Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 05-2101

JEFFREY KILTY, ET AL.,

Plaintiffs, Appellants,

v.

WORTH DEVELOPMENT CORPORATION, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

 Selya, Lynch and Howard,

Circuit Judges.

Richard N. Foley on brief for appellants.

William G. Scott and Boynton, Waldron, Doleac, Woodman &

Scott, P.A., on brief for appellees City of Portsmouth, Attorney

Robert Sullivan, Bradley Russ, and Chief Michael Magnant.

Paul McEachern and Shaines & McEachern, P.A., on brief for

appellees, Worth Development Corporation, Stuart Shaines and Robert

Shaines.

June 13, 2006
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Per Curiam. This case arises from the nonrenewal of a

commercial lease between the tenant-plaintiffs, K & N Hospitality

Group and its principals (collectively, "K & N"), and the landlorddefendants, Worth Development Corp. and its principals

(collectively, "the Worth Defendants") for premises in Portsmouth,

New Hampshire, where K & N had been operating a nightclub catering

to African-American clientele. K & N claimed that the refusal to

renew or modify its lease was based on racial animus on the part of

the Worth Defendants and various officials of the City of

Portsmouth (collectively, "the Municipal Defendants"), who, K & N

claimed, denied various permits and pressured the Worth Defendants

not to modify or renew the lease.

The Worth Defendants have moved for summary affirmance on

the one appellate issue involving them--whether the district court

erred in dismissing K & N's breach of contract claim against them

based on the statute of frauds. For the reasons discussed below,

we grant that motion. In addition, for reasons also discussed

below, we summarily affirm, sua sponte, the remaining district

court rulings challenged by K & N on appeal, namely, (1) the

dismissal of K & N's claim of tortious interference with

contractual relations and (2) the exclusion of evidence of K & N's

future lost profits.
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A. Dismissal of Breach of Contract Claim Based on 

Statute of Frauds

The district court dismissed K & N's claim that the Worth

Defendants had breached a five-year lease (Count VI) as barred by

the New Hampshire statute of frauds, N.H. Rev. Stat. Ann. § 506:1.

As the district court recognized, under that statute, to be

enforceable, a lease for a term of years must be in writing and

signed by the prospective defendant. Id. at 4 (citing Byblos Corp.

v. Salem Farm Realty Trust, 692 A.2d 514, 517 (N.H. 1997)). 

K & N does not dispute that general principle or the

absence of a signed five-year lease. However, it attempts to avoid

strict enforcement of the statute of frauds by alluding to the

Worth Defendants' "unclean hands" in their interactions with K & N

and the Municipal Defendants. That conclusory allegation, without

further development, does not rise to the level of a cognizable

appellate argument, United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990), much less bring this case within the narrow exception

to the statute of frauds cited in Halstead v. Murray, 547 A.2d 202

(N.H. 1988), on which K & N relies. See Weale v. Mass. Gen. Hous.

Corp., 374 A.2d 925, 928 (N.H. 1977) (stating that "mere refusal to

carry out an oral promise to convey land standing by itself is not

fraud or ground for relief" from statute of frauds); see also

Martin v. Applied Cellular Tech., Inc., 284 F.3d 1, 9 (1st Cir.

2002) (declining to extend the fraud exception to cover "any sort

of contractual unfairness"). Moreover, to the extent that, by
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"unclean hands," K & N is referring to its allegations that the

Worth Defendants acted in bad faith or engaged in fraud or

misrepresentation, summary judgment was entered against K & N on

those very claims. Hence, K & G cannot rely on those allegations

to circumvent the bar imposed by the statute of frauds.

B. Judgment as a Matter of Law on Claim of Tortious

Interference with Advantageous Contractual Relations 

At the close of evidence, the district court granted the

Municipal Defendants' motion for judgment as a matter of law on K

& N's claim of tortious interference with advantageous contractual

relations (Count III) on the grounds that there was insufficient

evidence to submit that claim to the jury and that, in any event,

it was duplicative of K & N's claims under 42 U.S.C. §§ 1981 and

1982. On appeal, K & N attempts to distinguish its tortious

interference claim from its statutory civil rights claims by saying

that only the latter claims allege that the interference with

contractual relations was motivated by racial animus; the former

claim alleges only interference per se. The problem with that

argument is that, without a claim of racial animus or some other

unlawful motive or means of interference, there is no valid claim

of tortious interference with contractual relations. Mere

interference, in itself, is legally insufficient to state a claim.

Rather, "[o]nly improper interference is deemed tortious in New

Hampshire." Roberts v. Gen. Motors Corp., 643 A.2d 956, 961 (N.H.

1994). Here, the only interference K & N relies upon consists of
The district court properly looked to New Hampshire law on 1

this issue. See Cummings v. Standard Register Co., 265 F.3d 56, 67

(1st Cir. 2001). 

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statements by the Municipal Defendants to the Worth Defendants

that, because of public safety problems at the existing social

club, they did not want the lease to be modified to permit the

operation of a restaurant, which would be eligible for a liquor

license, on the premises. We see nothing "improper" about such

communications. Therefore, the district court correctly concluded

that K & N's tortious interference claim was duplicative of its

statutory civil rights claims.

C. Exclusion of Evidence of Future Lost Profits

The district court excluded evidence of K & N's future

lost profits on the ground that "New Hampshire law places the

burden on the plaintiff to reduce future lost profits to net

present value and that expert testimony is necessary to do so."1

We need not decide whether the district court misstated New

Hampshire law, as K & N argues, or otherwise abused its discretion

in excluding this evidence, United States v. Guerrier, 428 F.3d 76,

79 & n.1 (1st Cir. 2005) (stating the applicable standard of

review), cert. denied, 126 S. Ct. 1640 (2006), because any such

error or abuse was harmless. Because the jury found the Municipal

Defendants not liable on all counts, it never reached the issue of

damages, future or otherwise. Therefore, its judgment could not

have been "substantially swayed" by the absence of evidence of
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future lost profits, and so any error in excluding that evidence

was harmless. Tiller v. Baghdady, 244 F.3d 9, 15 (1st Cir. 2001).

Accordingly, the district court's judgment is affirmed in

all respects. See 1st Cir. R. 27(c).