USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1820

ROY R. DAMON AND ELEANOR M. DAMON,

Plaintiffs - Appellants,

v.

SUN COMPANY, INC.,

Defendant - Appellee.

____________________

No. 95-1821

ROY R. DAMON AND ELEANOR M. DAMON,

Plaintiffs - Appellees,

v.

SUN COMPANY, INC.,

Defendant - Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]

__________________________

____________________

Before

Torruella, Chief Judge,

___________

Aldrich, Senior Circuit Judge,

____________________

and Selya, Circuit Judge.

_____________

_____________________

Brian R. Corey, with whom Law Offices of Brian R. Corey

______________
_____________________________

was

on brief for Roy R. Damon and Eleanor M. Damon.

Michael A. Fitzhugh, with
___________________

whom Michael John Miguel, Cynthia

___________________ _______

S. Phelan
__________

and

Fitzhugh & Associates

______________________

were

Company, Inc.

____________________

July 5, 1996
____________________

on

brief for

Sun

-2-

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
___________

Plaintiffs

this case claiming misrepresentation

L.

ch. 93A,

11.

For the

brought suit

in

and violation of Mass. Gen.

reasons stated herein, we affirm the

decision of the district court.

BACKGROUND
BACKGROUND

The

Defendant

located

parties

stipulated

Sun Oil Company, Inc.

at

225

Brockton Ave.,

to

the

(R & M)

Abington,

following

facts:

("Sun") owned property

Massachusetts,

(the

"property") from 1971

station

with

operated a

1977.

to 1979.

underground

retail

storage

gasoline station

operations,

property

Robert

thereafter

gasoline.

Laubinger

after the leak was

the plaintiffs, Roy Damon

property

until

pipe

Sun's regional manager

("Laubinger"),

discovered.

On

was

on

1992 and

the

November 21, 1979,

("Damon") and Eleanor Damon (together,

a right to examine

Agreement of Sale.

25,

and

November

"Damons"), purchased the property from Sun for $90,000.

plaintiffs had

March

the

gasoline

underground storage tanks to the pumps released

approximately 2,000 gallons of

the

tanks on

built a

On or about December 19, 1974, a leaking underground

leading from the

of

In 1972, Sun

The Damons

operated a

the property by terms

owned the property from

retail

service station

The

of the

1979 to

at the

property from June 12, 1980 to January 31, 1991.

On January 31, 1991, the plaintiffs leased the property

to K. Rooney, Inc. ("Rooney").

Since then, Rooney has operated a

retail service station on the property.

began

In November 1991, Rooney

upgrading the station by installing new pumps and Stage II

-3-

of a vapor recovery

system.

As digging commenced,

the Abington

Fire Department observed petroleum product pooling in the surface

excavations,

shut

down

the

construction

and

notified

Massachusetts Department of Environmental Protection ("DEP").

the

On

December 19, 1991, the DEP sent a Notice of Responsibility to the

plaintiffs and

Investigation

completed.

Rooney, requiring

Report

investigation,

groundwater

November

plaintiffs

Preliminary

Phase

I Limited

Assessment

Report

Site

be

A company hired by Rooney performed the investigation

and issued a report

discovery

and

that a

dated October 1992.

monitoring

were taken

of the

1991

wells were

and

analyzed.

pollution,

to March

1992.

and Rooney granted

property for $600,000.

As part

installed and

As

Rooney refused

The

of the Phase I

lease

to

samples of

result

pay rent

agreement

Rooney an option

of

the

from

between

to purchase the

Rooney did not exercise its lease option.

On

March 25, 1992, Rooney purchased the property from the Damons

by assuming

second

a first mortgage

mortgage in

in the

the amount of

amount of

$50,000.

$275,000 and

Rooney

also made a

cash payment of $20,000 to plaintiffs.

The

district

included the following.

which connects the

court's

additional

A rupture

tanks and

findings

whose name

After

some

was

fact

of an elbow joint in the pipe

the pumps caused

the 1974

which closed the station for approximately six weeks.

July 1979, Damon attempted

of

spill,

In June or

to reach Richard Bunzell ("Bunzell"),

given on

the "For

unsuccessful

attempts

-4-

Sale" sign

to

reach

at the

Bunzell,

station.

Sun

telephone operator

manager

for service

referred Damon

to Laubinger,

station maintenance.

The

Sun's regional

questions Damon

asked Laubinger about the property included an inquiry concerning

the

age of

problems

tanks.

Rather,

the building,

with the

and whether

station,

particularly with

Laubinger knew of the

he

answered that

Sun had

experienced any

the

underground

1974 spill, but did not reveal it.

it was

needed to be run by a good operator to

"good station"

be successful.

which just

After his

phone conversation

with Laubinger, Damon contacted

after some negotiation, accepted

August 1979, Damon

Damon asked

blacktop

near the pumps and

the installation of the

In

response to

his offer of $90,000.

and Bunzell met at

property.

Damon's

Bunzell and,

about a

the property to view

depression

he noticed

Bunzell explained it

first stage of a vapor

question of

In late

whether

the

in the

was caused by

recovery system.

Sun had

had

any

problems with the underground storage tanks, Bunzell stated, "No,

we've had no problems with it.

In 1980

gasoline

Damon had

It's all good."

the three 6,000

gallon underground

tanks tested for tightness by Getty Oil, Co., his first

gasoline supplier: they tested tight, as they did in May 1984 and

again in January 1991.

In 1992, no holes were observed in any of

the underground gasoline tanks

or oil tanks.

The

southern end

of

the pit

dug

highest level

soil were

samples

around the

three

of contamination; 101 cubic

eventually removed

of

gasoline tanks

contaminated water

yielded

yards of contaminated

for off-site treatment.

collected

the

and

Finally,

examined by

the

-5-

company

conducting

contamination

the 1992

contained

the

Phase

I study

gasoline

indicate

additive

that the

MTBE ("MTBE"),

which was not added to Sunoco gasoline until 1984.

The

law

Damons brought suit

against Sun,

misrepresentation and violation of

district

court,

after a

four day

alleging common

chapter 93A,

bench

Damons on both the misrepresentation and

trial, found

11.

The

for the

the chapter 93A counts,

awarding them $245,000 plus reasonable attorney's fees and costs.

In

its appeal,

district

court

Sun

--

now challenges

its denial

of

the

Sun's

three rulings

motion

for entry

judgment at the close

of plaintiffs' case in chief, see

___

Civ.

district

P.

pursuant

alter

52(c);

the

court's

judgment

of

and

the

of

Fed. R.

findings

to trial; and its denial of Sun's post-trial motions to

and amend the

judgment and findings and

see Fed. R. Civ. P. 59.

___

for a new trial,

CAUSATION AND DAMAGES

CAUSATION AND DAMAGES

A.
A.

The

Damons

The Legal Framework

The Legal Framework
___________________

charged

Sun

with

the

misrepresentation, also referred to as fraud or deceit.

Leather Co.
___________

1985).

v. Q.T. Shoe Mfg. Co., 764 F.2d 928,

___________________

The elements of misrepresentation

with knowledge

the defendant

of its

the purpose of inducing the

act

thereon,

relied

upon

and

that

falsity for
plaintiff to

the

the representation

plaintiff
as true

and acted upon it to his [or her] damage.

-6-

See Bond
___ ____

are well established:

made a false representation of a material

fact

of

935 (1st Cir.

in order to recover, plaintiff

must allege and prove that

tort

Barret Assocs., Inc.

_____________________

1963)

(quoting

v. Aronson,
_______

Kilroy v.
______

Barron,
______

190 N.E.2d

95

867,

N.E.2d 190,

1950)); see Metropolitan Life Ins. Co. v. Ditmore,

______________________________
_______

(1st Cir. 1984).

know

that

191

is false

actual knowledge."

if

the fact

(Mass.

729 F.2d 1, 4

"The party making the representation

the statement

susceptible of

868 (Mass.

need not

represented is

VMark Software, Inc.

____________________

v. EMC
___

Corp., 642 N.E.2d 587, 593 n.9 (Mass. App. Ct. 1994).
_____

alleged false

representations are

representatives that

it was a

the statements made

"good" station, upon

relied in his purchasing decision.

Here, the

by Sun's

which Damon

The alleged harm suffered was

that the Damons bought a gas station in 1979 that would have been

worth more in 1992 if what the defendant's representatives stated

had in

fact

difference

been

between

uncontaminated,

true.

The damages

the value

as the

of the

defendant

were

measured

property

if it

represented,

by

the

had been

and the

actual

value of the property as contaminated.

Appellant

related to

causation

questions

the

two of these elements:

element

requires

that

district

court's

causation and

the

findings

damages.

misrepresentation

The

be

substantial

factor

"tend[s]

along with

[harm]."

O'Connor v.
________

(Mass. 1988).

of

the

in the

plaintiff's

actions,

other

factors to

produce the

it

plaintiff's

Raymark Indus., Inc., 518 N.E.2d

____________________

510, 513

The defendant's conduct need not be the sole cause

injury:

"'It

is

enough

that

evidence from which reasonable men [and

it

such that

is more probable that

the event was

-7-

[plaintiffs] introduce

women] may conclude that

caused by the defendant

than

that it

N.E.2d 331,

was not.'"

339 (Mass.

Corp.,
_____

387 N.E.2d 583,

proven

"with

a fair

Mullins v.
_______

Pine Manor College, 449

___________________

1983) (quoting

585 (1979)).

degree of

Carey v.
_____

Damages,

certainty."

General Motors
______________

in turn, must be

Pearl
_____

v. William
_______

Filene's Sons Co., 58 N.E.2d 825, 827 (Mass. 1945); see Squeri v.
_________________
___ ______

McCarrick,
_________

588 N.E.2d 22, 26 (Mass. App. Ct. 1992) ("While proof

of damages does

not require mathematical

precision, it must

be

based on more than mere speculation.").

"Following a bench trial,

the trier's

plenary

the court of appeals reviews

factual determinations for clear

review to

the trier's

formulation of

error, but affords

applicable legal

rules."

1996)

Smith v. F.W. Morse & Co., 76 F.3d

_____
_________________

(citations omitted);

see Fed.
___

R. Civ.

413, 420 (1st Cir.

P.

52(a); Dedham
______

Water Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st
_________
____________________________

Cir. 1992).

Of course, "to

be shown to

have been predicated upon, or induced

law,

they will be accorded

the extent that findings of fact can

diminished respect on

by, errors of

appeal."

Id.
___

However, as we have noted in regards to causation,

[a]pplication of the legal cause standard

to the circumstances of a particular case
is

function ordinarily

and peculiarly within the

the factfinder.

performed by,
competence of,

The SJC has consistently

held questions of causation to be for the

factfinder.

Swift v. United States,

_____
_____________

866 F.2d 507,

510 (1st Cir. 1988);

see
___

Dedham Water Co., 972

________________

questions are

F.2d at 457 ("As a general rule, causation

grist for

the factfinder's mill.");

Mullins, 449
_______

N.E.2d at 338; see, e.g., Smith, 76 F.3d at 420, 422-24 (applying

___ ____ _____

-8-

the

clearly erroneous

standard to

district court's

causation in Title VII context).

B.

Causation

finding of

B.

The

burden

Causation
_________

district court

of proving "by a

2,000 gallon spill was

found

that the

preponderance of the

Damons met

their

evidence that the

a substantial factor in the

DEP decision

that a gasoline contamination sufficient to trigger 21E liability

existed at the [property]."

Conclusions

evidence

more

of

Law, at

8).

Sun

that the district court

probably

than

not

contamination found in 1991

for

(District Court Findings of Fact and

three reasons.

was

argues

on

relied on in

substantial

appeal that

finding that Sun

cause

is insufficient as a matter

Upon review of

the

of

the

of law,

the record, however, we find

that the Damons met their burden of proof, such that the district

court did not clearly

err in finding that the

of misrepresentation has been met.

causation element

We address, and dismiss, each

of Sun's arguments in turn.

First, Sun notes that

the district court conceded that

"it is unclear how much of the 2,000 gallons [of

was recovered," (District Court

of Law, at 9), and concludes

the 1974 spill]

Findings of Fact and Conclusions

from that statement that there

was

no evidence of what (if any) contamination found in 1991 actually

dated to

1974.

The fact that there was a release, without more,

Sun argues, is insufficient to impose liability.

There is more, however:

the district court

found not

only that there was a release, but also that the clean-up efforts

-9-

at the time of the release were limited, at best.

Defendant's remedial efforts in 1974 were

not

conducted for the purpose of ridding

the

property

of contamination;

rather,

the goal was to make the [property] safe.

To

this end, the

focus was

on stopping

the flow of gasoline onto the neighboring

property -or

remove

[property]

no effort was
contaminated
itself.

made to clean
soil

on

From the

the

Abington

Fire Department records it is unclear how

much

of the 2,000 gallons was recovered.

Presumably, the
pump
of gas

company hired by

the trenches was

and water,

pumping a mixture

but no one

relative proportions or the

of mixture pumped.

Sun to

knows the

total amount

(District Court Findings of

To

suggest

unclear how

that

Fact and Conclusions of Law,

the district

court's

statement

at 9).

that "it

is

much of the 2,000 gallons was recovered" can be read

to imply that

it was all recovered is to

misread the context of

the statement.

Additional evidence the lower court found determinative

in its finding of

causation included the sheer size of

spill (2,000 gallons); the

the 1974

fact that Robert Cataldo ("Cataldo"),

plaintiffs' expert, testified that the underground pipe which ran

from

the pumps to

gasoline

and

the tanks created

a channel

along which the

could flow from the rupture and settle under the tanks;

that no gasoline spills

larger than 10

gallons occurred at

the property between 1974 and 1992, during which time the Damons'

tanks periodically

tested tight.

Finally, the

court also noted

that "Cataldo testified, albeit hesitatingly, that in his opinion

the

1974 spill

was

contamination found at

a substantial

factor

contributing to

the [property] in 1992."

the

(District Court

-10-

Findings

of Fact and Conclusions of Law,

evidence the district

beyond the

court relied on in

simple fact that

there was a

at 10).

Clearly, the

finding causation goes

release in 1974.

Sun

does not challenge

any of these

specific findings; indeed,

our

review of the record finds support for each.

In

making its

argument,

Sun relies

on Providence &
_____________

Worcester R.R. Co. v. Chevron U.S.A., Inc., 622 N.E.2d 262 (Mass.
__________________
____________________

1993).

In

property

owned by

defendant

caused

storage

that case,

the plaintiff

Chevron,

by

a 1972

contamination was discovered

claiming

leak of

railroad.

that

the 1988

12,000 gallons

facility defendant had maintained on

of

in 1988

on

The railroad

sued

contamination

was

fuel oil

from a

the property.

The

court found no causal link between the spills, where there was no

evidence

that the soil

was significantly saturated

had been

pumped out

the same

by the 1972

surface

spill, which

day, where

sixteen

years had passed, and where the question whether the oil

would remain

conflicting

railroad's

in some form

evidence.

was left

The

unanswered in

court specifically

expert was not asked

to give an

the face

noted that

of

the

opinion whether the

1988 contamination was caused at least in part by the 1972 spill.

Id. at 264.
___

Sun draws

that

evidence

of

on Providence & Worcester

_______________________

the

1974

spill,

insufficient to impose liability.

evidence in

in

of

itself,

is

That may be true, as far as it

goes.

The

the present

more.

As in Providence & Worcester, many

_______________________

-11-

and

as demonstrating

case, however,

shows much

years passed between

the

spills in the present case.

However,

the evidence is that

the 1974 spill was not cleaned up immediately, as in Providence &

____________

Worcester.
_________

pumping

Rather,

fire department

logs

indicate

that

did not start until two days after discovery of the leak

on December

19, 1974:

month after

the leak

still being detected

Thus,

the

there

was

as late as

was first

in the

evidence

February 4, 1975, more than a

reported,

basement of

in

this

case

gasoline fumes

an adjacent

that

the

were

property.

soil

was

contaminated by the 1974 spill.

What is more, plaintiffs' expert

here

spill

did

state that

the 1974

was a

substantial factor

contributing to the 1991 contamination, as we discuss below.

Sun's second attack on

focuses on

the 1974

the soil.

spillage

In

the face of the

was subsurface,

pump, Sun contends that

was contaminated

notes

pieces of

that

spoiled,

soil

by Sun, or

due to

that Sun's

a leaky

underground

evidence regarding

samples

taken

1992

While it is

up or

position, Sun lists

soil testing.

in

the soil

failure to clean

In support of its

and never analyzed.

samples were not

uncontested fact that

no evidence was presented that

remove soil was wrongful.

four

the sufficiency of the evidence

by

Firstly,

it

consultants were

unfortunate that the

analyzed, that fact simply shows we do not have

all possible information:

the

other, on whether

Secondly, Sun points out

it does not shed any light, one way or

the 1974 spillage

that in 1979, Getty Oil

company to dig around the fill area above

that

contaminated the soil.

commissioned a

the storage tanks, and

the company never said anything to Damon about contaminated

-12-

soil, but rather stated

that the area

was clean.

However,

Sun

points

to

no

examination

tanks for

evidence that

the

of the soil for

tightness.

company

was asked

contamination:

Thus, the

third

it

to

do an

was testing the

fact Sun

looks to

for

support, that Cataldo's environmental company found contamination

in 1992 around

told Damon

the same fill pipes that Getty

were clean, is not

Set against

the Getty

Oil, in 1980, had

as conclusive as

results is Cataldo's

Sun would like.

testimony that

the

1974 release was a contributing factor in the 1991 contamination.

Finally, Sun notes that Cataldo testified that there was not much

thickness of soil, such that "flushing" of the soil by rising and

falling subsurface

groundwater elevations would

any residual contamination.

organic compounds

reduce

However, Cataldo also testified that

the on-site testing he conducted

volatile

tend to

in four monitoring wells

("VOCs") which

found

are constituents

of

gasoline

in the groundwater.

stated, were

The constituents found in 1991, he

similar to those of the 1974 release.

As he stated

in his testimony:

Q.

And

based

on

your

examination of the underground conditions

at that [property] and the geology of the
[property],

and

based

upon

the

information of this 2,000 gallon spill in

1974,
the

would you expect

areas where

you

to find
did

VOCs in

find them

in

1992?
A.

Yes, I would.

Q.

Is the presence of VOCs consistent

with the

topography and geology

of that

[property] and a spill in 1974?

A.

(Day 2, page 76).

Yes, it is.

On this

record, we find that the evidence was

-13-

sufficient to find causation.

The evidence to which

Sun points

does not convince us otherwise, let alone that the district court

clearly erred in making its finding.

Sun's

insufficient to

third and

final argument

find causation focuses

that the

on Cataldo's

evidence is

testimony.

It is

fundamental that "[e]xpert testimony must be predicated on

facts

legally

opinion.

"

sufficient to

In re Salvatore,
________________

provide a

basis for

46 B.R. 247,

the expert's

253 (D.R.I.

1984).

Thus, "[a]n expert

that is

should not

based on conjecture or speculation

evidentiary foundation."

Dewey,
_____

be permitted to

633 N.E.2d

(Mass. App.

did not meet

in the 1991 contamination,

of

Cataldo

conclusion:

revealed

Bowditch &
__________

Ct. 1994).

Cataldo's

this criteria.

Cataldo testified that the 1974 spill was

opinion

from an insufficient

Van Brode Group, Inc. v.

_______________________

424, 430

testimony, Sun contends,

give an

Although

a "substantial factor"

Sun argues that its cross-examination

that he

had

no

factual

basis for

indeed, he testified at one point that

that

he could not

say that the 1974 spill was "more probably than not" the cause of

the 1991 contamination.

Sun points to a series

testimony.

of perceived flaws in Cataldo's

First, Cataldo attested that

although methods exist

which would

quantify the

which

representative

were

performed here.

amount of

of

the

contaminants found in

1974

release,

none

He agreed that he did not know how much gas

1992

were

was

left on the property after the 1974 release, and that none of the

work

performed by his

firm had to

do with aging

or dating the

-14-

petroleum product found on

the property.

Nor did they test

to

determine what percentage of

the gas found in 1991 was 1974 gas.

After admitting that the ratios of the BTEX chemical constituents

were indicative of a more recent -- post-1980 -- release, Cataldo

testified that he could not

say "one way or the other"

that the

gasoline constituents encountered in 1992 were more probably than

not

the result

of the 1974

release.

best Cataldo could testify to at

Thus,

Sun maintains, the

trial was that the property was

insufficiently investigated to allow him

to come to any ultimate

conclusions concerning the

contaminate sources;

1974

known release, it

caused

release was the only

the

1991 contamination;

and that

that since

the

at least partially

there

was no

way of

apportioning what amounts, if any, of the 1991 contamination were

attributable to

Sun

based on

the

work

done to

date.

opinion, Sun concludes, is insufficient as a matter of law.

This

We

right:

disagree.

The

issue is

Cataldo was

but, rather, whether he had sufficient factual grounds on

which to draw conclusions.

at 430.

On the basis

that Cataldo's

See Van Brode Group, Inc., 633 N.E.2d

___ _____________________

of our review of the

doubt that more

would

Cataldo

quantify

record, we conclude

expert testimony was predicated

sufficient to provide a basis for

which

not whether

testing could

have

noted that

been

his conclusions.

have been done

helpful to

although

on facts legally

the

there are

There is

no

on the

property,

factfinder.

However,

methods

to attempt

to

the amount of contaminants dating back to 1974, he does

not know "if there's anything that really can say, yes or no, how

-15-

much

there is."

(Day 2, page

133).

He drew his conclusions on

the basis of his "experience with dealing with gasoline stations,

residual

contamination,

[and]

the

knowledge

that

the

only

significant or large release at the [property] was reportedly the

2,000 gallons in 1974."

visited the

He and his personnel

property, investigated its history,

from which he drew

research:

(Day 2, page 71).

asked

his conclusions.

and made tests,

His testimony

how gas spilled in 1974 could

reflects his

still be present

in 1992, he stated,

A.

Because

the

absorb and holds in

It

also fills up

soil

and

gasoline

tends

to

to some of the soil.

the pores

clings

between the

in

to

that.

The

[property]

was paved,

so

that all

the

rain

falls

that

in it

doesn't

get

chance to percolate through, so you don't

have that complete

flushing action

you would in an open field.

rainwater

probably

that's one

Most of the

channeled

of the purposes

that

off,

and

of blacktop.

So it's my opinion that there would still

be

some

remnants

of

the

gasoline

remaining.

(Day 2, page 87).

He later noted that biodegradation alone would

not have removed contamination of the scale of 2,000 gallons over

18

years, and that

there had

been a

gallons subsequent to 1980, which would

for the levels of MTBE

found.

reported release

of four

be sufficient to account

As the district court

noted, his

attribution of the contamination,

contamination,

"has an

additional

at least in part, to

earmark

of

the 1974

trustworthiness

because it was prepared for a third-party, Rooney, pursuant to an

order of

the DEP,

litigation."

and not

in any way

in anticipation

of this

(District Court Findings of Fact and Conclusions of

-16-

Law, at 11).

Cf. Venturelli v. Cincinnati, Inc., 850 F.2d 825,

___ __________
_________________

832

(1st Cir.

adequately

1988)

("The decision

qualified

is a

matter

of

whether an

primarily

expert

for the

is

district

court.").

In

arguing

that

Cataldo's

testimony

provides

insufficient basis, Sun also relies on Providence & Worcester for

______________________

the

proposition that the Damons were "required to bring forth an

expert

opinion that the on-site activity on the subject property

during Sun's

probably

operation of gasoline station

than

contamination

not

found

on

substantial

the

at 19).

First,

Providence & Worcester,

_______________________

in

significant that

the

factor

property

Appellant,

(1972-1977) was more

in

in

causing

1992."

(Brief

the

of

We disregard this argument, for two reasons.

although the

railroad's expert

did not

SJC

found it

testify as

to

causation, the

court specifically noted

that it "[did]

not say

that expert testimony is required to establish causation in every

soil contamination case."

subject "is not one

622

N.E.2d at 264

(noting that

that jurors would be expected

to understand

in many circumstances without guidance from an expert").

not

create

requirement

reluctantly,

factor"

in

such

a requirement

existed, plaintiff

testified that

the

then,

finding

we find that

that

the 1974

We will

even if

explicitly, if

spill was

"a substantial

in

1991, a

fact

in its finding of causation.

were a

-17-

that

Cataldo

detected

the district

Sun's acts

Second,

met it.

contamination

district court noted twice

here.

the

court did

substantial

the

In sum,

not clearly

err in

cause of

the DEP

decision that

contamination sufficient to trigger

21E liability

existed at the property.

We note

causation

"[w]hen

on

the

that the district court's

this record

evidence

supports

district court's choice from

be clearly erroneous."

was not

an

task of determining

easy one.

conflicting

Nonetheless,

inferences,

the

among the several inferences cannot

Dedham Water Co., 972 F.2d at

________________

462.

Thus

we

uphold the district court, and reject Sun's argument that the

evidence upon which the district court relied is insufficient.

C.
C.

The

regarding

Damages and the Burden of Proof

Damages and the Burden of Proof
_______________________________

parties

dispute

who

bore the

whether the harm was divisible.

burden

of

proof

The backdrop to their

dialogue is the fact that the evidence indicates that Sun was not

the only

owner or operator of the property whose acts led to the

1991 contamination.

of

MTBE

As

"compel(s)

the district court stated, the

the

conclusion

that

there

presence

had

been

widespread release of gasoline at the [property] after 1984, when

MTBE

became

common."

(District

Conclusions of Law, at 10).

of

gasoline

when the

Court

Findings of

Fact

and

Thus, there was at least one release

property was

operated

by Rooney

or the

plaintiffs.

The Damons concede

that the evidence

indicate that there was a post-1980 release

same

time, there

gallons, and

was no

the district

evidence

of a

of gasoline.

spill greater

court specifically found

-18-

and findings

At the

than 10

that during

the time

the Damons

owned

the property,

no significant

leaks

occurred.1

The

Damons bear

conduct by Sun caused

433B(1).

more

They

the burden

them harm.

were required

of proving

that tortious

See Restatement
___

(2d) of Torts

to produce evidence

that it

likely than not that Sun's conduct was a substantial factor

in bringing

(noting that

enough").

about the

"[a]

harm they

suffered.

mere possibility

Sun argues that the Damons

of

See
___

id. comment
___

such causation

is

suffered.

other

Accordingly, it maintains, the

actors were

not

did not meet their burden

of showing that Sun's conduct substantially caused the harm

what

is

also responsible

they

burden of identifying

for

the harm

and of

allocating the harm (or showing that it was indivisible) remained

with the plaintiffs, who did not fulfill that

have already

established above that

err in finding that

the

433B(2)

However, we

the district court

Sun's conduct substantially caused

Damons suffered.

did the cost of not

task.

Therefore,

meeting it.

the burden shifted

did not

the harm

to Sun, as

See Restatement (2d) of Torts

___

("Where the tortious conduct

of two or

more actors has

combined to bring about harm to the plaintiff, and one or more of

the actors seeks

to limit his liability

on the ground

that the

____________________

Sun

argues that

inconsistent.

the district

We disagree:

a spill as small as four

MTBE

findings are

the evidence at trial indicated that

gallons could account for the amount of

present, and that Cataldo's research found no record of any

spills over ten

that a

court's factual

gallons.

spill made

nonetheless spread
for the MTBE found.

up of
out (or

The evidence leads

less than ten

to the

inference

gallons, but

which was

several such spills),

could account

-19-

harm

as

is capable of apportionment among them, the burden of proof

to the

apportionment is

upon each

O'Neil v. Picillo, 883 F.2d 176, 178 (1st

______
_______

CERCLA action, that rule

such actor.");

see also
________

Cir. 1989) (noting, in

based on the Restatement (2d)

of Torts

requires that damages be apportioned only if defendant shows that

the harm is divisible),

cert. denied sub nom. American Cyanamid

_____________________ __________________

Co.
___

v. O'Neil,
______

error in the

of proof,

493 U.S. 1071

(1990).

Accordingly,

we find no

district court's apparent allocation of

the burden

and need not enter into

the parties' dispute over who

bore what burden, and whether divisibility was indeed shown.

SUFFICIENCY OF THE EVIDENCE

SUFFICIENCY OF THE EVIDENCE

Sun

contending

erroneous

instances.

challenges

that

and

the

district

highly

We examine

the

demonstrate

780

court's

prejudicial

to

such challenges

factual findings for clear error.

America, Inc.,
______________

sufficiency

F.2d

1067,

of

the

findings

Sun's

to the

evidence,

were

case

clearly

in

three

district court's

See O'Brien v. Papa Gino's of

___ _______
______________

1076

(1st

Cir.

1986).

To

that the Damons did not meet their burden of proving

misrepresentation by a preponderance of the evidence, Sun

show

that

evidence,

the

verdict was

against

the

great

weight of

"must

the

viewed in the light most favorable to [the Damons], or

would work a

clear miscarriage of

justice."

Cambridge Plating
__________________

Co. v. Napco, Inc., No. 95-1781, slip op. at 26 (1st Cir. June 3,
___
___________

1996).

We address each of Sun's contentions in turn.

A.
A.

The Alleged Representations

The Alleged Representations
___________________________

Sun first alleges that the alleged representations were

-20-

opinions

and not

crucial

one, as

ordinarily be

cannot.

statements

it

the

See, e.g.,
___ ____

is well

basis of

of fact.

The distinction

established

a claim

that the

of fraud,

Briggs v. Carol Cars, Inc.,

______
________________

is

latter

but the

can

former

553 N.E.2d 930,

(Mass. 1990) (noting that a statement which is an opinion in form

"in

some

circumstances may

reasonably

recipient

to imply that the

maker of the

be

interpreted by

the

statement knows facts

that justify the opinion"); Coe v. Ware, 171 N.E. 732, 734 (Mass.
___
____

1930).

The determination of whether a statement is of opinion or

fact is a factual one, see

___

id., and so we review only for

___

clear

error.

The district court held that

It

should have

questions [to
concerned

been clear

Sun's agents] that

about

the

integrity of the
delivery

past

and

he was
future

entire underground

system;

as Damon

gas

testified at

trial, "the

only thing you've

gas station

is tanks

lines.

got in

and pumps

and the

I mean, what else is there?"

(District Court Findings

n.1). Sun contends that

finding.

from Damon's

of Fact

and Conclusions of

it points

to

the district

statement during closing arguments that

the testimony that [Damon] had, that they

it was

significant
absolutely

there is no evidentiary basis for such a

Seeking support,

told him

Law, at

in
an

a good station,
my

view because

opinion

statement of fact.

rather

is not
that's
than

court's

(Day 4,

page 15), and contends

that by making this

comment the

district court essentially conceded that there was no evidentiary

basis

to

find that

the statements

by

the Sun

employees were

-21-

opinion.

To the contrary, all this statement reveals is that the

district court changed

its mind

as to the

statements,

certainly

within

which

is

significance of

its

province

to

the

do.

Indeed,

convince

that is

the

the

very mission

factfinder that

of

closing arguments:

a party's

view

of the

to

facts is

correct.

Similarly,

that

Damon's

testimony

about

the

conversations could be viewed as inconsistent, as Sun notes, is a

question

that addresses

court's finding.

Damon's credibility,

Credibility, of

not the

course, is an

issue for

factfinder, and Sun has

shown us no clear error in

court's judgment on the

matter.

See
___

district

the

the district

O'Brien, 780 F.2d at

_______

1076

("No subject matter is more clearly within the exclusive province

of the fact-finder than this.").

Our

review of

the

that

record

leads

us

the statements

to

affirm

were factual

the

district

court's finding

in

nature.

First, we note that the evidence supports the findings.

The

court found

problems

that Damon

with the

asked Bunzell

underground storage

if

tanks, to

responded that Sun had had "no problems with it.

(District Court Findings of

This is consistent

testimony

did

not

affidavit, entered

Sun had

had any

which Bunzell

It's all good."

Fact and Conclusions of Law,

with Damon's testimony

contradict

him,

since

at trial.

he

stated

at 5).

Bunzell's

in

his

at trial, that he neither remembered the sale

of the property nor recalled any discussion of it or the terms of

the

sale.

The district court also found that although Laubinger

-22-

knew about the

1974 spill -- indeed, he

visited the property at

the time -- he did not reveal the information to Damon.

he

responded to

problems with

Damon's

the

questions about

station, particularly

whether

with

the

Instead,

Sun had

any

underground

tanks, by stating "that it was a 'good station' which just needed

to be run by a good

Findings

of Fact

operator to be successful."

and

Conclusions

consistent with Damon's testimony

of Law,

at trial.

at

(District Court

5).

This

was

Laubinger testified

that he did not recall having a telephone conversation with Damon

or

ever not telling anyone

about the release

in discussing the

property, and the

trial court

was free to

credit Damon's

more

specific recollection.

Next, in discussing

whether the Bunzell

statements were opinions or fact,

Damon's questions were not

the

property.

good station

and Laubinger

the district court noted

just about the current conditions

If they had been,

would presumably

on

their statements that it was a

have been opinion.

district court specified that the

that

Rather,

the

questions also went to whether

there had been problems in the station in the past of which Damon

should be

aware, with

the underground

that context, reading the

the

Damons,

finding

we do

that the Sun

tanks specifically.

record in the light most

not find

favorable to

district court

erred in

representatives' statements that

it was a

"good station" were factual.

that the

In

Indeed, we are hard put to see how,

where there has been a spill of 2,000 gallons in

1974, which Sun

knew of, statements five years later that it was a "good station"

-23-

and that Sun had had "no problems with it" in reply to a question

regarding

the underground

tanks are

not misrepresentations

fact.

B.

Evidence of the Elements of Fraud

of

B.

evidence

Evidence of the Elements of Fraud

_________________________________

Sun's second contention is

that the record contains no

of the key elements needed

to prove fraud.

asserts that the

statements by

Bunzell and

misrepresentations of material facts,

of the

tort has not been

N.E.2d at 868 (noting

shown.

First, Sun

Laubinger were

not

and thus the first element

See Barret Assocs., Inc., 190

___ _____________________

that the first element is

made a false representation of a material fact").

that "defendant

We

disagree.

There can be no doubt that the statements were misrepresentations

in terms of the past history of the property:

a "good station" ignores the

spill.

It may have

perspective:

fact that there was a 2,000

been a "good

the spill had

stating that it is

station" in 1979,

been cleaned up

gallon

from Sun's

in accordance with

the

requirements of the time, and

problems.

Nonetheless, there had been a problem in the past, and

to omit that

was to

court found that

Damon's

there is no evidence of other

misrepresent the situation.

the fact was

testimony that

his

which sold gasoline gave

The

material, as it gave

affiliation with

a car

him a general awareness of

importance

of environmental issues,

bought the

station had he

and that he

been aware of

district

credence to

dealership

the growing

would not have

the spill.

Thus, the

statements by the Sun representatives were certainly "'one of the

principal grounds,

though not necessarily the

-24-

sole ground, that

caused the

wrongdoer

plaintiff[s] "to take the particular

intended

he

representations."'"

would

take

as

Bond Leather Co., 764

________________

action that the

result

of

such

F.2d at 936 (quoting

National Car Rental Sys., Inc. v. Mills Transfer Co., 384 N.E.2d
_______________________________
__________________

1263 (Mass.

App.

Ct. 1979)

Johnson, 58 N.E.2d 849

_______

(quoting National Shawmut Bank

______________________

(Mass. 1945))).

While this

v.

testimony is

undoubtedly in Damon's interest, the district court's credence in

that testimony has not been

780

F.2d at

1076.

shown to be in error.

Finally, we

have already

See O'Brien,
___ _______

established that

these

were

factual

statements.

Thus,

the

statements

were

misrepresentations of material facts.

Sun

that

tries to fend off this

"[s]ellers .

disclose

every

materially

. . are

latent

not liable

defect

the value of the

Nei
___

However, it

is well established

has a

discloses partial

known

in fraud

for failing to

to

which

property and of

ignorant."

party who

v. Burley,
______

conclusion by pointing out

446 N.E.2d

them

reduces

which the buyer is

674, 676

(Mass. 1983).

that "in Massachusetts .

information that may

. . a

be misleading

duty to reveal all the material facts he [or she] knows to

avoid deceiving the other party."

Inc., 757 F.2d

____

V.S.H. Realty, Inc. v. Texaco,

___________________
_______

411, 415 (1st Cir. 1985); cf.

___

Nei, 446 N.E.2d at

___

676 (finding

half truths

which

so

. . .

often

deception").

N.E.2d

no misrepresentation

[or] make

requires

Accordingly,

where seller "did

a partial disclosure

we

full

not convey

of the

acknowledgement

find Maxwell
_______

to

v. Ratcliffe,
_________

kind

avoid

254

250, 252 (Mass. 1969), analogous to the Damons' position.

-25-

In

that

case, potential

buyers of

house asked

whether the

cellar was dry,

and the

they had, or should

water seepage.

dryness

of

the

cellar

disclosure at

respect to

have had, knowledge that there

it was,

when

was periodic

The Court found that "because the question of the

special obligation on

make

brokers represented that

had been

the brokers

least of

which they had been

raised

expressly,

to avoid half

any facts

known

put on notice."

there was

truths and

to them

to

or with

Id. at 252-53;
___

see Greenery Rehabilitation Group, Inc. v. Antaramian, 628 N.E.2d

___ ___________________________________
__________

1291, 1294 (Mass. App. Ct. 1994) (noting, inter alia, that buyers
__________

did not request financial information about tenant from seller in

finding that situation was not a case of partial disclosure).

Sun also seeks

support from the fact that Damon signed

an agreement representing that he had inspected

the property and

would indemnify Sun from

environmental

laws.

unequivocally

rejects

and against liability for violation

However,

"Massachusetts

assertion of

an

automatic defense against allegations

'as

is'

of fraud."

of

case

law

clause as

an

V.S.H. Realty,
______________

Inc., 757 F.2d at 418 (noting also that Uniform Commercial Code
____

2-316,

which allows

merchants,

v.

disclaimers in

does not preclude claims based

Johnson & Johnson,

__________________

(discussing basis

809

F.2d

offers it no support.

to disclose

90,

of goods

95-98

(1st

Cir.

1986)

rule that parties

Nei v. Burley, which Sun cites,

___
______

There, the court relied on

the latent

between

on fraud); see Turner

___ ______

and limits of Massachusetts

may not contract out of fraud).

a duty

the sale

defect,

not the

the absence of

fact that

the

-26-

sellers provided

the buyers with test results,

had been no tort of fraud.

Sun

challenges

element, that the party

of its

falsity.

See
___

in finding there

446 N.E.2d at 676-77.

the

evidentiary

basis for

second

making the representation have knowledge

Barret Assocs., Inc., 190 N.E.2d

_____________________

at 868.

Clearly Laubinger knew of the 1974 spillage -- he had been on the

property during the

detail about the

clean-up, and

event.

station

evidence

when

that

testify in

It stretches credence to

would not have knowledge of the

good

was able to

posit that he

falsity of stating that it was a

asked about

Bunzell had

some

past

actual

problems.

knowledge.

There is

However,

no

under

Massachusetts law, the party making a misrepresentation "need not

know

that

susceptible

the statement

of actual

N.E.2d at 593 n.9;

knowledge."

the fact

represented is

VMark Software, Inc.,

_____________________

1975); Zimmerman v. Kent, 575

_________
____

App. Ct. 1991).

The district court

inspecting the station Damon asked

the

if

642

see Snyder v. Sperry and Hutchinson Co., 333

___ ______
__________________________

N.E.2d 421, 428 (Mass.

74 (Mass.

is false

blacktop, and whether there

N.E.2d 70,

found that while

Bunzell about a depression in

had been any

problems with the

underground storage

had

tanks, to

no problems with

misstatement

of

facts

indeed, Bunzell's name

station:

informed

presumably,

about

it.

which Bunzell replied

It's all good."

"susceptible

of

This is

actual

was listed on the "For

it would

the history

of

be

his

-27-

clearly a

knowledge"

--

Sale" sign at the

responsibility

the particular

selling.

"No, we've

station

to be

he was

Relying on

see Huycke v.
___ ______

an Odometer Act case

Greenway, 876
________

F.2d 94, 95

(11th Cir. 1989),

next argues that the Damons did not meet

intent to defraud.

. require

deprive

the

applying Georgia law,

their burden of proving

In fact, however, "Massachusetts law does not

an intent

plaintiff of

to deceive,

money,

let

alone an

to prove

"[A] long line

of [Massachusetts]

[establishes]

that

fraudulent

intent,

deceit, may be
statement

in

of

knowledge, which is
stated is not

opinion,

cases

'the

charge

of

an

action

for

maintained by proof

made as

estimate

the

own

false; provided

the

matter of

or judgement,

susceptible of actual

of a

party's

merely a

intent to

misrepresentation."

Bond Leather Co., 764 F.2d at 937 (citation omitted).

________________

thing

Sun

but is

knowledge; and

in

such a
any

case it is not

necessary to make

further proof of an actual intent to

deceive.'"

Sperry,
______

333

N.E.2d at

428

(quoting Powell
______

v.

Rasmussen, 243
_________

N.E.2d 167, 168 (1969) (quoting Chatham Furnace Co. v. Moffat, 18

___________________
______

N.E.

168, 169

(Mass.

1888))); see
___

Columbia Mfg. Co., 893

___________________

F. Supp.

Zimmerman, 575 N.E.2d at

_________

74.2

of showing that the

of

Roadmaster Indus., Inc. v.

________________________

1162,

1176 (D.

The Damons

Mass. 1995);

have met this

burden

Sun representatives made a misrepresentation

facts susceptible of actual

knowledge, and so

they have met

____________________

While the

notes

decision Bond Leather Co. v.

_________________

that, contrary to

need not

Sun's contention, an

Q.T. Shoe Mfg. Co.

___________________

intent to deceive

be proven, it also reads Sperry as requiring an "intent

______

that the plaintiff rely on the challenged false statements."

F.2d

at

937.

contention.

We

have found

Nonetheless,

we

no
note

inference that the representations

to a

known potential buyer

case

law

that it

supporting
is

764

that

reasonable

made by Sun's representatives

were made with

the intent that

the

Damons rely on the statements.

-28-

their burden as to intent.

Sun maintains

that

Sun

intended

that the

the

district court failed

plaintiffs

to

rely

to find

on

the

misrepresentations.3

Federal

mandates

"find

that

courts

Rule

the

separately [their] conclusions of

without a jury.

(Mass.

of

Civil Procedure

facts

specially

and

52(a)

state

law thereon" when trying facts

See, e.g., Monta ez v. Bagg, 510 N.E.2d 298, 300

___ _____ ________
____

App. Ct. 1987) (noting

that judge did

not make detailed

findings of fact regarding chapter 93A claims under Mass. R. Civ.

P. 52(a)).

However, "the judge need only make brief, definite

pertinent findings

and

conclusions on

Makuc v. American Honda Motor Co., 835

_____
_________________________

1987).

district

Here,

court

while it

set

out

the

matters."

F.2d 389, 394 (1st

did not explicitly

misrepresentation, and found that

statements, that they

the contested

elements

discuss intent,

of

the

tort

Cir.

the

of

Sun's representatives made the

were not opinions,

and that Laubinger

at

least knew about the spill when he made his statement.

although the

point, it

district court

did not

is clear that it

spell out

has provided us with

In short,

every pertinent

more than mere

____________________

Sun

contests that

should have
concerned

been

the district

clear

about

from

the past

court's statement

Damon's

and

questions

future integrity

that "it

that
of

he

was

the entire

underground gas delivery system" (District Court Findings of Fact

and Conclusions
fact

know

of Law, at 7

what

Damon

asked

demonstrated on this record.

to

read this

especially
specifically

as,

n.1), implies that Sun

about,

found

the district

its findings
that

so

no

intent

is

However, we refuse Sun's invitation

implication into
in

and

did not in

Damon

of

fact,
had

court's statement,
the district

asked

each

of

court

the

representatives about past conditions, particularly regarding the

underground tanks.

-29-

conclusions.

C.
C.

Sun's

element

final

Reasonable Reliance
Reasonable Reliance
___________________

attack on

of reasonable reliance.

the

evidence

centers on

the

See Elias Bros. Restaurants v.

___ _______________________

Acorn Enters., 831 F. Supp. 920, 922 (D. Mass. 1993) (noting that
_____________

the

reliance element of the

that it be reasonable).

was

tort has been

defined as requiring

First, it states that the district court

silent on reasonable reliance.

To the contrary, although it

did not address the reasonableness

court

of the reliance, the district

found that Damon "would not have purchased the station for

$90,000 if he had been aware of the 1974 spill."

(District Court

Findings of Fact and Conclusions of Law, at 8).

Sun points to the fact that the Damons had the right to

inspect the property prior to sale and did not do so as vitiating

any

argument of

reasonable reliance,

acknowledged awareness

well

established

under

especially given

of environmental issues.

Massachusetts

investigate the veracity of

To find

However, it is

that

"failure

statements does not, as a

law, bar recovery for misrepresentation."

F.2d at 936.

law

to

matter of

Bond Leather Co.,

________________

764

failure to

investigate

effectively bars their claim, as Sun requests, would

run counter

to the established

that the Damons'

Damon's

case law on

that point.

"Only reliance

on

'preposterous

or

palpably

misrepresentation claim."

at

1179

(quoting

false'

representations

vitiates

Roadmaster Indus., Inc., 893 F. Supp.

________________________

Zimmerman,
_________

575

N.E.2d

at

76).

Sun's

representations cannot be so characterized.

-30-

Sun's reliance on Maloney

_______

v. Sargisson, 465 N.E.2d 296

_________

(Mass.

App. Ct. 1984), is misplaced.

property,

line

and subsequently

discovered that

to a local reservoir, it could

was the attorney

agreement.

passing a

building

expense.

with whom

That

they entered the

agreement was

with

The tests were

the sale went

through.

because of

not be built on.

made

percolation test and deep

permit,

There, the Maloneys bought

the tests

contingent

be

done

on

sale

the land

qualify for a

at the

done, indicated positive

Later, however,

Sargisson

purchase and

hole test to

to

a drain

buyers'

results, and

it turned out

that the

tests were done at the wrong time of year, and the results of the

second

deep hole test were adverse.

alleging, among

Court

found

other things,

that

the

The Maloneys sued Sargisson

misrepresentation.

Maloneys

could

not

have

The

Appeals

relied

on

Sargisson's

statements that "he knew all there was to know about

the property," that they did not need to hire a

lawyer, and that

"the lot was a good building lot":

Whatever those alleged statements

taken to
have

mean,

the Maloneys

may be

would

not

relied upon them to their detriment

so far

as they

might have borne

on the

capacity of the lot

to pass soil tests .

that aspect

Concerning

land's

character,

discloses,

the

their

Maloneys made

of

the

affidavit
their own

examination.

Id. at 301.
___

Clearly,

case.

Maloney is
_______

distinguishable from

There, the buyer specified in the

make the

tests, and did

so.

agreement that it would

A district court

-31-

the present

had found

that

there was no evidence Sargisson knew or should have known of

the

existence of the problem, a finding which carried weight as prima

facie

the

evidence in the superior

Appeals Court.

Sargisson made a

Id. at
___

court and was

300.

representation as

There is

not questioned by

no indication that

to the status

rather, it is clear that the Maloneys relied on

of the

soil:

their own tests.

Here, the questions went to the past history of the property, not

just the present condition.

In short, the reasoning

in Maloney
_______

is based on a sufficiently different set of facts such that Sun's

reliance

Supp.

on

it fails.4

at

1179

See
___

Roadmaster Indus., Inc.,

________________________

(holding that

plaintiff

investigate contamination

of soil

matters of

did not vitiate

public record

buyer's

893 F.

failure

at manufacturing plant

to

as to

its misrepresentation

claim).

D.
D.

Sun

court made

without

makes the

Factual Conclusions
Factual Conclusions
___________________

additional argument

factual findings, where the

explaining the

____________________

reasoning for

that the

district

facts were controverted,

its determination.5

See
___

Sun's reliance

Varadian,
________
case,

on

647 N.E.2d

Rhode Island Hosp. Trust Nat'l Bank

_____________________________________
1174 (Mass.

is similarly misplaced.

the evidence
contractual

did not
sense

finding that

made,

reliance

businessmen plaintiffs would be unreasonable

Id. at 1179. We fail to see
___
misrepresentation charge

promissory estoppel

There, the court found that since

warrant a
was

1995), a

v.

a promise

by

the

in the

experienced

as a matter of law.

how that case sheds any light on the

here, where the court has

found that a

misrepresentation was indeed made.

Sun

also contends

findings were

that

several

irreconcilable and

those allegations

elsewhere in

of

the district

contradictory.
the opinion, we

them here.

-32-

As

court's

we address

do not

discuss

Fed.

R.

Civ. P.

specially and

when

52(a) (mandating

state separately

trying facts without

Rule 52(a), a trial

of ultimate fact.

that

court "find

its conclusions of

a jury).

"To

the facts

law thereon"

satisfy the demands of

court must do more than

announce statements

The court must support its rulings by spelling

out the subordinate facts on which

it relies."

U.S. for the Use

________________

of Belcon, Inc. v. Sherman Constr. Co., 800 F.2d 1321, 1324 (4th
________________
___________________

Cir. 1986) (vacating decision

and remanding where district court

made no

plaintiff's responsibilities where

finding on extent of

the conflict "turn[ed]

Our

upon [the parties'] respective

duties").

examination of the findings Sun questions reveal no error by

the district court.6

First,

Sun questions

placed

in Damon's testimony.

should

be

provided

"disregarded the

station,

1980

40).

with

Specifically,

an

when Getty

it argues

explanation

of

why

uncontroverted testimony of Mr.

examined the

that it

the

court

Damon that the

station." (Appellant's

Sun's phrasing twists the testimony:

true.

district court

the underground tanks, and the soil was '100% clean' in

Getty told

him the

As we

have

soil was clean,

already

evidence that Getty was

court

the credence the

Damon testified that

not that

noted, Sun

has

he knew it

not provided

in fact testing the soil:

specifically found that

Getty was

Brief, at

to be

any

the district

testing the

tanks for

____________________

Two of

Sun's contentions, that the district

are insufficient as to intent

court's findings

and reliance, and that it did

not

adequately address the factual

basis for Cataldo's exert opinion

on the property's condition, have been addressed elsewhere in the

opinion.

-33-

tightness.

The district

that it also did

court stated during

not consider that Damon

closing arguments

had made an

admission

that the property was clean.

Sun

also argues that the

chose the "version" of his story

court had to

explain why it

Damon told at trial, instead of

what it

deems "varying" earlier versions

under oath, especially

as regards what questions he put to the Sun representatives.

review

trial

Our

of the record does not indicate that Damon's testimony at

was

so inconsistent

with

his

earlier testimony

as

to

constitute "'unsupported self-serving testimony that flies in the

teeth

of

unimpeachable

experience.'"

contradicting

evidence

and

universal

Venturelli, 850 F.2d at 833 (quoting Insurance Co.

__________
_____________

of North Am. v.
_____________

Musa, 785
____

F.2d 370,

374-75 (1st Cir.

1986)).

Indeed, the district court stated that it did not "look upon them

as

being that

question,

but

different.

the

There

extent of

question, it strikes me."

the

are

differences, there's

differences

is a

no

difficult

(Day 4, page 17).

Lastly, Sun contends that the

court did not provide an

evidentiary basis for

"it

should

questioning.

inconsistent

States,
______

have been

The

and

its conclusion, made

clear"

findings

to Sun

here,

contradictory

759 F.2d 941,

what

Damon meant

however, are

findings

944 (1st Cir.

in a footnote,

in

not

Lyles
_____

1985), cited by

that

in his

like

v.

the

United
______

Sun.

The

court here specifically stated in its findings of fact that Damon

asked

both

connection

Laubinger

with its

and

comment

Bunzell

about past

that Sun's

-34-

problems.

In

representatives should

have

understood the

scope

court cited his testimony

of Damon's

questions, the

that "the only thing

gas station is tanks and pumps and the lines.

is there?"

Law,

at

(District

7 n.1).

pertinent findings

Makuc v.
_____

1987).

you've got in

"judge

need

and conclusions

American Honda Motor Co.,

________________________

only make

on

mean, what else

Court Findings of Fact and

district

Conclusions of

brief,

the contested

835 F.2d 389,

definite

matters."

394 (1st Cir.

The district court met its burden here.

CALCULATION OF DAMAGES
CALCULATION OF DAMAGES

The district court calculated

the damages for the tort

claim as $245,000, the difference between the actual value of the

Damon's property if it

was uncontaminated -- $600,000 --

defendant's representatives

property as

plaintiffs

contaminated

price, and

the actual value

-- as

have

set off

Rooney in 1992.7

specific

should have accounted

the

Sun does not

but argues that

monies against

for the Damons'

the

purchase

obligation to

We disagree, for the following reasons.

First, Sun

the Damons

of the

measured when

district court's basic measurement,

mitigate damages.

gave

-- $325,000

sold the property to

contest the

it should

stated and

as the

contends the value of

from and

against all

the indemnity Rooney

environmental liability,

which it suggests is approximately $104,000, should have been set

____________________

Adopting

the

sale

price

suggested

by

Rooney's gasoline

supplier, the district court

found the fair market value

of the

property if it had been not been contaminated to be $600,000.

took the actual
property as
Damons'

sale price as

contaminated:

the measure of

Rooney

assumed the

It

the value of

the

$325,000 of

the

first and second mortgages, $10,000 in arrears, and made

a $20,000 cash payment, for a total of $355,000.

-35-

off against the

out,

purchase price.

However, as

the Damons

point

if Sun had not made the misrepresentation, the Damons would

not be responsible to clean up

the mess.

Had the Damons cleaned

up

the

property

themselves,

reimbursement, and,

presumably, the

would have been higher:

indemnity

they

would

be

entitled

sale price of

to

the property

reducing the damages by the value of the

would virtually

reverse

this process.

Second,

Sun

argues that $40,000 should be taken off the damage figure, as the

Damons did not give Rooney $40,000, as they were required

their

agreement, to

Sun's

representatives

defray costs of

had

condition, the Damons would

if they had paid

not

contamination.

misrepresented

to per

Again, if

the

property's

not have owed that money

to Rooney;

it to Rooney, it would have

been added to, not

offset against, the damages (and presumably would be reflected in

the actual sale price).

rent

Damons

from

Third, Sun argues that

Rooney should

did not

seek

have been

it from

him.

offset

$29,000 in back

as well,

However,

since the

once again,

the

plaintiffs

would

misrepresentation.

not

have

Also,

lost

that

according

to

money

without

paragraph

Agreement and Lease, Rooney was entitled to opt out of

of

the

the

his lease

if a governmental authority prevented him from occupying or using

the property as

a gasoline station.

Thus,

it is unclear

that

Rooney did, in fact, owe the past rent.

Sun

their

the

also argues

that

the Damons

losses by not seeking back rent

terms

of the

Agreement and

-36-

Lease

failed to

from Rooney.

mitigate

In light of

between Rooney

and the

Damons, the fact

$40,000,

which

that the

they did

Damons were obligated

not, and

the

to pay

Rooney

subsequent sale

of the

property, we are hard put to accept their reasoning.

For

the

above

reasons,

the

district

court's

determination of damages is affirmed.

CHAPTER 93A CLAIMS

CHAPTER 93A CLAIMS

The

"unfair

district

or deceptive"

court

and thus

Laws chapter 93A, section 11.

refused

found

that

Sun's

actions

violated Massachusetts

were

General

At the same time, the lower court

to award multiple damages under section 11, on the basis

that

"the evidence

[was]

of bad

faith or

insufficient to merit a punitive

willful intent

to deceive

award."

(District Court

Findings of Fact and Conclusions of Law, at 12).

See Mass. Gen.

___

L. ch.

93A,

11

(allowing

employment

of the . .

knowing").

Sun argues on appeal

it

. act

multiple damages

or practice was

if "the

. .

use

or

. willful or

that the court erred in finding

violated chapter 93A, while the Damons contend that the court

erred in

refusing multiple damages.

For the

reasons discussed

below, we affirm the district court's finding that Sun was liable

under chapter 93A, as well as its refusal of multiple damages.

A.
A.

Sun's Liability Under Chapter 93A

Sun's Liability Under Chapter 93A
_________________________________

1.
1.

Standard of Review
Standard of Review
__________________

We

review.

begin

The

district

review, and its

See
___

our analysis

by

reciting

court's findings

findings of

fact engender

of

our standard

of

law face

de novo
________

clear error

review.

Industrial Gen. Corp. v. Sequoia Pacific Sys. Corp., 44 F.3d

_____________________
__________________________

-37-

40, 43 (1st Cir. 1995).

erroneous "'when

We deem a finding of fact to

although there is

be clearly

evidence to support

it, the

reviewing

and

court on the entire evidence is left with the definite

firm conviction that a mistake has been committed.'"

Id. at
___

43 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573

________
______________________

(1985) (citation omitted)).

-38-

2.
2.

The

The Legal Framework

The Legal Framework
___________________

district

court

"unfair or deceptive" within

found

that

Sun's

actions

the scope of chapter 93A.

11 provides a cause of action to

[a]ny

person who engages

of any trade or
any

loss of

personal,

in the conduct

commerce and who suffers

money or property,

as

result

of the

employment of another person

in

any trade

unfair

or

or

act

use

or

who engages

commerce of

deceptive

real or

or

. .

. an

practice

were

Section

. . . .

Mass.

Gen. L.

ch. 93A,

(establishing that

conduct

of any

Mass. Gen.

L. ch. 93A,

"unfair or deceptive acts or practices in the

trade or

misrepresentation

section 11.

11; see
___

commerce" are

claims provide

unlawful).

basis

Common law

for liability

under

See, e.g., Sheehy v. Lipton Indus., Inc., 507 N.E.2d

___ ____ ______
___________________

781, 785 (Mass. App. Ct. 1987).

Section 11

level of an

Co.,
___

"unfair or

slip op.

conduct meets

developed.

rascality

does not define

at

what conduct rises

deceptive" act.

38-39.

In

See Cambridge Plating

___ __________________

weighing whether

the statute's requirements, "a

'The

objectionable conduct

that would raise an

to the

defendant's

common refrain has

must attain a

eyebrow of someone

level of

inured to the

rough and tumble

of the world of commerce.'"8

Quaker State Oil

________________

____________________

The Damons argue that in Massachusetts Employers Ins. Exch. v.

__________________________________

Propac-Mass, Inc., 648 N.E.2d 435 (Mass. 1995), the SJC abandoned
_________________

the "rascality test" in stating that it "view[s] as uninstructive

phrases

such

as 'level

unfairness'."

Id.
___

of
at

rascality'
438.

and 'rancid

Contrary

to

flavor
the

of

Damons'

interpretation, the SJC was simply recognizing that the mentioned

phrases

do

guidance in

not,

despite

their frequent

the fact-specific

context of

-39-

citation,

lend

a chapter 93A

much

claim.

Ref. Corp.
__________

1989)

v. Garrity Oil Co., 884

________________

F.2d 1510,

1513 (1st

Cir.

(quoting Levings v. Forbes & Wallace Inc., 396 N.E.2d 149,

_______
_____________________

153 (Mass. App. Ct. 1979)).

In other words,

a chapter 93A claimant must show that the

defendant's actions fell "within at least
the

penumbra

statutory,
of

of

or other

unfairness,"

unethical,

some

common-law,

established concept
or

oppressive

were
or

"immoral,

unscrupulous"

. . . .

Id. (quoting PMP Assocs., Inc. v. Globe Newspaper Co., 321 N.E.2d
___
_________________
___________________

915, 917 (Mass.

(1st

1975)); see Tagliente

___ _________

Cir. 1991).

As

the SJC

recently stated, in

act's fairness, the

focus is

conduct and

purpose and effect

on the

v. Himmer, 949 F.2d

______

"on the nature

of the

of that

1, 7

weighing an

challenged

conduct as

the

crucial factors."

Massachusetts Employers Ins. Exch., 648 N.E.2d

__________________________________

at 438.

3.
3.

In its

Sun

Sun's Violation of Chapter 93A

Sun's Violation of Chapter 93A
______________________________

challenge to the district

is liable under section

was not "unfair

11, Sun maintains

or deceptive."

basis is conclusory

at best:

court's finding that

However, its

Sun points to

that its conduct

argument on

neither evidence in

the record nor case law which would cast into doubt

court's factual

determination on that

that

point.9

the district

As neither

Sun

____________________

See Cambridge Plating Co., slip op. at 39.

___ _____________________

Sun does cite to evidence that Damon was a businessmen who had

sold gasoline

and used underground storage tanks for some thirty

years prior to buying the property, but only to maintain that the

court must apply a "heightened standard of an unfair or deceptive

act

or practice."

parties

is not

chapter

93A

to

We

remind Sun that

mentioned in
cover

"[s]ophistication of the

chapter 93A

business

entities

and the
did

not

amendment of
limit

the

-40-

nor our review of the record provides us with grounds to find the

district court erred, we affirm

section 11.

See Schwanbeck
___ __________

789, 803 (Mass. 1991)

the lower court's application of

v. Federal-Mogul Corp.,
___________________

578 N.E.2d

(noting that "whether a particular

set of

acts,

in

question

their factual

of fact"),

setting, is

unfair

rev'd on other grounds,

________________________

or deceptive

is a

592 N.E.2d

1289

(Mass. 1992).

Sun

does

Chems., Inc.,
_____________

There,

look

823 F.

plaintiff

noted

under

Supp. 963

(D.

Mass 1993),

the defendant

about its ability to

Sun acknowledges

that the

v.

Reichhold
_________

for support.

chemical supplier

supply the plaintiff

Winter Panel
____________

court

that "[k]nowing non-disclosure of information necessary to

make affirmative

rise

Winter Panel Corp.

___________________

alleged that

made false statements

with chemicals.

to

to an

statements complete or non-misleading will give

action

chapter 93A."

for misrepresentation,

Id. at 975.
___

including an

action

Sun nonetheless seeks to save

itself

from

statement

liability by

that

"[s]imply

representatives'] lack

reliance

neglecting

the court's

to

discuss

of practical experience

methods of production pursued by

at present seem

on

additional

[defendant's

with the precise

Winter Panel, however, does not

to be the kind of knowing omission that achieves

____________________

statute's

protection

to

small,

unsophisticated

businesses."

V.S.H. Realty, Inc. v. Texaco, Inc., 757 F.2d 411, 418 (1st Cir.
____________________
____________
1985).
we

Regardless of

apply

between

the well-developed
two

persons

relative levels
analysis

the level of the parties'

standard

engaged in

for

business.

of sophistication may enter

sophistication,

section 11
Of course,

actions

their

into the fact-based

the court carries out in weighing whether a party's act

was unfair or deceptive.

-41-

the level of rascality

93A."

Id.
___

As we

necessary to find a violation

have already

of chapter

affirmed the district

court's

finding of misrepresentation, it is manifest that Sun's acts sink

below the

level

contamination.

Sun's

of

"simply neglecting

discuss"

the

1974

Winter Panel offers Sun no relief.

____________

primary argument

against

holding blurs the line between section

damages.10

to

Specifically,

it contends

the district

court's

11 liability and multiple

that since

the district

court apparently found Sun's conduct was not willful and knowing,

Sun cannot have engaged in common law fraud.

have engaged in fraud, it concludes, its

the level

of intentional

Since

it could not

conduct did not rise to

misconduct, beyond mere

negligence or

inadvertence, that section 11 demands.

We

disagree.

As

noted above,

the

district

court

refused to award multiple damages here on the basis that

[m]ultiple damages are not

mandated when

misrepresentation occurs.

Only "callous

and

intentional

multiple

damages

violations"
treatment.

instance, we believe
faith or

willful

deserve
In

this

the evidence of bad

intent to

deceive

is

insufficient to merit a punitive award of

multiple damages.

____________________

10

Sun also

amounts

to

makes the
negligence,

circular argument

that if

it

the

has

not

met

its conduct

requirement

of

rascality needed for

basis

section 11, since negligence

for a section 11

violation.

To

cannot be the

the contrary, negligence

can provide the basis for chapter 93A liability, so long as it is

paired with an unfair
words, negligence

or deceptive act or

practice -- in

plus rascality equals liability.

588 N.E.2d at 24; Glickman

________

other

See Squeri,
___ ______

v. Brown, 486 N.E.2d 737, 741

_____

(Mass.

App. Ct. 1985); see, e.g., Briggs v. Carol Cars, Inc., 553 N.E.2d
___ ____ ______
________________
930

(Mass. 1990)

(upholding application

of sections

2 &

9 of

chapter 93A where defendant made reckless misrepresentation).

-42-

(District

Court Findings of Fact

and Conclusions of

Law, at 12

(citations

omitted)).

As

Sun

itself

indicates, reading

the

district court opinion as finding that Sun was not at all knowing

or

willful is inconsistent with the first element of the tort of

misrepresentation, i.e. that a

party make a false representation

with the knowledge of its falsity.

N.E.2d

at

868.

indicating that

intent

there

must be

district court

of

bad faith

some quantum of

met before

under chapter

the

was evidence

to deceive, but that

violation

damages

We understand

See Barret Assocs., Inc., 190

___ ____________________

a party

93A. Indeed,

statute."

is entitled

"shades of

Cambridge Plating Co.,

______________________

reading is consistent with

and

slip

willful

knowing or willful

to punitive

culpability are

supposed to matter in applying the punitive damages

the

opinion as

provision in

op. at

42.

Our

the district court's specific finding

that

when

problems

replied

the

n.15

Damon

with

asked Laubinger

the

station

that it was a

1974 contamination.

and

if

Sun

had

underground

"good station," despite

Cf.
___

experienced any

tanks,

his knowledge of

VMark Software, 642

______________

("We put great stock in the

N.E.2d at 596

findings of the trial judge on

issues such as intent and motivation, since he was in

position

and

to assess the weight and

there

is

no

showing

that

Laubinger

a superior

credibility of the witnesses,

his

findings

were

clearly

erroneous.").

The case law supports this reading.

Inc. v. EMC Corp., cited

____
_________

found

VMark guilty of

In VMark Software,
_______________

by the district court, the trial

misrepresentation, but did

court

not grant EMC

-43-

multiple damages under section 11.

requirement

triggered

knowing

that

for

section

the

tort

11's

of

EMC claimed that the scienter

misrepresentation

mandatory

violation of chapter 93A.

although VMArk's

misstatements

doubling of

formula, "they were not

damages

for

The court disagreed, finding

were made

awareness of the facts for it to be liable

tort

automatically

with sufficient

under the traditional

made so 'knowingly'

as to warrant

the punitive sanctions

595.

of double damages under c. 93A."

We recently reaffirmed

for conduct amounting

that "[l]iability under Chapter 93A

to intentional misrepresentation does

automatically trigger punitive damages.

more."

and

willful

conclusion that Sun's actions

enough

to

require

not

There must be something

Cambridge Plating Co., slip op. at 42.

_____________________

district court's

Id. at
___

punitive

Accordingly,

the

were not knowing

damages

is

not

inconsistent with intentional misrepresentation.

4.
4.

Multiple Damages Under Chapter 93A

Multiple Damages Under Chapter 93A
__________________________________

Paragraph 5 of section 11 provides for multiple damages

where

"the court finds that

the use or employment

act or practice was a willful or knowing violation."

of the . . .

The

Damons

argue that they should have been granted multiple damages, but do

not

contend that

violation

damages.11

the

district court

sufficiently

Instead,

willful

they base

should

or knowing

have found

to require

their position

on the

Sun's

double

premise

____________________

11

In

their statement of conclusions, the Damons

we should conclude that the district

was

guilty

of some

deceive suffices
para. 5.

level

to require

of bad

do posit that

court's indication that Sun

faith

or willful

multiple damages under

intent to

section 11,

However, as they offer no support for this contention,

-44-

that

we should essentially read into section 11 the provision of

section 9

faith

which awards

refusal

demand.12

to

make

Their

multiple damages

reasonable

argument relies

for a

defendant's bad

settlement

on the

fact that

offer

after

sections 9

____________________

we deem
(1st
rule

it waived.

See United States v. Zannino, 895 F.2d 1, 17

___ _____________
_______

Cir.) ("[W]e see no reason to abandon the settled appellate

that

issues

unaccompanied by

some

adverted

to

in

effort at

developed

perfunctory

argumentation,

deemed waived."), cert. denied, 494 U.S. 1082 (1990).

____________

12

That section provides, in pertinent part:

Any person receiving

relief who
of

. . . a demand

. . . makes

settlement which

for

a written tender

is rejected

manner,

by the

claimant may, in

any subsequent

action,

file the written

tender and an affidavit

are

concerning

its

rejection

and

thereby

limit any recovery to the relief tendered

if

the

court

tendered
the

finds

was

injury

petitioner.

than

actually

finds

grant relief
faith

with

that

the act

violated

relief

relation to

suffered

by

In all other cases,

the

if the

petitioner, recovery

. up to three but

two times

court

the

reasonable in

court finds for the

shall be . .

that

not less

[actual damages]

that . .

. the

if the

refusal to

upon demand was made in bad

knowledge

or reason to know

or practice

complained of

said section two.

Mass. Gen. L. ch. 93A,

9(3).

By comparison, section 11 states,

in pertinent part:

The respondent may tender with his answer

. .

. a written offer

single

damages.

If

of settlement for
such

tender

or

settlement is rejected by the petitioner,

and

if the

tendered
the

was

injury

petitioner,

court finds that

the relief

reasonable in

relation to

actually
then

the

suffered
court

award more than single damages.

by

the

shall

not

Mass. Gen. L. ch. 93A,

11.

-45-

and 11 share the goal of promoting reasonable settlement

See International Fidelity Ins. Co. v. Wilson,

___ ________________________________
______

1318

(Mass.

1983).

statute's goals we

According to

this

offers.

443 N.E.2d 1308,

logic, to

further the

should punish defendants who are liable under

section 11 and who do not

offer single damages with their Answer

by inflicting multiple damages

on them, and reward those

who do

with single damages.

We have previously noted

section

11 permits

recovery of

multiple damages

theory where bad faith is proved."

Pride, 994 F.2d 37, 40

_____

that "[i]t is unclear whether

(1st Cir. 1993).

by its terms

Southworth Mach. v. F/V Corey

________________
_________

Nonetheless, we

hesitate in refusing the Damons' argument.

section 9 is

under such

do not

First, we note

inapplicable to transactions

that

between

persons engaged in business, and section 11 quite simply does not

include

language

acting

requirement of multiple

written tender

as

counterpart

damages where

of settlement.

although it shares

See id.
___ ___

to

a party does

Second, we

specific goals with section

section

not make

9's

note that,

9, "[s]ection 11

provides a different procedure

for achieving the same objectives

of facilitating settlement and fixing damages."

360

N.E.2d 870, 874 (Mass. 1977).

federal

courts have

procedures

Indeed, the Massachusetts and

consistently respected

between the two sections.

Expert, Inc.,
_____________

762 F.

Supp. 998,

Nader v. Citron,
_____
______

1001

the differences

See, e.g.,
___ ____

(D. Mass.

in

Fickes v. Sun
______
___

1991); Aetna
_____

Casualty and Surety Co. v.

_________________________

State Park Ins. Agency, Inc., 428

______________________________

N.E.2d 376, 377

Ct. 1981); see also Glickman,

_________ ________

(Mass. App.

-46-

486

N.E.2d at 742 &

terms

n.7 (refusing to

of defendants'

response

analyze section 11 damages

to

plaintiffs' demand

"Whatever the merits of implying the demand letter

into

11, as urged by

implication in the

N.E.2d at 874.

find

that Sun's

"made in

or

defendants, we find no

language and structure of

Finally, we

failure to

in

letter).

scheme of

support for such

11."

Nader, 360
_____

note that the district court did not

tender an

offer of

settlement was

bad faith with knowledge or reason to know that the act

practice complained of violated said section 2," as section 9

demands, and the Damons have not demonstrated any evidence to the

contrary.

an

Thus, even if we were to weigh Sun's failure to tender

offer into our analysis, the Damons' challenge to the court's

damage award would fail.

Our

decision

today

does

not clash

with

the

SJC's

decision in International Fidelity Ins. Co., despite the Damons'

________________________________

reliance on

reasonable

it would

it.

There,

be appropriate to impose

settlements.

N.E.2d

of promoting

despite

at 870).

their common

so would promote

At the same time, however, the

"the procedures

Thus,

independent liability against

in that case, as to do

443 N.E.2d at 1318.

noted that

differ,"

weighed the goal

settlements in both sections 9 and 11, and found that

the multiple defendants

Court

the SJC

set out

goal.

in the

Id.
___

we read International

(citing

two sections

Nader, 360
_____

Fidelity Ins. Co.

________________________________

not as suggesting we read the damage provisions of section 9 into

section 11, but as recognizing that their goals are similar while

their

methods are not.

See Levings v.
___ _______

Forbes & Wallace, Inc.,

______________________

-47-

396

N.E.2d 149,

procedures in

153 (Mass.

App. Ct.

1979) ("The

remedies and

9 and 11 are related, but not parallel, and the

conditions

the

of one section should not be read by implication into

other."); Nader, 360 N.E.2d

_____

whatever

their utility,

rewriting

of statutes"

at 874 (noting that "analogies,

do not

form a

in refusing

basis for

the judicial

to read section

9's demand

letter procedure into section 11).

ATTORNEY'S FEES
ATTORNEY'S FEES

The

district court

attorney's fees and costs.

(mandating reasonable

awarded the

See Mass. Gen. L. ch. 93A,

___

attorney's

fees and

where the court finds a violation of

award

granted

was not

reasonable, on

(specifically,

appearances

Damons $40,620.40

the

and depositions)

2).

the basis

rate

of

11 para.

costs be

awarded

Sun argues that

that the

$235

were exorbitant

an hour

in

the

hourly rates

for

court

and unreasonable,

and

the

review

contingency nature

of

the

record,

of the

we

do

engagement.

not

find

the

above,

we

Based

on our

court's

award

unreasonable.

CONCLUSION
CONCLUSION

For

the

district court's

reasons discussed

refusal of Sun's

find that

motion for entry

the

or judgment

and motions to alter and amend the

judgment and findings and for

of its

new

trial were

not

an

abuse

discretion.

Having

considered all the parties' arguments, we find both appeals to be

lacking

in merit.

Consequently,

district court on all points.

-48-

we affirm the
______

decision of the

No costs on appeal to either party.

-49-