|
Page 13 of 13
CONCLUSION
For the reasons stated above, we reverse the lower court's decision regarding Chapter 93A violations, affirm its other holdings except on rescission, and remand for trial on the issue of rescission.
--------------------------------------------------------------------------------
FOOTNOTES
[1]
Regarding substantial performance, the court's instructions to the jury stated that
[2] The FMA provides that it shall be "governed by and construed and enforced in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely in New York." "In the absence of a conflict of public policy, Massachusetts honors choice-of-law provisions in contracts, and, in this diversity case, so must we." Northeast Data Sys., Inc. v. McDonnell Douglass Computer Sys., Inc. , 986 F.2d 607, 610 (1st Cir. 1993) (citation omitted). As we find no public policy issue is implicated by this private dispute, we respect the parties' choice-of-law provision. See id.
[3] Scholz states that this is especially true here, where a transfer of copyrights are involved, and notes Ahern's admission that this imposed on him a heightened duty to account and pay royalties.
[4] That provision provided, in pertinent part,
[5] In fact, Scholz sent Ahern two "Artist Royalty Statements," the first dated from inception to June 30, 1990, the second from inception through December 31, 1993. We address the second here, as being more recent. It listed the following figures:
[6] We note, however, that our review of the record convinces us that the verdict is not against the clear weight of the evidence, and so the district court's ruling was not an abuse of its discretion.
[7] Scholz argues, in a footnote, that the jury's verdict violates the premise that a party cannot recover more than he would have obtained had no breach occurred. However, we need not address his contention. Scholz provides no more than a couple of citations to flesh out his position: he does not explain how the jury verdict places Ahern in a better position than he would have been if Scholz had not breached the FMA. It is by now axiomatic that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." United States v. Zannino , 895 F.2d 1, 17 (1st Cir.), cert. denied , 494 U.S. 1082 (1990).
[8] The jury was instructed, in pertinent part, that:
[9] For the purposes of this discussion, we accept Scholz' calculation of the time the jury spent deliberating its verdict.
[10] The jury's questions, and the court's answers, were as follows:
[11] Scholz also argues that, since Engel's testimony was "highly prejudicial" to Scholz, its improper admission is grounds for a new trial, citing Conway v. Chemical Leaman Tank Lines, Inc. , 687 F.2d 108 (5th Cir. 1982) (upholding district court's grant of motion for new trial on grounds of unfair surprise due to testimony from surprise expert witness). Since we find that the testimony was not in fact highly prejudicial to Scholz, this sparsely drawn alternative argument fails.
[12] We note in passing that we are skeptical both of Ahern's claim that Engel was not called as an expert and of Scholz' position that Engel was surprised at being questioned as an expert, in light of the following discussion, held immediately before Engel took the stand:
[13] Indeed, the evidence was so redundant that the court was prompted to exclaim that
[14] Section 2, which is also referred to in the current action, establishes that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce" are unlawful. Mass. Gen. L. ch. 93A, § 2.
[15] We note that, contrary to Scholz' position, were we to find that the district court did not lay out sufficient findings of fact, we would likely remand so that the lower court could make subsidiary findings of fact and enter a new judgment on the basis of its findings. See , e.g. , Sidney Binder, Inc. v. Jewelers Mut. Ins. Co. , 552 N.E.2d 568, 572 (Mass. App. Ct. 1990).
[16] Scholz argues at length in his breach that the facts do not support a finding that his acts were unfair or deceptive. We decline, however, to enter into the record yet again to point to testimony and evidence refuting his contentions.
[17] Ahern tries to argue that not only the Scholz Statement, but also Scholz' defense of this case, in which he raised numerous defenses and counterclaims, fulfill the requirement of finding a "wedge" used by Scholz to force Ahern to abandon his share of the royalties from the third album. However, the district court's findings do not discuss Scholz' conduct in defending this lawsuit, either by reference or as a basis for its conclusions. We refuse to move as far afield from the district court's findings in order to find extortionate conduct as Ahern requests. His reliance on the court's discussion of the defendant's litigation practices in Quaker State is misplaced, because there the defendant's prosecution of the counterclaims was raised in the complaint, and was addressed by the district court below. 884 F.2d at 1513-14.
[18] Both parties devote sections of their briefs to six "factors" related to Scholz' "rascality" which Scholz raises, and Ahern disputes. We note that, for the most part, they prove irrelevant because we focus here on Scholz' actions in breaching the FMA, not the nature of the relationship between the parties for the last twenty years.
<< Start < Prev 11 12 13 Next > End >>
|
Subscribe to this comment's feed
Show/Hide comment form
