Toscano v. Chandris, S.A.

• Decision Date: 08 May 1991
• Docket Number: No. 90-2119,90-2119
• Citation: 934 F.2d 383
• Parties: Frank TOSCANO, Plaintiff, Appellee, v. CHANDRIS, S.A., et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 383

934 F.2d 383

20 Fed.R.Serv.3d 348

Frank TOSCANO, Plaintiff, Appellee, v. CHANDRIS, S.A., et al., Defendants, Appellants.

No. 90-2119.

United States Court of Appeals First Circuit.

Heard May 8, 1991.

Decided June 5, 1991.

Gino A. Zonghetti, New York City, with whom Richard B. Kydd, Brian B. Kydd, Kneeland, Kydd & Handy, Boston, Mass., and Joseph T. Stearns, were on brief, New York City, for defendants, appellants.

Edwin L. Wallace, with whom Arthur P. Skarmeas and Latti Associates, were on brief, Boston, Mass., for plaintiff, appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

In this case, the barn door was not locked until well after the horse had departed. Seeing no reason to relieve the appellants from the easily predictable consequences of their own nonchalance, we reject their appeal.

I

Plaintiff-appellee Frank Toscano sued Chandris, S.A. and Fourth Transoceanic Shipping Co. in federal district court pursuant to section 5(b) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 905(b). Toscano's suit arose out of injuries sustained in 1987 while he was working aboard a vessel owned and operated by the defendants. At trial, the jury awarded Toscano $345,900 in compensatory damages, plus interest from date of injury to date of verdict at ten percent per annum.

The defendants' appeal concerns the interest increment. They broadly contend "that in no event can pre-judgment interest in any amount be awarded in any ... Section 905(b) case." They then make several subsidiary arguments attacking various aspects of the interest award.

II

Saying that the appellants have come belatedly to their present view is to elevate understatement to an art form. The pertinent chronology is as follows:

1. Plaintiff claimed an entitlement to interest in both his original and amended complaints. Though enumerating half a dozen special defenses in their answers, the defendants did not address the prayer for prejudgment interest.

2. At a pretrial conference held on April 10, 1991, the district court ordered that the parties file requests for jury instructions. When filed, plaintiff's requests included four separate paragraphs, with case citations, specifying how the jurors should go about awarding prejudgment interest if they found in his favor. The defendants requested no other or different instructions anent interest.

3. At the close of the evidence, the defendants moved, orally and in writing, for a directed verdict. They neither referred to the interest issue nor asked to have the issue kept from the jury.

4. The district court charged that it was "within [the jury's] province to award interest on any damages which you award to the plaintiff from the time of the injury to the date of the judgment...." The court also charged that the jury had discretion to set the interest rate. Defendants' counsel did not object to these instructions.

5. The court sent special questions to the jury, Fed.R.Civ.P. 49, including one inquiring whether the jury "wish[ed] to award Mr. Toscano interest on the damage amount from the time of the injury to the present." Defendants' counsel did not object to this interrogatory.

6. The jury fixed damages at $345,900 (comprising $24,900 for medical expenses; $114,000 for lost earning capacity; $83,000 for pain and suffering; $28,000 for future pain and suffering; and $96,000 for future lost earnings). The jury answered the interest question in the affirmative. Because no interest rate was stipulated, the judge queried the jury foreman in open court. The latter responded that "we would like to give ten percent." Throughout, defense counsel sat mute.

7. On October 2, 1990, final judgment was entered. The judgment included interest on the entire verdict amount.

We have set out this chronology at some length to illustrate that the defendants--sophisticated litigants represented throughout by privately retained counsel--had every reason to know that the issue of interest was in the case and had numerous opportunities to raise their objections to an award of interest. They made not a murmur. If not before, then certainly when the appellants sat idly by and allowed the court's instructions to the jury to stand unchallenged, they waived the right to press the objections which they now attempt to advance. See Fed.R.Civ.P. 51 ("No party may assign as error the giving [of] or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection."); see also Pinkham v. Burgess, 933 F.2d 1066, 1069, 1070 (1st Cir.1991) (failure to raise an objection when and as required by Civil Rule 51 works a waiver of the objection); Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (same; listing representative First Circuit cases), cert. denied, 488 U.S. 955, 109 S.Ct. 392, 102 L.Ed.2d 381 (1988).

The defendants neglected to mention their failure to preserve any objection in their opening brief on appeal. After appellee's brief made the point in telling terms, the defendants addressed it in their reply brief. They argued that the error regarding prejudgment interest was "plain" and "fundamental," and thus, should be excused. We do not agree.

The plain error standard, high in any event, see United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.1989); United States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987), is near its zenith in the Rule 51 milieu. At least five times over the years we have quoted the following axiom with manifest approval: "If there is to be a plain error exception to Rule 51 at all, it should be confined to the exceptional case where the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings." 9 C. Wright & A. Miller, Federal Practice & Procedure, Sec. 2558, at 675 (1971), quoted in Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 568 (1st Cir.1989); Smith v. Massachusetts Inst. of Technology, 877 F.2d 1106, 1110 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 406, 107 L.Ed.2d 372 (1989); Wells, 850 F.2d at 809; Almonte v. National Union Fire Ins. Co., 787 F.2d 763, 769 (1st Cir.1986); Morris v. Travisono, 528 F.2d 856, 859 (1st Cir.1976). It strains credulity well past the breaking point to argue that the defendants' self-created plight can fit within so exclusive a classification.

Moreover, to employ the plain error exception in this situation would sow the seeds for a mischievous harvest and would be fundamentally unfair to both the plaintiff and the district court. Rules serve a valuable purpose. Without them, the judicial system would be in shambles. It follows that, in the ordinary case, parties flout well-established rules at their peril. The circumstances of this case are not exceptional and plain error is plainly absent. Hence, we decline the appellants' invitation to bend the rules in order that they might argue points which they repeatedly waived below.

III

In a slightly different (albeit related) vein, the appellants also contend that the judgment entered by the clerk of the district court "mistakenly included [an] award of prejudgment interest ... [on] that part of the damage award ... representing future losses." According to appellants, there can be no award of prejudgment interest on future damages; ¹ and in their view, neither the jury nor the trial judge intended interest to be added to that portion of the verdict. This "clerical mistake," they argue, has nothing to do with their failure to object to the charge. Whether or not that is so, the appellants' disregard of other procedural niceties forecloses review of their contention in this proceeding. We explain briefly.

The judgment below was entered on the docket on October 2, 1990. The appellants first raised a specific challenge to what they now characterize as an overgenerous dollop of interest on future damages by filing a motion to amend the judgment on October 29, 1990. That motion was untimely, see Fed.R.Civ.P. 59(e) (motions "to alter or amend the judgment shall be served not later than 10 days after entry of the judgment"), and was swiftly rebuffed. No appeal has been taken from the order denying that motion.

On November 14, 1990, the appeal from the underlying judgment was taken. It was docketed in this court six days later. Notwithstanding the shifted battleground, the appellants returned to the district court on December 28, 1990, this time filing a motion to correct the judgment under Fed.R.Civ.P. 60(a). ² In a memorandum in support of this motion, the appellants argued that the clerk had entered the judgment "contrary to ruling [sic] by the court;" on that basis, the judgment was alleged to be "the result of 'clerical mistakes' to which [Rule] 60(a) applies." At this point, the district court docket entries become tenebrous. Nevertheless, the parties agree that the district judge, although sympathetic to the appellants' position, proved powerless to effectuate an amendment to the judgment ex proprio vigore because the present appeal was pending. The long and short of it is that no amended judgment was issued. The appellants complain that this scenario left them in a trick box, unable to find their way to a forum that would hear their plea. After studying the raddled record, we conclude that the trick box is of appellants' own construction.

If Rule 60(a) was the right vehicle for raising the issue of interest on future damages, then the appellants lose because they waited until after their appeal was docketed and then proceeded in the district court without seeking this court's permission to essay the correction. It is crystal clear that a district court has no power to correct clerical mistakes during the pendency of an appeal except "with leave of the...