Transnational Corp. v. Rodio & Ursillo, Ltd.

• Decision Date: 07 September 1990
• Docket Number: No. 90-1298,90-1298
• Citation: 920 F.2d 1066
• Parties: TRANSNATIONAL CORP., Plaintiff, Appellee, v. RODIO & URSILLO, LTD., etc., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1066

920 F.2d 1066

TRANSNATIONAL CORP., Plaintiff, Appellee, v. RODIO & URSILLO, LTD., etc., Defendant, Appellant.

No. 90-1298.

United States Court of Appeals, First Circuit.

Heard Sept. 7, 1990.

Decided Dec. 12, 1990.

Michael K. Marran, with whom Fred T. Polacek, Providence, R.I., was on brief, for defendant, appellant.

Matthew F. Medeiros, with whom Flanders & Medeiros Inc., Providence, R.I., was on brief, for plaintiff, appellee.

Before CAMPBELL and TORRUELLA, Circuit Judges, and CAFFREY, ^* Senior District Judge.

CAFFREY, Senior District Judge.

The defendant-appellant, Rodio & Ursillo, Ltd. ("Rodio"), challenges an adverse jury verdict in the United States District Court for the District of Rhode Island ¹ awarding $41,993.80 plus interest in damages to the plaintiff-appellee, Transnational Corporation, d/b/a Danbury Airways ("Danbury"). Danbury brought this action asserting two claims which were submitted to the jury: breach of contract and quantum meruit. Rodio raises two issues on appeal. First, the appellant claims that the district court erred in refusing to give the agency instruction proffered by the appellant. Second, the appellant argues that the district court erred in amending its instructions on quantum meruit. Danbury counters these arguments and further argues that this appeal is frivolous and asks this Court for the award of attorneys' fees and costs pursuant to Fed.R.App.P. 38. This is a diversity action decided under Rhode Island law. After a thorough review of the trial record and the parties' arguments, we affirm the jury's verdict and award Danbury attorneys' fees and costs associated with this appeal up to a maximum of $3,000.00.

I.

The relevant facts for this appeal are those presented to the jury during the appellant's two-day trial. Danbury is a private aircraft charter company, located in Connecticut. Rodio & Ursillo is a Providence, Rhode Island law firm. Danbury brought this diversity action against Rodio alleging that the firm was liable for four flights chartered in 1988.

In July 1988, Danbury received a telephone call from a secretary at Rodio & Ursillo by the name of "Patricia" regarding the booking of a flight, for Joseph Rodio. After the flight, Danbury invoiced Rodio & Ursillo for the flight. When the bill was not paid in a timely manner, Danbury contacted Rodio to request payment, and thereafter Danbury received payment for the flight.

In October 1988, Danbury received a call from Rodio & Ursillo about scheduling another charter flight, again from a person identifying herself as "Patricia from Rodio & Ursillo." As with the July flight, Danbury's business records listed Rodio & Ursillo as its customer. After Danbury billed Rodio & Ursillo for the flight, Patricia Knight contacted Danbury and asked that they send the bill to Mr. Lolicata. Subsequently, Patricia Knight arranged three additional flights with Danbury in November and December 1988. After each of the four flights, Danbury sent the original invoice to Rodio & Ursillo, and a copy to Mr. Lolicata.

In addition to her duties as a secretary at the law firm, Patricia Knight was assigned to assist a tenant of the firm, a corporation called FES/CMS and one of its principals, Michael Lolicata. Part of her responsibilities included the scheduling of charter flights for FES/CMS. In making these reservations, no one from Rodio & Ursillo ever informed Danbury that Rodio & Ursillo was acting merely as an agent for FES/CMS. Nor did anyone from Rodio & Ursillo disclose to Danbury before the flights that the law firm was not responsible for the billing. Danbury knew nothing about Michael Lolicata, and it considered Rodio & Ursillo its customer.

After Danbury completed the last flight that Patricia Knight arranged, Rodio & Ursillo sent Danbury a letter which alleged that the scheduling of the four flights was done as a courtesy for Michael Lolicata and that it was not responsible for the flights. Shortly after this letter was sent, Danbury received notification that FES/CMS had filed for bankruptcy in United States Bankruptcy Court. Danbury thereafter filed this diversity suit against Rodio & Ursillo in district court.

The district court submitted Danbury's breach of contract and quantum meruit claims to the jury. After deliberation, the jury returned a general verdict in favor of Danbury for $41,993.80 plus interest, and the district court entered judgment in the amount of $49,851.23. Rodio & Ursillo filed motions for judgment notwithstanding the verdict and a new trial. The district court denied both motions, and the defendant, Rodio & Ursillo now appeals.

II.

At the outset, we must frame the standard for review of the appellant's claim. Rodio asks for reversal of the jury verdict. In reviewing the jury verdict, we are compelled even in a close case, "to uphold the verdict unless the facts and inferences, when viewed in a light most favorable to the party for whom the jury held, point so strongly and overwhelmingly in favor of the movant that a reasonable jury could not have arrived at this conclusion." Chedd-Angier Production Co. v. Omni Publications Int'l Ltd., 756 F.2d 930, 934 (1st Cir.1985); see also Rodriguez v. Montalvo, 871 F.2d 163, 165 (1st Cir.1989) (citing Chedd-Angier Production); Castro v. Stanley Works, 864 F.2d 961, 963 (1st Cir.1989).

Thus, in this case Rodio must persuade us that the facts of the case so conclusively point to a verdict in its favor that "fair-minded people could not disagree about the outcome." Chedd-Angier Production, 756 F.2d at 934. In light of this rigorous standard, we shall now discuss the appellant's claims.

The first issue on appeal is whether the district court erred by not adopting Rodio's proposed instruction on the authority of an agent. Rodio argues that the court committed prejudicial error in refusing to give their proffered agency instruction. Danbury argues that Rodio failed to preserve this issue for appeal by failing to comply with Fed.R.Civ.P. 51. Alternatively, Danbury contends that the district court's failure to charge the jury with respect to the authority of an agent did not result in prejudicial error.

Fed.R.Civ.P. 51 provides: "No party may assign as error the giving 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 objections." This Court has consistently construed Rule 51 to require that objections to the instructions be raised after the charge to the jury, in order to give the trial judge an opportunity to correct the error. See Castrignano v. E.R. Squibb & Sons, Inc., 900 F.2d 455, 460 (1st Cir.1990); Smith v. Massachusetts Inst. of Technology, 877 F.2d 1106, 1109 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 406, 107 L.Ed.2d 372 (1989).

We have also construed the Rule's requirement that a party must object "before the jury returns to consider its verdict" to mean that the objection must be made after the charge is given to the jury, not before. Smith, 877 F.2d at 1109-10; Coy v. Simpson Marine Safety Equip. Inc., 787 F.2d 19, 26 (1st Cir.1986); McGrath v. Spirito, 733 F.2d 967, 968 (1st Cir.1984); Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 (1st Cir.), cert. denied, 423 U.S. 1014, 96 S.Ct. 445, 46 L.Ed.2d 385 (1975). Firm adherence to this requirement effectuates the purpose of the Rule, which is to give the trial judge an opportunity to correct any error before the jury retires to deliberate, and not to follow this Rule impedes this Court in making a determination whether the trial judge was in fact given such an opportunity. Coy, 787 F.2d at 26. See also Smith, 877 F.2d at 1109-10; Wells Real Estate v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 392, 102 L.Ed.2d 381 (1988); Gay v. P.K. Lindsay Co., 666 F.2d 710, 712 (1st Cir.1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 849 (1982).

It is clear from the record that no objection was made by Rodio after the charge regarding the issue of the court's failure to give the proffered agency instruction. It is true that prior to the charge there was a general discussion of the proposed instruction and defense counsel did object to the form of the instruction, but this untimely objection does not satisfy the strictures of Rule 51. The district judge even reminded counsel before the instructions were given that failure to renew the objections after the charge would result in loss of the objection on appeal. (Tr. 221) Objections cannot be carried forward, and Rule 51 is binding on both the court and the attorneys. See Spirito, 733 F.2d at 969.

We have recognized a "plain error" exception for failure to follow Rule 51, but it is applied sparingly. This exception is only applied where the error results in a "clear miscarriage of justice" or "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Smith, 877 F.2d at 1110; Wells Real Estate, 850 F.2d at 809.

We have carefully reviewed the entire record of this case and find that no such "plain error" was committed. We find that based on the evidence presented at trial the district court properly rejected the proffered agency instruction. Here, Rodio admitted that Patricia Knight had the actual or apparent authority, as a secretary and office manager of the law firm, to make air charter reservations on behalf of the firm. Further, the district court instructed the jury fully on the agency issue of the case: whether Patricia Knight made the reservations on behalf of Rodio & Ursillo or on behalf of FES/CMS. Thus, after considering the instruction as a whole, we find that the omission of the agency instruction, to which Rodio & Ursillo assigns prejudicial error, did not result in a "clear miscarriage of justice" as to require reversal.

III.

The second issue on appeal is whether the jury was properly...