Ahern v. Scholz
Case Date: 06/04/1996
Court: United States Court of Appeals
Docket No: 1,ifneitherbreached,
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ Nos. 95-1146 95-1203 PAUL F. AHERN, D/B/A AHERN ASSOCIATES, Plaintiff - Appellee, v. DONALD THOMAS SCHOLZ, Defendant - Appellant. ____________________ Nos. 95-1147 95-1204 PAUL F. AHERN, D/B/A AHERN ASSOCIATES, Plaintiff - Appellant, v. DONALD THOMAS SCHOLZ, Defendant - Appellee. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Edward F. Harrington, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Bownes, Senior Circuit Judge, ____________________ and Stahl, Circuit Judge. _____________ _____________________ Donald S. Engel, with whom Mark D. Passin, Engel & Engel, ________________ ______________ _____________ Lawrence G. Green, Susan E. Stenger and Perkins, Smith & Cohen __________________ _________________ _______________________ were on brief for Donald Thomas Scholz. David C. Phillips, with whom David M. Given and Goldstein & __________________ ______________ ___________ Phillips were on brief for Paul F. Ahern. ________ ____________________ June 4, 1996 ____________________ -2- TORRUELLA, Chief Judge. The parties in this breach of TORRUELLA, Chief Judge. ___________ contract case, a successful musician and his former manager, dispute whether royalties from record albums have been accounted for and paid to each other. The appeal is from a final judgment by the district court after a jury trial, disposing of all claims in respect to all parties. BACKGROUND: A BAND OUT OF BOSTON BACKGROUND: A BAND OUT OF BOSTON In this case, the parties dispute many of the facts and the inferences to be drawn from them. Thus we start with a sketch of the basic facts, and address the individual issues in more detail below. Appellant and cross-appellee Donald Thomas Scholz ("Scholz") is a musician, composer, and record producer who was, and is, a member of the musical group BOSTON ("BOSTON"). In late 1975, Scholz entered into three agreements with appellee and cross-appellant Paul F. Ahern ("Ahern"), who was engaged in the business of promoting and managing music groups, and his then partner, Charles McKenzie ("McKenzie") (collectively, the "1975 Agreements"). First, Scholz made a recording agreement (the "Recording Agreement") with Ahern and McKenzie d/b/a P.C. Productions, to which Bradley Delp, the lead singer of BOSTON, was also a party. Second was a management agreement (the "Management Agreement"), also between Scholz and P.C. Productions, under which Ahern and McKenzie were appointed Scholz' exclusive personal managers worldwide. The third agreement was a songwriter agreement made between Scholz and -3- Ahern, under which Scholz was obligated to furnish Ahern his exclusive songwriting services for a period of five years. In early 1976, CBS Records ("CBS") and Ahern Associates, a business name of Ahern and McKenzie, entered into a recording agreement for the exclusive recording services of BOSTON. The group's first album (the "first album") was released in 1976, and sold approximately 11 million copies -- one of the highest-selling debut albums ever. Its second album (the "second album") was released in August 1978, and sold approximately 6 million copies. In 1978, Scholz and the other members of BOSTON entered into a modification agreement with Ahern and P.C. Productions, dated April 24, 1978. Among other things, the First Modification Agreement modified the 1975 Agreements and changed the financial relationship between Scholz and his managers. Ahern and McKenzie dissolved their partnership. A few years later, in May of 1981, Ahern and Scholz, individually and under various business names, entered into a further modification agreement (the "Further Modification Agreement" or "FMA"), which is at the heart of this dispute. Ahern ceased to be Scholz' manager. In 1982, with the third album not yet released, CBS cut off the payment of royalties generated from the first and second albums. In 1983, CBS brought suit against Scholz, Ahern, and the members of BOSTON for failure to timely deliver record albums. Scholz' counsel in that action was Donald S. Engel ("Engel"); Ahern had his own counsel. While that litigation was pending, -4- the third album was released by MCA Records ("MCA") in 1986 and sold well over 4 million copies. At the close of trial -- seven years after the CBS litigation began -- the jury found that Scholz was not in breach of contract. Scholz incurred legal fees of about $3.4 million dollars. In February 1991, Ahern commenced this action against Scholz for breach of the FMA claiming a failure to pay royalties due under the third album. Scholz asserted various affirmative defenses and counterclaims against Ahern, including breach of the FMA. During trial, Engel, Scholz' lead trial counsel, was twice called as a witness. At the close of the evidence, the court granted Scholz' directed verdict dismissing Ahern's Count III for fraud and IV for breach of implied covenant of good faith and fair dealing. The court also granted Ahern's motion for directed verdict dismissing Scholz' First, Second, and Third Counterclaims and his, Third, Fourth, and Fifth affirmative defenses. Only the parties' respective breach of contract claims went to the jury. The jury found that Scholz breached section 5.2.1 of the FMA to pay Ahern royalties from the third album, and found that Ahern had not breached the FMA to account for and pay Scholz royalties due from the first and second albums. It awarded Ahern $547,007 in damages. The trial court sitting without a jury also found Scholz had breached the FMA, and heard Ahern's Count II for declaratory relief and Count V for violation of Mass. Gen. L. ch. 93A and Scholz' Fifth Counterclaim for recision of contract for -5- failure to obtain a license. The court denied the declaratory relief Ahern sought in Count I, and awarded him costs, interest and attorney's fees pursuant to Count V for violation of Mass. Gen. L. ch. 93A 2 & 11. The court denied the relief sought by Scholz in his Fifth Counterclaim and held that he waived his Counts VI and VII at oral argument. After a hearing on Ahern's bill of costs and application for reasonable attorney's fees and interest, the court awarded Ahern $265,000 in attorney's fees and $135,000 in costs. The district court denied, without a hearing, Scholz' motion for a new trial, motion to amend the court's memorandum and order and judgment entered thereon, motion to admit new evidence, and motion to amend the court's memorandum and order and the judgment entered thereon regarding Scholz' Sixth Counterclaim. This appeal followed. MOTION FOR A NEW TRIAL MOTION FOR A NEW TRIAL Appellant first argues that the district court erred in denying his motion for a new trial, made pursuant to Fed. R. Civ. P. 59(a). We therefore review the record below to determine whether the evidence required that the district court grant the motion for a new trial. See Vda. de P rez v. Hospital del ___ ______________ _____________ Maestro, 910 F.2d 1004, 1006 (1st Cir. 1990). In reviewing the _______ record of the 16-day trial, we note that both parties presented extensive evidence. The jury heard testimony regarding a history that spans two decades, involves at least seven contracts, includes detailed numerical accounting, and references more than -6- half a dozen other legal battles. The parties called a total of fifteen witnesses, seven of whom, including Ahern, Scholz, and Engel, Scholz' counsel, testified twice. In short, the jury faced a complex and sometimes conflicting set of facts in making its decision as to whether either, neither, or both parties breached the 1981 Further Modification Agreement. Ultimately, we find that the jury's verdict was not against the clear weight of the evidence, and the district court did not abuse its discretion in so finding. A. Standard of Review A. Standard of Review __________________ "A verdict may be set aside and new trial ordered 'when the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a clear miscarriage of justice.'" Phav v. Trueblood, Inc., 915 F.2d 764, ____ _______________ 766 (1st Cir. 1990) (quoting Torres-Troche v. Municipality of _____________ _______________ Yauco, 873 F.2d 499 (1st Cir. 1989)); see Fed. R. Civ. P. 59(a); _____ ___ S nchez v. Puerto Rico Oil Co., 37 F.3d 712, 717 (1st Cir. 1994). _______ ___________________ In reaching its decision, "the district court has broad legal authority to determine whether or not a jury's verdict is against the 'clear weight of the evidence.'" Vda. de P rez, 910 F.2d at _____________ 1006. Nonetheless, "the trial judge's discretion, although great, must be exercised with due regard to the rights of both parties to have questions which are fairly open resolved finally by the jury at a single trial." Coffran v. Hitchcock Clinic, _______ __________________ Inc., 683 F.2d 5, 6 (1st Cir.), cert. denied, 459 U.S. 1087 ____ ____________ (1982); see Kearns v. Keystone Shipping Co., 863 F.2d 177, 178-79 ___ ______ _____________________ -7- (1st Cir. 1988). Thus, the district court judge "cannot displace a jury's verdict merely because he disagrees with it or would have found otherwise in a bench trial." Milone, 847 F.2d at 37; ______ see Coffran, 683 F.2d at 6. "The mere fact that a contrary ___ _______ verdict may have been equally -- or even more easily -- supportable furnishes no cognizable ground for granting a new trial." Freeman v. Package Mach. Co., 865 F.2d 1331, 1333-34 _______ __________________ (1st Cir. 1988). Our review is circumscribed: we will disturb the district court's ruling on appellant's motion for a new trial only where there has been a clear abuse of discretion. See Simon ___ _____ v. Navon, 71 F.3d 9, 13 (1st Cir. 1995); Newell Puerto Rico, Ltd. _____ ________________________ v. Rubbermaid Inc., 20 F.3d 15, 22 (1st Cir. 1994). _______________ In order to determine whether such an abuse occurred here, we must review the record below. We do this not in the role of "a thirteenth juror," assessing the credibility of witnesses and weighing testimony, but rather to isolate the factual basis for the trial court's ruling and provide the foundation for our action today. Kearns, 863 F.2d at 179. "So long as a reasonable basis exists ______ for the jury's verdict, we will not disturb the district court's ruling on appeal." Newell Puerto Rico, Ltd., 20 F.3d at 22. ________________________ With our standard of review established, we turn to Scholz' argument and the record below. We address each of the two breach of contract claims the jury decided in turn. B. Did Ahern Breach the FMA? B. Did Ahern Breach the FMA? _________________________ -8- Scholz argues that Ahern breached his obligations under the 1981 FMA to both account for and pay to Scholz, every six months, his share of the royalties from the compositions on the first and second albums: indeed, Ahern admitted at trial that he had failed to make some payments he owed Scholz under the FMA. The jury and the trial court disagreed with Scholz, however, and found that Ahern's breach of the FMA was not material.1 The question facing us, then, is whether the district court abused its discretion in finding that the jury's decision was not against the weight of the evidence. After careful review of the record, we find no abuse of discretion in the lower court's decision not to disturb the jury's finding. Scholz argues at some length on appeal that Ahern's breach was by definition material, both for his failure to account and his failure to pay. As for the first contention, we note that while Scholz' reading of the FMA as requiring that Ahern render Scholz direct accountings every six months is a convincing one, it is not the only plausible one. Indeed, Ahern ____________________ 1 Regarding substantial performance, the court's instructions to the jury stated that The term "performance" contains within it substantial performance. Namely, if a person has substantially performed, that, in the eyes of the law, is full performance of one's obligations. So when I've used the term "performance" or "breach of the obligations," just include within those concepts the question of what is the definition of the term "substantial performance" or "substantial breach." -9- contends that the FMA only required him to send irrevocable letters of direction to various entities involved directing them to send Scholz his share of the royalties when collected. In the end, it would not be against the clear weight of the evidence to find that letters of directions would satisfy Ahern's accounting obligations under the FMA, and that such letters were sent. Therefore, Ahern's failure to account every six months was not a material breach. As for the second contention, Scholz supports his position that Ahern's failure to pay constitutes a separate, material breach by drawing on both New York2 and Massachusetts case law. He points to the Second Circuit's refusal to overturn summary judgment in ARP Films, Inc. v. Marvel Entertainment _________________ _____________________ Group, Inc., 952 F.2d 643, 649 (2d Cir. 1991). In that case, ____________ where plaintiffs failed to account and pay royalties in excess of $400,000, the court stated that the district court correctly concluded that the breach by plaintiffs in failing to make the payments and provide the reports required . . . was material as a matter of law, thus authorizing Marvel to terminate the contract. [The parties' agreement] explicitly ____________________ 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. ___ ___ -10- singled out plaintiffs' obligation to provide "prompt accounting" for distributions as a term and condition of the agreement, the substantial breach of which authorized Marvel to terminate the license provided by the agreement. In addition, failure to tender payment is generally deemed a material breach of contract. Finally, as the district court found, and the subsequent accounting confirmed, the amounts withheld from Marvel by plaintiffs were very substantial. Id. (citations omitted). Scholz also points to a New York case ___ holding that a licensee's failure to pay franchise fees totalling $40,129 over four months constituted a breach of contract, McDonald's Corp. v. Robert Makin, Inc., 653 F. Supp. 401, 402-04 _________________ __________________ (W.D.N.Y. 1986), as well as Massachusetts language indicating that "[a] material breach of an agreement occurs when there is a breach of 'an essential and inducing feature of the contract.'" Lease-it, Inc. v. Massachusetts Port Auth., 600 N.E.2d 599, 602 ______________ _________________________ (Mass. App. Ct. 1992) (holding that six-month refusal to pay concession and rental fees was a material breach) (quoting Bulcholz v. Green Bros. Co., 172 N.E. 101 (Mass. 1930)). Scholz ________ _______________ argues that Ahern's breach, spanning thirteen years, is more egregious than these cases of a six-month failure to pay concession and rental fees, four-month failure to pay license and lease fees, and seven-month failure to pay (and five-month failure to account).3 Therefore, Scholz concludes, Ahern's ____________________ 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 -11- failure to pay Scholz at least $459,000 is clearly a substantial breach. We are not convinced. We remind appellant that under our standard of review, we do not sit as a juror, evaluating credibility and weighing evidence, as he seems to ask us to do. Rather, we simply weigh whether the district court committed a clear abuse of its discretion in determining that the jury verdict was not against the clear weight of the evidence. Newell ______ Puerto Rico, 20 F.3d at 22; Kearns, 863 F.2d at 179. Our review ___________ ______ of the record reveals that Ahern's counsel presented testimony questioning, to varying degrees, nine of the thirteen items of the estimate Scholz' accounting expert made of how much Ahern owed Scholz. Phillip Ames ("Ames"), a certified public accountant who served as business manager for both Ahern and BOSTON from 1976 through sometime in 1981 or 1982, made several estimates of how much Ahern owed Scholz, which he labelled "ball park figures." While we note that Ames' final estimate was $277,000, for a total of $459,000 with interest, we cannot assume that the jury accepted this figure as gospel. Given that Ahern sought over a million dollars in principal and interest from Scholz, the jury may reasonably have found that the Ames figure was not a substantial breach in the particular context of this case. It may have determined that the amount of money Ahern owed, taken in the perspective of the contract, Ahern's obligations, and the total amounts of money concerned, was not so ____________________ royalties. -12- significant a breach as to violate "an essential and inducing feature of the contract." Lease-it, 600 N.E.2d at 602. Finally, ________ addressing the case law Scholz relies on for support, we note that here, unlike in those cases, the amount of money owed was in question. Ultimately, examining the record in full, the evidence clearly provides the jury and trial court with a basis for finding that Ahern did not substantially breach the FMA. As this Circuit stated on another occasion, We can understand how a jury might have decided for [defendant] on the basis of this evidence. But the jury did not do this; it decided for [plaintiff]. We do not see how one could say that the jury clearly made a mistake. We do not see how one could say that the evidence overwhelmingly favored the [defendant]. Rather, the evidence simply was mixed and contradictory. Vda. de P rez, 910 F.2d at 1008. Therefore we cannot say that ______________ the district court committed a clear breach of its discretion on this point. C. Did Scholz Breach the FMA? C. Did Scholz Breach the FMA? __________________________ Ahern claimed below that Scholz breached his obligation under section 5.2.1 of the FMA to pay Ahern his share of the royalties due from the third album.4 The evidence presented at ____________________ 4 That provision provided, in pertinent part, With respect to the future commercial release of any albums embodying the musical performance of the group "Boston" . . . , Ahern -13- trial centered on a document entitled "Artist Royalty Statement" ("the Scholz Statement"), which Scholz presented to Ahern.5 ____________________ shall be entitled to receive eighteen percent (18%) of gross royalties after deduction and payment of only (i) a producer's royalty to Scholz (computed according to the terms and provisions of the agreement between CBS and Ahern Associates, as amended, at a basic rate of six percent (6%) of the wholesale royalty base price) and (ii) all commercially reasonable recording expenses, including Tom Scholz' recording services (i.e. commercially reasonable engineering and other recording services), or recording expenses incurred by CBS or such other company and deducted from royalties payable . . . . Because McKenzie was entitled to a percentage of the royalties, Ahern's actual rate was 12 percent. 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: Total Gross Royalties Reported by MCA Records $6,604,048.14 Gross Royalties - Audit Settlement 170,000.00 Less Producer Share (2,257,862.05) ______________ Gross Artist Royalties 4,516,186.09 less MCA Costs Deducted 508.566.22 less MCA Costs - Audit Settlement (210,000.00) less Artist Costs (Schedule 1) 4,360,447.00 ____________ Net Artist Royalties (142,827.13) Of this final "Net Artist Royalties" figure, Ahern's percentage share was 12 percent, so that his share of the royalties was minus $17,139.26. "Artist Costs" included charges for 11,971 hours of studio time in Scholz' studio at $125 an hour; engineering and equipment for the studio, at a total of $60 an hour; and $1.7 million in legal fees to Engel's law firm for the CBS litigation and negotiation of the agreement with MCA. -14- That statement listed over $6 million in gross royalties reported by MCA prior to December 31, 1993, but reduced that figure by deducting, among other things, a producer share and artist costs, so that the net artist royalties fell to below zero -- and Ahern was not entitled to any money. Scholz argued at trial that he did not breach the FMA, but the jury and the trial court disagreed. On appeal, Scholz contends that their finding is against the weight of the evidence, because Ahern's prior material breaches excused Scholz' performance under the Further Modification Agreement. Scholz points out that paragraph 2 of the FMA states that Scholz wishes to guarantee that Ahern shall receive at a minimum certain amounts of monies in connection with future recordings embodying the performances of the group "BOSTON" . . . . in exchange for the agreement of Ahern as set forth herein. Scholz shapes his argument on appeal as follows: Since Ahern's only agreement of substance was his agreement to account for and pay royalties to Scholz for prior BOSTON albums, Ahern's breach of his commitment excused Scholz' performance. Indeed, Scholz notes, the parties' mutual commitments to account to and pay each other are expressly stated to be in consideration of each other. In such "bilateral contracts for an agreed exchange of performances, even though the promises are in form absolute, the law regards them as constructively conditioned in order to avoid an unjust result." Industrial Mercantile Fac. Co. v. Daisy ________________________________ _____ -15- Sportswear, 288 N.Y.S.2d 209, 211 (N.Y. Civ. Ct. 1967), order __________ _____ aff'd, 289 N.Y.S.2d 332 (N.Y. Sup. Ct. 1968); see Restatement _____ ___ (Second) of Contracts, 237 cmt. a (1979). Moreover, Scholz continues, the non-occurrence of a condition of a party's duty excuses the non-breaching party's obligation to perform even though that party does not know of its non-occurrence, id., 237 ___ cmt. c, and the intention or scienter of a breaching party are not considered in the elements of breach of contract. See Agron ___ _____ v. The Trustees of Columbia Univ., 1993 WL 118495 (S.D.N.Y., ________________________________ April 12, 1993). Considering this, Scholz points out that his first royalty statement regarding the third album was rendered by MCA on April 1, 1987. Thus the earliest he could have owed money to Ahern under the FMA was August 15, 1987 -- and by that date, he argues, Ahern had already failed to account to Scholz or pay him royalties with respect to the first two albums for over five years. Therefore, Scholz maintains he was excused, at least until Ahern tendered payment, from rendering an accounting or paying royalties to Ahern from the third album. At the very least, Scholz argues, he could have withheld payment of the $459,000 admittedly owed him as a set-off against any amount he owed Ahern. See Record Club of America v. United Artists ___ _________________________ _______________ Records, Inc., 80 B.R. 271, 276 (S.D.N.Y. 1987), vacated on other _____________ ________________ grounds, 890 F.2d 1264 (1989). _______ In so arguing, Scholz does not contend that he did not in fact breach the FMA: he simply maintains that Ahern did so -16- first. Since Scholz does not revisit the merits of the evidence presented at trial regarding his breach, we will not do so here.6 However, since we have already found that the verdict that Ahern did not substantially breach the FMA was not against the clear weight of the evidence, Scholz' argument here must fail. Clearly, it would be inconsistent with our acceptance of the verdict that Ahern did not substantially breach the FMA to find that Scholz' performance was excused by Ahern's material breach. Accordingly, we affirm the district court's decision to refuse the motion for a new trial on this issue.7 D. Sufficiency of the Evidence 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. ____________________ 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). ______ -17- 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 ___ S nchez, 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, -18- 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 E. The Length of the Jury Deliberations ____________________________________ -19- Scholz next contends that the jury failed to follow its instructions.8 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, ____________________ 8 The jury was instructed, in pertinent part, that: 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. *** 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. *** 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). -20- 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 hours9 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 Scholz adds, demonstrates that it was determined to award Ahern $547,000 regardless of who was in breach. Between ____________________ 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: 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). -21- 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. ___ We remain unswayed. Scholz' reliance on Kearns is ______ misplaced. There, the court explicitly required that the brief deliberation be paired with a verdict contrary to the weight of the evidence, noting that "'[i]f the evidence is sufficient to support the verdict, the length of time the jury deliberates is immaterial.'" Kearns, 863 F.2d at 182 (quoting Marx v. Hartford ______ ____ ________ Accident and Indemnity Co., 321 F.2d 70, 71 (5th Cir. 1963)). We __________________________ have already determined that, here, there was evidence sufficient to support the verdict. Therefore, Scholz is merely left with a complaint that the jury should have deliberated longer. His complaint is easily defeated, as "no rule requires a jury to deliberate for any set length of time." United States v. _____________ Pe agar cano-Soler, 911 F.2d 833, 846 n.15 (1st Cir. 1990); see __________________ ___ United States v. Brotherton, 427 F.2d 1286, 1289 (8th Cir. 1970). _____________ __________ Indeed, we have previously upheld a verdict on thirty-two counts which was reached in four hours, following a trial that lasted five weeks, incorporating more than fifty witnesses and hundreds -22- of exhibits. Pe agar cano-Soler, 911 F.2d at 846; see also __________________ ________ United States v. Anderson, 561 F.2d 1301, 1303 (9th Cir.) ______________ ________ (holding that jury's brief deliberation does not indicate it did not give full and impartial consideration to the evidence), cert. _____ denied, 434 U.S. 943 (1977); Brotherton, 427 F.2d at 1289 ______ __________ (finding that jury deliberation of five to seven minutes did not demonstrate that jury did not consider court's instructions before reaching verdict). We also refuse to read a determination to award Ahern a set amount of money from the jury's questions, which simply clarified where it could award damages, and whose evidence it should consider. Cf. Clark v. Moran, 942 F.2d 24, 32 (1st Cir. ___ _____ _____ 1991) (refusing to impute reasonable doubt of guilt or of witnesses' credibility from fact that jury deliberation was lengthy or from questions asked). Finally, we note that the jury's task was relatively simple. Although it heard complex testimony and was asked to weigh detailed evidence, the district court had already dismissed as a matter of law all the claims except for the respective contract claims, and the sums at issue had been clearly defined in the evidence and closing arguments. ENGEL'S TESTIMONY AT TRIAL ENGEL'S TESTIMONY AT TRIAL As noted above, Engel, Scholz' lead counsel, was called by both parties as a witness. Maintaining that Ahern called Engel as an expert witness, instead of a percipient witness, Scholz now argues that the district court committed prejudicial error by, first, permitting Ahern to do so, and second, by -23- refusing to allow follow-up questioning by Engel's co-counsel, Passin.11 Our examination of each of Scholz' contentions follows the same legal framework. In each analysis, two questions face us: first, whether the district court erred in admitting or refusing the testimony or motion; and second, whether that error was harmful. See Doty v. Sewall, 908 F.2d 1053, 1057 (1st Cir. ___ ____ ______ 1990). Only if we answer both questions in the positive will Scholz' argument on appeal prevail. A trial court's error in an evidentiary ruling only rises to the level of harmful error if a party's substantial right is affected. See 28 U.S.C. 2111; Fed. R. Evid. 103(a); ___ Lubanski v. Coleco Indus., Inc., 929 F.2d 42, 46 (1st Cir. 1991). ________ ___________________ "In determining whether an error affected a party's substantial right, '[t]he central question is whether this court can say with fair assurance . . . that the judgment was not substantially swayed by the error.'" Espeaignnette v. Gene Tierney Co., 43 _____________ _________________ F.3d 1, 9 (1st Cir. 1994) (quoting Lubanski, 929 F.2d at 46 ________ (internal quotations omitted)). Factors we must consider in determining whether substantial rights are implicated include both the centrality of the evidence and the prejudicial effect of ____________________ 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. -24- its exclusion or inclusion. Lubanski, 929 F.2d at 46. We weigh ________ these factors in "'the context of the case as gleaned from the record as a whole.'" Id. (quoting Vincent v. Louis Marx & Co., ___ _______ ________________ 874 F.2d 36, 41 (1st Cir. 1989)). We have repeatedly noted that "no substantial right of the party is affected where the evidence omitted was cumulative as to other admitted evidence." Doty, 908 ____ F.2d at 1057. Should a reviewing court be in "grave doubt" as to the likely effect an error had on the verdict, the error must be treated as if it had in fact affected the verdict. O'Neal v. ______ McAninch, -- U.S. --, 115 S. Ct. 992, 994 (1995) (noting that "by ________ 'grave doubt' we mean that, in the judge's mind, the matter is so evenly balanced as he feels himself in virtual equipoise as to the harmlessness of the error."). We note that under Federal Rule of Evidence 103(a), we review the decision not only to determine whether a substantial right of the party is affected, but also to see whether a timely objection "appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context." Fed. R. Evid. 103(2); see Bonilla v. Yamaha Motors ___ _______ ______________ Corp., 955 F.2d 150, 153 (1st Cir. 1992). Here, Scholz' counsel ____ objected at the time of the challenged rulings. Therefore, this element of our analysis is not at issue. Having established the legal framework, we examine each of Scholz' contentions in turn. A. The Contested Testimony A. The Contested Testimony _______________________ -25- Phillips, Ahern's counsel, put Engel on the stand on the seventh day of trial. The objected-to portion of his questioning sought testimony regarding the Scholz Statement, which purported to account to Ahern for the royalties from the third album. In the Statement, Scholz deducted $1.7 million for legal fees charged by Engel's law firm, which the Statement listed as equivalent to half of the fees charged in relation to the negotiation of the agreement with MCA and the CBS litigation. The immediate issue at trial was whether this deduction was permissible as a "commercially reasonable recording expense" deductible from the royalties under section 5.2.1 of the FMA. Because the record is determinative of this issue, we quote it at length: |