Magee v. BEA Construction Corp. , 797 F.3d 88 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1541
ROBERT MAGEE and ZORAIDA MAGEE,
Plaintiffs, Appellees,
v.
BEA CONSTRUCTION CORP.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Marcos E. López, U.S. Magistrate Judge]
Before
Torruella, Selya and Dyk,*
Circuit Judges.
Yuri J. Valenzuela-Flores on brief for appellant.
Rolando A. Silva, Armando A. Cardona, and Consultores Legales
Asociados, CSP on brief for appellees.
August 5, 2015
* Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. This diversity case involves an
old-fashioned contract dispute between property owners and a
construction firm. Defendant-appellant BEA Construction Corp.
(BEA) failed to dissuade a jury from finding that it was on the
wrong side of the dispute and now challenges the sufficiency of
the evidence. Since this challenge comes too late and offers too
little in the way of substance, we affirm.
We highlight the pertinent events, resolving any factual
conflicts in favor of the jury verdict. See La Amiga del Pueblo,
Inc. v. Robles, 937 F.2d 689, 690 (1st Cir. 1991). The plaintiffs,
Robert Magee and his wife Zoraida, are citizens of New Jersey.
Having retired, they wished to build a vacation home in Vieques,
Puerto Rico. To that end, they entered into an oral contract with
BEA in December of 2008 for the assembly of a prefabricated house
on a lot that they owned. The plaintiffs gave BEA an $80,000 down
payment on the understanding that the project would be completed
within 16 months. Work commenced shortly thereafter.
Roughly a year later, the parties' relationship began to
sour. At that time, the plaintiffs requested that the project be
put on hold to accommodate Mr. Magee's failing health. BEA agreed
to stop work and to reimburse the unspent portion ($74,406) of the
down payment. But words are not always matched by deeds, and the
plaintiffs received only $1000.
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The parties subsequently entered into a second oral
agreement for the assembly of a smaller and cheaper home. This
new project was to be completed within four months and the
plaintiffs were to receive credit against the contract price for
any monies owed to them with respect to the original project. BEA
began receiving materials in May of 2011 but — by July of 2012 —
it had managed to do nothing more than dig a square hole and place
rebar columns in the ground.
The plaintiffs were disgruntled and, on September 7,
2012, repaired to the federal district court. Citing diversity of
citizenship and the existence of a controversy in the requisite
amount, see 28 U.S.C. § 1332(a), they alleged that BEA had breached
sundry contractual obligations while failing to complete
construction of their home as agreed. In addition to their
principal claim, the plaintiffs also asserted breach of contract
claims against two BEA officials (C. William Dey and Abigail
González). BEA counterclaimed, contending that it was the
plaintiffs who had defaulted on the contractual arrangements.
Following extensive pretrial skirmishing (none of which
is relevant here), the case went to trial in April of 2014.1 After
the plaintiffs rested, the individual defendants (but not BEA)
1By consent, a magistrate judge presided. See 28 U.S.C.
§ 636(c).
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moved for the entry of judgment as a matter of law. See Fed. R.
Civ. P. 50(a). The court granted the individual defendants'
motions, accepting their arguments that the evidence afforded no
basis either for piercing the corporate veil or for otherwise
holding them personally liable. The trial proceeded against BEA
alone. On April 11, the jury returned a verdict wholly favorable
to the plaintiffs: it found BEA to have defaulted on its
contractual obligations, awarded $150,000 in damages, and rejected
the counterclaim. BEA did not file any post-trial motions, but it
did file a timely notice of appeal.
Though BEA's appellate brief is not a model of clarity,
we construe it liberally and tease from its heated rhetoric three
lines of argument. These lines of argument can be summarized as
follows: that the jury (i) erroneously found BEA in breach of its
contractual obligations; (ii) compounded this error by incorrectly
finding that the plaintiffs were not in breach; and (iii)
arbitrarily failed to credit pivotal testimony. A common thread
links the three components of this asseverational array: whether
viewed singly or in the ensemble, all of BEA's arguments boil down
to an attack on the sufficiency of the evidence.
That attack stumbles at the threshold. It is an
elementary principle that a party who wishes to challenge the
sufficiency of the evidence on appeal must first have sought
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appropriate relief in the trial court. See, e.g., Hammond v. T.J.
Litle & Co., 82 F.3d 1166, 1171 (1st Cir. 1996); La Amiga del
Pueblo, 937 F.2d at 691. Here, however, BEA flouted this
elementary principle — and there is a price to pay.
We need not tarry. BEA could have moved for the entry
of judgment as a matter of law at various points during and after
the trial, see Fed. R. Civ. P. 50(a)-(b), but it never deigned to
file such a motion at the close of the plaintiffs' case, at the
close of all the evidence, or even after the verdict. By the same
token, BEA could have moved for a new trial following the verdict,
see Fed. R. Civ. P. 59, but it did not deign to do so. BEA's
decision to forgo any and all of these anodynes precludes it from
challenging the legal sufficiency of the evidence for the first
time on appeal. See, e.g., Cone v. W. Va. Pulp & Paper Co., 330
U.S. 212, 217-18 (1947); Hammond, 82 F.3d at 1171; La Amiga del
Pueblo, 937 F.2d at 691; Jusino v. Zayas, 875 F.2d 986, 991 (1st
Cir. 1989); LaForest v. Autoridad de Las Fuentes Fluviales de P.R.,
536 F.2d 443, 445 (1st Cir. 1976).
To be sure, even without an appropriate motion in the
trial court, an appellate court may, in the interests of justice,
examine the record to determine "whether there was an absolute
absence of evidentiary support for the jury's verdict." La Amiga
del Pueblo, 937 F.2d at 691. But such an inquiry will rarely bear
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fruit: after all, a party challenging a jury verdict on sufficiency
grounds faces an uphill climb even when the challenge has been
duly preserved. See Climent-García v. Autoridad de Transporte
Marítimo y Las Islas Municipio, 754 F.3d 17, 20 (1st Cir. 2014).
An unpreserved challenge to evidentiary sufficiency is
exponentially more difficult. Such an unpreserved challenge
warrants review only for a showing of a clear and gross injustice.
See Surprenant v. Rivas, 424 F.3d 5, 13 (1st Cir. 2005); Muñiz v.
Rovira, 373 F.3d 1, 5 (1st Cir. 2004).2
On this chiaroscuro record, no clear and gross injustice
is evident. The contractual arrangements between the parties were
oral, and the proof concerning their intentions, obligations, and
actions comprises a mixed bag. Moreover, the case presents
substantial questions of credibility — questions that typically
lie within the jury's province. See Blake v. Pellegrino, 329 F.3d
43, 47 (1st Cir. 2003). Under such hazy circumstances, we cannot
say that no rational jury could have found in favor of the
plaintiffs.3
2 We have sometimes expressed this standard in terms of "plain
error resulting in a manifest miscarriage of justice." Hammond,
82 F.3d at 1172. We regard this formulation as simply an
alternative expression of the "clear and gross injustice"
standard.
3 BEA argues vociferously that the verdict against it was
somehow inconsistent with the court's entry of judgment as a matter
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We need go no further. The lesson of this case is that
"[c]ourts, like the Deity, are most frequently moved to help those
who help themselves." Paterson-Leitch Co. v. Mass. Mun. Wholesale
Elec. Co., 840 F.2d 985, 989 (1st Cir. 1988). BEA did little to
help itself, and ─ for the reasons elucidated above ─ the judgment
is
Affirmed.
of law for the individual defendants. But there was no
inconsistency: the plaintiffs contracted with BEA, not with the
individuals. Thus, it was BEA alone which bore the legal
responsibility for its failure to carry out those contractual
arrangements.
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