Perdoni Bros., Inc. v. Concrete Systems, Inc.

• Decision Date: 02 September 1994
• Docket Number: No. 93-2178,93-2178
• Citation: 35 F.3d 1
• Parties: PERDONI BROTHERS, INC., Plaintiff, Appellee, v. CONCRETE SYSTEMS, INC., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

35 F.3d 1

29 Fed.R.Serv.3d 907

PERDONI BROTHERS, INC., Plaintiff, Appellee, v. CONCRETE SYSTEMS, INC., Defendant, Appellant.

No. 93-2178.

United States Court of Appeals, First Circuit.

Argued May 4, 1994.

Decided Sept. 2, 1994.

John M. Lovely, with whom Daniel F. Cashman and Gelerman & Cashman, Foxboro, MA, were on brief, for appellant.

Valeriano Diviacchi, with whom Diviacchi Law Office, Boston, MA, was on brief, for appellee.

Before BREYER, ^* Chief Judge, CAMPBELL, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Defendant-appellant Concrete Systems, Inc. (CSI), a New Hampshire producer of pre-cast concrete products, contracted in 1985 with plaintiff-appellee Perdoni Brothers, Inc. (Perdoni), a Massachusetts-based construction firm, to manufacture and deliver 121 custom-designed manholes, at a total contract price of $51,670.47, for installation in a new sewer system in the Town of Ashland, Massachusetts. CSI contends that the district court committed reversible error in denying its post-verdict motion for judgment as a matter of law. See Fed.R.Civ.P. 50. For the reasons hereinafter discussed, we affirm the district court judgment.

I BACKGROUND

The first five manholes were delivered to the Perdoni job site by CSI on July 2, 1985. The remaining 116 manholes were delivered intermittently in twenty-six shipments extending over the next thirteen months and invoiced by individual shipment.

Dissatisfied with the CSI manholes (which leaked and had to be patched), ¹ Perdoni brought this diversity action in federal district court on April 25, 1990, demanding $134,000 in compensatory damages for breach of the implied warranties of merchantability and fitness for a particular purpose (implied warranty claims), see Mass.Gen.L. ch. 106 Secs. 2-314, 2-315, and additional damages based on a deceptive trade practices claim under Mass.Gen.L. ch. 93A ("Chapter 93A"). CSI counterclaimed for $18,561 allegedly due from Perdoni on the Ashland project and another contract.

Trial was held before a magistrate judge, with the consent of the parties. See 28 U.S.C. Sec. 636(c). The implied warranty claims were tried to a jury, while the Chapter 93A claim was tried to the presiding magistrate judge. It was not until after the close of all the evidence that CSI first moved for judgment as a matter of law on the implied warranty claims relating to 108 of the 121 manholes. The uncontroverted evidence demonstrated that only 13 manholes had been delivered by CSI within four years of the commencement of the present action. CSI accordingly contended that Perdoni's implied warranty claims relating to the other 108 manholes were time-barred under Mass.Gen.L. ch. 106 Sec. 2-725(1) (prescribing four-year limitation on Uniform Commercial Code warranty actions); id. Sec. 2-725(2) (action for breach of warranty under UCC accrues on "tender of delivery" of goods). The magistrate judge denied CSI's motion for judgment as a matter of law.

Thereafter, the magistrate judge convened a charge conference to consider the jury instructions, including the instruction on the statute-of-limitations defense. Neither party requested an instruction on the law governing the severability-entirety issue. Although Perdoni unsuccessfully sought an instruction that the contract should be considered an entirety, CSI made no corresponding request for an instruction that the contract be considered severable. Consequently, the magistrate judge simply instructed the jury that CSI had the burden of proving that the action was time-barred, and that the four-year limitation period ran from the "time of delivery." Although both parties argued the severability-entirety issue, the court made no explicit reference to it and neither party The jury found in favor of Perdoni for $48,961, and in favor of CSI for $18,561 on its counterclaim. CSI then renewed its Rule 50 motion for judgment as a matter of law and, alternatively, moved for a new trial under Fed.R.Civ.P. 59. The magistrate judge did not address the merits of the CSI motion, however, ruling instead that CSI had waived its severability claim, both by failing to object to the jury instruction and by failing to raise the severability argument in its pre-verdict Rule 50 motion. ³ Nonetheless, the magistrate judge, sitting as trier of fact, found Perdoni's Chapter 93A claim time-barred as it pertained to 108 of the 121 manholes. CSI appealed the denial of its post-verdict motion for judgment as a matter of law or for a new trial on the implied warranty claims. See Fed.R.Civ.P. 50(b), 59. CSI's primary appellate target is the district court's waiver ruling on the severability issue.

objected to the jury instruction as given. ²

II DISCUSSION

Leaving aside CSI's failure to object to the jury instruction on the statute-of-limitations defense, the district court waiver ruling is fully supported by CSI's failure to raise the severability argument in its pre-verdict motion for judgment as a matter of law. The law is crystal clear that a "party may not base its motion for a judgment n.o.v. on a ground that was not argued in its motion for directed verdict." Sweeney v. Westvaco Co., 926 F.2d 29, 37 (1st Cir.) (citing Systemized of New England, Inc. v. SCM, Inc., 732 F.2d 1030, 1035 (1st Cir.1984)), cert. denied, --- U.S. ----, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991); see also 9 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure Sec. 2537 (1971) ("Since it is technically only a renewal of the motion ... made at the close of evidence, [a post-verdict Rule 50 motion] cannot assert a ground that was not included in the motion for a directed verdict."); 5A James W. Moore, Moore's Federal Practice p 50.08 (2d ed. 1994) (same). Sweeping invocations of conclusory theories or abstract principles will not suffice: "The motion must ... be made with sufficient specificity to allow the district court to understand precisely why the evidence is insufficient." Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 810 (1st Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 392, 102 L.Ed.2d 381 (1988); Pstragowski v Metropolitan Life Ins. Co., 553 F.2d 1, 3 (1st Cir.1977) (where Rule 50 motion was silent as to the legal theory that plaintiff was obliged to establish malice on the part of the defendant, there was no basis for an appellate challenge to the sufficiency of the evidence on the element of malice). Ultimately, of course, "[a]ppellate review may be obtained only on the specific ground stated in the motion for directed verdict." Wells Real Estate, 850 F.2d at 810; Pstragowski, 553 F.2d at 3 (same).

The pre-verdict motion for judgment as a matter of law, see Fed.R.Civ.P. 50(a), (b), stressed the undisputed fact that 108 manholes were delivered more than four years prior to suit, but presented no authority or argumentation whatever that the contract should be considered severable (i.e., that Massachusetts law permitted or required that the individual shipments of manholes receive separate treatment for statute-of-limitation purposes, rather than as an entire contract for 121 manholes). The consequences of CSI's cryptic approach were foreordained.

Most importantly, the district court was never forewarned of the legal basis for the severability claim first surfaced by CSI following the adverse jury verdict. Under our precedent, therefore, on appeal CSI was not entitled to challenge the sufficiency of the evidence supporting the jury verdict on the limitations issue. See Wells Real Estate, 850 F.2d at 10; Pstragowski, 553 F.2d at 3. The magistrate judge correctly ruled that CSI was bound by its own pre-verdict decision to entrust its severability claim to the jury with no further legal definition than the unchallenged instruction that "accrual" under the Massachusetts UCC occurs at the "time of delivery." See United California Bank v. Eastern Mountain Sports, Inc., 546 F.Supp. 945, 964 (D.Mass.1982) ("Under Massachusetts law, 'it is clear that a cause of action ... accrues when delivery is made regardless of the buyer's knowledge of the breach.' ") (quoting Wolverine Ins. Co. v. Tower Iron Works, 370 F.2d 700, 702 (1st Cir.1966)), aff'd, 705 F.2d 439 (1st Cir.1983); accord Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 533 N.E.2d 1350, 1353 (1989). ⁴

Under Article 2 of the Uniform Commercial Code, the severability or entirety of a contract of sale turns on the intent of the contracting parties, see, e.g., Carlo Bianchi & Co. v. Builders' Equip. & Supplies Co., 347 Mass. 636, 199 N.E.2d 519, 528 (1964) (severability or entirety of contract dependent on intent of parties) (citing, inter alia, Bianchi Bros., Inc. v. Gendron, 292 Mass. 438, 198 N.E. 767, 770 (1935)); Belanger v. Haverlock, 537 A.2d 604 (Me.1988) (same); Lake LBJ Mun. Util. Dist. v. Coulson & C.A.E., Inc., 771 S.W.2d 145 (Tex.1988) (same); Scruggs v. Quality Elec. Serv., Inc., 282 S.C. 542, 320 S.E.2d 49 (1984) (same); In re Estate of Wilson, 50 N.Y.2d 59, 427 N.Y.S.2d 977, 405 N.E.2d 220 (1980); 1901 Wyoming Ave. Coop. Assoc. v. Lee, 345 A.2d 456 (D.C.1975); see also 17A Am.Jur.2d Sec. 415 (1991) ("Whether a contract is entire or severable is a question of fact"), a quintessential jury question. There can be no question that CSI elected to forego a more definitive jury instruction on the law governing the severability-entirety issue pressed on appeal. As was its right, CSI simply attempted to persuade the jury that the parties intended a severable contract. Having once embarked on this course, however, CSI was not entitled to set out on a new one after its chosen litigation tactic failed. See Brody v. President & Fellows of Harvard College, 664 F.2d 10, 12 (1st Cir.1981) (noting that litigants ordinarily are bound by their tactical decisions at trial), cert. denied, 455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148 (1982). Thus, the district court did not err in denying the motion...