Nasco v. Public Storage ( 1997 )

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 97-1340
NASCO, INC.,
Plaintiff, Appellant,
v.
PUBLIC STORAGE, INC.,
Defendant, Appellee.
No. 97-1457
PUBLIC STORAGE, INC.,
Defendant, Cross-Appellant,
v.
NASCO, INC.,
Plaintiff, Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella, Chief Judge,
Lynch, Circuit Judge,
and Keeton,* District Judge.
Joseph G. Abromovitz, with whom John G. Balzer and
* Of the District of Massachusetts, sitting by designation.
Abromovitz & Leahy, P.C., were on brief, for plaintiff-
appellant NASCO, Inc.
James E. Carroll, with whom Kristen M. Lacovara and
Cetrulo & Capone were on brief, for defendant-appellee Public
Storage, Inc.
October 8, 1997
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LYNCH, Circuit Judge. One novel issue under Mass.
LYNCH, Circuit Judge.
Gen. Laws ch. 93A is presented by this appeal: May a chapter
93A 11 claimant be awarded attorney's fees where the only
"adverse effects" it suffers from the violation are the
incurring of valid bills which it does not pay because it is
unable to do so? We answer this question in the affirmative
in light of Massachusetts precedent and the policy behind the
attorney's fees provisions of chapter 93A.
NASCO, Inc., a family business in financial
trouble, attempted to sell its principal asset, an old brick
warehouse in Chelsea, Massachusetts. Lengthy negotiations
with Public Storage Inc. ("PSI"), a California-based company,
produced a purchase and sale agreement in February of 1990
which NASCO thought constituted an effective contract for the
sale of the building, but which a jury did not. Both the
trial judge and the jury (in an advisory capacity) thought
that PSI nonetheless had engaged in unfair and deceptive
business practices in the course of its dealings, although
the judge found so for only a limited period of time.
PSI escaped an award of significant damages against
it when the judge found that, while NASCO had suffered harm
during this limited period, NASCO had not shown monetary
damages. The judge did award NASCO attorney's fees and costs
on that basis. But the award was only a fraction of what
NASCO had sought, because NASCO had failed to document the
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fees for its successful claim under chapter 93A separately
from the fees for its unsuccessful contract claim. Conceding
the jury verdict on the contract claim, NASCO appeals, saying
that the evidence showed that PSI violated chapter 93A for a
longer period, that NASCO suffered damages of at least
$700,000, and that it should have received more in attorney's
fees. PSI also appeals, arguing that the evidence does not
show any violation of chapter 93A at all. We affirm.
I.
NASCO, Inc. manufactured bedding products at a
factory located in a large brick building in Chelsea.
NASCO's financial difficulties convinced the owners by early
1987 to wind down the business by selling off the assets,
paying creditors, and distributing the remainder to the
shareholders. NASCO's principal asset was the Chelsea
property, which an appraiser then valued at $4 million. The
property was subject to a $40,000 first mortgage held by the
Small Business Administration and to an $800,000 second
mortgage held by Shawmut Bank.
NASCO's property interested Public Storage, Inc., a
corporation that operates self-storage facilities throughout
the United States. In February 1987, NASCO and PSI executed
a purchase and sale agreement for the property, reciting a
price of $3.6 million. The parties terminated that agreement
by mutual consent after learning that Chelsea's zoning laws
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did not permit the use of the property as a mini-warehouse.
PSI remained interested in the project, and pursued relief
from the zoning restriction at its own expense, both in
administrative appeals and ultimately in the courts.
During this time, NASCO actively sought other
buyers for the property while continuing negotiations with
PSI. In September 1988, Cambridge Investment Group offered
$4 million. In February 1989, Rauseo & Co. offered $3.4
million. PSI was kept informed of the offers. PSI continued
to express its interest in the property, contingent on a
favorable outcome of its zoning litigation, and offered to
increase its offering price to $3.8 million. Neither of the
other offers resulted in a sale.
Throughout this period, NASCO had difficulty making
its payments on the Shawmut loan. By the summer of 1989,
shareholders had loaned the corporation a total of $268,000
in personal funds and could no longer afford to keep current
on the loan payments. Anticipating a favorable outcome in
the pending land court litigation, PSI representatives
persuaded Shawmut not to foreclose on the property.
In November 1989, the land court ruled in favor of
PSI on the zoning issue. NASCO and PSI began exchanging
drafts of a second purchase and sale agreement (the "1990
P&S"). On January 31, 1990, all necessary PSI
representatives signed the new agreement; on February 2,
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1990, NASCO representatives counter-signed. The agreement
contained an "expiration clause" which PSI had demanded and
which the parties had negotiated. The clause provided:
11. Expiration. This Agreement shall be of no
force or effect unless, within seven (7) days
after the date this Agreement has been
executed by Seller and Buyer's Real Estate
Representative, an Officer, the Secretary or
Assistant Secretary of Buyer, executes this
Agreement on behalf of Buyer and delivers to
Seller an executed copy of this Agreement
signed on behalf of Buyer by both its Real
Estate Representative and either the Secretary
or an Assistant Secretary of Buyer, together
with the Deposit.
Both PSI's local real estate representative and its secretary
had signed the 1990 P&S on January 31, but PSI never paid the
required deposit.
Between early February 1990 and March 19, 1990,
NASCO inquired about the deposit several times, both orally
and by letter. PSI did not respond by stating that the 1990
P&S had expired because the deposit had not been paid, but
instead claimed that the funds were tied up in its own
internal bureaucracy. The trial judge found that in other
respects PSI continued to act as though it still intended to
purchase the property under the agreement. Specifically, PSI
employees requested access to the facility and asked NASCO to
restore electrical power. However, in the meantime PSI
continued refining its own economic forecasts of the
viability of the Chelsea property as a self-storage
warehouse. PSI's statistical analysis indicated that the
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project would only be viable at a price between $1 million
and $2 million lower than the 1990 P&S provided. PSI decided
to abandon the project. On March 19, 1990, PSI informed
NASCO, by letter, that PSI had "decided to terminate" the
1990 P&S. The letter did not refer to the expiration clause.
NASCO informed its bank that the deal with PSI had
evaporated, and within two months the property was sold at a
foreclosure sale for $852,000.
II.
NASCO sued PSI for breach of contract and violation
of chapter 93A. The district court initially granted PSI's
summary judgment motion on both counts, reasoning that the
expiration clause was unambiguous, requiring the payment of
the deposit to bind PSI, and that NASCO could not establish a
violation of chapter 93A in the absence of an enforceable
agreement. This Court reversed, finding the expiration
clause ambiguous, and remanded for trial. See NASCO, Inc. v.
Public Storage, Inc. (NASCO I), 29 F.3d 28 (1st Cir. 1994).
The case was tried before a different judge. NASCO
amended its complaint to add claims for breach of the implied
covenant of good faith and fair dealing and for estoppel.
Before trial, PSI changed its legal theory, admitting the
existence of a contract prior to the expiration of the seven-
day period, and the parties dismissed the estoppel claim.
Following a fourteen-day trial, a jury ruled for the
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defendant on the contract claim and on the implied covenant
of good faith claim. Serving as an advisory jury only, the
jury answered interrogatories finding in favor of NASCO on
the chapter 93A claim, and recommended damages of $700,000.
Judge Lindsay, not accepting the advisory jury's findings,
ruled that there was no violation of chapter 93A prior to the
execution of the 1990 P&S on February 2 because the parties
did not consider the sale to be a "firm deal" until that
document was signed.
The district court did find that PSI had violated
chapter 93A through its deceptive conduct following the
expiration of the 1990 P&S in an attempt to keep its options
open, but ruled originally that NASCO had not been damaged
thereby. The district court amended its judgment to reflect
"adverse effects" from PSI's deceptive conduct.
Specifically, it found that PSI's conduct led NASCO to incur
additional legal expenses and the expense of restoring
electricity to the facility following the expiration of the
contract. The district court ruled that NASCO had not proven
the amount of these damages and so could not recover them,
but that the existence of these "adverse effects" entitled
NASCO to an award of attorney's fees for the chapter 93A
claim only. The district court awarded $35,000 in attorney's
fees and $4,097 in costs, one-fifth of what NASCO requested,
after discounting the portion of plaintiff's fee request that
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it considered related to the unsuccessful contract claim.
III.
Both sides appeal. NASCO does not challenge the
jury's finding on the contract and implied covenant of good
faith claims, but rather appeals the judge's finding that
PSI's conduct prior to February 2, 1990 did not violate
chapter 93A. NASCO argues that the judge's finding goes
against the weight of the evidence and disregards the
advisory jury's findings. NASCO also claims the amount of
the attorney's fees awarded was "arbitrary and capricious."
PSI challenges the judge's finding of a chapter 93A
violation, claiming it is against the weight of the evidence,
and challenges the judge's finding of "adverse effects"
supporting the attorney's fee award. PSI does not challenge
the amount of attorney's fees awarded.
IV.
The Chapter 93A Violation
When this case was previously before this court, we
reversed summary judgment for defendant on both the contract
and the chapter 93A claim. As to the chapter 93A claim, we
noted that the evidence could be read to infer that PSI:
(1) signed the Agreement in order to
obligate NASCO to deliver the property to
it for $3,575,000.00, if PSI so chose;
(2) intentionally breached its obligation
to pay the $20,000.00 deposit, knowing
full well that NASCO was in no position
to repudiate the Agreement on the basis
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of PSI's non-payment of the deposit;
(3) used the period of time after the
signing of the Agreement to investigate
the property further and to determine
whether it should honor the Agreement;
and
(4) then used its wrongful non-payment of
the deposit in order to avoid its
obligations under the Agreement.
NASCO I, 29 F.3d at 34 (footnote omitted). That evidence and
more was introduced at trial.
We review basic chapter 93A law. A party is not
exonerated from chapter 93A liability because there has been
no breach of contract. The law of Massachusetts has been
clear on this point since at least the decision of the
Supreme Judicial Court in Jet Line Services, Inc. v. American
Employers Ins. Co., 537 N.E.2d 107 (Mass. 1989). The court
in Jet Line held that there was no coverage under the
contract of insurance between plaintiff and defendant.
Nonetheless, the conduct of the insurance company in leading
the insured to believe there was coverage constituted an
unfair and deceptive trade practice. Accord Massachusetts
Farm Bureau Federation, Inc. v. Blue Cross of Massachusetts,
Inc., 532 N.E.2d 660, 664 (Mass. 1989)(violation of chapter
93A 11 need not be premised on a violation of an
independent common law or statutory duty). The fact that the
jury found no breach of contract does not preclude NASCO's
chapter 93A claim.
While the rubric of "rascality" as the test of
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whether something is "unfair or deceptive" has been oft-
recited, both the Supreme Judicial Court and this court have
noted that such rhetoric is "uninstructive." See Cambridge
Plating Co., Inc. v. Napco, Inc., 85 F.3d 752, 768 (1st Cir.
1996); Massachusetts Employees Ins. Exch. v. Propac-Mass,
Inc., 648 N.E.2d 435, 438 (Mass. 1995). We apply the
standards of Propac and Jet Line and easily hold that the
evidence was not so overwhelming as to require the trial
court to find that PSI acted in an unfair or deceptive manner
before February 2, 1990.
The evidence adequately supports the trial judge's
conclusion that before February 2, 1990 NASCO was aware that,
in the absence of a signed P&S with PSI, it could not be
assured of a sale of the Chelsea property. Thus, under
Pappas Indus. Parks, Inc. v. Psarros, 511 N.E.2d 621, 623
(Mass. App. Ct. 1987), the judge could readily conclude that
it was not reasonable for NASCO to rely on PSI's
representations before February 2. While the judge could
have reached the opposite conclusion, as did the advisory
jury, he was not required to do so.1
PSI in turn argues that there was no violation of
chapter 93A after February 2, 1990. In Propac, 648 N.E.2d at
438, the Supreme Judicial Court directed that the focus be on
1. The advisory jury's opinion does not bind the court. See
Wyler v. Bonnell Motors, Inc., 624 N.E.2d 116, 118-19 (Mass.
App. 1993).
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"the nature of the challenged conduct and on the purpose and
effect of the conduct." As in Propac, the defendant here
continued to act as though a legal relationship were in place
when it was not and the conduct was unilateral and self-
serving. In both cases, some harm was also done to third
parties -- in this instance, the closing attorney and the
electric company. In each instance, the plaintiff was
particularly vulnerable and the defendant's unfair conduct
gave it greater leverage.
The record also easily supports the trial judge's
findings that after February 2, 1990 NASCO believed it had a
firm deal with PSI and that such a belief was reasonable and
induced by PSI's actions. Cf. Greenstein v. Flatley, 474
N.E.2d 1130 (Mass. App. Ct. 1985). As the trial judge found:
PSI used the period between February 2,
1990 and March 19, 1990 to complete its
assessment of the economic soundness of
the purchase of the Chelsea Property. To
keep all of its options open, PSI
unfairly and deceptively led NASCO to
believe that the parties had entered into
a binding agreement and the deposit was
delayed merely because of administrative
inefficiencies. All the while, PSI
actually withheld the deposit because it
reasoned that the failure to pay the
deposit would permit PSI to repudiate the
agreement if, after review, the purchase
of the Chelsea Property seemed not be an
economically advantageous transaction.
Thus when PSI determined that the
purchase was indeed economically unsound,
it instructed its lawyer to advise NASCO
that the deal was off.
During February and March, NASCO's attorney and
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broker made several inquiries concerning the late deposit.
They testified that PSI reassured them that the delays were
simply the result of PSI's bureaucratic procedures, and that
PSI never indicated that the contract had expired. It was
only after the filing of NASCO's lawsuit that PSI claimed the
contract had expired because of the unpaid deposit.
Attorney's Fees
The more difficult question is whether NASCO
suffered any adverse effects sufficient to trigger liability
for attorney's fees under chapter 93A. In Jet Line, the
court held that "Under 11, a plaintiff must be entitled to
relief in some other respect in order to be entitled to an
award of attorneys' fees. . . . Under 11, [the] unfair or
deceptive conduct must have had some adverse effect upon the
plaintiff, even if it is not quantifiable in dollars." Jet
Line, 537 N.E.2d at 115. Because this is a 11 business
case, and not a 9 consumer case, the Jet Line rule applies.
The trial judge found that NASCO had not shown that
there were any other potential buyers for the building in
this February/March 1990 time frame, so NASCO could not claim
the sale value of the building as damages. The district
court found two elements of damage: NASCO, believing it had a
contract, incurred legal fees in anticipation of a closing,
and NASCO suffered losses in the form of the costs associated
with restoring power to the Chelsea property at the request
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of PSI. Such effects would indeed meet the Jet Line
requirement of "adverse effects." See also Star Financial
Services, Inc. v. AA Star Mortgage Corp., 89 F.3d 5, 15 (1st
Cir. 1996) (award of injunctive relief based on demonstrated
risk of future actual loss constitutes an unquantifiable
"adverse effect" under Jet Line); Jillian's Billiard Club of
America, Inc. v. Beloff Billiards, Inc., 619 N.E.2d 635, 638
(Mass. App. Ct. 1993) (where no damages awarded, value of
what was taken or start up costs, which might have been
quantifiable, are sufficient to support award of attorney's
fees).
PSI argues that the record does not support these
conclusions for two reasons. First, while NASCO incurred
legal fees for work by counsel in anticipation of a closing,
there is no evidence that it ever paid those bills, and is
not now obligated to pay as any claim for legal services is
barred by the statute of limitations. Second, NASCO did not
reactivate electricity at PSI's request during the Chapter
93A violation period and it did not pay for the electric
expenses because it took the position that PSI was
responsible to pay those costs and because NASCO had no money
to pay these bills.
The record shows that Peter Cooney, NASCO's broker
for the property, was contacted by Kevin Kinneavy of PSI, who
requested that power be restored to the property. In
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response, NASCO's attorney, Thomas Bennet, sent a letter
dated February 12, 1990 to Boston Edison requesting that
power be restored to the property. Mr. Bennet sent copy of
this letter to Mr. Kinneavy. Witnesses testified that power
was subsequently restored to the property, and Harvey
Shapiro, NASCO's vice president, testified that Boston Edison
billed NASCO after February of 1990, but that these bills
were not paid. Attorney Bennet's billing records, which
listed several entries connected with the sale of the Chelsea
property between February 2 and March 19, 1990, were also in
evidence.
In light of this evidence that NASCO incurred both
legal and electrical bills and the trial judge's implicit
finding that the bills were in fact incurred, PSI's argument
evolves to a contention that because NASCO did not pay these
bills, it has suffered no "adverse effects" under Jet Line
and is not entitled to damages. NASCO's failure to pay the
bills means that it did not recover damages for those
liabilities, but it does not mean that NASCO did not suffer
adverse effects. To the extent that PSI's objection is that
the bills were not valid or the debts were not validly owed,
the trial judge implicitly found against PSI. It would, of
course, be a different matter if the bills were inflated or
fictitious. To the extent that PSI's objection is that there
were valid debts, but NASCO did not pay them, the decision of
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the Supreme Judicial Court in DiMarzo v. American Mut. Ins.
Co., 449 N.E.2d 1189 (Mass. 1983) is instructive. Although
DiMarzo dealt with a judgment and not a mere bill, the
Supreme Judicial Court held that entry of a judgment
constitutes a loss of money for purposes of chapter 93A. In
addition, DiMarzo said, "[t]he loss does not turn on whether
the judgment has been satisfied." Id. at 1196. While a
judgment is admittedly different than a bill, that a valid
debt (evidenced by a bill) has not been paid does not mean
that there has been no adverse effect.
PSI's unfair and deceptive practices caused NASCO
to incur these legal and electrical bills. This worsened
NASCO's financial position and put it at risk of suit on
these bills. PSI should not avoid attorney's fees for its
behavior because NASCO could not pay bills it would not have
incurred had PSI not violated the law. Indeed, PSI's
position seems contrary to the intent of chapter 93A.
Vulnerable, struggling companies in bad bargaining positions
are more likely to need the protection of chapter 93A than
robust, successful companies. If we adopt PSI's position,
impecunious businesses, unable to pay their bills and trying
to sell their assets in order to do so, would be placed on a
different footing under chapter 93A than more solvent
plaintiffs. The purpose of the chapter 93A 11 attorney's
fees provision is to deter businesses from engaging in unfair
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and deceptive trade practices where those practices have
adverse effects. See Commonwealth v. Fall River Motor Sales,
Inc., 565 N.E.2d 1205, 1214 (Mass. 1991); Manning v.
Zuckerman, 444 N.E.2d 1262, 1266 (Mass. 1983) ("Through the
imposition of penalties for specific unfair or deceptive acts
or practices between particular individuals, the statute
seeks to deter these practices and to reduce the general
danger to the public arising from the potential for such
unscrupulous behavior in the marketplace."). We conclude
that NASCO was eligible for an award of attorney's fees.
NASCO argues that the district court's fee award
was too small. But Jet Line, 537 N.E.2d at 114-15, holds
that an attorney's fees award should be adjusted to eliminate
any award for legal services rendered in connection with
unsuccessful claims. The district court acted well within
its discretion when it decided to award NASCO only part of
the attorney's fees and costs NASCO had incurred in the
course of this litigation. See DiMarzo, 449 N.E.2d at 1202
("The amount of reasonable attorney's fees under c.93A is
within the broad discretion of the trial judge."); Linthicum
v. Archambault, 398 N.E.2d 482, 488 (Mass. 1979), overruled
in part on other grounds by Knapp Shoes, Inc. v. Sylvania
Shoe Mfg. Corp., 640 N.E.2d 1101, 1105 (Mass. 1994).
V.
To conclude, we hold that the district court
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correctly applied the law of chapter 93A to this case. The
record clearly supports the district court's finding that
PSI's actions from February 2 to March 19 of 1990 violated
chapter 93A's prohibition of unfair and deceptive trade
practices. The district court was also correct to conclude
that NASCO suffered adverse effects during this period for
which attorney's fees could be awarded. The judgment of the
district court is therefore affirmed. Costs are awarded to
NASCO.
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