Bogosian v. Woloohojian Realty Corp.

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).

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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

-23-
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.

-25-
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

-27-
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

-28-
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

-34-
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-