D. Sufficiency of the Evidence

In a footnote, Scholz adds that he is appealing the verdict not only in terms of the denial of his motion for a new trial, as discussed above, but also that he appeals each of the jury's findings -- i.e. that Scholz breached the FMA, that Ahern did not breach the Agreement, and that Ahern was entitled to damages -- on the grounds of insufficiency of the evidence. Scholz relies on Engine Specialties, Inc. v. Bombadier Ltd. , 605 F.2d 1, 9 (1st Cir. 1979), cert. denied sub nom. Durham Distribs., Inc. v. Bombadier Ltd. , 449 U.S. 983 (1983), to claim that our review of his alternative argument is limited to asking whether there is sufficient support in the record for the jury's finding.

Engine Specialties outlines the standard of review as follows:

If we can reach but one conclusion after reviewing the evidence and all inferences drawn fairly therefrom in the light most favorable to the plaintiff (the prevailing party) and if that conclusion differs from the jury's, only then can the finding be set aside. Even if contrary evidence was presented and conflicting inferences could be drawn, it is for the jury to draw the ultimate conclusion, and such determination will not be disturbed unless the condition described above is met.

Id. ; see Fleet Nat'l Bank v. Anchor Media Television, Inc. , 45 F.3d 546, 552-53 (1st Cir. 1995) (outlining application of standard). We note that, in fact, this is the standard of review applicable to motions for judgment as a matter of law under Federal Rule of Civil Procedure 50. While it is a circumscribed review, it is nonetheless not as limited as our review of the district court's disposition of the motion for new trial. See Sánchez , 37 F.3d at 716-17 (comparing the two standards of review). We find nothing in the record to establish that appellant Scholz made a motion for judgment as a matter of law, so that he would be entitled to this less deferential standard of review. Rather, he argues sufficiency of the evidence in his motion for a new trial. Our review of the record, therefore, must be under the abuse of discretion standard outlined above. See MacQuarrie v. Howard Johnson Co. , 877 F.2d 126, 131 (1st Cir. 1989) (noting that the strict "abuse of discretion" standard "is especially appropriate if the motion for a new trial is based on a claim that the verdict is against the weight of the evidence"); Freeman , 865 F.2d at 1341-43 (evaluating the weight of the evidence as part of a motion for a new trial, separately from its review of the denial of the motion for judgment notwithstanding the verdict).

Irrespective of which standard of review we apply, however, Scholz' alternative argument fails. First, the evidence was overwhelming that he breached the FMA by failing to pay Ahern his share of the royalties from the third album; indeed, Scholz does not attempt to argue otherwise. Second, although the issue of the materiality of Ahern's breach is fairly close, as discussed above, there was sufficient evidence in the record for the jury to determine that Ahern did not materially breach the Further Modification Agreement. Finally, having made these two determinations, the award of damages was appropriate. Therefore, given the scope of the evidence as described, we find that the district court's denial of appellant's motion for a new trial was amply supported and not an abuse of discretion.

E. The Length of the Jury Deliberations

Scholz next contends that the jury failed to follow its instructions. [8]  

A party which has performed its obligations under a contract is entitled to have the other party do the same. Conversely, a party which has not performed its obligations under a contract is not entitled to performance from the other party. So once you understand the terms of the contract, you should determine whether any party has failed to perform any of the terms of the contract.

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If your determination should be that the defendant or defendant in counterclaim breached the contract and that the plaintiff or plaintiff in counterclaim did not, at that point you would consider the issue of damages.

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If you find that both parties breached their obligations under the Further Modification Agreement, then no damages should be accorded to either party under the contract.

(Day 15, pages 90-92). The district court instructed the jury that damages could only be awarded if it found one party breached the FMA and the other did not. If it found that both parties were in breach, no damages could be awarded. In making his contention, Scholz reiterates his argument that the evidence was insufficient, emphasizing that Ahern admitted he did not perform his obligations under the FMA, and maintaining that Ahern's accountant admitted that he both failed to pay at least $459,000 to Scholz and mischaracterized an advance from a foreign sub-publisher as a loan. Under the jury instructions, Scholz argues, these factors preclude the jury from finding that Scholz breached the FMA, or at least from awarding Ahern any royalties. These contentions have been dismissed in our discussion above.

However, Scholz raises a new factor: he argues that the jury's verdict and the extremely short period of deliberations -- one and a half hours [9] following fifteen days of testimony -- reveal that the jury ignored the court's instructions and rendered an erroneous and inconsistent verdict. He cites the fact that one of the jurors planned to go on a cruise two days after the date of the verdict as proof that the jury was in a hurry to finish its deliberations. The jury's questions, [10]  

Question No. 1, if neither breached, are damages awarded?

[Answer:] No.

[Question No. 2:] Verdict sheet uses the words, quote, "only if," unquote, in question three. I assume this precludes us from awarding damages or from awarding damage, one, if both breach.

[Answer:] If both breach, no damages. If neither breach, no damages.

[Question No. 3:] If one did, do we only take account from one side?

[Answer:] As I said, you would only consider the claim of the non-breaching party, but your judgment on that claim has to be based on all the evidence that has been introduced.

(Day 15, page 104). Scholz adds, demonstrates that it was determined to award Ahern $547,000 regardless of who was in breach. Between the insufficient evidence and the perfunctory deliberations, Scholz concludes, the district court had an affirmative duty to grant a new trial. He seeks support for his argument in Kearns v. Keystone Shipping Co. , 863 F.2d 177 (1988), where this Circuit held that a brief jury deliberation -- one hour and eighteen minutes, following a three-day trial -- coupled with a verdict contrary to the great weight of the evidence created a situation where the district court had an affirmative duty to set aside the verdict. Id. at 182.