close  corporation owning  extremely valuable assets  who would

not  routinely demand  such protection.   Pritzker may  have been

many things,  but, as Dopp well  knew, he was  neither a neophyte

nor  an altruist.  Hence, Dopp could not reasonably have expected

that Pritzker  would forgo so  elementary a precaution  and leave

the minority stock unfettered.

          The  interest in preservation  and ultimate fulfillment

of contracts that drives article 1077, see Ramirez,     P.R. Dec.                                                            

  , 89  J.T.S. 22,  does not  suggest a  contrary result.   Here,

Pritzker's breach did not  render the contract inherently infirm.

To  be sure, the breach harmed Dopp, but his insistent focus upon

the harm begs the real question.  The critical determinant of the

availability  of a resultory remedy  is neither the  fact nor the

magnitude  of  the inflicted  injury,  but,  rather, whether  the

defaulting  party's breach irretrievably undermined the contract.

In  this instance,  the district  court thought  not; and  we can

scarcely  conclude, based  on  the evidence  presented, that  its

decision was clearly erroneous.

          In a last-ditch effort to  turn the tide, Dopp  insists

that the  unreasonableness of the particular  buy-out clause that

Pritzker   inserted  into  the   SSA  somehow  transmogrifies  an

accessory obligation  into an  essential obligation.   We do  not

                                19

agree.    If  the  obligation  to  produce  an  unencumbered  12%

ownership  interest was not essential  before and at  the time of

the oral  contract    and,  as  we  have pointed  out,  there  is

adequate evidence to support  a conclusion to that effect    then

it does not matter  that the obligation took on  added importance

as time went by and circumstances changed.

           Dopp's other  arguments on  this issue do  not require

comment.    For  the reasons  set  forth  herein,  we uphold  the

district court's finding that  the obligation shirked by Pritzker

lacked mutual essentiality.  Accordingly, we affirm the denial of

resolution.

III.  FULL DAMAGES          III.  FULL DAMAGES

          Because  Dopp was  not legally entitled  to resolution,

his contingent election of an alternative remedy   full damages  

is both valid  and binding.   Withal, both  parties question  the

amount of  the damage award.   To  answer these queries,  we must

examine whether the district  court correctly instructed the jury

as  to the  relevant measure of  damages and, if  so, whether the

jury's resultant rendition of full damages passes muster.

               A.  The Trial Court's Instructions.                         A.  The Trial Court's Instructions.                                                           

          Under  Dopp's rather  imaginative theory  of  the case,

full damages, properly computed,  total $60,581,000.  He contends

that  the verdict on full damages undershot this target because a

pinchpenny trial  court charged  the jury  in  too restrictive  a

manner.   Branding  those  instructions as  contradictory to  the

teachings  of Dopp II and characterizing them as "poorly thought-                               

                                20

out and convoluted," Dopp  asks us to  set aside the verdict  and

mandate further  proceedings.6   We conclude  that the  court did

not commit reversible error in framing its jury instructions.

          Our analysis begins, as  it must, with the text  of the

district  court's charge.  In  relevant part, the  judge told the

jury:

          First  you must  render a  verdict as  to the
          amount of  the full damages to  which Dopp is
          entitled  based on  Pritzker's breach  of the
          oral contract.  . .  .  Full  damages reflect
          the  amount, if  any,  that  is necessary  to
          compensate Dopp in the event that he does not
          elect  to have  the Court  enter an  order of
          annulment.  They reflect the amount necessary
          to put Dopp in as good a position as he would
          have been if the oral contract had been fully
          performed so  that his shares  were not being
          encumbered by the SSA's  buy-out clause.  The
          amount  of full  damages are  [sic] therefore
          the difference between  the value of what  he
          was promised  under  November 30,  1984  oral
          contract  and the value  of what  he actually
          received from Pritzker  under the December 3,
          1984 stock subscription agreement.

As we read these  words, we believe that the court  indicated, in

essence,  that full  damages consisted  of the  monetary  cost of

encumbrance, that is,  the value  of what Dopp  had a  legitimate

right  to expect (a  12% interest in  HTP, not  encumbered in any

unorthodox  way) less the value  of what he  actually received (a

                                                  

     6Dopp  also  insists  that   in  addition  to  taking  other
corrective action, we should annul the SSA.  He is barking up the
wrong tree.   If Dopp  desired annulment, he  could have  elected
that remedy below.  See Dopp II, 947 F.2d at 519.  He did  not do                                         
so.  See Dopp III, 831 F. Supp. at 942.  Absent such an election,                           
Dopp  cannot pursue  annulment on  appeal.   Nor is  this outcome
unconscionable; as  a general legal principle,  "[p]arties cannot
have their cake and eat  it, too."  United States v.  Weston, 960                                                                      
F.2d 212, 215 (1st Cir. 1992).

                                21

12%  interest   in  HTP,   subject  to  a   particularly  onerous

encumbrance), measured  at the  time of  the breach  (December 3,

1984).

          Dopp  disagrees.   He  posits  on  appeal,  as  he  did

below,7 that  the true measure  of full  damages is the  value of

the purchase  agreement plus a disgorgement  premium referable to

Pritzker's wrongful possession.  In support of this theorem, Dopp

directs our attention  to certain language contained in  Dopp II,                                                                          

to article 1255 of the Civil Code, P.R. Laws Ann. tit. 31,   3154

(1991),  and  to  "[a]n  intuitive  sense  that  an  injustice is

inherent in the District's Court's formulation .  . . ."  Because

these exhortations boil down  to a claim that the  district court

misapprehended the substantive  law on damages,  appellate review

is plenary.   See Losacco v. F.D. Rich Constr. Co., 992 F.2d 382,                                                            

384 (1st  Cir.), cert. denied,  114 S. Ct.  324 (1993); see  also                                                                           

McCarthy, 22 F.3d at 354.                  

          Despite the freedom inherent  in plenary review and the

generosity  of our efforts, we are unable to discern a cognizable

legal  basis  on which  Dopp's remedial  theory  might rest.   In

particular,  we find  baffling Dopp's  invocation of  our earlier

opinion.   Nothing contained therein suggests,  by any stretch of

the  most elastic imagination, that  full damages for purposes of

this  case  could  constitute  anything  more  than the  cost  of

                                                  

     7Dopp properly  preserved  his rights  anent the  challenged
instructions, making  a timely objection  as required by  Fed. R.
Civ. P. 51.  He also moved to alter or amend the judgment on this
ground, in pursuance of Fed. R. Civ. P. 59(e).

                                22

encumbrance.   Indeed,  we specifically  defined full  damages as

"the amount of damages which would make Dopp whole in the absence

of either annulment or resolution," Dopp II, 947 F.2d at 519, and                                                     

the   district  court's  formulation   fits  neatly  within  this

integument.  Moreover, it is virtually a hornbook restatement and

application of the concept of contractual wholeness.  See John D.                                                                   

Calamari &amp; Joseph M. Perillo, The Law of Contracts   14-4, at 591                                                            

(3d ed. 1987)  ("For breach of contract the law  of damages seeks

to place the  aggrieved party  in the same  economic position  he

would  have  had  if  the  contract  had  been  performed.");   3

Farnsworth  on  Contracts,  supra,     12.1,  at  147  ("[C]ourts                                           

encourage promisees to rely on promises  . . . [o]rdinarily . . .

by protecting  the expectation  that the  injured party had  when

making the contract by attempting to put the  injured party in as

good a position as that party would have been in had the contract

been performed, that is, had there been no breach.").

          Nor  need  we  tarry   over  Dopp's  second  source  of

"support"  for his theorem.  This so-called source   article 1255

of the Civil Code   is  simply not supportive of Dopp's position.

As  its text makes clear,  article 1255 is  relevant only "[w]hen

the nullity of  an obligation has been declared."  P.R. Laws Ann.

tit. 31,   3514 (1991).  That is not the situation here.

          Dopp's  hole   card     his  stated   reliance  on  his

"intuitive  sense" of "injustice"    does not shore  up his hand.

The  plea that  it embodies  lies beyond  the cognizance  of this

court,  which necessarily deals in the concreteness of fact, law,

                                23

and logic, not the  fluidity of pathos  and intuition.  Absent  a

demonstration of legal  error    and Dopp has  offered none    we

must uphold the district court's charge on damages.8

                    B.  The Amount of Damages.                              B.  The Amount of Damages.                                                       

          Using   the  formula   given   in  the   trial  court's

instructions,  the  jury calculated  Dopp's  full  damages to  be

$17,000,000.    Pritzker, for  his  part, is  satisfied  with the

court's  instructions but  not with  the amount  of damages.   He

argues that the verdict  is not rationally based on  the evidence

presented and,  hence, that the district court  erred in refusing

to  grant his motion  for a new  trial.  In  stark contrast, Dopp

contends that the amount  is far too  scant, and that even  "[i]f

the  jury did  exactly that  which the  district court  stated it

could  reasonably  do,"  its  verdict  should  have been  in  the

vicinity of $39,400,000.

          Dopp's  contention  appears  to   be  no  more  than  a

recasting  of his  complaints about  the  charge, see  supra Part                                                                      

III(A),  and, at this point, the caterwauling may be rejected out

of  hand.     Pritzker's  contention,   however,  raises  serious

concerns.
                                                  

     8This ruling reflects not only Dopp's inability to discredit
the instructions themselves, but also his failure to substantiate
his  own, alternative theory of damages.   At best, it seems that
his  theory, which proposes  that full damages  should include at
least the value of the  purchase agreement (fixed by the  jury in
its  special findings  at $40,000,000),  might be viable  if Dopp
proved  that  he  had the  capacity  to  close  the deal  without
Pritzker's assistance.  But the record  wholly fails to establish
that  fact.    Indeed,  Dopp  offered  no  such  proof,  and  all
indications are that he  lacked the wherewithal to go  forward if
Pritzker withheld his financial backing.

                                24

          Because  jurors exercise  great  leeway  in  evaluating

claims and assessing  damages, appeals based on  verdict size are

seldom successful.  When a disgruntled defendant complains that a

jury award is overgenerous, the verdict ordinarily stands "unless

it is  grossly excessive, inordinate, shocking  to the conscience

of the court, or so high that it would be a  denial of justice to

permit it to stand."  Segal v. Gilbert Color Sys., Inc., 746 F.2d                                                                 

78, 80-81 (1st Cir. 1984) (citations and internal quotation marks

omitted).  Even in cases involving purely economic losses (which,

by and large, are  more easily quantifiable in dollars  and cents

than, say,  damages for emotional distress),  appellate review is

extremely  deferential, evincing  a  frank recognition  that "the

jury is  free to  select the  highest figure  for which there  is

adequate evidentiary support."  Kolb v. Goldring,  Inc., 694 F.2d                                                                 

869,  872 (1st Cir. 1982).  Consequently, "such a verdict will be

reduced  or set aside only if it  is shown to exceed any rational

appraisal or estimate of the damages that could be based upon the

evidence before the jury."   Segal, 746 F.2d at 81  (citation and                                            

internal quotation marks omitted).

          The rule that  emerges is that, within  wide limits, an

appellate court  must accept a jury's  seeming extravagance, even

if the court,  left to  its own  devices, would  have returned  a

substantially  smaller  verdict.    See Kolb,  694  F.2d  at 871.                                                      

Stated  another way,  while "the  jury may  not render  a verdict

based  on  speculation  or   guesswork,"  Bigelow  v.  RKO  Radio                                                                           

Pictures,  Inc., 327 U.S. 251, 264 (1946), a reviewing court will                         

                                25

not tinker with the jury's assessment of money damages as long as

it  does not  fall outside  the broad  universe of  theoretically

possible awards that can be said to be supported by the evidence.

This deferential standard imposes a correspondingly  heavy burden

on  parties  who  challenge  the  amount  of damages  awarded  by

allegedly overgenerous  juries.  And, moreover, the weight of the

burden grows heavier when,  as now, the trial judge  has reviewed

the jury's handiwork and has ratified  its judgment.  See Ruiz v.                                                                        

Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991).                            

          In  this  case,  the  upper  edge  of  the  universe of

sustainable awards is defined by the value  of the asset owned by

Dopp  (the option to  acquire DBHC) as  of December 3,  1984 (the

date  of  Pritzker's breach).9    Based on  the  highest credible

valuations  contained   in  the   record,  and  recognizing   the

possibility of  nonduplicative aggregation, we conclude  that the

jurors could have found DBHC's properties  to be worth as much as

$119,055,000  in late  1984.    This  figure  is  based  upon  an

appraisal of the hotel empire conducted by the Merrill Lynch Real

Estate  Advisory &amp;  Appraisal  Group (Merrill  Lynch),10 read  in
                                                  

     9On that  date, Dopp owned  an option to  acquire DBHC.   In
entering the  oral contract, however,  Dopp in  effect agreed  to
trade  that  asset for  a 20%  interest  in DBHC's  properties (a
portion of which he would then cede to IRSA).  Thus, DBHC becomes
the proper barometer for measuring value.

     10While Merrill Lynch issued its appraisal approximately one
year after the transaction closed, the district court admitted it
into evidence, and we think the jury could reasonably have relied
on it.  See, e.g., Federal Sav.  &amp; Loan Ins. Corp. v. Texas  Real                                                                           
Estate Counselors,  Inc.,  955  F.2d  261, 268  (5th  Cir.  1992)                                  
(upholding  factfinder's  reliance  on  later  appraisal  despite
evidence of changed market conditions).

                                26

light  of  testimony by  a  different  expert witness  evaluating

certain excess land not included  in the Merrill Lynch appraisal.

According  to   this  evidence,  the   empire  had  a   value  of

$110,000,000,  and the  excess land  had a  value  of $9,055,000.

Hence, the jury lawfully could have valued  DBHC's properties, as

a whole,  at $119,055,000.  In  turn, this value is  the value of

the  asset   the purchase option    for the acquisition was to be

structured in  such a  way as  to cost  Dopp nothing  (apart from

cession of an  80% interest  in the acquired  properties).11   On

this  basis,  then, a  rational  jury,  apportioning the  overall

value, could have concluded  that Dopp's anticipated 12% interest

in HTP was worth $14,286,600 on the date of the breach.

          Once the  jurors determined  an asset value,  they next

would have needed to determine what portion or percentage of that

value constituted the cost  of encumbrance.  Taking the  evidence

and  arguments advanced at trial most favorably to Dopp, we think

that the  jury lawfully  could have determined  that the  buy-out

option eliminated virtually all the  value of Dopp's 12% interest

in  HTP, save  only  for  the  meagre  price  that  Pritzker  was
                                                  

     11Pritzker   argues   that  the   purchase   price  (roughly
$40,500,000) must be deducted  from the value of DBHC  before the
value of Dopp's pro rata interest is assayed because the purchase                                  
price constituted an acquisition cost.  We can discern no logical
basis for such  a deduction.  The  payment represented Pritzker's                                                                           
acquisition cost   not  Dopp's.  Dopp  did not contribute to  it;
instead, he  ceded 80% of the  equity in the  acquiring entity to
Pritzker.   That was Dopp's "acquisition cost"    and it is fully
accounted  for by limiting his  recovery to 12%  of DBHC's actual
value    a  value that  did  not somehow  shrink because  HTP  or
Pritzker tendered the purchase price.  Put another way, the value
of DBHC remained more  or less the same regardless  of the amount
expended for its acquisition.

                                27

obligated to pay to redeem Dopp's shares.  We conclude that  this

amount  should be the face value of  the buy-out option:  $50,000

per share, or in the case  of Dopp's shares, $600,000.  Under the

SSA,  Pritzker could have exercised the buy-out option as late as

10  years after the  formation of  the contract  (withholding any

payment until then).  There is evidence in the record, through an

expert witness presented  by Pritzker,  that the  prospect of  so

long a delay would justify a somewhat lower figure, reflective of

a  time-related  discount.     The  expert  testified  that  this

reduction to  present value could have brought  the present value

of  the  redemption price  as  of  December 3,  1984,  as  low as

$114,638.

    Thus, the jury could have found that, because of the wrongful

encumbrance, Dopp lost an asset  worth $14,286,600, and, in  lieu

thereof, was left with an asset  worth no more than $114,638.  On

these  assumptions, a  verdict  for compensatory  damages in  the

amount of $14,171,962 is adequately supported by the evidence.

          Beyond  this amount, the  jury's award  is problematic.

We  are unable  either  to explain  the excess  or  to locate  an

evidentiary  hook on  which it might  be hung.   The  court below

tried justifying the added damages in the following manner:

          In calculating the loss  suffered by Dopp . .
          .,  the  jury  need  not  have  limited   its
          consideration  to the actual  value of Dopp's
          unencumbered shares in HTP  as of the date of
          the breach  of the  Oral Contract.   The jury
          was required to determine  Dopp's loss as  of                                                          
          the date  of  the breach;  however,  at  that
          moment  Dopp's  loss included  the likelihood
          that   he   would   be   deprived    of   any
          participation in the future profits generated

                                28

          by the properties.  The jury could have taken
          into  account that  a corporation  which owns
          world-class    resort     properties    could
          potentially  generate considerable  profits  
          profits which would be denied to Dopp . . . .
          Like  any investment,  Dopp's shares  had the
          potential to  make  money or  to lose  money.
          And they had this  potential ad infinitum . .                                                             
          . .

Dopp III,  831 F.  Supp. at  945.  In  other words,  the district                  

court visualized the  premium added by  the jury as  representing

compensation for Dopp's  share of the venture's profits  from the

date of  the verdict "back to  December 3, 1984, the  date of the

breach."  Id.                       

          In our view, the  district court's reasoning is flawed.

While past profit potential may very well have been ascertainable

and quantifiable, there is  no indication in the record  that the

jury had before it  specific evidence that would have  allowed it

to engage in this kind of  calculation.  Thus, the inclusion of a

pro  rata  share of  past  profits  as  part  of the  verdict  is                   

forbidden.   Although  juries generally  enjoy broad  latitude in

determining damages,  their authority is not  without all limits.

In  the case of economic damages, in particular, the jury's award

must  be rooted in an adequate evidentiary predicate.  See Segal,                                                                          

746  F.2d  at 81;  Kolb,  694  F.2d at  872.    Since a  thorough                                 

canvassing of the trial record fails to unearth any such support,

we  are constrained  to conclude  that the  jury, in  exceeding a

$14,171,962 figure,  could not  have done  so on  the basis of  a

wrongful diversion  of profits except by  an impermissible resort

to speculation and surmise.

                                29

          This  conclusion is  staunchly reinforced  by the  fact

that  the  judge's charge  made  no  mention of  Dopp's  putative

participation in  past  profits.    To the  contrary,  the  judge

cautioned the  jurors that  even though  "[y]ou have listened  to

considerable evidence  . . . which  bears on the finances  of the

Dorado  Beach  Hotel  Corporation  during  the  period  following

Pritzker's breach of the oral contract on December 3, 1984  . . .

[f]or  the  purposes  of   assessing  Dopp's  damages,  you  must

disregard this evidence."  It is a bedrock rule that  juries must

act within the parameters of the court's instructions.  See Sparf                                                                           

&amp; Hansen v. United States, 156 U.S. 51, 67 (1895).  This rule has                                   

particular pertinence where, as here, the instructions are crisp,

clear, and  cogent.   Thus, the  district court's charge  totally

undermines its later attempt to salvage the verdict.12

          Dopp also  tries to justify  the excess portion  of the

verdict on other grounds.   His most forceful suggestion  is that

the jury,  in determining full damages,  appropriately could have

considered  the value of the management contract for the hotels  

an  asset  worth,  to  Dopp's  way  of  thinking,  an  additional

$35,200,000.    He  argues  that, because  Pritzker  carved  this

                                                  

     12There is perhaps another reason for rejecting the district
court's explanation:  the necessity to safeguard against the risk
of  duplicative recovery.   After all,  the expert  valuations of
DBHC,  such  as the  Merrill  Lynch  appraisal, already  included                                                                           
future  profit  projections.     While  we  understand  that  the
projected   profits   included   in  those   valuations   may  be
qualitatively  distinguishable from the  venture profits of which
the  district  court  wrote,  we  also  appreciate  that  a  jury
overwhelmed  by datum  upon datum  of economic  estimations could
quite easily have conflated the two species of gains.

                                30

contract out of  the deal despite  the fact that  it was part  of

DBHC's inherent value, there is "ample evidence" to conclude that

"the $17 million jury's  valuation of Dopp's full damages  is, if

anything,  too  low by  any  standard."    On  close  inspection,

however,  Dopp's "ample  evidence"  proves no  sturdier than  the

proverbial house of cards.13

          In our  estimation, the  management contract is  wholly

irrelevant  to the  issue  of  full  damages.    As  the  parties

themselves expressly agreed in  the oral contract, the management

contract was to be awarded to a Pritzker affiliate, not to either

Dopp  or  DBHC.     Hence,  the  management   contract  bears  no

relationship  whatever to Dopp's damages or to the value of DBHC,

regardless of  whether  it  may have  constituted,  as  Dopp  now

alleges,  "a  value  inherent   to  [sic]  Dopp's   purchase-sale

contract."  

          We need go no further on the issue of full damages.  We

hold  that the jury's verdict is  untenable to the extent that it

exceeds   $14,171,962.    Accordingly,   we  have  no  principled

alternative  but  to  direct  the  district  court  to  order   a

conditional new trial for the  sole purpose of redetermining full

damages,  the  condition  being  that  if  Dopp  agrees to  remit

$3,313,400 from the award,  or, put another way, if he  agrees to

accept  a reduction of  the "full damages"  award to $14,171,962,
                                                  

     13Dopp also  attempts to justify  the jury verdict  based on
"expectations  of profit sharing  and capital appreciation [that]
were destroyed  by Pritzker's imposition of  the buy-out clause."
This  argument  parallels  the  district  court's  rationale, and
founders for the reasons previously discussed.

                                31

then  the verdict, as  reduced, may stand.   Should Dopp  fail to

consent to such a remittitur, then the district court shall order

a  new trial limited  to the issue  of full  damages.14  Although

this remittitur  is  not  insubstantial, we  regard  it  as  both

necessary and appropriate under the circumstances.  See, e.g., K-                                                                           

B Trucking Co. v. Riss Int'l Corp., 763 F.2d  1148, 1162-63 (10th                                            

Cir. 1985); Goldstein v.  Manhattan Indus., Inc., 758  F.2d 1435,                                                          

1448  (11th Cir.), cert. denied,  474 U.S. 1005  (1985); Dixon v.                                                                        

International Harvester Co.,  754 F.2d 573, 590  (5th Cir. 1985);                                     

Irene D. Sann, Remittiturs (and Additurs) in the Federal  Courts,                                                                          

38 Case W.  Res. L. Rev. 157,  188 (1987) (observing that,  where

"the  erroneously excessive  portion  of the  jury  verdict is  a

liquidated  amount     that is,  where  the  source  of error  is

identifiable and the measure of damages traceable to the error is

calculable .  . .  a remittitur  of a small  portion of  the jury

verdict would be appropriate because the  error can be identified

and corrected").

IV.  OBSTINACY          IV.  OBSTINACY

          Our final  inquiry centers around  the district court's

award  of attorneys'  fees ($1,500,000) and  prejudgment interest

($6,843,379.42),  based on  its finding  that  Pritzker displayed

obstinacy.  See Dopp III, 831 F. Supp. at 951 (citing P.R.R. Civ.                                  

                                                  

     14If  the issue  of full  damages is  tried anew,  then Dopp
shall again be afforded the opportunity, at the appropriate time,
to elect between full  damages and annulment.  If,  however, Dopp
were  to elect annulment, he would  receive no accessory damages,
as we see no basis for disturbing the special finding of the jury
to this effect, see Dopp III, 831 F. Supp. at 942 n.5.                                      

                                32

P.  44.1(d), 44.3(b)).15   Pritzker  assigns error,  arguing that

he was  not obstinate within the  meaning of the rules.   We find

merit in Pritzker's plaint and nullify the awards.   Hence, we do

not  reach Dopp's contention that  the court used  too miserly an

interest rate.

                      A.  Legal Principles.                                A.  Legal Principles.                                                    

          In a diversity  case in  which the  substantive law  of

Puerto  Rico supplies the basis of decision, a federal court must

give effect to Rules 44.1(d) and 44.3(b) of the Puerto Rico Rules

of  Civil Procedure.   See,  e.g., De  Leon Lopez  v. Corporacion                                                                           

Insular de Seguros,  931 F.2d 116,  126 (1st  Cir. 1991).   These                            

rules  speak in imperatives.  Thus,  the imposition of attorneys'

fees  and prejudgment  interest  is obligatory  once a  threshold

finding  brings the rules  into play.  See  Fernandez v. San Juan                                                                           

                                                  

     15Rule 44.1(d) provides in relevant part:

          In  the event  any  party or  its lawyer  has
          acted obstinately or  frivolously, the  court
          shall, in its judgment, impose on such person
          the  payment of  a  sum  for attorney's  fees
          which the court  decides corresponds to  such
          conduct.

P.R. Laws Ann. tit.  32, app. III R.44.1(d) (1984  &amp; Supp. 1989).
With  certain   exceptions  not  applicable  here,  Rule  44.3(b)
provides that:

          [T]he court  will . .  . impose on  the party
          that has acted rashly the payment of interest
          .  .  . from  the  time the  cause  of action
          arises in every  case of collection of  money
          and  from  the time  the  claim  is filed  in
          actions for damages  until the date  judgment
          is pronounced. . . .

P.R. Laws Ann. tit. 32, app. III R.44.3(b) (1984 &amp; Supp. 1989).

                                33

Cement  Co.,  118  D.P.R. 713  (1987).    The  two rules  operate                     

differently, however,  in at  least one  salient respect:   while

Rule 44.3(b)  provides for determining the  amount of prejudgment

interest in a mechanical fashion, specifying the period for which

interest is  to be imposed and the interest rate to be used, Rule

44.1(d)   vests  the   court  with  considerable   discretion  in

determining the amount of attorneys' fees to be bestowed.

          A threshold finding of obstinacy brings both rules into

play.   To be sure,  the rules themselves  use slightly disparate

terminology in describing  the prerequisites to their  operation.

Rule  44.1(d)  speaks  of  parties  who  act  "obstinately";  the

official translation  of Rule 44.3(b)  speaks of parties  who act

"rashly";  and the official Spanish  version of Rule 44.3(b) uses

the  word  "temeridad"     a  term  that "is  more  appropriately

translated as `temerity,'" Dopp III, 831 F. Supp. at 951 n.9.  We                                             

regard these  linguistic differences as inconsequential,  for the

case law makes it transpicuously clear that the legally operative

conduct  under both  rules is  that of  obstinacy.   See  De Leon                                                                           

Lopez,  931  F.2d  at  126-27  (citing  other  cases);  see  also                                                                           

Fernandez, 118  D.P.R. 713  (noting that interest  and attorneys'                   

fees  will both  be  assessed "when  the  losing party  has  been

obstinate").  We  hold, therefore, that obstinacy is the linchpin

of a determination under both Rule 44.1(d) and Rule 44.3(b).  The

court below, which equated  rashness and temerity with obstinacy,

see  Dopp III, 831 F. Supp. at  951 n.9, thus employed the proper                       

standard.

                                34

          The   rudiments  of   obstinacy   are   more  or   less

straightforward:

          A  finding  of  obstinacy requires  that  the
          court  determine  a  litigant  to  have  been
          unreasonably adamant or stubbornly litigious,
          beyond   the   acceptable   demands  of   the
          litigation, thereby wasting time  and causing
          the court and the other litigants unnecessary
          expense and delay.

De  Leon Lopez,  931 F.2d at  126; accord La  Playa Santa Marina,                                                                           

Inc. v. Chris-Craft Corp., 597 F.2d  1, 7 (1st Cir. 1979); Rivera                                                                           

v. Rederi A/B Nordstjernan,  456 F.2d 970, 975 (1st  Cir.), cert.                                                                           

denied, 409  U.S. 876  (1972); Soto v.  Lugo, 76 P.R.R.  416, 419                                                      

(1954).   The purpose  behind the rules is to penalize  "a losing

party that because of  his stubbornness, obstinacy, rashness, and

insistent  frivolous  attitude  has  forced the  other  party  to

needlessly assume the pains,  costs, efforts, and  inconveniences

of a litigation."   Fernandez, 118 D.P.R. 713; see  also Reyes v.                                                                        

Banco  Santander de P.R., N.A.,  583 F. Supp.  1444, 1446 (D.P.R.                                        

1984).

          In  fine,  the  rules   are  aposematic  in  the  first

instance, and, if  their warnings are  not heeded, the  resultant

imposts are intended to punish the offending party as well  as to

recompense   those   who   are  victimized   by   the  offender's

recalcitrance.  Consequently,  under  the rules  at  issue  here,

attorneys' fees and prejudgment interest cannot be imposed merely

to  reward  a  successful  litigant; rather,  such  premiums  are

payable only if  the offending party's  behavior "result[s] in  a

litigation  that could  have been  avoided";  or if  the behavior

                                35

"prolongs  [the litigation]  needlessly"; or  if it  "obliges the

other party  to embark on  needless procedures."   Fernandez, 118                                                                      

D.P.R. 713 (citations omitted).

                     B.  Standard of Review.                               B.  Standard of Review.                                                     

          The  very nature  of a  trial judge's  interactive role

assures  an  intimate familiarity  with  the  nuances of  ongoing

litigation   a familiarity  that appellate judges, handicapped by

the sterility of an impassive record,  cannot hope to match.  The

standard of appellate review often recognizes this disparity.  So

it is here:   "[w]e review the trier's determination of whether a

party has been obstinate in a deferential manner, using an abuse-

of-discretion  approach."  De Leon Lopez, 931 F.2d at 127; accord                                                                           

Quinones-Pacheco  v. American Airlines, Inc.,  979 F.2d 1, 7 (1st                                                      

Cir. 1992); Marshall  v. Perez  Arzuaga, 828 F.2d  845, 852  (1st                                                 

Cir. 1987), cert. denied, 484 U.S. 1065 (1988).                                  

          We  have  fashioned  a framework  for  gauging  claimed

abuses of discretion:

          In making discretionary judgments, a district
          court  abuses its discretion  when a relevant
          factor  deserving  of  significant weight  is
          overlooked,  or when  an  improper factor  is
          accorded  significant  weight,  or  when  the
          court  considers  the   appropriate  mix   of
          factors,  but  commits  a palpable  error  of
          judgment   in   calibrating  the   decisional
          scales.

United States v. Roberts, 978 F.2d 17, 21 (1st Cir. 1992); accord                                                                           

Foster v. Mydas Assocs., Inc., 943 F.2d 139, 143 (1st Cir. 1991);                                       

Independent  Oil &amp;  Chem. Workers  of Quincy,  Inc. v.  Proctor &amp;                                                                           

Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988).                         

                                36

          As  its  language  suggests,   the  abuse-of-discretion

framework constitutes  a substantial obstacle for  appellants who

consider themselves aggrieved  by discretionary decisions of  the

district  court; most such appellants  are destined to leave this

court empty-handed.   This is as it must be,  especially in light

of the vastly different  relationships between the district court

and the events of an actual trial, on the one hand, and the court

of appeals and those same events, on the other hand.  This is not

to imply, however, that an  appellate tribunal may merely rubber-

stamp a district  judge's discretionary  determinations.   Though

abuse of discretion  is a relatively relaxed  standard of review,

it  is  a standard  nonetheless, and  the  court of  appeals will

interject itself if the trial court does not meet its measure.

                          C.  Analysis.                                    C.  Analysis.                                                

          The court  below cited three occurrences  in support of

its finding of obstinacy:  (1) the deceit and duress found by the

jury in the first trial to have been practiced by Pritzker during

the early stages of his dealings with Dopp; (2) Pritzker's appeal

from the verdict rendered  by the first jury; and  (3) Pritzker's

steadfast claim that Dopp's full damages amounted to no more than

$35,000.  See  Dopp III,  831 F. Supp.  at 951.   We think it  is                                 

evident from this account  that the district court lost  its way.

In the pages that follow, we set forth our rationale.

          Perhaps most important, there is no sign that the court

factored into the decisional  calculus the overall nature  of the

litigation,  or  that it  placed  Pritzker's  conduct within  the

                                37

context of the case  as a whole.  Prosopopoeially  speaking, each

case, like each individual, has  a personality distinct from that

of all others.   A case's personality is important  in evaluating

claims  of obstinacy because, just  as obstinacy may  be found to

characterize  a party's conduct at one stage of a particular case

but not  necessarily at another, see Carrillo v. Sameit Westbulk,                                                                          

514  F.2d  1214, 1220  (1st Cir.),  cert.  denied, 423  U.S. 1014                                                           

(1975),  so may obstinacy  be found to  characterize a particular

form of  conduct in  one case but  not in another.   In  making a

determination of obstinacy under P.R.R. Civ. P. 44, therefore, it

is  wise  for  the   trier  to  take  into  account   the  case's

personality.16   This  course becomes  imperative when  the court

is  confronted  with   a  case  that  has  a  highly  distinctive

personality.

          This is such a  case.  The district court  described it

as involving "difficult and protracted legal battles."  Dopp III,                                                                          

831  F. Supp. at  940.  This  understates the matter.   Here, the

stakes are high, the  issues tangled, the law tenebrous,  and the

litigants relentless.   The nature of the  performance sought and

the  multiplicity  of parties  and  interests  contribute to  the
                                                  

     16Our own precedents afford a testament to the importance of
correctly  characterizing the  nature of  the litigation  for the
purpose of discerning  obstinacy.   In La Playa  Santa Marina,  a                                                                       
dealer  sued  a  manufacturer.    Following  a bench  trial,  the
district  court found  the manufacturer  liable for  damages, 597
F.2d at 3-4, and, in addition, awarded attorneys' fees due to the
manufacturer's "obvious  temerity in  the defense of  this suit."
Id.  at  7.    We reversed  the  fee  award,  observing  that the             
underlying dispute was one  characterized by "close questions and
sharp conflicts in  the evidence on both liability  and damages."
Id.             

                                38

case's  uniqueness.  In  view of these  realities, we are  of the

opinion that  the trial  court had  an inescapable  obligation to

gauge  the culpability  of  Pritzker's conduct  accordingly.   In

failing  to  undertake such  an  evaluation,  the district  court

abused its discretion.

          We  believe that  the  court compounded  this error  of

omission by slipping into  various errors of commission.   In the

first  place,  the  court  used  too  wide  a  temporal  horizon.

Obstinacy  depends  on  a  party's   conduct  in  the  course  of                                                                           

litigation.     See,  e.g.,  De  Leon  Lopez,  931  F.2d  at  126                                                      

(indicating that the rules  prohibit obstinacy "during the course

of  a lawsuit").  Thus,  the fact that  Pritzker practiced deceit

and  duress during the events  antecedent to the litigation could

not trigger Rule 44.

          In the second  place, we  do not believe  that, in  the

circumstances  of this  case,  Pritzker's appeal  from the  first

jury's verdict constituted  sanctionable conduct.   The  district

court  thought that it was proper to penalize Pritzker for taking

the appeal  because he "thereby  caus[ed] significant  additional

expenditures by the  plaintiff, only  to have the  amount of  the

verdict  against him increased by the second verdict."  Dopp III,                                                                          

831  F. Supp. at 951.  We  find such a conclusion indefensible in

light  of the appeals  simultaneously taken  by Dopp  and several

other  parties  from  the  first  jury  verdict;  the  fact  that

Pritzker's appeal succeeded  at least  in part,  prompting us  to

erase the original  remedial scheme  and to order  a partial  new

                                39

trial;  and,   finally,  the  uncertainty  and   complexity  that

surrounded the issue of Dopp's entitlement vel non to resolution.                                                            

          This last point is especially significant because, as a

general  rule, litigation of a  novel but colorable claim cannot,

by itself, provide  the basis  for a finding  of obstinacy  under

P.R.R. Civ.  P. 44.   See, e.g., Riofrio  Anda v.  Ralston Purina                                                                           

Co., 772  F. Supp. 46, 54 (D.P.R. 1991) ("[W]here, as here, novel             

issues are raised, a party cannot be held as obstinate."), aff'd,                                                                          

959  F.2d  1149 (1st  Cir. 1992);  Marina  Indus., Inc.  v. Brown                                                                           

Boveri  Corp., 114 D.P.R. 64 (1983) (similar); Brea v. Pardo, 113                                                                      

D.P.R. 217 (1982)  (similar).   Indeed, even if  a party's  claim

ultimately fails, it cannot be deemed frivolous or  obstinate for

that  reason alone.  See Navarro de  Cosme v. Hospital Paiva, 922                                                                      

F.2d 926, 934 (1st Cir. 1991); Reyes, 583 F. Supp. at 1445; Felix                                                                           

v. Victory Carriers, Inc., 342 F. Supp. 1386, 1388 (D.P.R. 1972).                                   

Such a rule is dictated by both common sense and common fairness.

Obstinacy must be judged primarily as of the time  the conduct is

undertaken,  not  in  hindsight;17  and penalizing  a  party  for

filing a non-frivolous appeal  for no other reason than  that the

party's  position   deteriorated,   rather  than   improved,   in

consequence of the appeal is a paradigmatic misuse of discretion.

          Finally,  we  are   doubtful  that  Pritzker's   myopic

assessment of Dopp's full  damages at $35,000 constituted conduct

                                                  

     17That is not to say,  however, that a court must close  its
eyes to  subsequent events, for  such events  sometimes can  cast
light on what a party knew, or  should have known, at the time he
acted.

                                40

violative  of Rules  44.1(d)  and  44.3(b).   Though  we  readily

acknowledge  that  Pritzker's  stated  valuation  verges  on  the

ludicrous,  there is nothing  to show  that Dopp    who  even now

challenges a $17,000,000  verdict as too  paltry, see supra  Part                                                                     

III   ever placed a  more reasonable value on the case, or that a

realistic settlement offer by  Pritzker would have satisfied Dopp

and shortened the proceedings.18

          To  sum up, this case in its present posture epitomizes

the  potential risk  of  overapplication  associated with  Puerto

Rico's  obstinacy  rules.   See  Carrillo, 514  F.2d  at 1219-20.                                                   

Because the  district court's subsidiary findings  do not support

its ultimate  finding of obstinacy,  and because the  record does

not  otherwise show  that Pritzker  was "unreasonably  adamant or

stubbornly  litigious,  beyond  the  acceptable  demands  of  the                                                                           

litigation," De  Leon Lopez, 931 F.2d at 127 (emphasis supplied),                                     

we have no choice but to vacate the award of  attorneys' fees and

prejudgment interest.

V.  CONCLUSION          V.  CONCLUSION

          This case has taken on a life of its own.   Perhaps its

duration is  directly proportional  to the  imputed value  of the

assets at stake,  but, whether or not  esurience is the  cause of

the  prolongation, old age inevitably  overtakes cases as well as
                                                  

     18Although  Dopp's apparent  intractability does not  in any
way justify  Pritzker's seeming intransigence   two wrongs do not
make a right    an obstinacy determination  must necessarily take
the  whole picture  into account.   After  all, courts  have long
believed that, in assaying such matters, "[t]he lemon  should not
be allowed to  reap a  reward for calling  the grapefruit  sour."
Quinones-Pacheco, 979 F.2d at 8 n.9.                          

                                41

people.  Although we are unable fully to inter the  corpus of the

litigation  today, we  have done  what we  can to  move  the case

toward its final resting place.

          For  the  reasons  discussed,  we  affirm the  district

court's denial  of a  resultory remedy; conditionally  affirm the

award   of   full  damages,   subject   to   a  remittitur   (or,

alternatively, a limited new trial) as  described in Part III(B),

supra; and reverse  the award of attorneys' fees  and prejudgment               

interest.19

          Affirmed in part, reversed in part, and remanded to the                    Affirmed in part, reversed in part, and remanded to the                                                                           

district court  for  further  proceedings  consistent  with  this          district court  for  further  proceedings  consistent  with  this                                                                           

opinion.  Mandate shall be  stayed for the time being, and  shall          opinion.  Mandate shall be  stayed for the time being, and  shall                                                                           

issue simultaneous with the issuance of mandate in respect to the          issue simultaneous with the issuance of mandate in respect to the                                                                           

three consolidated  appeals, namely,  Nos. 93-2374,  94-1128, and          three consolidated  appeals, namely,  Nos. 93-2374,  94-1128, and                                                                           

94-1129, that are to be the subject of a  separate and subsequent          94-1129, that are to be the subject of a  separate and subsequent                                                                           

opinion.  Each party shall bear his own costs.          opinion.  Each party shall bear his own costs.                                                       

                                                  

     19To  the  extent that  the  parties to  these  appeals have
raised other  arguments, some are  rendered moot by  our rulings,
and others are patently  meritless.  In any event,  none requires
particularized discussion.

                                42
