Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2101
JEFFREY KILTY, ET AL.,
Plaintiffs, Appellants,
v.
WORTH DEVELOPMENT CORPORATION, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Selya, Lynch and Howard,
Circuit Judges.
Richard N. Foley on brief for appellants.
William G. Scott and Boynton, Waldron, Doleac, Woodman &
Scott, P.A., on brief for appellees City of Portsmouth, Attorney
Robert Sullivan, Bradley Russ, and Chief Michael Magnant.
Paul McEachern and Shaines & McEachern, P.A., on brief for
appellees, Worth Development Corporation, Stuart Shaines and Robert
Shaines.
June 13, 2006
Per Curiam. This case arises from the nonrenewal of a
commercial lease between the tenant-plaintiffs, K & N Hospitality
Group and its principals (collectively, "K & N"), and the landlord-
defendants, Worth Development Corp. and its principals
(collectively, "the Worth Defendants") for premises in Portsmouth,
New Hampshire, where K & N had been operating a nightclub catering
to African-American clientele. K & N claimed that the refusal to
renew or modify its lease was based on racial animus on the part of
the Worth Defendants and various officials of the City of
Portsmouth (collectively, "the Municipal Defendants"), who, K & N
claimed, denied various permits and pressured the Worth Defendants
not to modify or renew the lease.
The Worth Defendants have moved for summary affirmance on
the one appellate issue involving them--whether the district court
erred in dismissing K & N's breach of contract claim against them
based on the statute of frauds. For the reasons discussed below,
we grant that motion. In addition, for reasons also discussed
below, we summarily affirm, sua sponte, the remaining district
court rulings challenged by K & N on appeal, namely, (1) the
dismissal of K & N's claim of tortious interference with
contractual relations and (2) the exclusion of evidence of K & N's
future lost profits.
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A. Dismissal of Breach of Contract Claim Based on
Statute of Frauds
The district court dismissed K & N's claim that the Worth
Defendants had breached a five-year lease (Count VI) as barred by
the New Hampshire statute of frauds, N.H. Rev. Stat. Ann. § 506:1.
As the district court recognized, under that statute, to be
enforceable, a lease for a term of years must be in writing and
signed by the prospective defendant. Id. at 4 (citing Byblos Corp.
v. Salem Farm Realty Trust, 692 A.2d 514, 517 (N.H. 1997)).
K & N does not dispute that general principle or the
absence of a signed five-year lease. However, it attempts to avoid
strict enforcement of the statute of frauds by alluding to the
Worth Defendants' "unclean hands" in their interactions with K & N
and the Municipal Defendants. That conclusory allegation, without
further development, does not rise to the level of a cognizable
appellate argument, United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990), much less bring this case within the narrow exception
to the statute of frauds cited in Halstead v. Murray, 547 A.2d 202
(N.H. 1988), on which K & N relies. See Weale v. Mass. Gen. Hous.
Corp., 374 A.2d 925, 928 (N.H. 1977) (stating that "mere refusal to
carry out an oral promise to convey land standing by itself is not
fraud or ground for relief" from statute of frauds); see also
Martin v. Applied Cellular Tech., Inc., 284 F.3d 1, 9 (1st Cir.
2002) (declining to extend the fraud exception to cover "any sort
of contractual unfairness"). Moreover, to the extent that, by
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"unclean hands," K & N is referring to its allegations that the
Worth Defendants acted in bad faith or engaged in fraud or
misrepresentation, summary judgment was entered against K & N on
those very claims. Hence, K & G cannot rely on those allegations
to circumvent the bar imposed by the statute of frauds.
B. Judgment as a Matter of Law on Claim of Tortious
Interference with Advantageous Contractual Relations
At the close of evidence, the district court granted the
Municipal Defendants' motion for judgment as a matter of law on K
& N's claim of tortious interference with advantageous contractual
relations (Count III) on the grounds that there was insufficient
evidence to submit that claim to the jury and that, in any event,
it was duplicative of K & N's claims under 42 U.S.C. §§ 1981 and
1982. On appeal, K & N attempts to distinguish its tortious
interference claim from its statutory civil rights claims by saying
that only the latter claims allege that the interference with
contractual relations was motivated by racial animus; the former
claim alleges only interference per se. The problem with that
argument is that, without a claim of racial animus or some other
unlawful motive or means of interference, there is no valid claim
of tortious interference with contractual relations. Mere
interference, in itself, is legally insufficient to state a claim.
Rather, "[o]nly improper interference is deemed tortious in New
Hampshire." Roberts v. Gen. Motors Corp., 643 A.2d 956, 961 (N.H.
1994). Here, the only interference K & N relies upon consists of
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statements by the Municipal Defendants to the Worth Defendants
that, because of public safety problems at the existing social
club, they did not want the lease to be modified to permit the
operation of a restaurant, which would be eligible for a liquor
license, on the premises. We see nothing "improper" about such
communications. Therefore, the district court correctly concluded
that K & N's tortious interference claim was duplicative of its
statutory civil rights claims.
C. Exclusion of Evidence of Future Lost Profits
The district court excluded evidence of K & N's future
lost profits on the ground that "New Hampshire law places the
burden on the plaintiff to reduce future lost profits to net
present value and that expert testimony is necessary to do so."1
We need not decide whether the district court misstated New
Hampshire law, as K & N argues, or otherwise abused its discretion
in excluding this evidence, United States v. Guerrier, 428 F.3d 76,
79 & n.1 (1st Cir. 2005) (stating the applicable standard of
review), cert. denied, 126 S. Ct. 1640 (2006), because any such
error or abuse was harmless. Because the jury found the Municipal
Defendants not liable on all counts, it never reached the issue of
damages, future or otherwise. Therefore, its judgment could not
have been "substantially swayed" by the absence of evidence of
1
The district court properly looked to New Hampshire law on
this issue. See Cummings v. Standard Register Co., 265 F.3d 56, 67
(1st Cir. 2001).
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future lost profits, and so any error in excluding that evidence
was harmless. Tiller v. Baghdady, 244 F.3d 9, 15 (1st Cir. 2001).
Accordingly, the district court's judgment is affirmed in
all respects. See 1st Cir. R. 27(c).
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