Denault, et al v. Ahern, et al

Filing

OPINION issued by William J. Kayatta, Jr., Appellate Judge; David H. Souter, Associate Supreme Court Justice and Bruce M. Selya, Appellate Judge. Published. [15-2423, 15-2438]

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Date Filed: 05/16/2017

Entry ID: 6092357

United States Court of Appeals
For the First Circuit
Nos. 15-2423, 15-2438
TIMOTHY A. DENAULT; JENNIFER TESTA,
Plaintiffs, Appellants/Cross-Appellees,
v.
TODD AHERN, individually and in his official capacity;
CRAIG WALSH, individually and in his official capacity;
TOWN OF CHELMSFORD, Commonwealth of Massachusetts,
Defendants/Third Party Plaintiffs, Appellees/Cross-Appellants,
OTHER POLICE OFFICERS PRESENTLY UNKNOWN,
Defendants,
v.
CHRISTOPHER'S EMERGENCY EQUIPMENT AND TOWING, INC., f/d/b/a
Christopher's Towing Service,
Third Party Defendant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

Before
Kayatta, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.

*

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

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Andrew M. Fischer, with whom Law Offices of Jeffrey S.
Glassman LLC was on brief, for appellants/cross-appellees.
Jeremy Silverfine, with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten, LLP were on brief, for appellees/crossappellants.

May 16, 2017

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KAYATTA,

Circuit

Page: 3

Judge.

Date Filed: 05/16/2017

Chelmsford,

Entry ID: 6092357

Massachusetts

police officers seized Timothy Denault's car to search it for
evidence, to no avail.

Denault nevertheless ended up losing the

car, and his ex-girlfriend's possessions in the car, because
accumulated towing and storage fees owed to the city's towing
vendor exceeded the value of the seized property.

Denault and his

ex-girlfriend, Jennifer Testa, sued, blaming the loss on the police
officers' failure to return the car promptly upon completing the
search.

A series of rulings before and after trial eliminated all

federal and state civil rights claims, including the potential for
shifting attorneys' fees in favor of the prevailing party.

Left

standing at the end was a judgment on a common law conversion claim
against one officer, Todd Ahern, in favor of Denault and Testa in
the amounts of $2200 and $25, respectively.

Denault and Testa

appeal in an effort to revive a civil rights claim that might serve
as a basis for an award of attorneys' fees.

Ahern, in turn, asks

us to reverse or vacate the judgment against him on the common law
conversion claim.

For the following reasons, and on an admittedly

confusing record, we leave matters as they now stand.
I.
With the plaintiffs arguing that the district court
erred in dismissing some claims as a matter of law, and with the
defendants arguing that the district court should have dismissed
all claims, we review the evidence presented at trial and the
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inferences supported by that evidence in the light most favorable
to the plaintiffs.

See White v. N.H. Dep't of Corr., 221 F.3d

254, 259 (1st Cir. 2000).

This means, among other things, that

where the testimony at trial was conflicting, we must assume that
the

jurors

believed

the

plaintiffs'

version

unless

it

was

unreasonable to do so.
A.
On October 21, 2013, officers of the Chelmsford Police
Department ("CPD") located a 2000 Nissan Maxima parked in the
driveway of a Lowell, Massachusetts home.

The car belonged to

Denault, the suspect in a crime they were investigating.

The home

belonged to Testa, Denault's ex-girlfriend and the mother of his
three children.
The

officers,

including

encountered Testa at her home.

Ahern

and

Craig

Walsh,

They tried to question her about

Denault, who was then in custody.

During the exchange, Testa

confirmed that she had possession of Denault's car, the Nissan
Maxima.

The officers told Testa that they needed to take the car

and asked her for the keys.

Testa responded that she was running

late for a meeting and did not have time to find the keys.
After Testa drove away in a different car, the officers
had Denault's car towed to the stationhouse by Christopher's
Towing.
it.

They impounded the car and secured a warrant to search

Two days after seizing the car, they executed the warrant
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with assistance from state forensic scientists.

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The forensic

scientists examined the car for evidence and inventoried its
contents, which included one booster seat.

A few days later, when

the officers determined that the car did not contain evidence
pertinent

to

their

Christopher's Towing.

investigation,

they

released

it

to

CPD officers had no contact with Denault,

the registered owner of the car, about either the seizure or the
release.

When CPD released the car to Christopher's Towing, CPD

officers did not supply, and Christopher's Towing did not request,
contact information for Denault, who had been in custody since
before the car was towed.

Accordingly, Christopher's Towing sent

no notice to Denault at the time, and Denault was unaware that CPD
had released his car to Christopher's Towing.
Starting on the date the car was towed, and repeatedly
thereafter, Testa tried to recover the car and her belongings
inside it.

She was especially keen to retrieve two children's

booster seats she claimed she had left in the rear of the car.1
According to Testa, the CPD officers with whom she spoke refused
to discuss returning the car or its contents unless Testa agreed
to be questioned in connection with the criminal investigation
into Denault. Because Testa "didn't have anything that [she] could
tell [the officers] about what happened to [Denault]," she never

1

The number of booster seats is an issue that the parties no
longer contest as material.
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went to the stationhouse and eventually stopped calling CPD.

When

Testa was subpoenaed in connection with the criminal investigation
several weeks later in November 2013, she reminded the CPD officers
that she still needed her belongings.

The officers responded that

they had not returned her property because she had declined to
speak with them about Denault. The officers never returned Testa's
property, and--according to Testa--they never informed her that
they had released the car to Christopher's Towing.
Testa learned that Christopher's Towing had possession
of the car over three months later, when Denault's mother showed
her a Notice of Abandoned Vehicle sent to Denault's last known
address.

The notice, dated February 24, 2014, indicated a lien on

the car in the amount of $4797.82 for towing fees, storage costs,
and

processing

services.

Testa

incarcerated, about the notice.

told

Denault,

who

remained

Neither Testa nor Denault was

able to afford the sum listed on the notice.

Accordingly, neither

paid it.
Instead, on September 23, 2014, Denault and Testa filed
this action against the Town of Chelmsford as well as Walsh and
Ahern in their individual and official capacities.

The operative

complaint seeks recovery under 42 U.S.C. § 1983 for violations of
the Fourth, Fifth, and Fourteenth Amendments to the United States
Constitution (count I) as well as the Massachusetts Civil Rights
Act, Mass. Gen. Laws ch. 12, § 11I (count II).
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It further alleges

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a common law claim that the defendants converted the plaintiffs'
property
liability

(count

III).

(count

VI)

The

complaint

with

respect

also

to

asserts

the

municipal

alleged

federal

constitutional violations as well as conspiracy (count IV) and
aiding and abetting (count V).

The complaint seeks compensatory

and punitive damages and attorneys' fees.
B.
After the district court denied the defendants' motion
to dismiss the complaint, the defendants answered and filed a
third-party complaint against Christopher's Towing.

The district

court ordered the original parties to proceed to trial in June
2015 and scheduled the third-party trial to follow in January 2016.
In advance of the first trial, the defendants moved for summary
judgment
judgment.

and

the

plaintiffs

cross-moved

for

partial

summary

The district court denied the plaintiffs' motion and

granted the defendants' motion in part, dismissing claims related
to the initial seizure of the car because the seizure "was lawful
under the automobile exception to the Fourth Amendment, or if not,
the officers enjoy qualified immunity."

During the ensuing trial,

the district court granted a motion for directed verdict dismissing
all claims against Walsh and the Town of Chelmsford, leaving Ahern
as the only defendant.

The district court also granted a second

motion for directed verdict as to all "substantive and due process
claims."

The jury ultimately returned a verdict sheet stating
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only that "[w]e find for" the plaintiffs, in the amounts of $2200
and $25.
The plaintiffs promptly moved for entry of judgment on
the verdict.

The district court granted that motion, entering

judgment for the plaintiffs on counts I and III of the operative
complaint, i.e., a federal constitutional claim and a state law
conversion claim for each plaintiff.

The plaintiffs then moved

for attorneys' fees under 42 U.S.C. § 1988(b) based on their having
prevailed on a federal constitutional claim actionable under 42
U.S.C. § 1983.

The defendants opposed that motion and filed a

motion for judgment notwithstanding the verdict, or to alter and
amend the judgment, or for a new trial.
The district court denied the defendants' tripartite
motion "save that the judgment shall be amended to reflect that
the jury verdict entered solely on the conversion count," which
was count III of the operative complaint.

Having thus excised

count I (the federal claims), the court denied the plaintiffs'
motion

for

attorneys'

fees

because

the

remaining

common

law

conversion claim furnished no basis for an award of fees under 42
U.S.C. § 1988(b).

The district court also entered a separate

judgment on the adjudicated claims under Federal Rule of Civil
Procedure 54(b) to facilitate an immediate appeal without waiting
for trial of the third-party claims.

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These timely appeals followed.

Entry ID: 6092357

During their pendency,

a stipulation of dismissal resolved the third-party complaint
against Christopher's Towing.
II.
A.
We begin by defining the scope of the plaintiffs' appeal.
A notice of appeal need "designate the judgment, order, or part
thereof being appealed."

Fed. R. App. P. 3(c)(1)(B).

In a civil

case resulting in a final judgment, there are two ways to make
this designation.

One is to list in the notice each "judgment,

order or part thereof" of which review is sought.

This approach,

although in strict compliance with the rule, is perilous.

When

later preparing the brief and reviewing the record, including
transcripts that may not have been available when the notice of
appeal was due, counsel may perceive a need or opportunity to raise
a challenge that was not apparent at the time of appeal.

But if

we should find it clear that the object of that challenge was not
presciently included in the itemized list of rulings appealed, we
will have no jurisdiction to consider the challenge.

Santos-

Santos v. Torres-Centeno, 842 F.3d 163, 169 (1st Cir. 2016).
The safer course is to take advantage of the fact that
all interlocutory rulings in a case "merge in the judgment."
John's Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d
101, 105 (1st Cir. 1998).

Therefore, "it has been uniformly held
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that

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a

notice

encompasses

of

not

appeal

only

interlocutory orders."
The

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that

that

Date Filed: 05/16/2017

designates

judgment,

the

but

final

also

Entry ID: 6092357

judgment

all

earlier

Id.

plaintiffs

opted

for

the

riskier

itemized

designation, from which they omitted any challenge to the district
court's summary judgment on their claims challenging the initial
seizure of Denault's car.

This was likely not inadvertence, as

the plaintiffs' subsequent designation of the contents of the
appendix also excluded materials relevant to that ruling.

By the

time counsel briefed the appeal, though, he apparently deemed it
worthwhile to include a challenge to that ruling.

The defendants

objected, asserting waiver and thus lack of jurisdiction.
plaintiffs' reply offered no rejoinder.

The

And the law, as we noted,

is clear that where a notice of appeal designates only specific
interlocutory orders or parts thereof, it does not provide us with
jurisdiction to review others.

So we eschew consideration of any

argument that the plaintiffs should be entitled to relief from the
defendants on account of the initial seizure of the car.
B.
What the plaintiffs did clearly appeal was the manner in
which the district court treated the jury verdict in first entering
judgment

for

the

plaintiffs

on

some

unspecified

federal

constitutional claims (count I) as well as the state law conversion
claims (count III) and then later amending the judgment to strike
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count I.

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The trouble began when the district court ruled on

various motions for judgment as a matter of law during the trial.
The court never explained exactly what claims it was leaving in
and what claims it was throwing out.

Adding to this confusion, in

its cryptic references to the claims still extant, the district
court seemed to use the term "conversion" to describe both counts.
The jury verdict form itself added no clarity.

It simply asked

the jury to check the names of the parties "[w]e find for," and
then to indicate the amount of any damages if the jury found for
either plaintiff.
Several strong hints support the plaintiffs' contention
that the district court did in fact submit some claim of a federal
constitutional violation to the jury.

In addressing the second

motion for directed verdict, the district court stated that the
motion was "allowed in part as to the substantive and due process
claims and denied in part as to the constitutional violation
because

of

the

alleged

conversion."

The

jury

instructions

themselves repeatedly referred to the United States Constitution
and the Bill of Rights.

The district court expressly covered the

need to determine that a defendant acted under color of law, an
element of the federal constitutional claim as actionable under 42
U.S.C. § 1983.

Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 &

n.4 (1970). All of this aligns with the fact that when the district
court first entered judgment, it expressly did so as to count I as
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well as count III.

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And when, over the plaintiffs' objection, it

later reversed course by amending the judgment to apply only to
count III, the district court provided no useful explanation.
Ultimately, we need not decide which claims the district
court intended to present to the jurors.

If count I did not go to

the jury, it was only because the district court did, as the
defendants claim, grant a directed verdict on the entire count.
Alternatively, if count I did go to the jury (as seems most
likely), then amending the judgment was nonetheless proper if the
count should not have gone to the jury.

In such circumstances,

the amendment would stand either as a correction of a "manifest
error[] of law," 11 Charles Alan Wright et al., Federal Practice
and Procedure § 2810.1 (3d ed. 2017), or as harmless error.

In

short, if there was no evidence sufficient to support a finding
for the plaintiffs under count I, then the judgment as amended
reads just as it should read.

And if there was such evidence,

then the plaintiffs' challenge to the amendment of the judgment
should prevail, leaving only the matter of relief.
the pivotal question:

So we turn to

Did the evidence support a verdict on

count I for the plaintiffs?
To answer that question, we begin by determining what
constitutional claim the plaintiffs would have us find in count I.
Their opening brief on appeal advances federal constitutional
claims related to the car's initial seizure and to its subsequent
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retention and transfer. As we have explained, one point upon which
this record is clear is that any claim based on the initial seizure
was rejected on summary judgment, and we lack jurisdiction to
review that ruling under the narrow notice of appeal the plaintiffs
filed.

So we consider only the argument that the retention of the

seized property, and its transfer to the tow company, violated the
United States Constitution.
While the complaint invoked a myriad of constitutional
theories, the plaintiffs on appeal ground their federal claim
solely in the Fourth Amendment's protection against unreasonable
seizures as applied against the states through the Fourteenth
Amendment.

Yet the only authority they have cited in their briefs

or at oral argument is an out-of-circuit case that contains no
discussion of the Fourth Amendment's restraints on seizures.
Reitz v. County of Bucks, 125 F.3d 139 (3d Cir. 1997).

See

Rather,

Reitz determined that "claims based on detention of the property
following [a state court order mandating the property's return]
are distinct from those relating to the seizure [of the property]."
Id. at 144.
At least three of our sister circuits have expressly
rejected Fourth Amendment claims based on a failure to return
property after it was lawfully obtained.

See Shaul v. Cherry

Valley-Springfield Cent. Sch. Dist., 363 F.3d 177, 187 (2d Cir.
2004); Lee v. City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003);
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Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999).
reached that conclusion in different ways.

Entry ID: 6092357

They have

The Sixth Circuit

focused on the definition of "seizure," finding that the term has
temporal

bounds

such

that

it

protects

only

the

interest

retaining property and not the interest in regaining it.
F.3d at 349-52.2

in

Fox, 176

The Seventh Circuit held that applying the Fourth

Amendment in these circumstances stretches its protections too far
beyond the amendment's purpose of constraining unlawful intrusions
into constitutionally protected areas.

Lee, 330 F.3d at 465-66.

And the Second Circuit rejected the seizure-includes-retention
theory out of hand, writing that "[t]o the extent the Constitution
affords [a plaintiff] any right with respect to a government
agency's retention of lawfully seized property, it would appear to
be

procedural

due

process."

Shaul,

363

F.3d

at

187.

The

plaintiffs make no effort to address these authorities or explain
why the alleged violation of their constitutional rights sounds in
the Fourth Amendment.
On such a record, we are offered no reason to disagree
with our sister circuits that, to the extent a plaintiff may

2

That court presciently noted that the term may "ha[ve] a
different temporal scope when a person rather than property is at
issue." Fox, 176 F.3d at 351. The Supreme Court recently endorsed
the theory of continuing seizure of persons. See Manuel v. City
of Joliet, 137 S. Ct. 911, 919 (2017) (upholding Fourth Amendment
claim where plaintiff was detained for some seven weeks after court
found probable cause, based on fabricated evidence, for criminal
charge).
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challenge

on

federal

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constitutional

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grounds

the

Entry ID: 6092357

government's

retention of personal property after a lawful initial seizure in
circumstances such as these, that challenge sounds in the Fifth
Amendment rather than in the Fourth Amendment.

A different result

may well obtain when the government seizes a person rather than
property.
(2017).

See Manuel v. City of Joliet, 137 S. Ct. 911, 919
But where property is concerned, it would seem that the

Fifth Amendment's express protections for property provide the
appropriate framework.

In particular, the Takings Clause provides

recourse where "private property [is] taken for public use, without
just compensation."

U.S. Const. amend. V.

In different circumstances, we might well find that a
plaintiff's claims do not necessarily fail merely because the
plaintiff wrote "Fourth" rather than "Fifth" in his or her briefs.
Here, though, substance followed form, as these plaintiffs never
provided the evidence that would be required to support a claim
that the defendants violated the Fifth Amendment.

Most notably,

the plaintiffs do not even claim, let alone prove, that they first
sought

compensation

through

state

procedures

or

that

"all

potential state remedies are 'unavailable or inadequate,'" as
required to bring a ripe takings claim in federal court.

Deniz v.

Municipality of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002)
(quoting Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank,
473 U.S. 172, 194, 196-97 (1985)).
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We therefore find that the evidence did not support a
verdict in favor of the plaintiffs on their preserved federal
constitutional claims.

Accordingly, the district court's ultimate

disposition of the plaintiffs' federal constitutional claims based
on the retention and transfer of the plaintiffs' property was
correct.3
III.
In a cross-appeal, Ahern challenges the jury's verdict
as to the state law conversion claims on three grounds.

He argues

that the jury's verdict lacked a sufficient evidentiary basis,
that the district court erroneously excluded evidence favorable to
the defendants, and that the district court improperly charged the
jury as to the elements of conversion and the calculation of
damages.

3

This conclusion rejecting the plaintiffs' challenge to the
dismissal of their federal constitutional claims renders moot
their argument on appeal that they should be awarded attorneys'
fees under 42 U.S.C. § 1988(b) for having prevailed on such claims.
It likewise resolves their appeal related to their municipal
liability claims, which require a predicate federal constitutional
violation. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 69092 (1978). Additionally, to the extent the plaintiffs challenge
the entry of a directed verdict as to Walsh, that argument is
waived due to the lack of any developed legal analysis in the
plaintiffs' submissions on appeal. See Marek v. Rhode Island, 702
F.3d 650, 655 (1st Cir. 2012) (citing United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990)).
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A.
Ahern's challenge to the sufficiency of the evidence
rests on the principle that when property belonging to another is
lawfully acquired in the first instance, under a good-faith claim
of right, the acquirer's continued retention of the property is
not wrongful in the absence of a demand by the owner that the
property

be

returned.

See

Evergreen

Marine

Corp.

v.

Six

Consignments of Frozen Scallops, 4 F.3d 90, 95 (1st Cir. 1993).
We therefore turn our attention to the evidence to see if such a
demand was made, keeping in mind that we "examine the evidence and
inferences

therefrom

in

the

light

most

favorable

to

the

plaintiff[s]" and "reverse only if a reasonable person could not
have reached the conclusion of the jury."

White, 221 F.3d at 259.

Walsh testified that he had at least two conversations
with Testa in the days following the initial seizure.

According

to Walsh, Testa wanted to retrieve the car and the booster seat.
During their first conversation, Walsh told Testa that he was
unable to remove items from the car while he was seeking a warrant
to search it.

In a later conversation within days of the first,

he "advised her that when [the police] were complete with the
investigation of the vehicle, the car would be brought back to
Christopher's Towing."

Both Walsh and Ahern said that it was

standard operating procedure to release a towed car to the tow
company.

The next month, when Walsh and Ahern spoke with Testa at
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the Middlesex District Attorney's Office, Testa told them that she
still had not retrieved the car because "the tow company told her
she needed some type of letter . . . authorizing her to pick up
the vehicle."
Testa told the jury a different story.

According to her

testimony, she contacted CPD repeatedly to request the return of
the car and her property inside it. Testa described at least three
separate conversations in the days after the car was seized.
During each conversation, she was told that the car was not yet
ready for pickup.

As to the booster seats (she claimed there were

two), she testified that a detective told her, "Well, if you come
down here and talk with us, maybe we can work something out."
Testa understood that the detective was conditioning his return of
the property on her cooperation in the investigation regarding
Denault.4

Per Testa's account, no one ever told her that the car

could not be released to her and would instead be released to
Christopher's Towing.

Even when she spoke with the defendants in

November, she testified, "they never told [her] that it was at

4

Construing the evidence in the light most favorable to
Testa,
this
conversation
occurred
after
her
October
22
conversation with a CPD representative, which was recorded and
played to the jury during trial.
On the recorded call, the
representative informed Testa that the car was not yet ready for
pickup but asked, "Did you want to come and pick up the car seat?"
Testa declined, explaining that she would "wait 'til a little
later." When Testa called back, however, the detective, according
to Testa, was unwilling to return the car seat without receiving
her cooperation in return.
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Christopher's." Instead, they faulted her for failing to cooperate
in their investigation.
Although these accounts share little in common, two key
facts are undisputed.

First, it was clear to the defendants that

Testa sought return of Denault's car as soon as it became available
for pickup.

Second, the defendants never contested that the

plaintiffs retained a possessory interest in the car and its
contents,

or

that

they

were

entitled

to

retrieve

them.

Furthermore, there is ample evidence to find that Testa was acting
as Denault's agent. The defendants argued as much below, referring
to Testa as Denault's "authorized agent."

They testified that

they observed her driving Denault's car, they took it from her
driveway, and they communicated with her about its status.

The

defendants presented no testimony that anyone at CPD questioned
Testa's authority to retrieve the car.5

As to the remaining facts,

our standard of review requires us to credit Testa's version, and
correspondingly to discredit testimony that Testa knew the car

5

Inexplicably, the plaintiffs state in their response and
reply brief that "the car did not belong to [Testa] and she was
not the agent of Plaintiff Denault." This stray and unsupported
remark is contradicted by the testimony of both plaintiffs that
Testa acted as Denault's agent in her efforts to retrieve the car.
It is also inconsistent with counsel's position at oral argument
that CPD should have released the car to Testa as "she was there
asking for it." In any event, the defendants say nothing about
this remark in their reply brief, instead acknowledging that "Testa
did speak with police officers" about retrieving the property but
faulting her for failing to "follow through."
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would be released to Christopher's Towing and communicated with
Christopher's Towing about the car.
On this record, reasonable jurors could certainly find
that both Denault (through Testa) and Testa made clear to the
officers that they wanted their property back.

Ahern is therefore

reduced to arguing that the actual demands were made at a time
when the police were entitled to retain the car, and not repeated
until after the police turned the car over to the tow company.
The relevant point, though, is that the plaintiffs made clear to
the police that they wanted their property back, and the police
thereafter did not make it promptly available to them, even
conditionally, after the police were done with it.

We see no

reason why Massachusetts law would require that the plaintiffs
keep repeating their demands.
This is not to say that the police were required to
comply with the demands immediately.

The perceived evidentiary

value of the car, and the warrant that the officers secured to
search it, afforded them a privilege to make a qualified refusal.
See Restatement (Second) of Torts § 238 (Am. Law Inst. 1965) ("One
in the possession of a chattel does not become a converter by
making a qualified refusal immediately to surrender the chattel
when the circumstances are such that the demand for immediate
surrender is unreasonable.").

The problem for Ahern is that he

did not surrender the car in accordance with the demand once the
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Ahern does have a reason for this failure:

city procedure--and an obligation of the car owner to pay the
towing cost--required him to turn the car over to the tow company,
which was supposed to contact Denault promptly.

In short, Ahern

claims an additional and successive basis for making a qualified
refusal to return the property.

Assuming that the jury believed

Testa, however, it could have found that Ahern never told Testa
(or Denault) that the police also had a reason not to return the
car even when the search was completed. And failure to communicate
that reason precludes Ahern from relying on it to avoid liability
for declining to return the car.

Id. § 241 ("Qualification of a

refusal to surrender a chattel to one entitled to immediate
possession does not avoid liability for conversion unless . . .
such reason is communicated to the claimant at the time . . . .");
Dan B. Dobbs et al., The Law of Torts § 67 (2d ed. 2016).
We likewise sustain the conversion claim as to the
booster seats.

There is no dispute that Testa demanded the return

of her booster seats.

According to Ahern, however, the defendants

never refused her demand; instead, they "told her she could
retrieve the car seat if she came into the station."
said that there were strings attached:

But Testa

the defendants refused to

return the seats unless she agreed to help with their investigation
regarding Denault.

The defendants had no privilege to qualify

their refusal on that basis and require a quid pro quo.
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The

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evidence, viewed in Testa's favor, therefore supports a verdict
for Testa on this conversion claim.
B.
Ahern next argues that the district court incorrectly
excluded evidence demonstrating "that notice was given prior to
the letter for storage fees in February 2014" and "that the
Plaintiffs were offered the car for free and still refused to pick
the car up from Christopher's."

"In reviewing an allegation of

evidentiary error, we must consider first whether the district
court erred and then whether this error was harmful."

Soto-Lebrón

v. Fed. Express Corp., 538 F.3d 45, 65 (1st Cir. 2008).

Ahern

makes this task difficult by having provided no detailed proffer
of the excluded evidence.

As best the record reveals, Ahern seems

to refer to evidence that (1) the defendants told Testa about the
transfer of the car to Christopher's Towing in October 2013, months
before the February 2014 notice; and (2) the owner of Christopher's
Towing contacted plaintiffs' counsel to discuss terms for return
of the car.
With respect to the former evidence, Ahern misconstrues
the district court's ruling.

The district court, during a sidebar

right before opening statements, heard general descriptions from
each party of expected testimony regarding the conversion of the
car.

The court did not exclude any evidence that the defendants

proposed to introduce.

Instead, the court accurately identified
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the key factual dispute as whether the defendants notified Testa
by

telephone

in

October

Christopher's Towing.

2013

about

transferring

the

car

to

The district court said that it would "get

the different positions" from the parties about any pertinent
communications in that timeframe and then "explain the legal
significance" of those positions to the jury.

During the trial,

when Walsh offered the testimony at issue, there was no objection
or exclusion.

He told the jury that he informed Testa, within

days of the car's seizure, that the car would be transferred to
Christopher's

Towing.

We

therefore

discern

no

exclusion

of

evidence and no error.
With respect to the proposed testimony by the owner of
Christopher's
discretion

to

Towing,
exclude

the

district

communications

court

acted

between

the

within

its

third-party

defendant and plaintiffs' counsel that were reasonably viewed as
settlement negotiations.

See Fed. R. Evid. 408(a)(1).

We thus

find no error, much less error that harmed Ahern.
C.
The only remaining arguments relate to the jury charge.
Ahern contends that the district court did not properly instruct
the jury on the elements of conversion or on damages.

As to the

instruction on conversion, he argues that the district court's
charge mischaracterized some elements of the claim and omitted
others. Although counsel for defendants complained to the district
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court that its instructions omitted the element of demand and
refusal,

counsel

never

objected

that

the

instructions

mischaracterized the elements that were covered.

also

We therefore

review these asserted errors under different standards.
As for the allegedly mischaracterized elements, because
there was no objection, we review only for plain error.

See Fed.

R. Civ. P. 51(d)(2) ("A court may consider a plain error in the
instructions that has not been preserved . . . if the error affects
substantial rights."); Estate of Keatinge v. Biddle, 316 F.3d 7,
16 (1st Cir. 2002) ("The party claiming plain error is required to
demonstrate '(1) that there was error, (2) that it was plain,
(3) that it likely altered the outcome, and (4) that it was
sufficiently fundamental to threaten the fairness or integrity or
public reputation of the judicial proceedings.'" (quoting Gray v.
Genlyte Grp., Inc., 289 F.3d 128, 134 (1st Cir. 2002))).
Ahern, citing to Damon v. Hukowicz, 964 F. Supp. 2d 120
(D. Mass. 2013), argues that the instructions mischaracterized the
key element of conversion:
wrongfully

exercised

that "the defendant intentionally and

control

or

dominion

over

the

personal

property." Id. at 143 (emphasis omitted) (quoting Evergreen Marine
Corp., 4 F.3d at 95).

Yet the district court instructed the jury

that it needed to determine whether Ahern "exercise[d] wrongful
dominion

over

the

vehicle"

when

he

stationhouse to the tow company lot.
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transferred

it

from

the

Ahern complains that this

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instruction was "woefully deficient," but he does not explain why.
We detect no plain error.
As for the preserved objection to the allegedly omitted
elements, we generally ask "if the requested instruction was (1)
correct as a matter of substantive law, (2) not substantially
incorporated into the charge as rendered, and (3) integral to an
important point in the case."

Estate of Keatinge, 316 F.3d at 17.

Any error we discern, however, "must be evaluated in the context
of

the

entire

charge

particular case."

in

light

of

the

circumstances

of

the

9C Arthur R. Miller, Federal Practice and

Procedure § 2558 (3d ed. 2017).
The district court's refusal to include the element of
demand and refusal in its instruction on the conversion claim is
a puzzler.

In denying the defendants' renewed motion for directed

verdict, the court acknowledged this element but found that,
"drawing all inferences in favor of the plaintiffs, . . . Testa's
calls are a sufficient demand."
discuss refusal.

The court did not, however,

The court then provided an overview of its

intended jury charge, explaining that "the focus of [its] charge
[would] be on whether . . . Ahern sending the vehicle off to the
yard was an act of wrongful dominion."

The ultimate instruction

on the conversion claim said nothing about demand or refusal.
After the district court charged the jury, it consulted counsel
about any objections.

Defense counsel asked the court to instruct
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the jury specifically about demand and refusal. The district court
responded, "You've argued that but I've said that was too technical
and I am not going to so charge."
Massachusetts law plainly requires proof of demand and
refusal when "the defendant legitimately acquired possession of
the property under a good-faith claim of right."
Corp.,

4

F.3d

at

95.

Assuming

that

law

Evergreen Marine
applies

here,

we

nevertheless find that the omission of demand and refusal from the
jury charge was harmless error.

"[Q]uite often there will be

circumstances in the case from which it clearly will appear that
the error in the district court's instruction cannot have had any
prejudicial effect on the jury's verdict and the error may be
treated as harmless."

Miller, supra, § 2558.

The jury's finding

on damages shows that this is such a case.
The

district

court

charged

the

jury

on

alternative

methods of calculating damages--either the value of the car and
its contents at the time of the conversion or the cost of regaining
possession of the car--and directed the jury to use "the lesser of
[the] two different measures."

"We assume the jury listens to and

follows the judge's entire charge."

Arthur D. Little, Inc. v.

Dooyang Corp., 147 F.3d 47, 53 (1st Cir. 1998).

In light of that

assumption, and the jury's calculation of damages, it is clear
that the jury discredited Walsh's testimony that Testa knew when
and where to regain possession of the car in October 2013, at which
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time Testa could have regained possession for a tiny fraction of
the value of the property and of the later bill from Christopher's
Towing.

That same testimony by Walsh was the only evidence that

created a dispute as to whether return of the car was offered or
impeded; demand was undisputed by Ahern.

Accordingly, we conclude

that the district court's failure to instruct the jury on demand
and

refusal

was

harmless

error.

We

emphasize

that

"[o]ur

conclusion is not based on any judgment of our own as to what the
evidence proved to have happened," Parker v. City of Nashua, 76
F.3d 9, 14 (1st Cir. 1996), but rather is based on what the jury
unmistakably found.
Ahern also argues that the district court further erred
by botching part of its instructions on how to calculate damages,
by suggesting that damages were mandatory, and by charging the
jury on punitive damages.

Counsel for defendants did not object

to these portions of the instructions before or after the district
court delivered them.
applies.

At most, our plain error standard of review

See Sony BMG Music Entm't v. Tenenbaum, 660 F.3d 487,

503 (1st Cir. 2011).
As to the instructions on how to calculate damages, Ahern
complains

that

the

district

court

described

statutory

lien

procedures pursuant to which Denault may have owed the tow company.
Ahern says that those lien procedures did not apply in this case.
Whether that is so we need not decide because Ahern offers no
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explanation for how the insertion could have harmed him. We reject
Ahern's argument that the district court framed the instructions
so

as

to

compel

an

award

of

damages.

The

district

court

specifically cautioned the jury, "don't think that because I charge
you on this or that aspect of the case that I think anything has
been proved or not proved."

It also acknowledged the possibility

that the jury would find "there's no real damage here."

As to

punitive damages, Ahern cannot demonstrate an error that affected
his substantial rights as the jury declined to award such damages.
Last but not least, Ahern argues that the district court
did not inform the parties of its intended instructions before it
delivered them.

The district court did generally advise the

parties of its intended instructions before closing arguments and
before charging the jury, see Fed. R. Civ. P. 51(b)(1), though it
did not provide a verbatim copy to the parties in advance.

While

we think it prudent for district courts to write and distribute
their intended instructions, the law of this circuit does not
require judges to follow this common sense approach.

See DeCaro

v. Hasbro, Inc., 580 F.3d 55, 65 (1st Cir. 2009).
IV.
Based on the foregoing, we deny both appeals and affirm
the district court's judgment in all respects.
bear their own costs.

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The parties shall