USCA1 Opinion

February 5, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1349
PETER GRABLER,
Plaintiff, Appellant,
v.
ISRAEL ROIZMAN, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
Peter Grabler on brief pro se.
_____________

Brian P. Flaherty and Wolf, Block, Schorr and Solis-Cohen

__________________
_____________________________________
brief for appellee Israel Roizman.
____________________
____________________

Per Curiam.
__________
resident of
Roizman, a

On

March

resident

of

Pennsylvania.

appellant Peter

Benchmark

Among other

Broadway

He

was

based

claimed that

purchase all of Grabler's

forms of relief, Grabler

an accounting.

Jurisdiction

Corporation and

Grabler,

against appellee Isr

Grabler essentially

had breached an agreement to

and

1991,

Massachusetts, filed a complaint

diversity of citizenship.

in

7,

Benchmark

Roiz

shareholdi

Developers,

requested damages (unspecifi

also included

allegations that

Roizman

committed fraud, engaged in economic duress and had violated M.G.L.

93A and Section
Act.

10(b) and Rule 10b-5 of the

The details

because Roizman

of the complaint

agreed to pay

1934 Securities Excha

are not relevant

to this app

Grabler approximately $96,000

for

stock.
In May

1991, Roizman

counterclaim,

which

filed an

answer and

essentially forms

the

a counterclaim.

basis

for this

appe

concerns

the

Grabler,

Roizman

individuals

deterioration

are

and
the

a third
sole

Corporation ("Benchmark").*
estate

development.

in

the

business

relationships

am

th

person,

David

Kohen.

shareholders

in

Benchmark

Benchmark

Specifically, it

is

in the

is a

These

Propert

business of

general partner

r
in

housing projects -- Elm Hill Limited Partnership ("Elm Hill") and B

Hill

Limited Partnership ("Blue Hill").

in each project.

The other general partners are

Group, Ltd. ("BFGL")

also has a

Benchmark has a 50% inter

and an

Benchmark Financ

individual, Frank Jones.

limited partnership as

Each

its limited partner.

proj

Grabler

Kohen are the sole shareholders of BFGL.

____________________
*Grabler and Kohen are directors of Benchmark; Roizman
office. All decisions concerning Benchmark must be by a
vote of the three shareholders.

In June 1991, the parties reached a

was dismissed.
much Roizman

final settlement and the c

Paragraphs 2 through 4 of the

owed Grabler for the stock

to effect payment to Grabler.

holds
unanim

settlement concern

purchase and how Roizman

Paragraph 7 of the settlement stated

After Grabler and Roizman have reached agreement regarding

the allocation of expenses and partnership distributions in
connection with Elm Hill Housing Limited Partnership, Blue
Hill Housing Limited Partnership and Benchmark Properties,
Inc., Grabler shall add Roizman as a required signatory on

the Massachusetts escrow account, as well as all savings,

checking and other banking accounts maintained by Elm Hill
Housing Limited Partnership,
Blue Hill Housing Limited
Partnership and Benchmark Properties, Inc.
Grabler and
Roizman agree that they will proceed in good faith to affect
[sic] a resolution of this issue.
Unfortunately, the obligation to
settlement
Benchmark
whether

of

the

disputes

pursuant to
Grabler was

purchased by Roizman.

the
due

use good faith failed to

concerning

Elm

Hill,

above paragraph.
interest

on

the

Blue

Also in
payment

Thus, on October 15, 1991,

ensure
Hill

dispute

for

the

st

the district co

granted Roizman's motion to reopen and set the case for hearing.
The specific
follows:

claims presented

at that

time by

Roizman were

(1) Grabler and Kohen caused Benchmark to pay all of cert

___

expenses incurred by

Blue Hill and

Benchmark only had a fifty percent

_____________
excess costs

Elm Hill, despite

the fact

interest in each project, and

should be deducted from the profits of Blue Hill and

Hill; (2) Grabler and

Kohen each received salaries from

Benchmark

which they were not entitled and, having reimbursed Benchmark for p
of the salaries, still owed
Hill incurred

Benchmark approximately $23,000; (3) B

expenses for deleading

were

"double deducted" from the

paid

for Grabler's

$2563;

and (5)

profits of Blue

personal phone

Benchmark,

at

and $18,200

the
3

calls in
end

of

of these

expen

Hill; (4) Benchm

an estimated
1989,

had

amount
$50,529

development

cash (profits

should have been

from both

distributed to the

Elm Hill

and Blue

Hill) wh

Benchmark shareholders,

Roiz

being entitled to one-third of that amount.

The district court ultimately
five

claims,

holding that

appropriate allocation
connection

with Elm

Judgment,

2.

he "is

owed the

of expenses
Hill

Benchmark Properties

found in Roizman's

Housing

Corporation

sum

favor on

of $37,335

th
as

and partnership

distributions

LP,

Housing

Blue

("BPC") .

Hill
. .

."

LP

See Order
___

This order also provided that

[s]ubject to making provision for the payment of

the
reasonable expenses of BPC in the ordinary course
of
business, Peter Grabler and Israel Roizman are directed to
take all appropriate action to effect the prompt payment of
$37,335 to Israel Roizman from the future profits of BPC,
such payments to be arranged in such fashion as to have the
same economic effect as if these payments had been made in
the ordinary course.
Id.
___

3.

The judgment finally stated that if Grabler and Roizman w

not able to

agree on

Roizman, the court

a method to

effect the payment

would appoint an independent auditor

how the payment should be made.

Id.
___

4.

of $37,335

to recomm

DISCUSSION
__________
Grabler attacks the district court's findings
five

claims asserted

have been awarded

failure to

by Roizman.**

He also

interest on the $96,000

pay for the stock.

on four out of

argues that

owed to him

he sho

for Roizma

We review the district court's fact

findings under the clearly erroneous standard.

"If the district court's account of the evidence is plausible
in light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the
evidence differently. Where there are two permissible views
of the evidence, the factfinder's choice between them cannot
be clearly erroneous."
Anderson v. Beatrice Foods Co., 900 F.2d 388, 392
________
_________________

(1st Cir.) (quot

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)), ce

________
_____________________
__
denied., 111 S.Ct. 233 (1990).
______

In this case, which depends heavily

the inferences to be drawn from conflicting views of the facts, we

not substitute our opinion
court absent clear

error.

as to conclusions reached by
Id. at

392.

Keeping

the distr

this standard

__
mind, we turn to the disputed findings.
A.

The Counterclaims
_________________

1.

Roizman asserts

that during 1988,

1989

and

1990 Benchm

incurred certain expenses connected with its operation of Elm Hill

Blue

Hill.

Pages D, E

for each year.

question.

and F of Trial Exhibit

In total,

6 reflect these co

Benchmark paid $221,454

Roizman's basic claim

is that Benchmark

for the years

should have b

____________________

** Grabler does not challenge on appeal

the district cour
conclusion that, at the end of 1989, Benchmark should have distribu
to the shareholders $50,529 as profits.
Issues not raised on app
are waived. Cf. Pignons S.A. de Mecanique v. Polaroid Corp., 701 F
__ __________________________
_____________
1, 3 (1st Cir. 1983) (issues not presented in initial brief
waived). As for Grabler's contention that Roizman did not have "cl
hands," it was not raised below and is thus forfeited on revi
Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979).
________
_________________
5

charged

for only

half of

percent

interest in each

should have absorbed

this amount
project.

half of

That

because it

only had

is, Elm Hill

these expenses.

a fi

and Blue H

As Roizman

explai

during trial:
The basis is as follow[s]:
When in this industry of low
income housing when you have a partnership [Benchmark] that
operates two projects, and that's it, and this partnership is
supposed to get income for management fee[s], but does not

receive any management fee because the project is not healthy

financially to pay the management fee, and there is an
expense of rent, taxes, interest, copying, office supply, and
everything else that shows in RD, E and F.
When you don't
have an income to this project, to this company, there is
someplace where the money has to be paid from. And the only
place where the money can be paid is from profit that comes
in from the two entities and that's Elm Hill and Blue Hill.
App. I, Tab 1, at 40.
As

a result,

Roizman

partnerships should
the $221,454
on page A

concludes,

have been reduced

the

profits of

by their respective

in expenses incurred by Benchmark.

of Trial Exhibit 6

Blue Hill of $112,942.

both

limi

shares

Accordingly, Note

reflects a deduction in the

profits

Similarly, Note #1 of page B of Trial

Exhi

6 shows a reduction in Elm Hill's profits of $108,512.***

Grabler

claims

that

these calculations

are

wrong.

He

fi

argues that because Benchmark was running projects in addition to B

Hill and Elm Hill, see Trial Exhibit 6, at pages J
___

and K, these ot

projects also should have absorbed some of Benchmark's costs. Altho

not entirely clear, Roizman's accountant, Stuart Briefer (who also
been

the

accountant for

Benchmark

testified

that the costs

listed in Trial

Benchmark's costs

for the

and

the limited

years 1988-1990.

partnership

Exhibit 6 were
App. I,

not all
___

Tab 2,

at

____________________

***Although Benchmark has a fifty percent interest in each proje

Blue Hill was charged with fifty-one percent of Benchmark's costs
Elm Hill was charged forty-nine percent. There is no explanation
this difference but, in any event, it is not challenged on appeal.
6

Rather, the

inference from the testimony is that the amounts on pa

D, E and F were Benchmark expenses that related solely to Elm Hill

______
Blue Hill.

Id.
__

at 64-65.

Grabler

did not submit any

evidence t

would contradict Briefer's testimony.****

Next, Grabler contends that

an independent auditor's

report,

App. III, Tab 7, at 7 and Tab 8, at 9, demonstrates that Blue Hill

Elm

Hill

each

organizational
documentary

paid
costs.

about

$57,811

However,

or other evidence that

for

Grabler

their
did

own

not

this money was

respect

point

to

spent on the s

items listed on pages D, E and F of Trial Exhibit 6.

Indeed, there

no explanation concerning exactly how the independent auditor's rep

relates to the payment of Benchmark's expenses.
___________
Grabler also

alleges that Benchmark

in fact

received income

the form of management fees for 1988-1990, but assigned this income
another company,

Benchmark Apartment

Management

Corp.

As

Grab

never put in evidence any agreements concerning the assignment of s

fees or any documents indicating the dollar amounts of these fees,

cannot say that the district court's decision to credit Roizman's v

of the evidence was plainly wrong.
2.

Roizman claims that $18,200

-- which reflects

a payment

deleading at the Blue Hill housing project -- was erroneously "doub

deducted" from the profits of Blue Hill.

Thus, as reflected on pag

of

to

Trial Exhibit

6, $18,200

was added

the calculation

of B

Hill's profits.

To support his position, Roizman relies on a docum

entitled "Calculation of Syndication Profits,"

Exhibit RO, #5, and

____________________

****Similarly, Grabler's claim that there were no charges for ordin

expenses such as telephone, rent and copying listed on the pa
concerning these other projects seems irrelevant, without more, to
question whether Elm Hill and Blue Hill should have been charged w
some of Benchmark's expenses.
7

record

of

Syndication Account

Transactions

for Blue

Hill.

Tr

Exhibit 7, at 4.
It is

undisputed that Blue Hill

and operations.

Under

has two

this arrangement,

funded by the syndication account.

accounts -- syndicat

the operations account

It also is undisputed that most

the expenses for the deleading were paid from the syndication accou
except

for the

$18,200 which,

operations account.
Blue

one

of the

"operating deficit" of $75,000.

amount
account.

for

reason, was

paid

According to Briefer's testimony, in

Hill's profits,

Tab 1, at 17-20.

for some

expenses

listed in

which had

calculat
RO

#5 is

App. I, Tab 3, at 17-19 and App.

However, this deficit was reduced

deleading

from

been

paid

out

by $18,200 -of the

operati
_______

Id.
__

Although not free from doubt, it

appears that Roizman is

argu

that the "double deduction"

occurred when $75,000 was wired

syndication account to the

Trial

Exhibit 7, at

4.

did

the

operations account in December 1990.

Briefer

have been transferred.

full

testified that only

App. I, Tab 2, at 61.

operations account

transferring the

from

lay out

$75,000,

the

$18,200

$56,800 sho

As a result, not o
for deleading,

syndication

account

but

also

charged $18,200.
Grabler
evidence

first argues

and that,

Exhibit RO

that

Exhibit

in any event,

was

never

admitted

it was "superseded"

by Exhibit

contains the underlying documents from which Trial Exhi

6 was prepared

by Roizman and

Briefer.

Exhibit 6 in evidence on the second day

32.

RO

The district
of trial.

It later described RO as "part of exhibit 6,"

court admit

App. I, Tab 2,

App. I, Tab 2,

59, and referred to it during the course of the trial.

As such, it

plain that RO was considered

as admitted in evidence by

the distr

court.
As for Exhibit 7,
from Kohen to

Roizman.

transactions for 1990

does not list
that

RO #5

it is a

memorandum, dated September 20,

Page 4 reflects Blue Hill syndication acco

and 1991.

Grabler points

$18,200 as a deduction.
reflects

19

only an

He

"estimate"

out that Exhibit

then makes the observat

of Blue

Hill

syndicat

profits.

From this

he concludes that the

$18,200 was accounted

only once -- when it was paid out from the operations account.
Based on
court's

the evidence and testimony,

decision

to credit

Roizman's

we think

that the distr

explanation

erroneous.

Exhibit RO

#5 was prepared on February 8,

time,

operations

account

the

deleading.

syndication account

Trial

had

paid

Indeed, according to Grabler, the

this amount in December 1990.

the

already

Exhibit

7, at

clea

1991.

At t

the

$18,200

operations account p

This is the same time that $75,000 f

was wired

4.

was not

To

this

to the

operations account.

extent,

it

appears

that

calculation concerning the operations deficit of $56,800 (the

$75,

minus $18,200) is not an estimate.

3.

Roizman's

claim that Grabler

they

had

and Kohen

Benchmark

salaries

evidence.

In fact, in his brief, Grabler candidly admits

Kohen "repaid all but $7,800

1989"

to

Benchmark.*****

received

is

agreed to return

well

supported

of the salary they had each

Appellant's

admission lends direct support to Roizman's

Brief,

at

by

that he

received
33.

contention that Kohen

____________________

***** Grabler's argument that he and Kohen each retained $7,

because Roizman allegedly received $7,800 in extra salary is
relevant to the question whether an agreement concerning repaym
existed.
9

Grabler had, in fact, agreed

in 1989.

to repay the salaries they

had recei

In the absence of any evidence to the contrary, the distr

court's finding that Benchmark still is owed approximately $23,000

salary reimbursement is not clearly erroneous.
4.

Roizman claims

Grabler charged all of

that

during 1988,

his personal calls

1989

to Benchmark.

this assertion, Roizman submitted four cellular

November
1989.
he

11, 1988, January

8, 1989,

reviewed

charges,

the above

added them

multiplied

it by

bills,

up,

the number

of

$82.66.

for the period June

Thus,

allegedly

paid

approximately

Grabler owes Benchmark $2563.

supp

September

Grabler's personal

ph

monthly figure
Page

L of

Tr

It reveals that

based

amount of personal phone

calls

1988 to December

$2,563

Page H of Trial Exhibit 6,

the profits of Benchmark should

1989 and

average

calculations.

bills, the average

To

one phone bills da

covered months.

the four phone

of

see App. I, Tab 1, at 65___

identified

determined an

Exhibit 6 contains Briefer's

calls.

July 6,

According to Briefer's testimony,

and part

for

Grabler's

1990, Benchm

personal ph

which contains the summary of

be adjusted, therefore indicates t

Grabler

first

argues

that the

cl

must fail because the telephone bills should not have been admitted
evidence under Fed. R.
he

points

out that

Evid. 1006 (admission of summaries).

Briefer testified

concerning whether Benchmark actually

Tab 3, at 25.
entity paid

Indeed, Briefer
for the

bills."

that

he had

Seco

no recollect

had paid these bills.

App.

stated that he could not "recall

Id.
__

We believe

that, even

under

clearly

erroneous standard, this claim

must fail.

Therefore, we

not address the evidentiary question.

10

Simply stated,
depend

on

how much

which entity

Roizman might

paid the

phone

be due
bills.

in damages

wo

Assuming Roizma

figures are accurate, and Grabler owes Benchmark $2,563, Roizman mi

be

entitled to recover as much as

Elm Hill or some

would not
receive

one-third.

However, if Blue Hi

other entity paid these bills, the

go directly to Benchmark.
one-third.

For example,

As a result,

if one of

$2,563 repaym
Roizman would

the limited partnersh

paid the phone bills, Grabler would reimburse the limited partnersh
and Benchmark, as a fifty percent

owner, might be entitled to as m

as one-half of $2,563 or $1,281.50.

to approximately

$427.

As

phone bills, on the present

Roizman's share would be redu

Roizman failed to establish

who paid

record it is impossible to

calculate

amount of any damages due.

B.

Interest on the Stock Transaction

_________________________________

The final order of the district

of

the

registry

purchase price
of

the

of

district

court regarding the

the stock

(which

had been

court),

stated,

subject

disbursem
held
to

in

cert

preconditions not relevant to this appeal, that

the sum of $96,333.84 shall be released by the Clerk from the
Registry of this Court to Peter Grabler, representing final
__________________
payment to Grabler for his 100 shares of common stock of
_______
Benchmark Broadway Corporation and Benchmark Developers,
Inc., each, pursuant to paragraph 2 of the Stipulation of
6/28/91.
Order of

Court, dated November 1991,

reproduced in App.

III, Tab

(emphasis added).

Grabler
paragraph 2
purchase

argues that
-- the

the

November

1991

underlying obligation

price for

the stock

-- and

Order only

of Roizman

not to

applies

concerning

paragraph 5

which,

11

asserts, addresses interest on the purchase price.

Grabler also av

that contrary to

draft order (wh

the
in

Roizman's statement in Roizman's

district court adopted) he (Grabler) never agreed to the langu

Roizman's draft.

submitted

Grabler

to the court,

points

App. III, Tab

out that

the

18, did not

draft order
specify that

$96,000 was a "final payment."

We are
claim that

unable to ascertain any basis in the

he is due

notwithstanding

the

interest on
final

record for Grable

the purchase price

judgment

of

the

for the

st

court.***

Specifically, he

has not

carried

his burden

of demonstrating

paragraph 5 of the June Stipulation applied to the stock purchase.

any event,

it is not

clear from the

record how such

interest wo

have been calculated and Grabler, in support of his claim to intere

has not even established
have

accrued.

the period during which such

Consequently, we decline to disturb the final judgm

of the district court regarding this claim.

Grabler finally
to join Kohen,
limited

argues on appeal

Benchmark, Blue

partners of Blue Hill

under Fed. R. Civ. P. 19.

filed a Rule
was

interest wo

it had

that the

district court fai

Hill, Elm Hill,

and Elm Hill

BFGL, Jones and

as indispensable part

We note in this context that Grabler ne

19 motion for joinder.

aware that

C. Rule 19
_______

only Grabler

Nonetheless,
and Roizman

the district co
before it

when

entered judgment and acknowledged that it was directing enforcement

____________________

******Indeed, the only reference the district court made to

interest claim by Grabler was its statement that it was not persua
that Roizman was required to pay interest on the sum of $102,4
App. II, Tab 2, at 101, which amount appears to relate to the Flip
Temple deal in Atlanta, not the stock purchase agreement betw
Grabler and Roizman.
12

the

June

stipulation

between

Grabler

and

Roizman.*******

the reasons stated below,

it would be premature to

address Grable

Rule 19 claim at the present time.

First,
efforts to

Grabler specifically
reach an "agreement

and partnership distributions"

limited

partnerships.

stipulation, which
trial, knowing that

June

promised

to exercise

regarding the allocation

in connection with

Stipulation,

the court

"good

treated as

the resolution of

7.

fai

of expen

Benchmark and
He

entered into

an enforceable

contract

the accounting disputes

mi

require action on behalf of Benchmark, Blue Hill, Elm Hill and othe
Second,

after both Grabler

and Roizman

filed post-trial moti

____________________
*

*
*
*
*
*
*
Now, it's important to understand that there are before the
Court only Mr. Grabler and Mr. Roizman.
None of the
corporations have been joined and Mr. Kohen has not been
joined. The Court infers, but makes no finding, that one of
the reasons these parties were not enjoined was it would
destroy the diversity jurisdiction . . . which is necessary
for this Court to act and the disputes arising out of the
settlement agreements would then have to be disposed of in
the state court.

App. II, Tab 2, at 94.

As for Grabler's
judgment, the district court stated:

ability to

effect

[W]hile it's certainly appropriate for me to resolve all

matters as between Mr. Grabler and Mr. Roizman and indeed
equitably to make sure that those two parties who are before
the Court give effect to the Court's judgment, I have no
right to enter orders, nor have I yet entered . . . any order
against Mr. Kohen. . . .
. . . .
So, I can imagine
saying, and correct me,
accountings shall be as I decreed them and I
parties before the Court to give effect to the
resolution that I have made and leave it at that.

that
the
order the
accounting

Id. at 67.
___
13

requesting enforcement
filed a letter

[sic] the manner in

Thus, it appears that the

enable Grabler

order, Roizman's coun

with the court indicating that "the

able to agree in
Order."

of the court's final

to effect payment

claim has not been waived, it

unripe for review.

parties have b

which to carry out

the Cour

means are available with which

to Roizman.

Even if

any Rule

clearly was not addressed below, and

For the present, therefore, issues relating to

enforcement of the district court order are properly presented to t

court in the first instance.
For the

foregoing reasons, the case is remanded to the distr

___________________________________

court for further proceedings consistent with this opinion.

_______________________________________________________________

judgment of the district court is affirmed, except as concerns

___________________________________________________________________
award of $2,563 to Roizman.
__________________________

SO ORDERED.
__________

14