United States Court of Appeals
For the First Circuit
No. 01-1542
ELIZABETH V. BOGOSIAN,
Plaintiff-Appellant/Cross-Appellee,
v.
WOLOOHOJIAN REALTY CORPORATION,
Defendant-Appellee/Cross-Appellant,
JAMES E. WOLOOHOJIAN, HARRY J. WOLOOHOJIAN,
PEZZUCO CONSTRUCTION CO., INC., CUMMINGS & LOCKWOOD,
AND TILLINGHAST, LICHT & SEMONOFF, ET AL.,
Appellees.
No. 02-1196
ELIZABETH V. BOGOSIAN,
Plaintiff-Appellant/Cross-Appellee,
v.
WOLOOHOJIAN REALTY CORPORATION,
Defendant-Appellee/Cross-Appellant,
JAMES E. WOLOOHOJIAN, HARRY J. WOLOOHOJIAN,
PEZZUCO CONSTRUCTION CO., INC., CUMMINGS & LOCKWOOD,
AND TILLINGHAST, LICHT & SEMONOFF, ET AL.,
Appellees.
02-1235
ELIZABETH V. BOGOSIAN,
Plaintiff-Appellant/Cross-Appellee,
v.
WOLOOHOJIAN REALTY CORPORATION,
Defendant-Appellee/Cross-Appellant,
JAMES E. WOLOOHOJIAN, HARRY J. WOLOOHOJIAN,
PEZZUCO CONSTRUCTION CO., INC., CUMMINGS & LOCKWOOD,
AND TILLINGHAST, LICHT & SEMONOFF, ET AL.,
Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Cyr, Senior Circuit Judge,
Richard E. Condit for appellant/cross-appellee Elizabeth
Bogosian.
William R. Grimm, with whom Brian C. Newberry and Hinckley,
Allen & Snyder LLP were on brief for appellee James H. Woloohojian
and cross-appellant Woloohojian Realty Corp.
William P. Devereaux, with whom Stephen A. Izzi and Holland &
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Knight, LLP were on brief for appellee Harry Woloohojian, a/k/a
Estate of Harry J. Woloohojian.
Charles D. Ray, with whom Robert P. Dolian and Cummings &
Lockwood, LLC were on brief for appellee Cummings & Lockwood.
March 19, 2003
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CYR, Senior Circuit Judge. Plaintiff Elizabeth V.
Bogosian appeals from a district court judgment which (i) rejected
the contention that her two brothers conspired to "freeze" her out
of the family business, and (ii) determined that she was entitled
to recover not more than $4,000,000, plus prejudgment interest, for
her minority interest in the business. The defendants in turn
cross-appeal from a district court ruling that their interest award
should be calculated at twelve percent. We affirm.
I
BACKGROUND
In 1960, the three siblings — appellant Elizabeth
Bogosian and appellees James and Harry Woloohojian — established
Woloohojian Realty Corporation (WRC), with a view to acquiring and
managing real estate properties located in Rhode Island and
Massachusetts.1 Each sibling held one third of the WRC shares and
served as an officer in WRC.
Elizabeth Bogosian ("Bogosian") and James Woloohojian
1
We relate the material facts in the light most consonant with
the district court judgment. See La Esperanza de P.R., Inc. v.
Perez y Cia. de P.R., Inc., 124 F.3d 10, 12 (1st Cir. 1997). For
further detail, see Bogosian v. Woloohojian Realty Corp., 158 F.3d
1 (1st Cir. 1998); Bogosian v. Woloohojian Realty Corp., 973 F.
Supp. 98 (D.R.I. 1997); Bogosian v. Woloohojian, 901 F. Supp. 68
(D.R.I. 1995), appeal dismissed, 86 F.3d 1146 (1st Cir. 1996);
Bogosian v. Woloohojian, 882 F. Supp. 258 (D.R.I. 1995); Flanders
+ Medeiros Inc. v. Bogosian, 868 F. Supp. 412 (D.R.I. 1994), aff'd
in part, rev'd in part, 65 F.3d 198 (1st Cir. 1995); Bogosian v.
Woloohojian, 831 F. Supp. 47 (D.R.I. 1993); Bogosian v. Woloohojian
Realty Corp., 923 F.2d 898 (1st Cir. 1991); Bogosian v.
Woloohojian, 749 F. Supp. 396 (D.R.I. 1990).
-4-
turned against Harry Woloohojian in 1979, after Harry had ceased to
perform any further services for WRC, yet continued to draw full
salary. While still working at WRC, James and Bogosian formed a
separate real estate company, E & J Realty (E & J), from which
Harry was excluded.
In 1981, Bogosian acquired an option to purchase real
estate in Fall River, Massachusetts ("Fall River property") in the
name of "Taunton River Enterprises." For more than two years, WRC
remitted fees and $3,000 monthly to maintain her purchase-option
contract. The record is silent as to whether WRC was ever
reimbursed by Bogosian. Be that as it may and unbeknownst to
James, Bogosian exercised the purchase option in 1984, in the name
of E & J, rather than WRC, thereby effectively excluding Harry
Woloohojian from the deal. Subsequently, when Harry confronted
James regarding Bogosian's acquisition of the Fall River property
through E & J, James assured Harry that he regarded the property as
an asset of WRC, rather than E & J, then promised to help Harry
regain title to the property on behalf of WRC. By 1986, James and
Harry, having become fully reconciled, voted to install James in
place of Bogosian as the WRC president. Although Bogosian
immediately ceased to perform any further services as an
officer/employee, she continued to draw her full salary from WRC.
In 1987, James, Harry, and WRC instituted a civil action
in the Massachusetts courts against Bogosian and E & J ("Fall River
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litigation"), claiming that the decision by Bogosian to acquire the
Fall River real estate in the name of E & J constituted a wrongful
usurpation of a corporate opportunity belonging to WRC. The
complaint demanded that title to the Fall River property be
conveyed to WRC, which resulted in a lis pendens against the
property. Meanwhile, Bogosian had received three offers to
purchase the Fall River property, ranging from five to eleven
million dollars. These offers were never consummated, however, for
reasons unrelated to the lis pendens.
In 1988-89, James Woloohojian, in his capacity as the
president of WRC, fired Bogosian and her children. Thereafter,
Bogosian brought the instant diversity action in the United States
District Court for the District of Rhode Island. The three-count
amended complaint alleged that WRC, as well as James and Harry
Woloohojian, had breached, and/or conspired to breach, their
fiduciary duties to her by "freezing her out" of her positions as
president, minority shareholder, and employee of WRC, and demanded
the dissolution of WRC (count 3).2 In order to avoid a corporate
2
R. I. Gen. Laws § 7-1.1-90(a)(1)(ii) provides, in pertinent
part:
The superior court has full power to liquidate
the assets and business of a corporation . . .
[i]n an action by a shareholder when it is
established that, whether or not the corporate
business has been or could be operated at a
profit, dissolution would be beneficial to the
shareholders because . . . [t]he acts of the
directors or those in control of the
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dissolution, however, the defendants elected to purchase Bogosian's
WRC shares at "fair value," pursuant to R.I. Gen. Laws § 7-1.1-
90.1.3 Subsequently, the district court directed the defendants to
commence making payments into the court registry. The defendants
responded with a counterclaim asserting that Bogosian had converted
other WRC funds to her personal use as well.
In 1992, the Fall River litigation pending in
Massachusetts state court was terminated following a jury finding
that Bogosian had not usurped a WRC corporate opportunity.
In 1993, after Bogosian's many creditors asserted claims
to the monies previously deposited in the court registry by WRC,
WRC responded with an interpleader action. Thereafter, the
district court directed an administrative consolidation of the
interpleader action with the pending proceeding brought by
corporation are illegal, oppressive, or
fraudulent.
3
Section 7-1.1-90.1 provides, in pertinent part:
Whenever a petition for dissolution of a
corporation is filed by one or more
shareholders . . . pursuant to either §
7-1.1-90 or a right to compel dissolution
which is authorized under § 7-1.1-51 or is
otherwise valid, one or more of its other
shareholders may avoid the dissolution by
filing with the court prior to the
commencement of the hearing, or, in the
discretion of the court, at any time prior to
a sale or other disposition of the assets of
the corporation, an election to purchase the
shares owned by the petitioner at a price
equal to their fair value.
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Bogosian.
In 1997, the district court (Boyle, S.D.J.) entered a
final decision as to count 3, establishing a fair value for the
share buy-out. Bogosian v. Woloohojian Realty Corp., 973 F. Supp.
98, 106-07 (D.R.I. 1997). Thereafter, we sustained the district
court ruling in part, but vacated its decision relating to two
pertinent matters. First, the district court was directed to
determine the one-third share of the tax liability, due by
Bogosian, which had been incurred by WRC when it was compelled to
sell some of its real property to fund its purchase of Bogosian's
remaining shares. Second, we decided that Bogosian would be
entitled to 11% simple prejudgment interest, rather than 11%
compound interest. Bogosian v. Woloohojian, 158 F.3d 1, 9 (1st
Cir. 1998).
On remand, the district court (Lagueux, D.J.) established
the post-tax, buy-out amount at roughly $4 million, then applied a
12% interest rate based on an intervening amendment to the Rhode
Island prejudgment-interest statute. Accordingly, the defendants
were directed to remit approximately $7.8 million to Bogosian
pursuant to their § 7-1.1-90.1 election. Bogosian v. Woloohojian,
93 F. Supp. 2d 145, 159 (D.R.I. 2000).
In April 2000, after reopening discovery at Bogosian's
request, the district court scheduled counts 1 and 2 for bench
trial in September 2000. Thereafter, however, Bogosian sought
-8-
several continuances and further discovery, citing her retention of
new trial counsel and her recent surgery and treatment for lung
cancer.
The district court granted the first two motions, but
rejected a third, then set the trial date for May 8, 2001, and
permitted Bogosian's trial testimony to be submitted by way of
deposition. The district court conditioned its grant of the
further continuances, however, by directing that no additional
interest was to accrue on the count 3 fund held in the court
registry.
Following the eventual bench trial, the district court
ruled for the defendants on both counts 1 and 2. Bogosian v.
Woloohojian, 167 F. Supp. 2d 491 (D.R.I. 2001). Among its findings
of fact, the court determined that (i) the defendants had owed
Bogosian a fiduciary duty, in her capacity as a minority
shareholder; (ii) their removal of Bogosian as the WRC president in
1986 had not breached their fiduciary duty to her, in that no WRC
shareholder had any reasonable expectation of indefinite
employment, particularly after having elected to cease performing
any further work for the company while continuing to receive full
salary; (iii) Bogosian had adduced no evidence that the defendants
impeded her in any way from performing her company responsibilities
after 1986; and (iv) James and Harry had not acted in bad faith
when they initiated the Fall River litigation against Bogosian.
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Id. at 498-502.
Bogosian now appeals from the final district court
judgment in relation to all three counts. The defendants cross-
appeal from the district court ruling relating to the third count.
II
DISCUSSION
A. The Bogosian Appeal
1. The Right to Jury Trial
Bogosian insists that the district court contravened the
Seventh Amendment by failing to accord her a jury trial on counts
1 and 2. See Fed. R. Civ. P. 38; see also Fed. R. Civ. P. 39(b)
("Issues not demanded for trial by jury as provided in Rule 38
shall be tried by the court."). We conclude that the district
court did not err.4
First, although Bogosian acknowledges that no jury-trial
demand was made in the amended complaint as to counts 1 and 2, and
that the defendants made no such demand in their answer, Bogosian's
reply to their answer did demand a jury trial on defendants'
counterclaim. The counterclaim alleged that Bogosian had converted
WRC funds to her personal use. Bogosian contends that the issues
at the heart of both her claims, as well as the counterclaim, were
4
We note that Bogosian has simply assumed that she is entitled
to a jury trial under § 7-1.1-90, notwithstanding that a claim of
"breach of fiduciary duty" has long been recognized as an equitable
cause of action, to which no right to jury trial attaches. See In
re Evangelist, 760 F.2d 27, 29 (1st Cir. 1985).
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so "interwoven" that the latter demand implicitly preserved her
right to jury trial on all three matters, even though the
defendants ultimately dismissed their counterclaim prior to trial.
The lone case citation submitted for the present
contention is wholly inapposite. Gasoline Prods. Co. v. Champlin
Ref. Co., 283 U.S. 494 (1931), involved the entirely distinct
matter as to whether, upon remand for a new trial, the issues of
liability and damages fairly may be addressed in separate trials.
The Supreme Court simply observed that issues of liability and
damages frequently are "interwoven." Id. at 500-01. Thus,
Champlin neither implicated the right to jury trial, nor in any
sense remotely suggested that the right to jury trial, once
affirmatively waived, must be restored due simply to the fact that
the opposing party in the litigation happens to have alleged a so-
called "interwoven" counterclaim.
The Bogosian complaint and the appellees' counterclaim
were not "interwoven," however, at least as concerns the right to
jury trial. In counts 1 and 2 of the amended complaint, Bogosian
alleged that appellees had breached their fiduciary duty to her as
a minority shareholder, by, inter alia, initiating the vexatious
Fall River litigation in which the appellees alleged that she had
breached her fiduciary duty to WRC by usurping a corporate
opportunity. Bogosian incorrectly asserts on appeal that
appellees' counterclaim "complained that [she] breached her
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fiduciary duty [to WRC] when she purchased options on the property
in Fall River." (Emphasis added.) Instead, in their counterclaim
the appellees merely alleged that Bogosian had utilized her
official position in WRC to retain legal counsel to handle her own
— as distinguished from corporate — legal matters, including the
Fall River litigation.
Federal Rule of Civil Procedure 38(b) permits a party to
"demand a trial by jury of any issue triable of right by a jury,"
provided the jury-trial demand is served within ten days "after the
service of the last pleading directed to such issue." Fed. R. Civ.
P. 38(b). Bogosian contends, in effect, that she was entitled to
a jury trial on counts 1 and 2 simply on the basis that her
complaint and appellants' counterclaim arose from a common factual
setting, viz., the Fall River property litigation. The right to
jury trial depends not upon the factual setting from which the
claim arose, however, but (i) upon whether the claim involves an
issue "triable of right by a jury," and (ii) upon the nature of the
cause of action as well as its historical treatment in English-
American jurisprudence (viz., whether the proceedings are more
emblematic of a "legal" proceeding, as distinguished from an
"equitable" one). See Tull v. United States, 481 U.S. 412, 417-18
(1987); see also supra note 3.
Additionally, we are not presently confronted with the
situation in which two claims require factfinding on an element
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common to both causes of action, such that the nonequitable claim
might need to be tried first to a jury. Cf., e.g., Allison v.
Citgo Petrolem Corp., 151 F.3d 402, 423-24 (5th Cir. 1998); Cabinet
Vision v. Cabinetware, 129 F.3d 595, 599-600 (Fed. Cir. 1997). Had
these appellees initially tried their counterclaim before a jury,
the lone pertinent factual element would have been whether the Fall
River litigation related to Bogosian's personal business, such that
she would have been in breach of her fiduciary duty to WRC by
having converted its funds for the purposes of retaining counsel to
handle her own case. In contrast, Bogosian could prevail on her
equitable claims in counts 1 and 2 only by demonstrating that the
appellees had acted in bad faith by initiating the litigation
relating to the Fall River property — a finding neither essential
to, nor an element of, their counterclaim for conversion.
Next, Bogosian asserts that she relied upon an inaccurate
docket entry by the clerk's office, which mistakenly stated:
"Defendant made a demand for a jury." Yet Bogosian neither
provides a citation to the record on appeal, nor can we glean any
such docket entry from the record on appeal, see Fed. R. App. P. 28
(requiring that appellant cite to record as to each salient fact).
Moreover, not only was she a "defendant" as to appellees'
counterclaim, but even if any such docket entry did advert to the
appellees in the singular (i.e., "Defendant"), Bogosian cites no
authority for the suggestion that reliance on an obvious clerical
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error suffices to resurrect a right to jury trial previously
waived.
Lastly, Bogosian maintains that she opposed the district
court ruling rejecting her motion to continue by asserting that the
scheduling of counts 1 & 2 for bench trial abrogated her Seventh
Amendment right to jury trial. The present contention is patently
flawed in at least two respects: (i) her cursory objection failed
to detail the nature of any putative error; and (ii) without more,
no such belated objection can serve to resurrect a jury-trial right
long since waived. See Fed. R. Civ. P. 38(d) ("The failure of a
party to serve and file a demand as required by this rule
constitutes a waiver by the party of trial by jury.") (emphasis
added); Fed. R. Civ. P. 39(b) (noting that party who fails to make
timely request for jury trial may avoid waiver and secure a jury
trial only if the district court, in its discretion, acts favorably
on such a request).
Accordingly, we affirm the district court ruling that
Bogosian waived any right to trial by jury in relation to counts 1
& 2.
2. The Motions for Continuance
Relating to Counts 1 and 2
Next, Bogosian maintains that the district court erred in
denying her motions to postpone the bench trial due to her life-
threatening illness. We review trial-management rulings for clear
abuse of discretion and "[o]nly an 'unreasoning and arbitrary
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insistence upon expeditiousness in the face of a justifiable
request for delay will abuse [such discretion].'" N.E. Drilling,
Inc. v. Inner Space Servs., Inc., 243 F.3d 25, 36 (1st Cir. 2001)
(citation omitted). Our review examines, inter alia, the delay
entailed, the reasons for the request, whether the moving party is
at fault, any inconvenience to the court and litigants, and whether
the denial of a continuance unfairly would prejudice the moving
party. See FDIC v. Houde, 90 F.3d 600, 608 (1st Cir. 1996).
Although we recognize that Bogosian experiences serious
health problems, the record on appeal plainly reflects that these
district court rulings were neither irrational nor arbitrary.
First and foremost, by July 2000 when Bogosian submitted the
initial motion to continue the trial, this litigation had been
languishing for twelve years. Her motions were also predicated
upon her recent retention of new counsel, the ninth such
substitution of counsel since she initiated her lawsuit. Even
assuming some adequate justification for Bogosian's numerous
replacements of trial counsel, the attendant further delays plainly
afforded additional legitimate grounds for the district court to
continue to seek, wherever practicable, a fair and expeditious
disposition of the case. See Amarin Plastics, Inc. v. Md. Cup
Corp., 946 F.2d 147, 151 (1st Cir. 1991) (noting that trial court
may consider reasons for previous delays).
Second, medical doctors determined that Bogosian, then
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age 77, suffered from several debilitating illnesses, including
severe arthritis and a serious anxiety disorder. See Morrissey v.
Nat'l Mar. Union, 397 F. Supp. 659, 668 (S.D.N.Y. 1975) (noting
unavailable witness's advanced age as ground for denying
continuance), aff'd, 544 F.2d 19, 32 (2d Cir. 1976). As regards
her metastatic lung cancer, Bogosian's doctors performed major
surgery (viz., a lobectomy), followed by an "arduous" course of
concurrent radiation and chemotherapy, which was expected to
provide Bogosian with but a 30% to 50% prospect of long-term
survival. Although in more normal circumstances a continuance may
well have been warranted, there existed the very real prospect that
any immediate postponement almost surely would deteriorate into an
indefinite one given that Bogosian's physical condition was such as
reasonably to suggest that it was improbable that she would ever
become more available to assist counsel or testify at trial. See
Amarin Plastics, Inc., 946 F.2d at 152-53 (noting absence of any
reasonable indication that party would ever improve enough to
appear at trial); Scholl v. Felmont Oil Corp., 327 F.2d 697, 700
(6th Cir. 1964) (affirming denial of continuance absent any medical
assurances that witness would ever be available to testify at
trial).
Third, trial counsel for Bogosian advised the district
court at the September 2000 hearing that he intended to substitute
a "limited liability" family corporation as the lone plaintiff, in
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order to minimize Bogosian's continued involvement and
participation in the proceedings. Plainly, such a representation
by counsel strongly implied that other members of Bogosian's family
were available and competent to assist counsel with further
pretrial preparations.
Fourth, Bogosian's protestations on appeal
notwithstanding, the district court granted her July 2000 motion to
continue, thereby authorizing the requested 190-day extension,
whereupon the anticipated trial date was postponed to late March
2001. Moreover, the district court subsequently allowed yet
another motion for continuance, further postponing the trial to May
8, 2001.
Fifth, Bogosian submitted no updated medical
documentation that she remained unfit to testify at trial in May
2001, even though her oncologist had represented in a November 3,
2000, letter that her treatment would "finish in late January
[2001]," and that he anticipated "a month or so of post-treatment
recovery."5 Moreover, in a January 2001 follow-up letter, the
oncologist reiterated that his estimate of the "anticipated
recovery time for Ms. Bogosian from all her treatment would not be
until the end of February of this year 2001." The January 2001
letter was the final pretrial communication from her medical
5
The only medical evidence Bogosian presented consisted of
letters from her doctor to her lawyer. She adduced no medical
records or affidavits whatsoever.
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professionals regarding when she would be able to testify at
trial.6 As the district court observed at trial, Bogosian "still
has not shown she is incapable of testifying in open court. All I
have is [counsel's] word that she is not able to come to court. I
see no doctor's certificate."
Moreover, the district court later allowed Bogosian's
deposition testimony to be admitted at trial. Finally, Bogosian
has made no contention on appeal (let alone any showing) that her
deposition testimony was inherently inferior, in any respect, to
her anticipated live testimony. See Wells v. Rushing, 755 F.2d
376, 380 (5th Cir. 1985) (noting that need for continuance becomes
less compelling where testimony comes in by deposition).
Accordingly, given the totality of the circumstances, the
district court rulings regarding Bogosian's requests for a sick-
leave-based continuance did not remotely constitute an
"'unreasoning and arbitrary insistence upon expeditiousness in the
face of a justifiable request for delay.'" N.E. Drilling, Inc.,
243 F.3d at 36 (citation omitted).7
6
At trial, Bogosian's counsel asserted that she remained
unavailable to testify, noting that the January 2001 letter stated
that she would "need several more months from the time of this
writing to recover." The doctor did not define the phrase "several
months," however, and in the remainder of the letter he repeatedly
specified that he expected her to "recover[] from the side effects
of treatment [by] . . . late February of [sic] March of this year."
7
Additionally, Bogosian faults a district court ruling made in
2000, denying her further discovery requests relating to counts 1
and 2. She argued then that events beyond her control (viz., her
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3. The Motion for Continuance Relating to Count 3
In March 1998, Bogosian discovered a discarded CD-ROM
containing hundreds of internal WRC documents. One year later, as
directed on remand, see Bogosian, 158 F.3d at 9, the district court
scheduled an evidentiary hearing to determine Bogosian's one-third
portion of the tax liability which WRC incurred upon the sale of
certain corporate properties in order to generate the funds with
which to acquire her WRC shares, pursuant to WRC's count 3
statutory election.
The day before the scheduled hearing, Bogosian submitted
a motion to continue, citing a further need to extract and evaluate
the newly-discovered CD-ROM documents. She contended that at least
one of the extracted CD-ROM documents suggested that (i) WRC had
committed fraud on the court at the pre-remand hearing regarding
count 3, during which the district court placed a valuation on the
WRC assets and cash flow; (ii) a portion of the sales proceeds from
one piece of property was diverted covertly by WRC to other
corporate purposes; and (iii) WRC overstated, by one hundred
percent, the capital gains it realized from the sale.
illness and her former counsel's withdrawal) thwarted her discovery
efforts. We review trial-court discovery rulings only for abuse of
discretion. See Ameristar Jet Charter, Inc. v. Signal Composites,
Inc., 244 F.3d 189, 191-92 (1st Cir. 2001). We discern nothing
approaching such abuse here. Appellant has been accorded ample
opportunity to conduct discovery on these counts ever since 1989.
Moreover, to the extent she now relies upon the contention that her
former counsel were derelict in pursuing discovery, her recourse,
if any, obviously lies elsewhere.
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Bogosian now maintains that (i) the district court
allowed insufficient time for her to retrieve the documents
relating to certain suspicious business practices, vaguely
described by her counsel as the marking-up of WRC's payroll and the
mishandling of insurance proceeds, and (ii) these documents
reflected that WRC had initiated these activities prior to February
1989 (viz., the date Bogosian was terminated), thus tending to
suggest that her brothers had a motive for freezing her out of WRC
(viz., in order to conceal their own misfeasance from her). We
discern no abuse of discretion in these rulings. See N.E.
Drilling, Inc., 243 F.3d at 35.
At the March 30 hearing, Bogosian sought a three-week
delay to study the contents of the CD-ROM. Over defendants'
objection, the district court allowed as how the proffered evidence
appeared to be relevant to the disposition of count 3, then granted
the continuance. Furthermore, when the district court proposed to
suspend the accrual of interest on the count 3 fund, Bogosian's
counsel expressed ready agreement.
Thereafter, at a hearing held on April 28, Bogosian's
counsel requested yet another thirty-day continuance within which
to depose WRC's controller concerning the previously-discussed land
sale, stating emphatically: "After 30 days is up, that's it, we
are ready for trial," and "[a]ll I am asking for is 30 days, and to
get on with this trial."
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On the ample basis of these representations, the district
court granted the requested continuance for the limited purpose of
deposing the WRC controller.
At a hearing on July 30, however, Bogosian requested yet
another round of discovery — even though she had yet to depose the
WRC controller — contending that (i) the CD-ROM documents had
demonstrated that the WRC had a much larger monthly cash flow in
1996 than the $9,500 previously represented to the court, (ii) "we
. . . can envision a situation . . . where WRC was being used as a
private cookie jar” [i.e., improperly and surreptiously to syphon
off cash to its shareholders], (iii) WRC's so-called compulsion to
sell its assets in order to buy out her shares probably was a ruse,
and (iv) accordingly, Bogosian should not be held accountable for
her one-third share of the tax liability associated with the sale
of those shares.
The choice of the term "envision" by Bogosian's counsel
was telling indeed. Pressed by the court, counsel admitted that he
had no "basis for claiming [that WRC did not have to sell the
properties]," but that additional discovery might disclose cash
diversions by insiders. Then and there, the district court made
clear that it would not permit additional discovery, unless
"there's really newly discovered evidence here," and that Bogosian
had submitted no motion for new trial "showing [any] newly
discovered evidence." Accordingly, the court denied the motion for
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additional discovery, then "seriously" took under advisement
appellees' motion for sanctions.
Given the exceptionally sorry travel of this case, the
instant contention can only be deemed utterly frivolous. Far from
abusing its discretion, the district court proceeded to allow the
continuances requested by Bogosian's counsel to study the CD-ROM
documents and conduct limited depositions. Thereafter, it
reasonably drew the line when Bogosian acknowledged that she had no
newly-discovered evidence warranting further discovery. See
Ameristar Jet Charter, Inc. v. Signal Composites, 244 F.3d 189, 193
(1st Cir. 2001) (noting that appellant "concedes, however, that it
has no evidence that it will receive contradictory testimony. . .
[and] [w]e will not allow [it] to go on a 'fishing expedition,'
with the mere 'hope' that it will obtain such information")
(citation omitted).8
8
Bogosian additionally contends that the district court erred
in calculating her share of the tax liability WRC incurred in
selling its assets to fund the purchase of her shares. She devotes
one cursory paragraph to this contention in her appellate brief,
and engages in no argumentation on its merits. Instead, she
invites our perusal of the record on appeal to divine the substance
of the arguments she advanced in the district court. We
accordingly deem her argument waived on appeal. See FDIC v.
LeBlanc, 85 F.3d 815, 820 (1st Cir. 1996) ("'[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, [will be] deemed waived for purposes of appeal.'")
(citation omitted).
-22-
4. The Evidentiary Rulings Relating to Counts 1 & 2
a) The Motion to Quash Subpoena
Served Upon Opposing Counsel
Next, Bogosian contends that the district court made
several erroneous rulings at trial. First, she suggests that her
due-process rights were violated when the district court (i)
quashed her subpoena against opposing counsel, William Grimm, and
(ii) barred Bogosian from submitting a proffer as to the substance
of Grimm's anticipated testimony. See Fed. R. Evid. 103(a)(2).
Trial court rulings on motions to quash are reviewed only
for abuse of discretion. See Town of Norfolk v. U.S. Army Corps of
Eng'rs, 968 F.2d 1438, 1456 (1st Cir. 1992). Although not strictly
forbidden, the procurement of trial testimony from opposing counsel
is generally disfavored. See United States v. Yonkers Bd. of
Educ., 946 F.2d 180, 185 (2d Cir. 1991). Among the appropriate
factors for consideration by the trial court are the following:
whether (i) the subpoena was issued primarily for purposes of
harassment, (ii) there are other viable means to obtain the same
evidence, and (iii) to what extent the information sought is
relevant, nonprivileged, and crucial to the moving party's case.
See Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 729-30 (8th
Cir. 2002); Gould, Inc. v. Mitsui Mining & Smelting Co., Ltd., 825
F.2d 676, 680 n.2 (2d Cir. 1987).
At trial, Bogosian maintained (i) that she had two
internal WRC documents which would show that Mr. Grimm had been a
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WRC director in 1989-90, (ii) that during this same period WRC had
engaged in suspicious business practices, vaguely described by her
counsel as the marking-up of its payroll and the mishandling of
insurance proceeds; (iii) that these marked-up documents
demonstrated that WRC initiated these activities prior to February
1989 (viz., the date Bogosian was terminated), thus tending to
indicate that her brothers had a motive for freezing her out of the
company (viz., in order to conceal their misfeasance from her). We
discern no abuse of discretion whatsoever by the district court.
As evidence of her apparent intent to harass the defense,
we note that Bogosian (i) served the subpoena the day before trial,
without the slightest attempt to explain why she had failed to
depose opposing counsel during the preceding ten-year period of
ongoing discovery, (ii) requested that Mr. Grimm produce eighteen
broadly-described categories of corporate documents spanning more
than two decades (i.e., since 1980), (iii) made no showing that she
was unable to obtain the evidence from other sources, particularly
WRC, their rightful owner, (iv) requested that Mr. Grimm testify at
trial solely to the "existence[] or ... authenticity" of the two
documents, testimony she obviously could have obtained from any
number of witnesses other than Mr. Grimm, (v) sought testimony from
Mr. Grimm which was marginally relevant at most, in that the two
documents postdated the "freeze-out." Finally, the testimony
sought from Mr. Grimm — in all likelihood and for the most part —
-24-
would have been cumulative, since Bogosian herself adduced other
evidence that her brothers had "frozen her out" in order to conceal
from her their alleged corporate shenanigans.
Accordingly and for the foregoing reasons, the district
court ruling quashing the subpoena must be affirmed.
b) The Adverse Inference Sought Based On the
Failure of Certain Defendants to Appear at Trial
Bogosian next contends that the district court erred in
declining to infer — from the failure of defendants James and Z.
Elaine Woloohojian to appear at trial — that their testimony would
have been adverse to the defense. She points to the putative
testimony of her process server that these defendants made
themselves unavailable to testify by evading service of process.9
We discern no error.
The "missing witness" rule permits, rather than compels,
the factfinder to draw an adverse inference from the absence of a
witness, see Niziolek v. Ashe, 694 F.2d 282, 292 (1st Cir. 1982),
particularly where the factfinder concludes that the party who
requested the adverse inference failed to subpoena a witness
otherwise available to testify, see Trump Plaza Assocs. v.
9
Bogosian also argues that the district court violated her
due-process rights in precluding her Rule 103(a)(2) proffer that
key witnesses (e.g., her sister-in-law, Z. Elaine Woloohojian),
whom she subpoenaed to appear at trial, deliberately had evaded her
process server. The record discloses, however, that her counsel,
earlier in the trial, stated that he had made this very proffer.
See Trial Tr. (5/8/01), at 11.
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Poskanzer (In re Poskanzer), 143 B.R. 991, 998 (Bankr. D.N.J.
1992). As the finder of fact, of course, it was for the district
court to determine the credibility of the proffer Bogosian made
regarding the process server's testimony.
In so doing, the district court simply concluded that
James and Z. Elaine Woloohojian had not evaded service of process.
As such credibility determinations are within the unique province
of the trier of fact, see Carr v. PMS Fishing Corp., 191 F.3d 1, 7
(1st Cir. 1999), the district court was not compelled to draw the
suggested adverse inference from the absence of James and Z. Elaine
Woloohojian at trial.10
5. The Factfinding in
Relation to Counts 1 & 2
Finally, Bogosian insists that the district court, in
finding for the appellees on counts 1 and 2, committed various
errors of law and ignored unrebutted evidence favorable to her
case. Following a bench trial, the district court's findings of
fact, including its witness-credibility assessments, are reviewed
for clear error only. See Barrs v. Lockheed Martin Corp., 287 F.3d
202, 210 (1st Cir. 2002); Carr, 191 F.3d at 7. The outcome in the
10
Further, it may well be that any such adverse inference, in
itself, would have been considered marginally probative, given the
fact that James and Z. Elaine Woloohojian were not "missing
witnesses" at all, since their depositions were admitted at trial.
See Cameo Convalescent Ctr., Inc. v. Senn, 738 F.2d 836, 844 (7th
Cir. 1984) (noting that any such adverse inference becomes less
compelling where testimony of witness is admitted at trial by way
of deposition).
-26-
instant case turned principally upon just such credibility
determinations.
The district court explicitly credited appellees'
testimony that Bogosian was fired solely because she voluntarily
ceased performing any work at WRC, while continuing to draw full
salary and benefits. Bogosian, 167 F. Supp. 2d at 503 ("This court
credits the testimony of James and Harry."). Undaunted, Bogosian
incorrectly asserts on appeal that her late brother, Harry,
provided unrebutted deposition testimony that the actual basis for
her termination had been that she sought to audit the corporate
books. Instead, Harry simply attested to the fact that Bogosian
had requested the audit and questioned the defendants' motives.
Harry did not state, however, that this was what prompted
Bogosian's discharge.
Thus, the mere description of Bogosian's requests
certainly did not compel the district court to determine, as a
fact, either that her audit requests were justified or that she was
fired by her brothers in order to prevent her revelation of their
improper business practices. Indeed, Bogosian has never adduced
any corroborative evidence whatsoever in regard to her allegations.
Instead, Bogosian simply maintains that she adduced
evidence that Harry was not terminated by WRC in the early 1980's
for failure to perform his corporate duties, and that WRC's
disparate treatment of her belies appellees' purportedly legitimate
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basis for terminating her. The district court reasonably
determined, however, that Bogosian was well aware — regardless
whether Harry should have been fired earlier — that she was
knowingly inviting termination by her refusal to perform her own
corporate responsibilities. Thus, although a rational factfinder
conceivably may have inferred some such nefarious motive as that
suggested by Bogosian based on the proffer of disparate-treatment
evidence, the record plainly did not compel any such inference.
Further, Bogosian contends that her daughter presented
unrebutted testimony that appellees advised her that it would be
futile for Bogosian to come to work, since they intended to ignore
her input on corporate decisionmaking. However, it remains within
the exclusive province of the trier of fact to determine whether
unrebutted testimony is creditworthy. See Carr, 191 F.3d at 7.
Thus, the district court explicitly found (i) that Bogosian's
daughter had her "own agenda" and (ii) that she had demonstrated on
the witness stand that she lacked credibility. Bogosian, 167 F.
Supp. 2d at 500.
Next, with regard to whether appellees' commencement of
the Fall River litigation constituted a discrete breach of their
fiduciary responsibilities, Bogosian urges us to set aside the
district court finding that appellees commenced their action in the
"good faith" belief that Bogosian had misappropriated a corporate
opportunity of WRC by purchasing the Fall River property on behalf
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of E & J. Id. at 500-01. She contends that the state court found
not only that she had not breached her fiduciary duty, either to
WRC or her brothers, but that appellees' lawsuit had been
"unfounded" (viz., frivolous, designed solely to harass and to
recover damages to offset their anticipated buy-out of her shares).
Quite the contrary, the state court simply turned away
appellees' alternative contentions on appeal, either (i) that they
had adduced such compelling evidence of Bogosian's breach of her
fiduciary responsibility that a reasonable factfinder was compelled
to find in their favor, or (ii) that the judgment was against the
clear weight of the evidence. In its unpublished opinion, made
part of the record before us, the state appellate court explicitly
noted that appellees had adduced evidence which might have been
credited by the jury, but that the jury chose instead to credit
Bogosian's version. Cf., e.g., Bartlett v. John Hancock Mut. Life
Ins. Co., 538 A.2d 997, 1000 (R.I. 1988) (noting that "bad faith"
will not be inferred where party sued on debatable issue of law).
The Bogosian appeal itself, ironically, has now been hoisted on the
same petard.
Bogosian further faults the district court for (i)
finding that she sustained no damages as a result of the Fall River
lawsuit, and (ii) ignoring that the appellees had lodged a lis
pendens against the Fall River property, that three prospective
buyers thereafter decided not to purchase the property, and that
-29-
state law permits the factfinder to infer that such a cloud on
title thwarted its sale. See Anthony A. DeLeo v. Nunes, Inc., 546
A.2d 1344, 1347-48 (R.I. 1988). As her citation to DeLeo itself
acknowledges, however, any such inference is permissive, rather
than mandatory. Id. ("Filing such a document without a colorable
claim is done at the filer's peril."). Moreover, appellees adduced
ample evidence that the three prospective purchasers of the Fall
River property backed out for reasons other than the lis pendens.
Bogosian, 167 F. Supp. 2d at 496-97.
Bogosian points also to her brother James’s testimony
that he has never believed that she stole a WRC corporate
opportunity by purchasing the Fall River property through E & J.
She insists that James's testimony compelled a finding that the
property did not represent a corporate opportunity of WRC, and,
consequently, that she could not have pirated such an opportunity
from WRC.
The present contention conveniently ignores the
requirement that the proffered testimony is to be viewed in the
context of the witness's other testimony: (i) that James, unlike
Bogosian, had not participated in the initial decision to acquire
the property for E & J, rather than for WRC, and (ii) that James
believed from the outset that Bogosian's decision violated her
fiduciary duty to WRC and to their brother, Harry, who was not a
partner in E & J. Additionally, the district court aptly cited
-30-
James's testimony that the Fall River property acquisition was
unlike E & J's other purchases, in that WRC itself had remitted the
option fees to obtain the former. Bogosian, 167 F. Supp. 2d at
502.
As the record on appeal contains ample supportive
evidence for the district court judgment relating to counts 1 and
2, there was no clear error. See Barrs, 287 F.3d at 206.11
B. The Cross Appeal
The defendants cross-appeal from the district-court award
of prejudgment interest to Bogosian under count 3, contending that
it erroneously applied a 12% prejudgment interest rate. See
Bogosian, 93 F. Supp. 2d at 157-59. In 1997, the district court
(Boyle, S.D.J.) calculated the value of Bogosian's corporate shares
11
Bogosian also asserts that the district court erred in
denying her postjudgment request that the funds in the court
registry be disbursed to her forthwith. She characterizes the
denial as a de facto stay which should have necessitated that
defendants post a supersedeas bond as security for their judgment
debt. We do not agree. First, a bond is required only where the
plaintiff is unsecured or undersecured due to the fact that the
entire judgment has not yet been satisfied. Whereas WRC has
already overpaid its judgment debt into the court registry, and is
due a refund on remand. See, e.g., Corrigan Dispatch Co. v. Casa
Guzman, S.A., 569 F.2d 300, 302-03 (5th Cir. 1978) (noting that
district court may dispense with security-bond requirement where
entire purchase price in disputed sale has been paid into court
registry). Second, the district court aptly noted that the precise
amount of the disbursement due Bogosian from the court registry has
yet to be finally determined, in light of the current WRC cross-
appeal from the interest award, see infra Section II.B, and the
pendency of the 1993 interpleader action by Bogosian's creditors,
who claim entitlement to an as-yet undetermined portion of her
count 3 award.
-31-
in WRC, holding that she was not liable for any of the taxes WRC
incurred in selling its assets to generate the monies with which to
fund the buy-out. Bogosian, 973 F. Supp. at 106-07. The "minority
shareholder oppression" statute in effect at the time simply
prescribed that the "petitioner shall be entitled to interest on
the purchase price of the shares from the date of the filing of the
[defendant's] election to purchase the shares." R.I. Gen. Laws 7-
1.1-90.1 (1998) (emphasis added). As the statute specified neither
the rate of interest nor the method for calculating it, the
district court conducted an evidentiary hearing at which expert
testimony was adduced as to a fair rate of return, viz., the
interest Bogosian would have been able to earn had she received and
prudently invested the purchase monies in 1989. After entertaining
estimates ranging from 8 to 15%, the district court settled upon
11%, compounded monthly, as a reasonable rate. Bogosian, 973 F.
Supp. at 107-09.
WRC appealed, contending that (i) § 7-1.1-90.1 (1998) did
not contemplate the compounding of interest, and (ii) the choice of
the 11% rate overstated Bogosian's actual lost-investment income.
Thereafter, we upheld the 11% calculation, but found that § 7-1.1-
90.1 prescribed simple interest only, rather than compound
interest. Bogosian, 158 F.3d at 9. Moreover, we reversed the
district court determination that the cross-appellee need not be
held responsible for one third of WRC's tax liabilities, then
-32-
remanded for further factfinding on the latter issue. Id. at 6-7.
On remand, the district court took tax liabilities into
account and determined that Bogosian was due roughly $4,000,000
from defendants in recompense for her corporate shares. Bogosian,
93 F. Supp. 2d at 154. Turning to the interest award, the district
court noted that § 7-1.1-90.1 had been amended in July 1999 to
read: "The petitioner is entitled to interest, at the rate on
judgments in civil actions, on the purchase price of the shares
from the date of the filing of the election to purchase the
shares." R.I. Gen. Laws § 7-1.1-90.1 (1999) (emphasis added). As
the Rhode Island statute prescribes a 12% prejudgment interest rate
in civil cases, see R.I. Gen. Laws § 9-21-10 (1997), and the
version of § 9-21-10 in effect at the entry of judgment controlled
the interest rate, the district court boosted the interest award
against defendants to 12% simple interest, Bogosian, 93 F. Supp. 2d
at 155-56, for a total interest award on count 3 approximating $3.8
million, id. at 158. In October 2001, following a bench trial on
counts 1 and 2, the district court entered final judgment on the
Bogosian complaint, which incorporated its April 2000 decision
awarding prejudgment interest.
On appeal from the final judgment the defendants assert
two challenges to the 12% interest award. First, defendants
contend that the amended version of § 7-1.1-90.1, with its addition
of the phrase "at the rate on judgments in civil actions,"
-33-
unambiguously expresses a legislative intendment to import the
postjudgment interest rate, rather than the prejudgment interest
rate. Their contention is predicated on the fact that, under Rhode
Island law, the term "judgment" refers to the final judgment.
We review interpretations of state statutes de novo. See
Manchester Sch. Dist. v. Crisman, 305 F.3d 1, 9 (1st Cir. 2002).
Absent state-court case law on point, wherever practicable we
undertake a fair prediction as to the course the highest state
court would take were it presented with the same legal issue. See
Nieves v. Univ. of P.R., 7 F.3d 270, 274-75 (1st Cir. 1993).
We are unable to discern how the mere fact that the term
"judgment" denotes "final judgment" aids in the interpretation of
the pivotal phrase "on judgments." That is to say, it is by no
means clear that prejudgment interest is any less a form of
interest "on" a final judgment than is postjudgment interest.
Under section 7-1.1-90.1, interest on the purchase price of
corporate shares is explicitly required to be measured "from the
date of the filing of the election to purchase the shares," and,
presumably, continues until the entry of final judgment, at which
time the stock purchase is deemed to have occurred. Consequently,
the legislature reasonably may have anticipated that prejudgment
interest would be considered interest "on" — viz., measured in
reference to, then added "on" to — a [final] judgment.
Common sense suggests that since the pre-amendment
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version of § 7-1.1-90.1 was somewhat ambiguous as regards the
precise means to be used to calculate "interest," the legislative
amendment simply sought to clarify the matter by explicitly tying
the § 7-1.1-90.1 interest rate to the interest rate specified in §
9-21-10. See, e.g., Liquilux Gas Corp. v. Martin Gas Sales, 979
F.2d 887, 890 (1st Cir. 1992) ("Rather, we hold that the amendment
was not a change at all, but a clarification that did not alter the
law, and merely explicated it. Clarification, effective ab initio,
is a well recognized principle. Determination of whether new
legislative action is alteration, or merely clarification, may
depend on a number of factors. One may be the fit in language. A
significant one is the fact that the new enactment clarifies an
ambiguity."). Moreover, the plausibility of the postulated
interpretation may be readily demonstrated simply by comparing the
relative ease with which the district court determined the interest
rate in arriving at its post-remand decision in 2000, with the
exhaustive factfinding it had been required to undertake in its
pre-remand decision in 1998. Compare Bogosian, 93 F. Supp. 2d at
155-56, with Bogosian, 973 F. Supp. at 107-12.
The defendants argue, in the alternative, that the pre-
amendment version of § 7-1.1-90.1 should apply because (i) most of
their payments into the court registry were made prior to the
legislative amendment, (ii) the accrual of interest on the registry
funds was stayed by the district court prior to the amendment, and
-35-
(iii) this court previously had affirmed the "final" determination
of the 11% award in Bogosian v. Woloohojian Realty Corp., 158 F.3d
1, 9 (1st Cir. 2000).
First, we note that the defendants did not raise their
alternative argument prior to the entry of the final judgment in
October 2001, electing instead to submit a postjudgment motion to
alter and amend the judgment. As the district court noted in its
earlier interlocutory decision relating to count 3 in April 2000,
"[b]oth parties agree[d] that the amended statute applies in the
case at bar." Bogosian, 93 F. Supp. 2d at 155 (quoting Zawatsky v.
Cohen, 463 A.2d 210, 213 (R.I. 1983) ("[T]he interest on a judgment
is determined in accordance with the statute in effect at the time
of its rendition rather than at the time the action accrued.")).
"[A] motion under Rule 59(e) [to alter and amend a judgment] is not
appropriately used to present new issues or evidence: 'Rule 59(e)
motions are aimed at reconsideration, not initial consideration.
Thus, parties should not use them to raise arguments which could,
and should, have been made before judgment issued. Motions under
Rule 59(e) must either clearly establish a manifest error of law or
must present newly discovered evidence. They may not be used to
argue a new legal theory.'" Jorge Rivera Sirillo & Co. v. Falconer
Glass Indus., Inc., 37 F.3d 25, 29 (1st Cir. 1994) (citation
omitted) (emphasis added). Given the heightened standard of
review, we conclude that the defendants have failed to demonstrate
-36-
a manifest error of law in the 12% interest award.
First, the present circumstances — that, prior to 1999,
defendants paid the bulk of the funds into the court registry and
the district court halted the accrual of interest — do not give
rise to a manifest inequity. "Statutes that award prejudgment
interest generally serve the dual purposes of encouraging the early
settlement of claims, and compensating plaintiffs for waiting for
recompense to which they were legally entitled." Martin v.
Lumbermen's Mut. Cas. Co., 559 A.2d 1028, 1031 (R.I. 1989). On two
separate occasions, the district court explicitly found that
Bogosian was not responsible for the delay in calculating the value
of her shares under count 3. See, e.g., Bogosian, 93 F. Supp. 2d
at 155 (noting that "[t]he issues involved in valuating [WRC] have
been complex"). Consequently, we discern no equitable basis for
denying Bogosian the benefit of the fortuity that § 7-1.1-90.1 was
amended before the "final," albeit partial, judgment on count 3 was
entered in April 2000.
The decision entered by the district court in 1999,
suspending the accrual of interest on the registry funds, is
unavailing to the defendants as well. Bogosian agreed to the
cessation as a precondition to the allowance, by the district
court, of her motions for a continuance of the trial on counts 1
and 2. The defendants thus received considerable protection from
-37-
any delay attributable to those continuances.12 Yet the defendants
did not request that the district court freeze the rate of interest
at 11% as well, which would have provided them additional
protection against intervening statutory amendments. Consequently,
although the cross-appellee waived her right to post-1999 accruals
of additional interest, she did not waive her right to the "rate-
at-time-of-judgment" rule prescribed in Zawatsky v. Cohen, 463 A.2d
210, 213 (R.I. 1983).
Finally, our affirmance of the 11% rate in the earlier
appeal, Bogosian v. Woloohojian Realty Corp., 158 F.3d 1 (1st Cir.
2000), is immaterial, as it predated enactment of the amendment to
§ 7-1.1-90.1. Based on the pre-amendment statute, the 11% interest
calculation was appropriate, in that it was founded on district
court factfinding which was not clearly erroneous, and we
12
Ironically, were it not for the 1999 district court decision
to cease interest accruals, the defendants' interpretation of the
amended § 7-1.1-90.1 would seem to have required that prejudgment
interest be measured up to the entry of the final judgment on
counts 1, 2 and 3 in October 2001, rather than up to the entry of
the partial "final" judgment on count 3 in April 2000. As we
vacated the interest award on different grounds (viz., compounding
of interest), in Bogosian v. Woloohojian Realty Corp., 158 F.3d 1
(1st Cir. 2000), there was no final "judgment" within the meaning
of § 7-1.1-90.1. "[T]he term 'judgment' referred to in § 9-21-10
contemplates a final judgment, one that finally adjudicates the
rights of the parties, whether it is a judgment from which no
appeal is taken or a judgment that is affirmed by this court after
consideration and rejection of the appellant's contentions." Welsh
Mfg., Div. of Textron, Inc. v. Pinkerton's Inc., 494 A.2d 897, 898
(R.I. 1985). The attendant irony is reminiscent of the "old saw"
that the only thing worse than unanswered prayers are answered
ones.
-38-
specifically noted, at the time, that § 9-21-10 did not establish
the interest rate for § 7-1.1-90.1. See id. at 8. Even if we were
to construe our prior holding as the law of the case, intervening
changes in the substantive law are legitimate grounds upon which to
revisit the issue in subsequent proceedings. See JOM, Inc. v.
Adell Plastics, Inc., 193 F.3d 47, 52 (1st Cir. 1999).
Accordingly, we deny the cross appeal and affirm the buy-out price
as calculated by the district court under count 3.13
Affirmed. The parties shall bear their own costs. So
ordered.
13
As occurs all too frequently in cases of such magnitude and
animosity, appellants presented a plethora of arguments on appeal
so utterly lacking in merit as to warrant no mention. Accordingly,
all such arguments are categorically rejected.
-39-