Maroney et al v. Fiorentini et al

Filing 248

Magistrate Judge Donald L. Cabell: ORDER entered. MEMORANDUM AND ORDER denying 206 Motion for Judgment as a Matter of Law and, in the Alternative, Motion for New Trial. (Russo, Noreen).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHAEL J. MARONEY, as
Trustee of Premiere Realty
Trust, and MARONEY
CONSTRUCTION COMPANY, INC.,
Plaintiffs,
v.

No. 16-CV-11575-DLC

JAMES J. FIORENTINI,
Individually and in his
Capacity as Mayor of the
City of Haverhill, ROBERT
E. WARD, Individually and
in his Capacity as Deputy
Director of Public Works
of the City of Haverhill,
Water/Wastewater Division,
and THE CITY OF HAVERHILL,
Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR JUDGMENT
AS A MATTER OF LAW AND, IN THE ALTERNATIVE,
MOTION FOR A NEW TRIAL

CABELL, Chief U.S.M.J.
This

case

arises

from

efforts

by

Michael

J.

Maroney

(“Maroney”) to develop a subdivision of homes in the City of
Haverhill (“the City”).

Having been denied certain permits,

Maroney brought this action through his business entities against
the City and two City officials for violations of 42 U.S.C. § 1983

(“section 1983”) and Massachusetts state law.1

The case proceeded

to trial and, as some claims had been resolved through prior
litigation, the claims tried to the jury consisted of a tortious
interference

with

contractual

relations

claim

(“contractual

interference claim”) and a tortious interference with business
relationship claim (“business relationship claim”), both against
defendant James E. Fiorentini, the City’s mayor (“the Mayor”).2
(D. 179, pp. 6-7).

The contract(s) potentially at issue included

an agreement between Maroney, the City, and a bank lender known as
the

Tri-Partite

agreements

Agreement,

Maroney

had

and

signed

multiple
or

was

purchase

hoping

to

and

sale

sign

with

prospective buyers.
After hearing seven days of testimony, the jury rendered a
verdict in favor of Maroney in the amount of $928,775 on the
contractual interference claim and in favor of the Mayor on the
business relationship claim.

The Mayor moves for judgment as a

matter of law under Federal Rule of Civil Procedure 50(b) (“Rule
50(b)”) or, in the alternative, for a new trial under Federal Rule
of

Civil

Procedure

59(a)

(“Rule

1

59(a)”)

on

the

contractual

Maroney filed suit as Trustee of Premiere Realty Trust (“Premiere”), and in
the name of his company, Maroney Construction Company, Inc. (“Maroney
Construction”). For ease of reference, the court uses “Maroney” in the singular
form to refer to these entities.
Premiere owned the property and Maroney
Construction was the general contractor for the project. (D. 201, p. 20) (D.
243, p. 11).

2 Prior to trial, the court allowed summary judgment on the remaining claims
against the defendant Robert E. Ward (“Ward”), deputy director of the City’s
Department of Public Works (“the Water Department”).

2


interference claim.

(D. 206).

For the reasons that follow, the

Mayor’s motion is denied.
I.

THE PARTIES’ ARGUMENTS
The Mayor’s lead argument concerns a purported uncertainty

and ambiguity as to which contract the jury found he had interfered
with, the Tri-Partite Agreement or one or more of the purchase and
sale agreements.

To that end, the Mayor argues that using the

word “or” in the verdict form rendered the jury’s findings on the
contractual interference claim unclear, uncertain, and ambiguous.3
Per the Mayor’s argument, there was no evidence of a breach of the
Tri-Partite Agreement, which simply expired and was not renewed,
and

the

jury

therefore

could

unsupported and invalid ground.
3).

not

rest

its

findings

on

this

(D. 207, pp. 7-9) (D. 230, pp. 1-

Further, if the jury found that the Mayor induced a breach of

one or more of the four purchase and sale agreements, there was no
competent, non-hearsay evidence to support such a breach.

(D.

207, p. 8).
Maroney

argues

in

opposition

that

the

Mayor

waived

the

argument regarding the verdict form’s use of the word “or” by not
raising it in a Rule 50(a) motion and not calling it to the court’s

3

Question one on the verdict form asked the jury if Maroney had a binding
contract with the City’s Planning Board and the Five Cent Savings Bank, which
the Mayor correctly equates to the Tri-Partite Agreement (D. 207, p. 7) (Ex.
31), “or a binding purchase and sale agreement with one or more buyers . . . .”
(D. 197) (emphasis added).

3


attention during the trial.

Regardless, according to Maroney,

there was no fundamental error in using the word “or” to warrant
a new trial.

Maroney also purports to identify competent and

sufficient evidence for the jury to find a breach of the four
purchase and sale agreements.

(D. 219).

Next, with respect to the court’s summary judgment opinion
(D. 127), the Mayor argues that the court’s “findings should have
ended the case and the trial should not have proceeded against the
Mayor” on the contractual interference claim.

This is so because

the court determined on summary judgment there was no evidence for
a jury to find that the Mayor influenced Ward in denying the
permits.

In fact, so the Mayor contends, the evidence presented

at summary judgment was the same evidence presented at trial.

(D.

207, pp. 9-11).

Maroney responds in opposition that the trial

record

different

included

exhibits

and,

in

contrast

to

the

deposition transcripts at summary judgment, different direct and
cross examination testimony.

He also points out that the trial

allowed the jury to assess the credibility of each witness.

(D.

219, pp. 17-19).
The Mayor presents four additional arguments.

First, he

argues that the verdicts on both the contractual interference and
the business relationship claims cannot be reconciled.

On the one

hand, the jury found that the Mayor interfered with an existing
contract.

On the other hand, the jury found that the Mayor did
4



not interfere with any prospective business relationship.

The

Mayor reasons that both findings depended on the same conduct,
namely, Ward’s refusal to sign-off on permits, Ward’s actions in
changing

the

design

of

a

water

booster

station,

and

Ward’s

recommendation against extending the Tri-Partite Agreement.

(D.

207, pp. 13-14). In response, Maroney asserts that the Mayor acted
independently, as opposed to through Ward, by making the statements
that Maroney’s permits depended upon Maroney dropping a state court
lawsuit.4

Maroney

further

argues

that

the

jury

could

have

concluded that the prospective business relationships with future
buyers were too remote or speculative.

(D. 219, p. 20).

As such,

the finding on the business relationship claim did not depend on
Ward’s conduct.
Second, the Mayor maintains that a state court ruling from a
lawsuit Maroney had filed in July 2015 provided that Maroney had
until November 1, 2016 to build the water booster station.

The

Mayor argues that he therefore could not have caused the purported
harm of withholding the permits after July 2015, because Maroney
was in fact permitted to build the water booster station up until
that time.

(D. 207, p. 12).

Maroney counters that he tried to

build the water booster station between August 2015 and November

4

As explained in the factual background, Maroney filed suit in Massachusetts
Superior Court (Essex County) against Ward, the Planning Board, and various
Haverhill officials, albeit not the Mayor, for impeding Maroney’s development
of Crystal Springs and refusing to issue permits.

5


1, 2016 but was unsuccessful in doing so.

In addition, he submits

that the contractual interference claim was complete when the
buyers canceled the purchase and sale agreements, causing Maroney
to lose each deposit and sale.

(D. 219, pp. 14-15).

Third, the Mayor argues that this court erred when it allowed
Maroney to inform the jury that the state court, in ruling on a
preliminary injunction motion, found that Maroney had shown a
likelihood of success, but did not allow the Mayor to add that the
state court ultimately ruled in the City’s favor.
12).

(D. 207, p.

Maroney counters that the court balanced the jury’s need to

understand the context of the state court proceedings against the
confusion and prejudice that might result by admitting additional
evidence regarding the outcome of the proceedings.

(D. 219, p.

20).
Fourth,

the

Mayor

contends

that

testimony

by

Rosemary

Scalera, Maroney’s real estate broker for the project, was hearsay
and introduced over the Mayor’s objection.
described

by

the

Mayor,

Scalera

(D. 207, p. 13).

testified

about

her

As

belief

regarding why the buyers with four purchase and sale agreements
(Ex. 25, 26, 28, 30) did not purchase the homes.

The Mayor adds

that these four purchase and sale agreements had expired.

(D.

207, pp. 8, 13). Maroney in turn points to Scalera’s understanding
that these buyers withdrew from their agreements because they lost
confidence

that

the

sales

would
6



occur

based

on

the

Mayor’s

statements.
testimony

(D. 219, pp. 11-14).
dispels

the

Mayor’s

He argues separately that her
characterization

of

the

four

purchase and sale agreements as expired.
II.

PROCEDURAL BACKGROUND
As noted, Maroney originally filed this action against the

Mayor and Ward.

In May 2023, the court allowed summary judgment

on the remaining claims against Ward.

The court also allowed

summary judgment on the remaining claims against the Mayor except
for the intentional “interference with contractual or economic
relations claim.”5

(D. 127, p. 63).

In a subsequently filed joint motion, Maroney and the Mayor
sought “input from the Court” regarding the viability of a trial
and

noted

the

reconsideration.

parties’

contemplation

(D. 130).

conference in late May 2023.

of

filing

motions

for

Accordingly, the court held a status
During that conference, the court

counseled the parties not to rely on the facts set out in the
summary judgment opinion as binding for purposes of the pending
trial.6

The court also stated that Federal Rule of Civil Procedure

5

The court advised the parties at the final pretrial conference that the case
would proceed on two claims, to which the Mayor did not object. (D. 179, pp.
6-7). The Mayor did make a footnote comment in the jointly proposed instructions
that the business relationship claim was not properly plead (D. 165, p. 19,
n.18), but he did not renew that concern at the charge conference.

6

For example, the court advised the parties that:
Nobody would be precluded from making any arguments or offering any
facts based on any ruling we made. So to the extent that concern was
in there about whether anything in our ruling impacted what a party
could do at trial, from where we sit, it does not . . . After all,

7


56(g) (“Rule 56(g)”) provided a mechanism to treat a factual
finding as established in the case but that “[n]obody made that
request” and the court did not “make those sorts of findings here.”
(D. 178, p. 13).
In early June, the Mayor filed a motion for reconsideration
based on Rule 56(g) and the law of the case.

He argued therein

that the court determined on summary judgment that a reasonable
juror could not find that Ward was following the Mayor’s directives
in changing the water booster pump design in January 2016 or
opposing the extension of the Tri-Partite Agreement in the fall of
2016.

(D.

necessitated

142).

The

judgment

maintained
in

the

that

Mayor’s

these
favor

findings
on

the

interference with contractual or economics relations claim.

(D.

142).

summary

Mayor

In late June, the court denied the Mayor’s motion for

reconsideration in a Memorandum and Order.

(D. 149, pp. 3-12).

The Mayor raised the same issue of the preclusive effect of
the

summary

judgment

ruling

memorandum.

(D. 163, p. 12).

conference,

the

Mayor’s

in

the

parties’

joint

pretrial

At the August 4, 2023 final pretrial

counsel

reiterated

that

the

summary

we're not making credibility findings. We're not -- we're drawing all
inferences in the light most favorable to you as the party opposing
summary judgment, but it would be up to a jury to then get all of that
evidence and to decide, as you suggested, whether there are reasonable
inferences they can draw from it as to whether the mayor did or did not
direct Mr. Ward.
(D. 178, pp. 5, 7).

8


judgment finding precluded a trial.

(D. 179, pp. 10-11, 14).

During the conference, the court acknowledged that the Mayor’s
“rights on [the matter] are preserved.”

(D. 179, pp. 14, 17).

The case proceeded to trial on the two remaining claims
against the Mayor.

As noted, the jury awarded Maroney $928,775 on

the contractual interference claim.

The Mayor presently moves for

judgment as a matter of law or, alternatively, for a new trial.
III.

STANDARD OF REVIEW
Under Rule 50(b), a jury “verdict should be set aside only if

the

jury

failed

evidence.”
2020)

to

reach

the

only

result

permitted

by

the

Lestage v. Coloplast Corp., 982 F.3d 37, 46 (1st Cir.

(citation

omitted);

see

Blomquist

v.

Horned

Dorset

Primavera, Inc., 925 F.3d 541, 546 (1st Cir. 2019) (“[D]istrict
court’s denial of a Rule 50(b) motion for judgment as a matter of
law”

is

sustained

“unless

the

evidence

.

.

.

could

lead

a

reasonable person to only one conclusion, namely, that the moving
party was entitled to judgment.”).

In adjudicating a Rule 50(b)

motion, the court construes the “facts in the light most favorable
to the jury verdict, draw[s] any inferences in favor of the nonmovant and abstain[s] from evaluating the credibility of the
witnesses or the weight of the evidence.”

Suero-Algarín v. CMT

Hosp. Hima San Pablo Caguas, 957 F.3d 30, 37 (1st Cir. 2020)
(citation omitted).

It is also well established that a “failure

to raise an issue prior to a Rule 50(b) motion for judgment as a
9


matter of law, without more, results in a waiver of that issue on
appeal.”

Falto De Román v. Mun. Gov’t of Mayagüez, 46 F.4th 51,

55 (1st Cir. 2022) (citation omitted); Jones ex rel. U.S. v. Mass.
Gen. Hosp., 780 F.3d 479, 487 (1st Cir. 2015).
The court’s power to allow a Rule 59(a) “motion for a new
trial is much broader than its power to grant a Rule 50(b) motion.”
Falto, 46 F.4th at 56 (citations and internal brackets omitted).
Rule 59(a) “authorizes a district court to override a jury verdict
and order a new trial ‘if the verdict is against the law, against
the weight of the credible evidence, or tantamount to a miscarriage
of justice.’”

Teixeira v. Town of Coventry by & through Przybyla,

882 F.3d 13, 16 (1st Cir. 2018) (citation omitted); accord Rinsky
v. Cushman & Wakefield, Inc., 918 F.3d 8, 27 (1st Cir. 2019)
(“[D]istrict court may set aside a jury’s verdict and order a new
trial only if the verdict is against the demonstrable weight of
the credible evidence or results in a blatant miscarriage of
justice.”) (citations omitted).

In adjudicating a Rule 59(a)

motion, “[t]he court may, though it is not required to, weigh the
evidence and credibility of the testimony.”

Mejias-Aguayo v.

Doreste-Rodriguez, 863 F.3d 50, 54 (1st Cir. 2017).

Rule 59(a)

therefore allows the trial judge to “‘independently weigh the
evidence’” and, further, “the judge ‘may consider the credibility
of

the

witnesses

who

(citations omitted).

testified.’”

780

F.3d

at

492

Nevertheless, “[i]n general, conflicting
10



Jones,

testimony or a question as to the credibility of a witness are not
sufficient grounds for granting a new trial.”
at 551 (citation omitted).

Blomquist, 925 F.3d

Where “a motion for a new trial is at

bottom, based on sufficiency of the evidence, the standards under
Rule 50 and Rule 59 effectively merge.”

Rodríguez-Valentin v.

Doctors’ Center Hosp. (Manati), Inc., 27 F.4th 14, 21 (1st Cir.
2022) (citation and quotation marks omitted).
IV.
A.

FACTUAL BACKGROUND
Subdivision Approval and Tri-Partite Agreements
In 2009, the Planning Board of the City of Haverhill (the

“Planning Board”) approved a definitive subdivision plan of fifty
residential lots.

(Ex. 85).

The development, commonly known as

Crystal Springs, consisted of 16 residential lots on Back Nine
Drive and 34 residential lots on Front Nine Drive.

(Ex. 85).

The

lots on Front Nine Drive had higher elevations than those on Back
Nine Drive. (D. 226, p. 154).7 Notably, the definitive subdivision
plan required Maroney to build a water booster station.

It did

not, however, set a deadline to complete the construction.

(Ex.

85) (D. 201, p. 124).
To

ensure

that

Maroney

completed

the

utilities

for

the

project, including building the water booster station, the City

7

Citations to the trial transcripts are provided for convenience. They are
not necessarily the only places in the trial record that support the cited
recitation.


11


required a bond, which was done through the Tri-Partite Agreement.
(D. 243, pp. 22-23) (Ex. 8, 31).

Maroney repeatedly testified

that he could either build the booster station or “bond it,”
meaning he could wait until the end of the bond, i.e., the end of
the Tri-Partite Agreement in effect at the time, to build the water
booster station.

(D. 201, pp. 87, 94) (D. 202, pp. 57, 75).

In

that regard, the pertinent language in the definitive plan states:
“No building permit will be issued until all of the utilities shown
on the plans to provide service to the proposed structure are
installed and tested, or a security bond is posted for such work.”
(Ex.

85)

(emphasis

added).

The

reference

encompassed the water booster station.
avoid

triggering

the

Planning

Board’s

to

“utilities”

(D. 234, pp. 21-22).
right

to

draw

on

To
the

remaining funds under the irrevocable letter of credit in the last
Tri-Partite Agreement, the agreement required the completion “of
ways and the installation of municipal services” by November 1,
2016.

(Ex. 31).
To build the houses on the lots, Maroney first needed to

obtain a release of the lots from the Planning Board.
first

Tri-Partite

Agreement,

the

Planning

Board

Under the

released

the

sixteen Back Nine Drive lots in return for the bank issuing an
irrevocable letter of credit. (Ex. 8). Under the last Tri-Partite
Agreement, the Planning Board released twenty Front Nine Drive
lots.

(Ex. 31).

Once the Planning Board released the lots and
12



the department heads signed off on a site plan for a released lot,
Maroney had to apply to the City’s departments to obtain permits.
For example, he needed to apply to the Building Department to
obtain a foundation permit and thereafter a building permit.
243, pp. 27-28, 74) (D. 202, p. 95).

(D.

Without a sign-off from each

department, including the Water Department, Maroney could not
obtain a building permit.

(D. 202, pp. 31, 59, 95) (D. 226, p.

156).
B.

Events Leading to March 2015 Decision to Stop Issuing Permits
By 2012, Maroney had completed the houses on the Back Nine

Drive and started building houses on Front Nine Drive.
pp.

108-109).

During

this

time,

Ward

“wanted

to

(D. 201,
know

when

[Maroney] was going to begin” building the water booster station.
(D. 201, p. 108).
agreed

schedule,

From 2012 through 2014, efforts to arrive at an
including

benchmarks,

construction were not successful.

to

complete

the

(D. 202, pp. 74-75).

In April 2013, Maroney hired an engineer, Bruce Lewis, for
the project.

(D. 236, p. 17).

He advocated for “a stick-built

pumping station,” in other words, a water booster station built
“in the field, on site” (“stick-built”).8

(D. 226, p. 161).

The

City’s specifications, however, called for “a factory-built pump
system” mounted on “a steel skid” (“skid design”).
8

(D. 226, p.

At various times, witnesses used interchangeable terms to refer to a stickbuilt pump system, such as a field-built or as-built pump system.

13


161) (Ex. 82, p. 4).

The City’s specifications also required a

standard product for the pump system manufactured by Engineered
Fluid, Inc. (“EFI”) or by one of a few other companies.

(Ex. 82,

p. 4).
Over time, Ward grew increasingly concerned that Maroney was
not ever going to build the water booster station.
158).

(D. 226, p.

In late 2013, Maroney and Lewis stopped communicating with

the Water Department, according to Ward.

(D. 226, p. 162).

Maroney, in turn, explained that 2013 was a slow year for sales
and he therefore “put Lewis on hold.”

(D. 243, p. 59).

On a few occasions since “at least 2013,” Ward told Maroney
“that, to keep this project moving, he needed to show some good
faith that he was actually going to build [the water booster]
station.” (D. 226, p. 165). Per Ward’s testimony, he told Maroney
that starting the foundation or constructing the building for the
water booster station “would show good faith.”
In

or

around

March

2015,

Ward

(D. 226, p. 166).

“directed

the

[W]ater

[D]epartment to stop issuing” permits for any of the lots.
226, pp. 164-165) (D. 243, p. 74).

(D.

As a result, Glen Smith, the

water maintenance supervisor and the individual who “reviewed and
approved the water service applications for each of the houses,”
stopped approving those applications in early 2015.
104, 162, 164).

(D. 226, pp.

The impetus for Ward’s decision was that “there

was nothing going on with the” water booster “station and the
14


houses were being built.”

(D. 226, pp. 164-165) (D. 220, p. 13).

Smith concurred with Ward’s decision and the impetus for it.9

(D.

226, pp. 105-106).
C.

Events Surrounding the State Court Lawsuit and the Court’s
Instructions Regarding the Lawsuit
In April 2015, Ward, Maroney, and other City officials had a

meeting “to try to reach an agreement about the water booster
station and the permits.”

(D. 226, p. 138).

At that juncture,

Ward and others “were still trying to keep the project moving.”
(D. 226, p. 165).

After the meeting, a proposed draft agreement

among Maroney, the Planning Department, and the Water Department
was circulated to Ward, Maroney, John D’Aoust, William Pillsbury,
and others.10

In addition to other deadlines, the tentative

agreement set dates for Maroney to complete the engineering plans
for the water booster station, install a water main line, and
complete the water booster station.
37) (D. 202, pp. 42-43, 47-48).

(D. 226, pp. 166-167) (Ex.

It also stated that “[t]he Water

Department shall share” a “new Hydraulic Analysis Report (2015)”
by Wright-Pierce “with [Maroney] upon its receipt of” the report.11
(Ex. 37).

Maroney refused to sign the agreement, partly because

9

More precisely, Smith agreed with Ward’s decision “until we get an
understanding of what we can serve and what we can’t serve.” (D. 226, p. 106).

10

D’Aoust was the City’s water treatment plant manager.
Pillsbury was the
director of the Planning Department. (D. 201, p. 75).

11 Wright-Pierce was the City’s engineer and design consultant.
(D. 226, p.
62).

15


the department had received the report but was not sharing it, as
well as his concern “that the Wright-Pierce report would determine
that most of [his] proposed houses were not serviceable.”

(D.

202, pp. 44-50, 55).
That summer, Maroney began building houses on a number of
Front Nine Drive lots without building permits.
52).

(D. 202, pp. 51-

As a result, Richard Osborne, the City’s building inspector,

issued cease and desist orders on July 15, 2015, along with an
admonition that Maroney would incur fines of $1,000 per day if he
ignored the orders and continued to build on the unpermitted lots.
(Ex. 40) (D. 202, pp. 52-53, 59).
In mid-July 2015, Maroney filed the state court lawsuit
against the City, Pillsbury, Ward, and Osborne.

(D. 202, p. 59).

As noted, the Mayor was not a defendant.
Almost immediately after the jury heard this testimony that
Maroney filed the state court lawsuit, the court read the following
instruction to the jury:
I want to say just a few words to you about this state
court suit that you’ve been hearing about. So this is how
I instruct you to process any information that you may
hear.
You have heard evidence that Mr. Maroney filed a
lawsuit in state court against a number of Haverhill
officials in July of 2015. You will hear that there was a
preliminary hearing in that state court case in August of
2015. You will hear about the results of that preliminary
hearing.
This evidence is being admitted for the limited
purpose of the effect of the results of that hearing on the
state of mind of the parties in this case at that time and
for no other reason.
You will hear that the case -- the
state court case -- continued on for some years and
16


eventually concluded. The results of the state court case
are not relevant here and you should not speculate about
the results of that matter.
(D. 202, pp. 58-59).
As the testimony unfolded thereafter, in August 2015 Maroney
asked the state court to issue a preliminary injunction to obtain
the building permits immediately.

The state court conducted a

hearing on that request in mid-August.

(D. 202, pp. 61-62).

During the hearing, the state court judge instructed the parties
and their counsel to “go out in the hallway and see if you can
work this out.”

(D. 202, p. 63).

After Maroney, his counsel, and

the City’s counsel returned to the courtroom, the City’s counsel
reported they had an agreement, which he described as a global
settlement.

(D. 202, pp. 64-66).

It nevertheless quickly became

apparent that the group did not have a global settlement.
202, pp. 66-67).

Shortly thereafter, the judge issued an opinion

denying the request for a preliminary injunction.
66-67, 78-79).

(D.

(D. 202, pp.

Counterbalancing this testimony, the court stated

the following to the jury shortly thereafter:
So you had heard that the state court judge did not grant
the preliminary injunction that Mr. Maroney requested.
That has been established. I just want you to understand .
. . that the state court judge also said, and I’m quoting
from a state court document, that “The plaintiffs have
shown a likelihood of success on the merits of their
contractual claims.”12
12

The above provides the backdrop for the Mayor’s argument regarding this
court’s exclusion of the state court’s ultimate decision in the defendants’
favor. As shown in the previously quoted instruction, this court allowed the
jury to hear that the state court judge denied the preliminary injunction but

17


(D. 202, pp. 90-91) (emphasis added).
C.

The Mayor’s Statements
Prior to the state court lawsuit, the Mayor wanted the project

to move forward and was working with Maroney to facilitate that
process.

(D. 201, p. 104) (D. 226, pp. 158-159) (D. 202, p. 68,

ln. 9-10).

A series of statements the Mayor made in August and

September 2015, however, evidenced a change in the Mayor’s attitude
after Maroney filed the state court lawsuit in mid-July 2015.

In

essence,

to

as

detailed

below,

these

statements

communicated

buyers with purchase and sale agreements, existing Crystal Springs
residents, the real estate broker for the development, and other
individuals, including Maroney, that he was not going to get any
more permits unless he dropped the state court lawsuit.
In August 2015, Scalera, who, in addition to being Maroney’s
real estate broker, was a Back Nine Drive resident, organized a
meeting with the Mayor to address the stop in the construction
because of the failure to build the water booster station (“Crystal
Springs meeting”).

(D. 238, pp. 32-35).

The purpose of the

meeting was to see if the City could help rectify the situation.
(D. 238, p. 35).
and

sale

At the time, there were a total of nine purchase

contracts

with

buyers

waiting

to

have

their

homes

excluded the results of state court lawsuit that ruled in the defendants’ favor
in 2018.

18


completed.

(D. 238, pp. 35, 38).

The individuals attending the

meeting included approximately five or six existing residents of
Front Nine Drive as well as buyers with purchase and sale contracts
“that had not yet closed.”

(D. 238, p. 37).

The Mayor’s Assistant

and City Solicitor, Bill Cox, Esq., also attended the meeting,
which took place in the Mayor’s office.

(D. 238, pp. 35-37, 49).

When asked why she went to the Mayor as opposed to other City
officials,
everything.”

Scalera

replied,

“Because

(D. 238, p. 35-36).

he’s

in

charge

of

Whereas the Mayor “deferred to

the departments [for their] day-to-day operations,” he “set the
tone and the direction for the city departments,” a category that
included the Water Department.

(D. 226, p. 51).

For context, this Crystal Springs meeting took place after
the state court denied the preliminary injunction motion.
202, p. 79).

(D.

Shortly after the August 27th meeting began, the

Mayor asked the group if they were aware that Maroney had filed a
lawsuit against the City.

(D. 238, p. 39) (D. 201, p. 28).

Throughout the meeting, the Mayor repeatedly stated, “It’s up to
Mr. Maroney.

He knows what he has to do.”

(D. 201, p. 67).

(D. 238, pp. 39-42)

More specifically, the Mayor stated that, “If

[Maroney] drops the [state court] lawsuit, he’ll get the permits.”
(D. 238, p. 42).

Rosemary Deyermond, a resident of Front Nine

Drive who went to the meeting, was particularly shocked and
surprised about the Mayor’s statement that “[w]hen Mr. Maroney
19


drops his lawsuit, he’ll have his permits.”
67).

(D. 201, pp. 62, 66-

She described the statement as “extortion” and the Mayor’s

tone as “very frustrated.” (D. 201, p. 68).
In late August, Francis Healey, a friend of Maroney’s, stopped
by the Mayor’s office to discuss the Crystal Springs

development.

When he told the Mayor the reason for the visit, the Mayor’s
demeanor immediately changed.

Specifically, he “stood up, put one

hand on his desk,” pointed his other finger at Healey, and yelled,
“I know Maroney sent you down here.”

(D. 236, pp. 55-56).

When

Healey suggested that the Mayor meet again with Maroney, the Mayor
responded by stating, “Tell [Maroney] to drop the lawsuit.”
236, p. 56).

(D.

As the meeting was ending, the Mayor directed Healey

to “tell Maroney to drop the lawsuit and he can have all the
permits he wants” and that “[i]f he doesn’t drop the lawsuit, he’ll
never see another permit while I’m mayor.”

(D. 236, p. 57).

In early September, Maroney received a telephone call from
the Mayor asking for a meeting.

(D. 243, p. 88).

At the outset

of the meeting, the Mayor expressed an interest in resolving the
case. (D. 226, p. 39) (D. 243, p. 88). During the ensuing meeting,
the Mayor acknowledged that the City owed Maroney for lost sales
but also indicated that Maroney owed the City $250,000 for building
houses on unpermitted lots.
disagreed.

(D. 243, pp. 88, 91).

Maroney

Similar to prior statements, the Mayor told Maroney to

“drop the lawsuit and you can have all the permits you want.”
20


(D.

243, p. 91).
mediation.13

The Mayor also suggested that they proceed to
(D. 226, pp. 40, 42) (D. 243, p. 92).

After the Mayor’s statements, the buyers of four properties
canceled their purchase and sale agreements.
(D. 243, pp. 96-97).

(Ex. 25, 26, 28, 30)

First, the buyers of two of the properties

(Leonard and Suzanne DiLorenzo and Roger and Cheryl Preston)
canceled their purchase and sale agreements shortly after the
Crystal Springs meeting.

(D. 243, pp. 96-97) (Ex. 25, 30).

Next,

Robert and Nancy Rainville “took a little longer” to cancel their
purchase and sale agreement.

(D. 243, p. 97) (Ex. 28).

Finally,

Richard and Sheila Daly had entered into a purchase and sale
agreement for the fourth property, i.e., lot seven on Front Nine
Drive.

(Ex. 26).

Stamped three times across a May 19, 2016

treasurer check payable to the Dalys and Maroney Construction is
the word “VOID.”
Deposit return.”15
D.

(Ex. 25).14

The memo on the check reads, “Lot 7

(Ex. 25).

Post-Lawsuit Events
The Mayor typically held weekly meetings with the heads of

the City’s departments.

In that regard, from 2013 through 2016 he

13

At least one additional meeting took place in September during which the
Mayor expressed an interest in mediation. Maroney rejected the idea. (D. 243,
pp. 92-93).

14 The check is incorrectly placed in exhibit 25, the DiLorenzos’ purchase and
sale agreement.
15

The jury could therefore find that the Dalys canceled their purchase and sale
agreement after the Mayor’s statements and no later than May 2016.

21


met with Ward as well as Michael Stankovich, the Water Department
director.

(D. 226, pp. 23, 48).

Additionally, “[a]t various

times, [the Mayor] would get updates, primarily from [Ward], about
the water booster station and [the] negotiations with [Maroney].”
(D. 226, p. 85) (emphasis added).
In mid-September 2015, Maroney made a written offer to the
City in which he set out a schedule to construct the water booster
station by September 15, 2016.

(Ex. 46) (D. 243, pp. 102-103).

The offer provided a signature line for the Mayor to accept the
offer. When the Mayor did not sign the proposed agreement, Maroney
forwarded it to Ward on September 25, 2015.

The offer did not

result in an agreed-upon schedule.
In November 2015, Maroney installed a water main line at a
cost of $160,000.

(D. 243, pp. 101-102, 122).

Although Maroney

told Ward that he viewed the water main line as a good faith effort
towards the water booster station, Ward responded “[t]hat it was
not a good faith effort towards doing anything with the pump
station.”

(D. 226, p. 177) (D. 243, p. 122).

In early January 2016, Lewis, Maroney, Ward, and D’Aoust had
a meeting in an office at the Water Department.
41) (D. 243, p. 108).

(D. 220, pp. 17,

Maroney and Lewis brought their plans for

a stick-built water booster station to the meeting.
108).

(D. 243, p.

By that time, Lewis had addressed the majority of issues

identified by Wright Pierce, and Wright Pierce had concluded his
22


responses were acceptable.

(D. 226, p. 121, ln. 20-24).

During

the meeting, Ward informed Maroney and Lewis that they had “[t]o
go with an EFI pump type skid.”
108).

(D. 220, p. 17) (D. 226, pp. 107-

The decision came as a surprise to Lewis and Maroney.

Lewis

testified that, although he knew that “Wright Pierce was advising
the [C]ity” that “it would be better . . . to use an EFI system,”
he “was never told until January 4 of ‘16 that EFI had to be used.”
(D. 236, pp. 22-23).

In fact, up until the January 2016 meeting,

no one told Lewis that he had to use EFI.16

(D. 236, p. 23).

Similarly, no one told Maroney that he could not use a stickbuilt design or pump system.

(D. 243, pp. 108-109).

Relatedly,

Maroney testified that the Water Department was approving the
stick-built station while Maroney or Lewis was designing it.
201, p. 119).

(D.

To be sure, Maroney recognized that the Water

Department was used to maintaining a water booster station with an
EFI pump system.

(D. 201, p. 117).

Even so, Maroney remained

steadfast that the City allowed him to do a stick-bult pump system.
(D. 201, p. 119, ln. 23).

16

In contrast, D’Aoust recalled speaking by telephone with Lewis in September
2014. D’Aoust further testified that he remembered telling Lewis that the Water
Department’s “decision was to move forward with a skid-based design that meets
the City's specifications.” (D. 226, p. 100). At his July 2020 deposition,
however, D’Aoust did not recall this telephone call.
(D. 226, p. 128)
(responding “I did not” to question asking, “But you didn’t recall that phone
call when you were deposed in July of 2020, did you?”). Thus, viewing the facts
in favor of the verdict for purposes of the Rule 50(b) motion and by weighing
the evidence for purposes of the Rule 59(a) motion, no one told Lewis that he
had to use EFI before the January 2016 meeting.


23


After

the

meeting,

EFI

and

interacted with the company’s local sales representative.

(D.

243, pp. 109-112) (Ex. 65).

Lewis

promptly

contacted

That spring and summer, delays ensued

regarding fire flow tests for the water booster station.

Maroney

asked the City to perform data logger tests in April and May of
2016.

(D. 220, pp. 46-47) (Ex. 67).

The City, however, did not

make the water lines and fire hydrants available for testing from
April to July 2016.

(D. 220, p. 47).

In the fall of 2016, the Planning Board held meetings in
September and October to address Maroney’s request to extend the
Tri-Partite Agreement.

(Ex. 75, p. 2) (Ex. 77, p. 3).

At the

September 2016 meeting, Ward spoke out against allowing additional
time for Maroney to complete the water booster station.
p. 4).

(Ex. 75,

Previously, Ward “had never spoken out against a request

to extend a tripartite agreement” at a Planning Board meeting.
(D. 220, pp. 48-49).

The Planning Board continued the matter to

the October meeting.

(Ex. 75, pp. 21-22).

At the October 2016

meeting, Ward similarly recommended against extending the time to
build the water booster station.

(Ex. 77, p. 5).

Maroney in turn

spoke in favor of extending the Tri-Partite Agreement.
p. 15).

(Ex. 77,

In the end, the Planning Board voted to extend the time

to install municipal services, “with the exception of the water

24


booster station to November 1, 2017.”17

(Ex. 77, pp. 49-51).

The

Planning Board also voted “to draw against the funds available in
[the

Tri-Partite

Agreement]

to

complete

installation of the water booster station.”

the

design

and

(Ex. 77, pp. 51-52).

At the next meeting in November 2016, the Planning Board voted
“to instruct the special counsel to take” the necessary steps to
obtain disbursement of the funds from the bank to complete “the
remaining work on the Crystal Springs” development.
10).

(Ex. 79, p.

Lacking his own funds to build the water booster station,

including the ability “to draw off [his] line of credit” from the
Lowell Five Cents Savings Bank, Maroney could no longer build and
sell any of the remaining homes on Front Line Drive.
6-7).

(D. 201, pp.

Eventually, a new developer took over the property, built

the water booster station, and completed the project by 2022.

(D.

201, p. 11).
E.

Damages
At the time the bank foreclosed on the property in 2017,

Maroney had nineteen homes to build and, including the model home,
twenty homes to sell on Front Nine Drive.

(D. 201, pp. 9-11).

It

therefore stands to reason that in the fall of 2016 Maroney had

17

To be precise, the Planning Board allowed a motion “to extend the time to
complete the construction of way[s] and the installation of . . . municipal
services . . . with the exception of the water booster station, to November 1,
2017” through “an executed tripartite agreement on or before November 1, 2016,
approved as to form” by the Board’s legal counsel.
(Ex. 77, pp. 49-50).
References to an extension or renewal of the September 2014 Tri-Partite
Agreement is a shortform means of referring to this precise action.

25


twenty homes yet to sell when the Planning Board decided to extend
the Tri-Partite Agreement exclusive of the water booster station.
The average construction cost for Maroney to build a home was
$226,000.

(D. 201, p. 13) (Ex. 87, 92).

construction

cost,

Maroney

construction

costs

which,

In addition to the

testified

that

he

“[i]nclusive

of

the

incurred
water

road

booster

station,” totaled $708,000 for the remaining twenty homes on Front
Line Drive, or $35,400 per home.

(D. 201, p. 14).

He also had to

pay a real estate broker’s fee.
As

opined

by

Maroney’s

expert,

Jeffrey

Dennis,

the

anticipated net profit for completing and selling the twenty
remaining homes “was in excess of $6 million” or, specifically,
$6,098,160.

(D. 234, pp. 115, 117).

In arriving at this figure,

and based on information provided by Maroney, Maroney’s expert
explained the straight-forward calculation of the lost net profit.
(D. 201, pp. 11-14).
price

for

each

of

He began with an estimated average sales

the

twenty

aggregate total of $12,000,000.
subtracted

the

construction

$226,956 per house.

homes

as

$600,000

(D. 234, p. 114).
costs,

which,

(D. 234, p. 112) (Ex. 92).

on

yielding

an

From this, he
average,

were

He also subtracted

the road construction costs ($708,000), inclusive of the water
booster

station.

(D.

234,

p.

113)

(Ex.

93).

Lastly,

he

“subtracted a real estate commission of 5 percent and state tax
stamps.”

(D. 234, p. 114) (Ex. 94).
26



In total, the lost net profit

due to Maroney’s inability to sell the remaining twenty houses
after the Planning Board denied an extension for the water booster
station was slightly more than six million dollars.

(D. 234, pp.

115, 117).
Maroney’s expert did not deduct any loan payments from the
$12,000,000 gross profit. (D. 234, p. 117). When queried on cross
examination, he acknowledged not deducting the interest payments
on Healey’s private loans to Maroney, which totaled approximately
$360,000.

(D. 236, p. 53).

By way of background, Healey and his

mother-in-law each loaned Maroney $50,000 in January 2010 at a
rate of fifty percent per year.

Thereafter, Healey’s mother-in-

law died, and Healey paid the estate the money Maroney owed to her
on the $50,000 loan.

Maroney and Healey then entered into a

promissory note in which Maroney agreed to pay Healey $114,583 at
an annual interest rate of twelve percent.
67).

(D. 236, pp. 53, 60-

Thereafter, Healey loaned Maroney $80,000.

(D. 236, p. 53).

Additional facts, where relevant, are set out when addressing the
parties’ arguments.
V.

DISCUSSION

A.

Legal Overview
A tortious interference with contractual relations claim

requires the plaintiff to show “(1) he had a contract with a third
party; (2) the defendant knowingly interfered with that contract;
(3)

the

defendant’s

interference,
27



in

addition

to

being

intentional, was improper in motive or means; and (4) the plaintiff
was harmed by the defendant’s actions.” Eaton v. Town of Townsend,
Nos. 22-1334, 22-1335, 2023 WL 3317986, at *11 (1st Cir. May 9,
2023) (citations and internal ellipses omitted); accord Psy-Ed
Corp. v. Klein, 947 N.E.2d 520, 536 (Mass. 2011).
interference

with

advantageous

plaintiff must show:

business

To establish an

relations

claim,

a

“(1) a business relationship for economic

benefit with a third party; (2) the defendant’s knowledge of that
relationship;

(3)

the

defendant’s

interference

with

that

relationship, in addition to being intentional, was improper in
motive or means; and (4) the plaintiff’s loss of advantage directly
resulting from defendants’ improper conduct.”

Orkin v. Albert,

Civil No. 21-40060-LTS, 2023 WL 1452055, at *10 (D. Mass. Feb. 1,
2023); (citation omitted); accord Bartle v. Berry, 953 N.E.2d 243,
250 (Mass. App. Ct. 2011) (citation omitted).
B.

Uncertainty in Verdict with One Basis Moreover Invalid
As noted, the Mayor maintains that using the word “or” in

question one of the verdict form rendered the jury’s findings on
the

contractual

ambiguous.

interference

(D. 207, pp. 7-9).

claim

unclear,

uncertain,

and

Per the Mayor’s argument, because

there was no evidence of a breach of the expired Tri-Partite
Agreement, the jury could not rest its findings on this unsupported

28


and invalid ground.18

Further, with respect to the four purchase

and sale agreements, there was no competent, non-hearsay evidence
as to why these buyers did not purchase the homes, according to
the Mayor.
buyers

Put another way, there was no evidence that these

canceled

statements.

their

agreements

because

of

the

Mayor’s

Rather, the only evidence consisted of Scalera’s

hearsay testimony of her belief.

(D. 207, pp. 8, 13).

The Mayor

adds that the agreements were expired, and further points out that
Maroney did not build the booster station by November 1, 2016 and
Ward never signed off on the building permits for the four homes.
Consequently, so the Mayor argues, there was no evidence that the
Mayor caused Maroney any harm.19
Maroney maintains that the verdict’s use of the word “or” was
not a fundamental error.

He additionally asserts that sufficient

evidence in the record allowed the jury to find that the Mayor
interfered with the purchase and sale contracts.

Further, he

argues that the Mayor waived these arguments by not raising them

18

Although the first question in the verdict form did not expressly ask the
jury to find a “breach,” the jury instructions linked the requirement of a valid
contract to a contract that “was breached as a result of the [M]ayor’s conduct.”
(D. 211, p. 139) (emphasis added). The parties proposed this instruction prior
to trial and did not object to its inclusion at the charge conference. (D.
165, p. 8) (D. 211, pp. 67-82). The Massachusetts Superior Court Civil Practice
Jury Instructions, which the parties cited, includes the same language. See II
Joseph D. Lipschitz et al., Massachusetts Superior Court Jury Instructions §
12.4.2 (3d ed. 2014) (“ . . . which contract was breached by the third party as
a result of the defendant’s conduct”).

19 The Mayor groups all of the above arguments under a single subheading vis-àvis the uncertainty as to the verdict. The court adheres to this framework.

29


in the Rule 50(a) motions (D. 189, 193).

(D. 219, pp. 1, 6-10).

The Mayor characterizes this argument as “nonsensical because the
proposed verdict form was not issued, and the charge [conference]
was not held, until after the directed verdict motion was filed.”20
(D. 230, p. 3).
1.

Rule 50(b) Waiver

Even though the Mayor is correct about the timeline, he is
incorrect regarding the Rule 50(b) waiver.

The First Circuit has

“‘held in no uncertain terms’ . . . that a ‘failure to raise an
issue prior to a Rule 50(b) motion for judgment as a matter of
law, without more, results in a waiver of that issue on appeal.’”
Jones, 780 F.3d at 487 (citations omitted); see Cornwell Ent.,
Inc. v. Anchin, Block & Anchin, LLP, 830 F.3d 18, 25 (1st Cir.
2016) (“[M]ovant cannot use [Rule 50(b)] motion as a vehicle to
introduce a legal theory not distinctly articulated in its Rule
50(a) motion.”) (internal brackets omitted).

Hence, “[t]he Rule

50(a) motion ‘must be sufficiently specific so as to apprise the
district court of the grounds relied on in support of the motion.’”
RFF Fam. P’ship, LP v. Ross, 814 F.3d 520, 536 (1st Cir. 2016).
Critically, a movant can submit a Rule 50(a) motion “at any
time before the case is submitted to the jury.”

Fed. R. Civ. P.

50(a) (emphasis added); see Santos-Arrieta v. Hosp. Del Maestro,
20

The Mayor brought two, virtually identical Rule 50(a) motions. He filed
the second motion (D. 193) before the court conducted the charge conference
addressing the instructions and the verdict form. (D. 211, p. 66).

30


14 F.4th 1, 10 (1st Cir. 2021).

The First Circuit in Santos-

Arrieta rejected the movant’s argument “that it couldn’t have
argued about [an expert witness] in its Rule 50(a) motion because
[the witness] had not yet testified at that point in the trial.”
Id.

Not only did the court cite cases allowing more than one Rule

50(a) motion, but it quoted Rule 50(a), which allows a movant to
file a Rule 50(a) motion “at any time before” submitting the case
to the jury.

Id.

Here too, where the Mayor had already previously

filed two Rule 50(a) motions, the Mayor could have waited to file
the third Rule 50(a) motion until after the charge conference,
during which the court addressed the verdict form.
To be sure, the movant’s failures in Santos-Arrieta were more
egregious than omitting an argument from a Rule 50(a) motion.

See

id. at 10-11 (leaving out argument from Rule 50(a) and 50(b)
motions and affirmatively stating witness’ “testimony should be
admitted”).

Even so, the fact remains that Rule 50(b) speaks to

“a renewed motion for judgment as a matter of law.”
P. 50(b) (emphasis added).

Fed. R. Civ.

Further, as Jones, 780 F.3d at 487,

and Cornwell Entertainment, 830 F.3d at 25, make clear, a Rule
50(b) movant must raise the Rule 50(b) argument in a Rule 50(a)
motion.

See Cornwell Ent., 830 F.3d at 25 (describing rule as

“strict”).
The Rule 50(a) motions nowhere address the multiple arguments
the Mayor makes regarding the uncertainty and ambiguity in the
31


verdict form as well as other arguments.
not address or mention:

Specifically, they did

(1) the proposed verdict form, including

the inclusion of the Tri-Partite Agreement because it was never
breached;21 (2) the expiration of the purchase and sale agreements;
(3) Scalera’s purportedly hearsay testimony concerning the buyers’
withdrawals from their purchase and sale agreements; (4) the lack
of harm resulting from a breach of the purchase and sale agreements
because Maroney never built the booster station by November 1,
2016, and because the state court held he had until November 1,
2016 to build the station;22 and (5) the purportedly prejudicial
exclusion of the outcome of the state court lawsuit.

The Mayor

therefore waived these arguments by not including them in the Rule
50(a) motions.
2.

New Trial Waiver

Maroney
regarding

also

the

argues

verdict

that

form’s

the

Mayor

uncertainty

waived
under

the
Rule

argument
59(a).

Specifically, he maintains that the Mayor’s argument is untimely
21

Indeed, the Rule 50(a) motions state, “There is no evidence to support a
finding that the Mayor played any role in . . . not extending the tripartite
agreement.” (D. 189, 193) (emphasis added).

22 It is true that the Rule 50(a) motions broadly asserted a lack of evidence
that the Mayor “caused [Maroney] damages because he had filed [the state court
lawsuit] on July 23, 2015.” (D. 189, 193). This argument, however, does not
distinctly raise the argument the Mayor now raises regarding the uncertainty of
the verdict form, namely, that there was no harm because the buyers “never would
have closed on their homes because [Maroney] did not build the water booster
station by November 1, 2016.” (D. 207, p. 8); see, e.g., T G Plastics Trading
Co., Inc. v. Toray Plastics (America), Inc., 775 F.3d 31, 39 (1st Cir. 2014)
(finding defendant’s “general argument” that “damages award was speculative”
and not sufficient to put “district court on notice of its costs argument”).

32


because the Mayor did not call the court’s attention to the
uncertainty in the verdict form during the trial.

(D. 219, pp. 6-

7, 9-10).
“[A] new trial will not be granted on grounds not called to
the court’s attention during the trial unless the error was so
fundamental that gross injustice would result.”

11 Charles Alan

Wright et al., Federal Practice and Procedure § 2805 (3d ed. 2012);
see Cool Light Co., Inc. v. GTE Prods. Corp., 832 F. Supp. 449,
459 (D. Mass. 1993) (stating “party who acquires information
supportive of . . . new trial is precluded from such relief if,
rather than presenting the matter promptly to the court, the party
awaits the outcome of the trial and then, after losing, for the
first time moves for relief”).

The court does not agree that the

Mayor has waived this argument.
To explain, the court afforded both parties the opportunity
to address the proposed verdict form at the charge conference.
(D. 211, pp. 82-88).

Although the Mayor did not specifically

object to the verdict form’s use of the word “or” in the first
question, he did object to the inclusion of the Tri-Partite
Agreement because it was not breached.

(D. 211, pp. 83-86, 88).

A few excerpts of the Mayor’s discussion regarding the verdict
form establish the absence of a waiver.

(D. 211, p. 83) (“By the

way, just to make it clear, the tripartite agreement, it’s not
renewing it.

It’s not breaking it.
33



The tripartite agreement was

never broken.

It was just not renewed.”); (D. 211, p. 85) (“How

can you breach something that’s expired?”); (D. 211, p. 86) (“But
on the tripartite, there’s just no evidence from which the jury
could find that the agreement that ended on November 1, 2016 was
breached.

It simply . . . wasn’t extended.

Thus, it’s just

impossible for anybody to find a breach, so I think that should
just go out.”); (D. 211, p. 88) (“Just to be clear, we object.”).
Hence, the Mayor adequately preserved and did not waive the
argument vis-à-vis the Rule 59(a) request for a new trial.23

That

said, the court finds that the Mayor’s argument fails on the
merits.
3.

New Trial Request

The applicable law is well-established.

When a “special

verdict question encompasses multiple claims or multiple theories
of liability, one of which is unsupported by the evidence or
otherwise

defective,

‘a

new

trial

is

usually

warranted.’”

Rodríguez-Garcia v. Miranda-Marin, 610 F.3d 756, 771 n.17 (1st
Cir.

2010);

accord

Mass.

Eye

and

Ear

Infirmary

v.

QLT

Phototherapeutics, Inc., 552 F.3d 47, 73 (1st Cir. 2009) (stating
new trial “usually warranted . . . where a verdict question
encompasses

multiple

theories,

23

one

of

which

is

defective”)

It is also debatable whether a waiver rule applies to the inclusion of the
two theories in the verdict question. See Gillespie v. Sears, Roebuck & Co.,
386 F.3d 21, 30-31 (1st Cir. 2004). Assuming dubitante that it does, there was
no waiver.


34


(citations omitted); Gillespie, 386 F.3d at 31.

The rule is

nevertheless subject to a “generous harmless error analysis in
order to determine whether it is reasonably likely that the jury
in fact relied on a theory with adequate evidentiary support.”
Rodríguez-Garcia,

610

F.3d

at

771

n.17

(citation

omitted).

Adhering to that analysis, the First Circuit in Rodríguez-Garcia
affirmed the denial of a new trial motion because the court was
“reasonably sure that the jury found the mayor liable on a direct
liability theory” rather than the impermissible indirect theory of
liability barred by issue preclusion.

Id. at 771.

Here, it is reasonably likely based on the verdict as a whole,
including the damages award, as well as the evidence, opening
statements, and closing arguments, that the jury found that the
Mayor induced a breach of the purchase and sale agreements as
opposed to a “breach” of the Tri-Partite Agreement.24 See generally
Baron v. Suffolk Cnty. Sheriff’s Dept., 402 F.3d 225, 243–44 (1st
Cir. 2005) (denying new trial motion “because we are reasonably
sure . . . [the] verdict rested on the adequately supported” theory
based on “jury instructions and the special verdict form as a
whole”), abrogated on other grounds by Jennings v. Jones, 587 F.3d
430, 438 n.10 (1st Cir. 2009); Gil de Rebollo v. Miami Heat Ass’ns

24

For purposes of argument only, the court will assume that the Tri-Partite
Agreement could not be breached because it simply expired and was not renewed
as to the water booster station.


35


Inc., 137 F.3d 56, 62 (1st Cir. 1998) (Where, for example, “a jury
answers special questions in an inconsistent manner, the trial
court’s discretion to grant a new trial is broader” and “court can
consider all of the circumstances surrounding the jury’s verdict,
including the amount of the damage award.”).
Overall, the damages award on the contractual interference
claim ($928,775) strongly and common-sensically suggests that the
jury’s verdict rested on the four purchase and sale agreements.
More specifically, the $928,775 amount bears a strong resemblance
to the lost net profit Maroney experienced from buyers canceling
the four purchase and sale agreements after the Mayor’s August
2015 statements.25

Guided by the straight-forward and logical

calculation method explained by Maroney’s expert (D. 234, pp. 112117) (Ex. 92, 93, 94), there is a clear way to reconstruct how the
jury determined those damages.
To begin, the four purchase and sale agreements reflect
purchase prices of $468,728, $545,839, $453,710, and $449,000,
which total $1,917,277.

(Ex. 25, 26, 28, 30).

The construction

costs of $226,956 for each property total $907,824 for all four
properties.

State tax stamps of $2,736 per property result in a

total cost of $10,994 for the four properties.

(Ex. 94).

The

real estate broker’s fee stated in each of the four purchase and
25

The parties proposed and the court gave an instruction based on lost profits.
(D. 165, p. 18) (D. 211, p. 141).

36


sale agreements (either $20,205 or $21,555), when added together,
yields a total cost of $82,170 for the four properties.26
26, 28, 30).

(Ex. 25,

The damages figure ($928,775) strongly suggests that

the jury subtracted the construction costs ($907,824) and the
broker’s fees ($82,170) from the $1,917,277 aggregate purchase
price.

This calculates to a lost profit of $927,283, which is

within $1,500 of the actual award.27
the

state

tax

stamps

($10,994),

Even if the jury subtracted
the

resulting

lost

profits

($916,289) still closely resembles the actual verdict ($928,775).
It is therefore reasonably likely that the jury relied on the
breach of the purchase and sale agreements as opposed to the
“breach” of the Tri-Partite Agreement in answering the first
verdict question.

26

Alternatively, the jury could have calculated the broker’s fee based on an
agreed fee between Maroney and Scalera of five percent of the base price of
each home sold. (D. 238, pp. 28-29). In or around January 2010, Maroney and
Century 21, McLennan & Company entered into an exclusive listing agreement that
sets out this commission structure. (D. 238, p. 28). Paragraph fourteen of
the purchase and sale contracts recites that the expressly listed broker’s fees
are subject to “a prior fee agreement” (a category that would include the
exclusive listing agreement) in the event of a conflict. Five percent of the
base prices in the four purchase and sale agreements yields a total broker’s
fee of $92,877. For present purposes, however, this amount is not materially
different than the above $82,170 total fee.

27

The jury could conclude reasonably not to deduct the road construction costs
of $35,400 per home or $708,000. Road construction costs included the cost of
water booster station ($250,000), which Maroney did not build, as well as asbuilt drawings ($20,000), which Maroney incurred before the August 2015
statements by the Mayor. (D. 201, p. 14) (D. 93). The jury could also find
that Maroney did not incur other road construction costs.
In that regard,
Pettis prepared a letter for the Planning Board listing unfinished roadway
improvement items, which correspond to road construction costs. (Ex. 76, 93).
His review of a bond for Front Nine Drive calculated the unfinished items as
totaling $340,589.75.

37


In this regard, it is difficult if not impossible to fathom
how the verdict might have related to a “breach” of the Tri-Partite
Agreement where it reportedly resulted in a lost net profit to
Maroney of more than $6,000,000.

To state the obvious, there is

a wide and insurmountable gulf between the damages connected to
the “breach” of the Tri-Partite Agreement and the jury’s damages
award of $928,775.
It is nevertheless true that the closing arguments focused
more on the Tri-Partite Agreement than the purchase and sale
agreements.

See generally Rodríguez-Garcia, 610 F.3d at 771-772

n.17 (explaining “it is reasonably likely” jury relied on direct
liability theory because “evidence and argument at trial focused
entirely on” that theory). Part of the closing arguments, however,
focused on matters impactful to both theories, such as the nature
of the Mayor’s statements.

(D. 211, pp. 99, 109-112).

Most tellingly, though, there remains the sizable monetary
gap between the damages attributable to the “breach” of the TriPartite Agreement by Maroney’s expert and the damages awarded by
the jury.

In comparison, there is a strikingly small monetary gap

between the lost net profits for the breach of the four purchase
and sale agreements and the jury’s damages award.

Against this

backdrop, the court is convinced it is reasonably likely that the

38


jury relied on the purchase and sale agreements and not the TriPartite Agreement in answering question one on the verdict form.28
The issue therefore reduces to whether the induced breach of
the four purchase and sale agreements (Ex. 25, 26, 28, 30) had
“adequate evidentiary support.”

Rodríguez-Garcia, 610 F.3d at 771

n.17 (applying “generous harmless error analysis in order to
determine whether it is reasonably likely that the jury in fact
relied on a theory with adequate evidentiary support.” (quoting
Mass. Eye and Ear, 552 F.3d at 73)); Gillespie, 386 F.3d at 30
(same).

Conversely, if the evidence was insufficient to support

the induced breach of these purchase and sale agreements, adequate
evidentiary support is lacking.

See Gillespie, 386 F.3d at 30

(citing Davis v. Rennie, 264 F.3d 86, 106 (1st Cir. 2001), to
support
standard

principle
to

rescue

of

generous

verdicts

application

where

court

of

harmless

“could

error

be reasonably

sure that the jury in fact relied upon a theory with adequate
evidentiary support”); Davis, 264 F.3d at 106 (finding “evidence
was insufficient to support” unreasonable restraint finding and

28

The Mayor makes an additional argument regarding an induced breach of the
Tri-Partite Agreement. Specifically, he maintains that if the jury found an
induced breach, “it would conflict with the finding by the State Court that
[Maroney was] required to build the water booster station prior to the
expiration of the Tri-Partite Agreement,” i.e., by November 1, 2016. (D. 207,
pp. 7-8). Because it is reasonably likely that the jury did not rely on an
induced breach of the Tri-Partite Agreement, it is not necessary to address
this argument.

39


“ask[ing] whether we can be reasonably certain that the jury’s
verdict did not rest on this erroneous basis”) (emphasis added).
With regard to the sufficiency of the evidence, the Mayor
argues there was no competent evidence that he induced a breach of
the purchase and sale agreements, particularly where the purchase
and sale agreements were expired and Scalera’s testimony was
hearsay.

(D. 207, p. 8).

As to the former argument, Scalera

testified that at the time of the August 2015 Crystal Springs
meeting, she had nine purchase and sale agreements.

(D. 238, p.

35) (“At the time, we had nine Purchase and Sale Agreements with
buyers

that

were

waiting

to

have

homes

built

there.”).

Accordingly, there is sufficient evidence that the purchase and
sale agreements were not expired.29
Relatedly, the Mayor submits there was no testimony from the
actual buyers concerning why they did not purchase the homes.
207, p. 8).

This is true.

(D.

But even so, other evidence in the

record provides adequate support to suggest that they withdrew
from their purchase and sale agreements because of the Mayor’s
statements.
First, the Mayor’s statements were emphatic, forceful, and
unequivocal:

Maroney “knows what he has to do” and that if he

drops the state court “lawsuit, he’ll get the permits.”

29

The hearsay argument is addressed and rejected in section V(E) below.

40


Second,

the Mayor’s statement that Maroney will have his permits when he
“drops his lawsuit” had an impact on Deyermond, who was shocked,
very surprised, and viewed the statement as extortion.
tenor

of

the

statements

against

the

backdrop

of

Given the
Deyermond’s

reaction, it is more than likely the Mayor’s statements had an
impact on other attendees.

(D. 201, p. 67).

In fact, the

DiLorenzos and the Prestons, who attended the meeting, canceled
their purchase and sale agreements shortly after the meeting.

(D.

238, pp. 37, 49-50) (D. 243, pp. 96-97) (D. 201, pp. 35, 40-41).
Third, in connection with the Mayor’s statements at the meeting,
Scalera testified, based on her understanding from observations,
that the DiLorenzos withdrew from their purchase and sale agreement
because they had lost confidence that the sale would occur, and
she similarly had the sense that other buyers were also feeling
uncertain because of what the Mayor said.30

(D. 201, p. 41).

In addition, the jury could have readily concluded that the
Mayor was not a credible witness.

To that end, although he denied


30

The testimony reads as follows:
Q. Mrs. Scalera, what is your understanding, based on your observations
of the DiLorenzos, as to whether the Mayor’s comment at the meeting had
anything to do with their decision to withdraw and ask for return of all
their funds?
A. They had lost confidence that the sale would occur, that the building
would begin.

(D. 238, p. 48).


41


making

the

statements,

four

different

witnesses

(Scalera,

Deyermond, Healey, and Maroney) testified that the Mayor made the
statements.
In short, the foregoing and other evidence in the trial record
provides adequate and sufficient evidentiary support for the jury
to have found that the Mayor’s statements induced the buyers of
the four properties to cancel their purchase and sale agreements
(Ex. 25, 26, 28, 30).
evidence

that

the

Relatedly, the record includes sufficient

Mayor

knew

about

these

purchase

and

sale

agreements because Scalera referred to them during the Crystal
Springs meeting with the Mayor.

(D. 238, p. 38) (“I said that I

was here with residents of Front Nine Drive and some buyers who
were in contract to build some of the homes at Crystal Springs.”);
(D. 238, p. 38) (“I said that we had nine contracts and most of
those buyers had already sold their home[s] and they were living
in temporary housing.”).
Next, as noted, the Mayor argues that Maroney failed to
demonstrate harm as a result of the buyers withdrawing from the
purchase and sale agreements because of the Mayor’s statements.
(D. 207, p. 8).

In particular, the Mayor asserts that even if the

buyers had not withdrawn from the purchase and sale agreements
because of the Mayor’s statements, Maroney did not build and could
not have built the water booster station by November 1, 2016.

The

Mayor adds that Ward never signed off on the permits for those
42


homes.

(D. 207, p. 8).

As such, the buyers never would have

closed on their homes, according to the Mayor.

(D. 207, p. 8).

Maroney counters that the Mayor’s tortious interference was
complete

when

the

buyers

canceled

their

purchase

and

sale

agreements, which caused Maroney to lose each deposit and potential
sale.

(D. 219, p. 15).

The Mayor, in turn, responds by quoting

Ward’s testimony that as of January 5, 2016, Maroney would not
have been able to complete the water booster station by November
1, 2016 using either a stick-built design or a factory-built pump
manufactured by EFI.

(D. 230, pp. 2-3) (D. 220, pp. 57-58).

Here again, the Mayor’s arguments are not convincing.

For

starters, in estimating the time to complete the water booster
station, the jury could have found that Ward was not a credible
witness.

In that regard, Ward was asked a question about how long

it would take Maroney from beginning the design to finishing the
water booster station. Ward answered, “I mean, typically 18 months
or so.”

(D. 226, p. 157).

Yet, in a June 2012 email to a

Parsonage Hill resident, Ward estimated roughly one or two months
for a design, three to four months for equipment delivery, and a
couple of months for construction, i.e., roughly seven or eight
months.

(Ex. 9).

In addition, a jury could easily find that Maroney suffered
harm when, for example, the DiLorenzos and the Prestons canceled
their purchase and sale agreements shortly after the Crystal
43


Springs

meeting.

Given

the

short

time

between

the

Mayor’s

statements and their cancelations, the jury could also conclude
that the Mayor, the top official in charge of the City, acted
independently of Ward in causing their cancelations.

In other

words, the short time-period supports the jury finding that the
DiLorenzos’

and

the

Prestons’

cancelations

shortly

after

the

Mayor’s statements operated independently of Ward not signing off
on the building permits at some undefined point in the future and
Maroney not building the booster station by November 1, 2016.

At

a minimum, sufficient evidence exists that Maroney was harmed by
the loss of their deposits and the potential net proceeds from the
sales of the homes.
In sum, it is reasonably likely that the jury determined that
the Mayor interfered with the four purchase and sale agreements as
opposed to determining a “breach” of the Tripartite Agreement.
discussed, sufficient evidence supports the jury’s findings.
Mayor’s

arguments

regarding

the

uncertainty

and

As
The

ambiguity

engendered by the word “or” in question one of the verdict form
are not convincing.
C.

Inconsistency in Verdict
The Mayor next argues that the jury’s finding in his favor on

the prospective business relationship claim is inconsistent and
cannot be reconciled with the jury’s finding in Maroney’s favor on

44


the contract interference claim.31

(D. 207, pp. 13-14).

According

to the Mayor, the inconsistency arises because each finding depends
on the same actions by Ward, i.e., his refusal to sign off on
permits after March 2015, his action regarding the change to the
EFI design, and his recommendation against extending the TriPartite Agreement.

(D. 207, pp. 13-14).

With respect to the

contract interference claim, the Mayor reasons that “even if the
individuals” with existing “purchase and sale agreements had not
backed out of those agreements after the Mayor’s” statements,
Ward’s actions would have prevented them from closing on their
homes.

(D. 207, p. 14).

With regard to the business relationship

claim, Ward’s actions similarly would have prevented Maroney from
entering “into contracts with prospective homeowners,” according
to the Mayor. (D. 207, p. 14). In short, per the Mayor’s argument,
“the

jury

contract”

found
(a

that

purchase

the
and

Mayor
sale

interfered

with

agreement

or

a

an

existing

Tri-Partite

Agreement) but then inconsistently found that he “did not interfere
in any prospective business relations, presumably any future sale
of homes or a new Tri-Partite Agreement.” (D. 207, p. 13). Maroney
counters that the Mayor acted independently of Ward and that the
prospective business relationships with future buyers were too
remote or speculative.
31

The Mayor fails to cite a case or any other legal authority for the argument.
(D. 207, pp. 13-14).

45


By way of background, the jury answered “yes” to question
three, which pertains to the contractual interference claim, and
“no” to question nine, which pertains to the business relationship
claim.32

Both questions addressed a similar subject, namely,

whether the Mayor intentionally induced another party not to
perform the contract’s obligation or the buyers not to enter or
continue the prospective business relationship.

The jury charge

thus connected an instruction regarding the Mayor’s knowledge,
intent, and improper motive or means to both claims.

(D. 211, p.

143, ¶ 2).
In civil trials, there is a substantial and significant
reluctance to order a new trial based on an inconsistency in the

32

Questions three and nine read as follows:
3. With respect to any contract to which you found the required knowledge,
do you find, by a preponderance of the evidence, that the Mayor
intentionally induced or persuaded another party to that contract not to
perform the party’s obligations under that contract?
Answer:

Yes

9.
Do you find, by a preponderance of the evidence, that the Mayor
intentionally induced or caused the buyers not to enter into or continue
the prospective relationship, or prevented Mr. Maroney from acquiring or
continuing the prospective relationship?
Answer:

No

(D. 197). Question three tracks a joint instruction proposed by the parties
and included in the jury charge. (D. 165, pp. 5-6) (D. 211, p. 38). Question
four tracks a proposed instruction by Maroney, which the jury charge also
included. (D. 165, p. 19) (D. 211, p. 142). The Mayor did not object to the
language in this proposed instruction at the charge conference. As an aside,
the Mayor’s proposed verdict form is deficient for various reasons including
that it elevated certain facts to the exclusion of others. (D. 219, p. 11, ¶
1) (D. 192).

46


verdict form.

See Davignon v. Hodgson, 524 F.3d 91, 109 (1st Cir.

2008) (noting “reluctan[ce] to order a new trial on the basis of
inconsistent jury verdicts” and court’s “attempt to reconcile the
jury’s

findings,

by

exegesis

if

necessary”)

(emphasis

added)

(citation omitted); Connelly v. Hyundai Motor Co., 351 F.3d 535,
540

(1st

Cir.

2003)

(recognizing

“substantial

reluctance

to

consider inconsistency in civil jury verdicts a basis for new
trials”) (citation omitted).

For example, “Where there is a view

of

the

the

case

that

makes

jury’s

answers

to

special

interrogatories consistent, they must be resolved that way.”

ITyX

Sol.AG v. Kodak Alaris, Inc., 952 F.3d 1, 11 (1st Cir. 2020)
(citing Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369
U.S. 355, 364 (1962)).

In other words, the analysis does not

“search for one possible view of the case which will make the
jury’s finding inconsistent.”

Atl. & Gulf Stevedores,

369 U.S.

at 364 (further noting that such a search would “result[] in a
collision with the Seventh Amendment”) (emphasis added) (citations
omitted).33
In the court’s view, there was no inconsistency between the
jury’s verdict in Maroney’s favor on the contractual interference
claim and the jury’s verdict in the Mayor’s favor on the business

33
Somewhat contrarily, the Mayor adheres to one primary view of the case - that
Ward’s conduct of “refus[ing] to sign off on permits after March 2015[,]”
changing to the EFI design, “and recommend[ing] against the extension of the
Tri-Partite Agreement” rendered the verdicts irreconcilable. (D. 207, pp. 1314, ¶ D).

47


relationship claim.

Rather, the jury’s answers to questions three

and nine and, more broadly, the jury’s verdicts on the contractual
interference and the business relationship claims each have a basis
in the evidence.

See Connelly v. Hyundai Motor Co., 351 F.3d 535,

541–542 (1st Cir. 2003) (reconciling verdicts because “‘jury’s
efforts to apply the instructions were understandable and had some
basis in the evidence”) (citation omitted).
On the contractual interference claim, the jury reasonably
could have found that the Mayor interfered with the four purchase
and sale agreements independent of Ward’s actions.

The repeated

and forceful nature of the Mayor’s statements, the close proximity
between the statements at the Crystal Springs meeting and the
DiLorenzos’ and the Prestons’ cancelations, and the Mayor’s status
as the top City official support such a finding.
In contrast, on the business relationship claim, the jury
reasonably could have limited the claim to future buyers with a
prospective business relationship in the form of future purchase
and sale agreements with Maroney.34

The Mayor’s statements took

place in August and September 2015.

Hence, the jury could have

34

To that end, the jury answered “yes” to question seven, which asked, “Do you
find, by a preponderance of the evidence, that Mr. Maroney had a prospective
business relationship with prospective buyers with the probability of future
economic benefit for Mr. Maroney?” (D. 197, No. 7). In answering this question,
the jury reasonably could have limited the “prospective business relationship”
to future purchase and sale agreements “with prospective buyers” as opposed to
including the four existing purchase and sale agreements the jury found applied
to the contractual interference claim, as previously discussed.


48


found those statements too remote in time and too speculative to
induce or cause those future buyers not to enter into those future
purchase and sale agreements to buy the homes.
jury

answered

“no”

to

question

nine.

Accordingly, the

Moreover,

it

is

the

remoteness of the Mayor’s comments rather than “Ward’s refusal to
sign off on permits,” as argued by the Mayor, that could have led
the jury to answer question nine “no” and thus find for the Mayor
on the business relationship claim.
The same remoteness concern applies if the jury reasonably
interpreted the prospective business relationship as being the
future buyer’s purchase of the home rather the prospective business
relationship of entering into a future purchase and sale agreement.
Those circumstances are just as remote and, perhaps, even more
remote, than entering into the future purchase and sale agreement
for that home. In short, given the substantial reluctance to order
a new trial based on inconsistent verdicts in civil trials and
that reconciliation is obtainable by exegesis, if necessary, the
foregoing reconciles the verdicts.
Separately, even assuming the Mayor’s singular view of the
evidence as based on Ward’s actions35 was the only possible view
of the case the jury could adopt, which it was not, and that it

35

To repeat, the Mayor points to Ward’s actions of refusing to sign off on
permits, changing to the EFI design, and recommending against extending the
Tri-Partite Agreement. (D. 207, pp. 13-14).


49


rendered the two verdicts inconsistent, the Mayor’s failure to
object to the reportedly inconsistent verdicts triggers an ironclad rule in the First Circuit that dooms the Mayor’s argument
here.

That rule required the Mayor to object to the inconsistency

before the court discharged the jury.
To explain, objections to the inconsistency of verdicts under
Federal Rule of Civil Procedure 49(b) (“Rule 49(b)”) “must be made
after the verdict is read and before the jury is discharged.”
Babcock v. Gen. Motors Corp., 299 F.3d 60, 63 (1st Cir. 2002)
(stating foregoing as prior holdings in First Circuit cases and
finding

defendant’s

constituted

failure

forfeiture)

to

object

(citations

to

general

omitted).

verdict

Further,

a

forfeiture results from a failure to object to general verdicts as
well as to general verdicts with written interrogatories upon one
or more issues of fact.
general

verdict

with

See id. at 63 & n.1 (If verdict was

written

questions

under

Rule

49(b)

or,

alternatively, two general verdicts, objections to inconsistency
should have been raised before jury was discharged.).36

36

A similar

It is therefore not necessary to delineate whether the verdict form
constituted two or more general verdicts or a general verdict with special
written questions with one or more issues of fact. Under either scenario, the
Mayor should have objected at the critical time, namely, the time when the court
could have addressed the error and asked the jury to return to its deliberations.
See id. at 64 (noting “[t]o decide otherwise would countenance ‘agreeable
acquiescence to perceivable error as a weapon of appellate advocacy’”) (citation
omitted).
As an aside, the questions in the verdict form in Babcock were more
general or global than the questions in the verdict form in this case. See
Babcock, 299 F.3d at 63 (asking “[h]as plaintiff proved her negligence claim by
a preponderance of the evidence?”). The Babcock verdict questions also did not

50


rule applies to special verdicts.37

In re Nexium (Esomeprazole)

Antitrust Litig., 842 F.3d 34, 59 (1st Cir. 2016) (citation
omitted); Fed. R. Civ. P. 49(a).
The requirement to object to an inconsistent verdict is “an
‘iron-clad rule’ in” the First Circuit.

Nexium, 842 F.3d at 59

(citing Rodriguez–Garcia v. Mun. of Caguas, 495 F.3d 1, 9 (1st
Cir. 2007)).

The justification for this iron-clad rule is that

“the ‘only efficient time to cure the problem is after the jury
announces its results and before it is excused, and it is the
responsibility of counsel to make timely objection.’”

Burnett v.

Ocean Props., Ltd., 987 F.3d 57, 73 (1st Cir. 2021) (citation
omitted).
Thus, after the court read the verdict and asked counsel if
they wished to poll the jury, it was incumbent upon the Mayor’s
counsel to raise the issue of any inconsistency in the jury’s
answers at that time before the court excused the jury.

The fact

that the court did not ask the parties if they had any concerns

include an issue of fact. See id.; see also Trull v. Volkswagen of Am., Inc.,
320 F.3d 1, 4 (1st Cir. 2002) (“Although there were no written interrogatories
submitted to the jury, it is clear that the two liability questions submitted
to the jury were general verdict forms under Rule 49(b).”). Yet, the court in
Babcock still concluded that the verdict questions were either two general
verdicts or a Rule 49(b) general verdict with special written questions on one
or more issues of fact. See Babcock, 299 F.3d at 63 & n.1; Fed. R. Civ. P.
49(b)(1).

37 The form used in this case was not a
special verdict. See Babcock, 299 F.3d
at 63 (stating similar, albeit more general, verdict form was not a Rule 49(a)
special verdict). 


51


about the verdict form before excusing the jury is immaterial.
See Trainor v. HEI Hosp., LLC, 699 F.3d 19, 34 (1st Cir. 2012)
(rejecting argument that party did not waive claim of inconsistency
because “district court never inquired as to whether any party
wished to comment”). Further, the Mayor did not object even though
the instructions and the verdict form, which the Mayor had at the
charge conference, foreshadowed a potential inconsistency if the
jury

answered

negatively.38

question

three

affirmatively

and

question

nine

See Howard v. Antilla, 294 F.3d 244, 250–251 (1st

Cir. 2002) (finding forfeiture based on failure to object to
inconsistent verdicts on two claims before jury discharged given
close similarity between defamation and false light claims such
that “Antilla ‘should have observed that there could be no “eitheror”’”) (citing Merchant v. Ruhle, 740 F.2d 86, 91 (1st Cir. 1984)).
The potential foreshadowing arose because both questions pertain
to the Mayor’s intentional inducement; and the jury charge on the
business relationship claim directed the jury to consider the
instructions

on

the

contractual

interference

“knowledge, intent, or improper motive or means.”

claim

as

to

(D. 211, p.

143).
Further still, had the Mayor objected, the court could have
asked the jury to reconsider its answers to questions three and

38

See supra note 32.

52


nine.

Moreover, in doing so, the court could have reminded the

jury about the instruction connecting the elements of each claim
with respect to knowledge, intent, and improper motive or means.
Although this failure forfeits any claim of inconsistency,
the Mayor had a second opportunity to raise the issue when,
immediately after excusing the jury, the court asked the parties
if they wished to raise anything.

Both Maroney’s and the Mayor’s

counsel responded that they did not wish to raise anything.

(D.

231, pp. 7-8). Relatedly, the court had the authority to reconvene
the jury at that time because only two or three minutes had passed,
the jurors were in the process of returning to the jury room to
collect their belongings, and it is unlikely they had spoken to
anyone regarding their deliberations.

See Dietz v. Bouldin, 579

U.S. 40, 42 (2016) (“hold[ing] that a federal district court has
the inherent power to rescind a jury discharge order and recall a
jury for further deliberations after identifying an error in the
jury’s verdict” in a civil case); id. (Ability to rescind discharge
order “is limited in duration and scope and must be exercised
carefully to avoid any potential prejudice.”).
In sum, the verdicts can be reconciled based on the evidence
in the record.

In any event, the Mayor’s failure to object after

the jury returned the verdict and before the court discharged the
jury forfeited his inconsistency challenge.

Per the foregoing,

the Mayor’s inconsistency arguments do not merit a new trial.
53


D.

Summary Judgment Findings
The Mayor seeks a Rule 50(b) judgment as a matter of law and

a Rule 59(a) new trial because the summary judgment findings should
have ended the case.

Having set out the basis for his argument

and Maroney’s rejoinder in opposition, it is not necessary to
repeat the parties’ positions in detail. The procedural background
recites the multiple times that the Mayor reiterated the argument
including seeking review by way of the motion for reconsideration.
Accordingly, the court proceeds to the merits of the parties’
arguments.
1.

Rule 50(b) Request

At the outset, Maroney contends that the Mayor failed to
raise the summary judgment argument in the Rule 50(a) motions.
He is mistaken.

Although brief, the Rule 50(a) motions recite:

In addition to the lack of evidence at trial, the Court
previously determined that Ward acted appropriately when it
granted his motion for summary judgment.
Finally, at the
trial of this case, the Plaintiff has actually adduced less
evidence against the Mayor than submitted to the Court at
summary judgment.
(D. 189, 193).

Placed in the context of the Mayor’s repeated

presentations of the same argument founded on Rule 56(g) and the
law of the case, the Rule 50(a) motions were sufficiently specific
to apprise this court of the basis of the argument.

Cf. T G

Plastics, 775 F.3d at 39 (finding defendant’s “general argument
that the requested damages award was speculative” was “too vague

54


to encompass the costs argument, especially since the issue had
not been raised to the court or to the jury at any earlier point”)
(emphasis added).

Accordingly, the Mayor did not waive the Rule

50(b) argument regarding the preclusive effect of the summary
judgment finding.
The Rule 50(b) argument nevertheless lacks merit.

The Mayor

relies on the court’s summary judgment findings that “a reasonable
juror could not find that Ward was following the Mayor’s directives
in changing to the EFI design in January 2016 and opposing the
extension of time to build the water booster station during the
September and October Planning Board meetings” in connection with
the substantive due process claim.

(D. 127, p. 42).

The Mayor

additionally cites to the related summary judgment finding made
with respect to the conspiracy claim.

(D. 127, p. 61).

that

trial

these

findings

interference claim.

precluded

a

on

the

He submits
contractual

The evidence at trial, as contended by the

Mayor, was essentially the same as presented to the court on
summary judgment.
trial.

Maroney maintains the evidence differed at

Maroney is correct.

First, it is a “common-sense ‘procedural fact’ that the record
fully develops between any proffered summary judgment motion and
trial.”

Jones, 780 F.3d at 488. Although the Rule 50(a) “standard

largely ‘mirrors’ the summary-judgment standard, the difference”
is “that district courts evaluate Rule 50(a) motions in light of
55


the trial record rather than the discovery record.”

Dupree v.

Younger, 598 U.S. 729, 731-732 (2023) (emphasis added).

It is

therefore “unremarkable to grant a party’s motion for judgment as
a matter of law after having denied that party’s motion for summary
judgment.”

Daumont-Colón v. Cooperativa de Ahorro y Crédito de

Caguas, 982 F.3d 20, 26 (1st Cir. 2020) (emphasis added) (citations
omitted).

Again, this is because the evidence considered for each

motion is different:

“motions for summary judgment are decided

based on affidavits and other pretrial filings, whereas motions
for judgment as a matter of law are ‘decided on the evidence that
has been admitted’ at trial.”

Id. at 27 (citation omitted).

Whereas the “bodies of evidence may be similar, . . . in the
typical case . . . they are not identical.”
This action is a typical case.

Id.

The evidence and the record

on summary judgment were similar to the evidence and record at
trial, but also differed in material respects.
were the same, but a number were different.

Certain exhibits

To the latter point,

the trial record included the four purchase and sale agreements
whereas the summary judgment record did not.

The summary judgment

record also included depositions by a number of the witnesses at
trial.

Although the deposition testimony and the trial testimony

of these witnesses covered similar topics, the questions and
answers at trial were not always the same.

Moreover, the trial

included witnesses (Dennis, Lewis, and Smith) whose depositions
56


are absent from the summary judgment record.

Smith was the

individual who reviewed and approved water service applications
for the houses.

Unlike the summary judgment proceeding, the jury

could assess the credibility of the witnesses at trial.39

See

Bonner v. Triple-S Mgmt. Corp., 68 F.4th 677, 689 (1st Cir. 2023)
(noting “uncontroversial rule that at summary judgment there is
‘no room for credibility determinations’”).
In short, the summary judgment factual findings the Mayor
identifies were not binding at trial.

Allowing the Rule 50(b)

request based on Mayor’s summary judgment argument is thus not
warranted.
2.

New Trial Request

The Mayor also seeks a new trial based on the summary judgment
findings “that a reasonable juror could not find that Ward was
following the Mayor’s directives in changing to the EFI design .
. . and opposing the extension of time to build the water booster
station” before the Planning Board.

(D. 207, pp. 9-11).

For

substantially the same reasons with respect to the Rule 50(b)
request, a new trial is not warranted.
In brief, this is a typical case. The summary judgment record
was similar but certainly not identical to the trial record.

39

As an aside, the court repeatedly advised the parties not to rely on facts
set out in the summary judgment opinion as established or binding for purposes
of the trial, including the factual finding that a reasonable juror could not
find that Ward was following the Mayor’s directives. (D. 149, pp. 2, 4, 6-13,
22).

57


Further, the jury could and likely did make credibility judgments.
In all, the Mayor’s summary judgment argument fails to convince
the court that the verdict was against the law or a miscarriage of
justice.
E.

Hearsay Evidence
As earlier noted, the Mayor argues that Scalera’s testimony

about why the buyers with the four purchase and sale agreements
did not purchase the homes is hearsay.

As a reminder, Scalera

testified about her understanding, based on her observations, that
the DiLorenzos withdrew from their purchase and sale agreement
because they had lost confidence that the sale would occur in light
of the Mayor’s comments at the Crystal Springs meeting.
p. 48).

(D. 238,

Based on her understanding from observations, she also

had the sense that other buyers were feeling uncertain because of
the Mayor’s statements.

(D. 201, p. 41).

Scalera’s testimony was founded upon her observations.
such, it not hearsay.

As

See Cole v. Maine Off. of Info. Tech., 17-

cv-00071-JAW, 2018 WL 4608478, at *12 n.37 (D. Me. Sept. 25, 2018)
(“Mr. T.’s observations about how Ms. Gordon was reacting to Mr.
Karstens are not hearsay, because they are Mr. T.’s own direct
observations and within his personal knowledge.”); see also United
States v. Soto-Beniquez, 356 F.3d 1, 36 (1st Cir. 2003) (“Officer
Rosa–Lopez did not testify about an out-of-court statement, see
Fed. R. Evid. 801(c), but about his personal observation of the
58


results of the field test.”); Mackey v. Town of Tewksbury, Civil
Action No. 15-12173-MBB, 2020 WL 68243, at *2 (D. Mass. Jan. 7,
2020) (“[P]laintiff’s observation of his father not allowing the
officers to enter the house is based on plaintiff’s personal
knowledge and is not a statement within the meaning of the hearsay
rule.”) (citing Fed. R. Evid. 801(a)).

Similarly, Scalera’s

understanding of why the buyers did not purchase the homes is not
hearsay.

See Glenwood Farms, Inc. v. Ivey, No. 03–217–P–S, 2005

WL 2716497, at *8 n.27 (D. Me. Oct. 20, 2005) (“Berry’s sworn
statement”

in

understanding

summary
is

not

judgment
hearsay.”).

affidavit

“about

Accordingly,

his

own

Scalera’s

understanding, based on her observations, of why the buyers with
the four purchase and sale agreements did not purchase the homes
is not hearsay.
F.

The Mayor’s argument to the contrary lacks merit.

State Court Lawsuit
The Mayor makes two arguments relative to the state court

lawsuit.

The court examines the arguments seriatim.

In the first argument, the Mayor maintains that he did not
cause Maroney any harm because the state court held that the City
could withhold the permits until the water booster station was
built and Maroney had until November 1, 2016 to build it.
207, p. 12).

(D.

Maroney argues in response that the contractual

interference claim “was complete when the buyers canceled their”

59


purchase and sale agreements, which caused Maroney to lose the
deposits and the potential sales.

(D. 219, pp. 14-15).

Based on collateral estoppel of an issue in the state court
decision, this court previously determined that Maroney agreed to
build the station after completing Phase I, which was earlier than
November 2016.

(D. 77, p. 12).

This court thus “adopt[ed] the

state court’s finding that [Maroney] agreed both that a water
booster station was necessary and that he would build the station
after completing Phase I.”40

(D. 77, p. 12) (D. 97-1, p. 19) (D.

77, p. 6).
The Mayor’s first argument does not warrant a new trial.

The

established fact that Maroney agreed to build the station before
November 2016 does not eliminate or foreclose the harm to Maroney
already caused by the Mayor’s statements, namely, the loss of the
deposits and potential home sales.

As explained in section

V(B)(3), there was adequate and sufficient evidence for the jury
to find that the Mayor’s statements induced the DiLorenzos and the
Prestons to cancel their purchase and sale agreements well before
November 2016.

The same is true for the Rainvilles’ cancelation,

which “took a little longer” than the DiLorenzos’ and the Prestons’

40

This court did not apply collateral estoppel to a related state court finding.
That finding determined that, “to the extent Maroney was seeking permits
enabling him to start construction on lots that Water Department considered
unserviceable without the booster station, . . . the Department was free to
deny those permits, no matter the date, until the booster station was
constructed.” (D. 97-1, p. 19).


60


cancelations.

(D. 243, p. 97).

As for the Dalys’ cancelation,

the voided check with the “Deposit return” memo is dated May 19,
2016, also well before November 2016.

(Ex. 24).

Based on the

evidence, the jury could conclude that the Mayor induced the
buyers’ cancelations and thereby harmed Maroney due to the loss of
deposits and potential home sales reflected in the four purchase
and sale agreements.

Moreover, the evidence allowed the jury to

find that this took place well before November 1, 2016.

Put

another way, irrespective of the City’s ability to withhold permits
until November 2016, the jury could find, based on sufficient
evidence, that the Mayor’s statements independently caused the
harm to Maroney and did so well before November 2016.
The Mayor’s second argument likewise fails to merit a new
trial.
jury

to

The Mayor submits that this court erred by allowing the
hear

the

state

court’s

finding

at

the

preliminary

injunction stage that Maroney “had a likelihood of success on the
merits of his claims” while excluding prejudicially the outcome of
the state court proceeding.

(D. 207, p. 12).41

The exclusion also

significantly prejudiced the Mayor, or so he contends, because it

41

The jury heard the likelihood of success finding when this court instructed
the jury on the third day of the trial (August 10, 2023) that, in conjunction
with the state court judge denying the preliminary injunction, he “also said .
. . that ‘The plaintiffs have shown a likelihood of success on the merits of
their contractual claims.’” (D. 207, p. 12) (citing the August 10, 2023 trial
transcript at pp. 87-91) (D. 202, pp. 90-91). The factual background quotes
the complete instruction.

61


prevented

the

jury

from

being

fully

informed

of

the

facts

pertaining to this action, namely, that that the City could
properly withhold the permits and that Maroney had until November
1, 2016 to build the water booster station.42

As indicated in

Maroney’s response in opposition, this court weighed and balanced
the relevance against the confusion and unfair prejudice that would
result by the admission of testimony regarding the 2018 outcome
and findings therein – namely that Maroney’s claims generally
lacked merit - under Federal Rule of Evidence 403 (“Rule 403”).
By way of background, the court addressed the limitations
regarding testimony about the state court lawsuit on several
occasions.

On each occasion, whether implicitly or expressly,

this court considered the testimony under the balancing construct
of Rule 403.

For example, during the final pretrial conference,

this court noted the need of the party seeking admission of a state
court ruling to articulate “why under 403 its probative value
outweighs the risk of confusion of prejudice to the other side.”
(D. 179, pp. 32-33, 38) (D. 179, p. 32) (stating jurors are
“laypeople who may have a hard time understanding what to make of

42

As stated earlier, the state court made a finding that “to the extent Maroney
was seeking permits enabling him to start construction on lots that the Water
Department considered unserviceable without the booster station, . . . the
Department was free to deny those permits, no matter the date, until the booster
station was constructed.” (D. 97-1, p. 19). This court also made the collateral
estoppel finding that Maroney agreed to build the booster station after
completing Phase I, which was earlier than November 2016.


62


a ruling by basically another sovereign on this case”).

During

the trial, this court reiterated the basis for limiting the
testimony regarding the state court lawsuit.

(D. 202, pp. 16) (“I

would think that would be confusing to the jury.

What do we make

of the fact that he lost the state case? . . . I would say yes,
this footnote [in the pretrial memorandum] has generated a lot of
confusion.

But I think in fairness to Mr. Maroney -- it can’t be

interpreted now to allow you to get him to concede that, at a later
date, there was a finding the city could properly withhold the
permits, because I think it’s not really relevant.
it’s

going

to

prejudicial.”).43

confuse

the

jury

and

I

think

And I think
it

would

be

Similarly, when the parties expressed a desire

to broaden the testimony regarding the state court lawsuit specific
to the preliminary injunction proceeding on day three of the trial,
the court expressed similar concerns.

(D. 238, p. 7) (“Help me

understand how this isn’t going to confuse the jury” and “my worry
here” is “that somebody’s going to say because the Court ruled a
certain way here, I’m not telling you explicitly but I’m suggesting
to you it should affect how you’re going to rule here.”).
Rule 403 endows the court with discretion to “exclude relevant
evidence if its probative value is substantially outweighed by a

43

The Mayor cites certain pages of the trial transcript, including the above
page, in presenting the second argument. (D. 207, p. 12) (citing D. 202, pp.
1-18, 58-59, and 87-91).


63


danger of . . . unfair prejudice, confusing the issues, [or]
misleading the jury . . . .”

Fed. R. Evid. 403; see Ellicott v.

Am. Capital Energy, Inc., 906 F.3d 164, 172 (1st Cir. 2018)
(stating “[d]istrict courts have wide discretion when it comes to
determinations under Rule 403”).

Here, the relevance of the

outcome of the state court lawsuit in 2018 which the defendants
prevailed on the merits is, at most, minimal and, more likely,
nonexistent.

The 2018 result that the defendants prevailed in the

state court lawsuit does not inform the parties’ state of mind in
2015 and 2016.
In comparison, admitting the information risked significant
and substantial confusion to the jury.

For example, it carried

the decided risk of the jury affording undue weight to the state
court’s outcome in the defendants’ favor and carried the risk that
it would persuade or suggest to the jury to find in favor of the
defendant in this action, the Mayor.

In addition, informing the

jury that Maroney lost the state court case years later against
different defendants, i.e., not the Mayor, carried the risk of
confusing the issues and misleading the jury of what to make of
that finding in the context of this case.
Case law supports a Rule 403 exclusion of rulings by other
courts on the basis of unfair prejudice, confusion, and misleading
the jury.

For example, as determined in Haynes v. Acquino, 771

Fed.Appx. 75, 76-77 (2d Cir. 2019) (unpublished), “the district
64


court did not abuse its discretion in holding that the probative
value

of

the

state

court’s

ruling

on

probable

cause

was

substantially outweighed by the danger of its prejudicial impact
and potential to confuse the jury.”

Afterall, as reasoned in

Haynes, “a jury might place undue emphasis on a court order simply
because a judge issued it, and that introducing an order might
confuse the issues and mislead the jury.”

Id. at 77 (internal

brackets omitted) (citation omitted).
Similarly, the court in Williams v. O’Connor, Civil Action
No. 14-02667017, 2017 WL 445748 (E.D. Pa. Feb. 2, 2017), excluded
evidence of a state court’s decision to suppress evidence seized
during a traffic stop.

Williams involved a section 1983 claim

alleging that a police officer violated Williams’ Fourth and
Fourteenth Amendment rights by stopping and searching him during
that same traffic stop.

The court excluded the evidence under

Rule 403 because the decision’s probative value, if any, was
“substantially

outweighed

confusing the jury.”

by

unfair

Id. at *3.

prejudice

and

risk

of

The court deduced that:

Williams’s § 1983 claim is distinct from the initial
criminal case; the suppression decision occurred in a
separate proceeding between different parties.
A previous
decision by a judge may foreclose the issue for the juror,
despite the fact that it will be the jury’s duty in this
case to determine whether reasonable suspicion existed.
Id.

The reasonings in Hayes and Williams apply equally to this

case.

65


Likewise, the court in Thomas v. O’Brien, 539 Fed.Appx. 21
(2d 2013) (unpublished), upheld the lower court’s exclusion under
Rule 403 of a state criminal court’s finding that the plaintiff’s
Fourth

Amendment

rights

were

violated

in

the

plaintiff’s

subsequent civil rights “lawsuit[] alleging excessive force and
Fourth Amendment violations.”

Id. at 22.

The lower court in

Thomas found that “the evidence, although somewhat probative, was
substantially outweighed by its prejudicial value and potential to
confuse the jury.”

Id.

In sum, notwithstanding the Mayor’s argument to the contrary,
this court properly weighed and balanced the relevancy of the
information and determined it was substantially outweighed by the
danger of unfair prejudice and confusion of the issues as well as
misleading the jury in this case.

As such, the argument does not

warrant a new trial.
IV.

CONCLUSION
In accordance with the foregoing discussion, the motion for

judgment as a matter of law or, in the alternative, for a new trial
(D. 206) is DENIED.
/s/ Donald L. Cabell
DONALD L. CABELL, Chief U.S.M.J.
DATED:

May 1, 2024

66