Damon v. Sun Company, Inc.
Case Date: 07/05/1996
Court: United States Court of Appeals
Docket No: 95-1820
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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 on brief for Sun __________ ______________________ Company, Inc. ____________________ July 5, 1996 ____________________ -2- TORRUELLA, Chief Judge. Plaintiffs brought suit in TORRUELLA, Chief Judge. ___________ this case claiming misrepresentation and violation of Mass. Gen. L. ch. 93A, 11. For the reasons stated herein, we affirm the decision of the district court. BACKGROUND BACKGROUND The parties stipulated to the following facts: Defendant Sun Oil Company, Inc. (R & M) ("Sun") owned property located at 225 Brockton Ave., Abington, Massachusetts, (the "property") from 1971 to 1979. In 1972, Sun built a gasoline station with underground storage tanks on the property and operated a retail gasoline station thereafter until November 1977. On or about December 19, 1974, a leaking underground pipe leading from the underground storage tanks to the pumps released approximately 2,000 gallons of gasoline. Sun's regional manager of operations, Robert Laubinger ("Laubinger"), was on the property after the leak was discovered. On November 21, 1979, the plaintiffs, Roy Damon ("Damon") and Eleanor Damon (together, the "Damons"), purchased the property from Sun for $90,000. The plaintiffs had a right to examine the property by terms of the Agreement of Sale. The Damons owned the property from 1979 to March 25, 1992 and operated a retail service station 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. In November 1991, Rooney began 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 the Massachusetts Department of Environmental Protection ("DEP"). On December 19, 1991, the DEP sent a Notice of Responsibility to the plaintiffs and Rooney, requiring that a Phase I Limited Site Investigation Report and Preliminary Assessment Report be completed. A company hired by Rooney performed the investigation and issued a report dated October 1992. As part of the Phase I investigation, monitoring wells were installed and samples of groundwater were taken and analyzed. As a result of the discovery of the pollution, Rooney refused to pay rent from November 1991 to March 1992. The lease agreement between plaintiffs and Rooney granted Rooney an option to purchase the property for $600,000. Rooney did not exercise its lease option. On March 25, 1992, Rooney purchased the property from the Damons by assuming a first mortgage in the amount of $275,000 and a second mortgage in the amount of $50,000. Rooney also made a cash payment of $20,000 to plaintiffs. The district court's additional findings of fact included the following. A rupture of an elbow joint in the pipe which connects the tanks and the pumps caused the 1974 spill, which closed the station for approximately six weeks. In June or July 1979, Damon attempted to reach Richard Bunzell ("Bunzell"), whose name was given on the "For Sale" sign at the station. After some unsuccessful attempts to reach Bunzell, a Sun -4- telephone operator referred Damon to Laubinger, Sun's regional manager for service station maintenance. The questions Damon asked Laubinger about the property included an inquiry concerning the age of the building, and whether Sun had experienced any problems with the station, particularly with the underground tanks. Laubinger knew of the 1974 spill, but did not reveal it. Rather, he answered that it was a "good station" which just needed to be run by a good operator to be successful. After his phone conversation with Laubinger, Damon contacted Bunzell and, after some negotiation, accepted his offer of $90,000. In late August 1979, Damon and Bunzell met at the property to view the property. Damon asked about a depression he noticed in the blacktop near the pumps and Bunzell explained it was caused by the installation of the first stage of a vapor recovery system. In response to Damon's question of whether Sun had had any problems with the underground storage tanks, Bunzell stated, "No, we've had no problems with it. It's all good." In 1980 Damon had the three 6,000 gallon underground gasoline 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 around the three gasoline tanks yielded the highest level of contamination; 101 cubic yards of contaminated soil were eventually removed for off-site treatment. Finally, samples of contaminated water collected and examined by the -5- company conducting the 1992 Phase I study indicate that the contamination contained the gasoline additive MTBE ("MTBE"), which was not added to Sunoco gasoline until 1984. The Damons brought suit against Sun, alleging common law misrepresentation and violation of chapter 93A, 11. The district court, after a four day bench trial, found for the Damons on both the misrepresentation and the chapter 93A counts, awarding them $245,000 plus reasonable attorney's fees and costs. In its appeal, Sun now challenges the three rulings of the district court -- its denial of Sun's motion for entry of judgment at the close of plaintiffs' case in chief, see Fed. R. ___ Civ. P. 52(c); the district court's judgment and findings pursuant to trial; and its denial of Sun's post-trial motions to alter and amend the judgment and findings and for a new trial, see Fed. R. Civ. P. 59. ___ CAUSATION AND DAMAGES CAUSATION AND DAMAGES A. The Legal Framework A. The Legal Framework ___________________ The Damons charged Sun with the tort of misrepresentation, also referred to as fraud or deceit. See Bond ___ ____ Leather Co. v. Q.T. Shoe Mfg. Co., 764 F.2d 928, 935 (1st Cir. ___________ ___________________ 1985). The elements of misrepresentation are well established: in order to recover, plaintiff must allege and prove that the defendant made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to his [or her] damage. -6- Barret Assocs., Inc. v. Aronson, 190 N.E.2d 867, 868 (Mass. _____________________ _______ 1963) (quoting Kilroy v. Barron, 95 N.E.2d 190, 191 (Mass. ______ ______ 1950)); see Metropolitan Life Ins. Co. v. Ditmore, 729 F.2d 1, 4 ______________________________ _______ (1st Cir. 1984). "The party making the representation need not know that the statement is false if the fact represented is susceptible of actual knowledge." VMark Software, Inc. v. EMC ____________________ ___ Corp., 642 N.E.2d 587, 593 n.9 (Mass. App. Ct. 1994). Here, the _____ alleged false representations are the statements made by Sun's representatives that it was a "good" station, upon which Damon relied in his purchasing decision. 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 been true. The damages were measured by the difference between the value of the property if it had been uncontaminated, as the defendant represented, and the actual value of the property as contaminated. Appellant questions the district court's findings related to two of these elements: causation and damages. The causation element requires that the misrepresentation be a substantial factor in the plaintiff's actions, such that it "tend[s] along with other factors to produce the plaintiff's [harm]." O'Connor v. Raymark Indus., Inc., 518 N.E.2d 510, 513 ________ ____________________ (Mass. 1988). The defendant's conduct need not be the sole cause of the injury: "'It is enough that [plaintiffs] introduce evidence from which reasonable men [and women] may conclude that it is more probable that the event was caused by the defendant -7- than that it was not.'" Mullins v. Pine Manor College, 449 _______ ___________________ N.E.2d 331, 339 (Mass. 1983) (quoting Carey v. General Motors _____ ______________ Corp., 387 N.E.2d 583, 585 (1979)). Damages, in turn, must be _____ proven "with a fair degree of certainty." 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 court of appeals reviews the trier's factual determinations for clear error, but affords plenary review to the trier's formulation of applicable legal rules." Smith v. F.W. Morse & Co., 76 F.3d 413, 420 (1st Cir. _____ _________________ 1996) (citations omitted); see Fed. R. Civ. P. 52(a); Dedham ___ ______ Water Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st _________ ____________________________ Cir. 1992). Of course, "to the extent that findings of fact can be shown to have been predicated upon, or induced by, errors of law, they will be accorded diminished respect on 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 a function ordinarily performed by, and peculiarly within the competence of, the factfinder. 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 F.2d at 457 ("As a general rule, causation ________________ questions are 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 finding of causation in Title VII context). B. Causation B. Causation _________ The district court found that the Damons met their burden of proving "by a preponderance of the evidence that the 2,000 gallon spill was a substantial factor in the DEP decision that a gasoline contamination sufficient to trigger 21E liability existed at the [property]." (District Court Findings of Fact and Conclusions of Law, at 8). Sun argues on appeal that the evidence that the district court relied on in finding that Sun more probably than not was a substantial cause of the contamination found in 1991 is insufficient as a matter of law, for three reasons. Upon review of 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 causation element of misrepresentation has been met. 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 the 1974 spill] was recovered," (District Court Findings of Fact and Conclusions of Law, at 9), and concludes 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 -- no effort was made to clean or remove contaminated soil on the [property] itself. From the Abington Fire Department records it is unclear how much of the 2,000 gallons was recovered. Presumably, the company hired by Sun to pump the trenches was pumping a mixture of gas and water, but no one knows the relative proportions or the total amount of mixture pumped. (District Court Findings of Fact and Conclusions of Law, at 9). To suggest that the district court's statement that "it is unclear how 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 the 1974 spill (2,000 gallons); the fact that Robert Cataldo ("Cataldo"), plaintiffs' expert, testified that the underground pipe which ran from the pumps to the tanks created a channel along which the gasoline could flow from the rupture and settle under the tanks; and 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 a substantial factor contributing to the contamination found at the [property] in 1992." (District Court -10- Findings of Fact and Conclusions of Law, at 10). Clearly, the evidence the district court relied on in finding causation goes beyond the simple fact that there was a 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 that case, contamination was discovered in 1988 on property owned by the plaintiff railroad. The railroad sued defendant Chevron, claiming that the 1988 contamination was caused by a 1972 leak of 12,000 gallons of fuel oil from a storage facility defendant had maintained on the property. The court found no causal link between the spills, where there was no evidence that the soil was significantly saturated by the 1972 surface spill, which had been pumped out the same day, where sixteen years had passed, and where the question whether the oil would remain in some form was left unanswered in the face of conflicting evidence. The court specifically noted that the railroad's expert was not asked to give an opinion whether the 1988 contamination was caused at least in part by the 1972 spill. Id. at 264. ___ Sun draws on Providence & Worcester as demonstrating _______________________ that evidence of the 1974 spill, in and of itself, is insufficient to impose liability. That may be true, as far as it goes. The evidence in the present case, however, shows much more. As in Providence & Worcester, many years passed between _______________________ -11- the spills in the present case. However, the evidence is that the 1974 spill was not cleaned up immediately, as in Providence & ____________ Worcester. Rather, the fire department logs indicate that _________ pumping did not start until two days after discovery of the leak on December 19, 1974: as late as February 4, 1975, more than a month after the leak was first reported, gasoline fumes were still being detected in the basement of an adjacent property. Thus, there was evidence in this case that the soil was contaminated by the 1974 spill. What is more, plaintiffs' expert here did state that the 1974 spill was a substantial factor contributing to the 1991 contamination, as we discuss below. Sun's second attack on the sufficiency of the evidence focuses on the soil. In the face of the uncontested fact that the 1974 spillage was subsurface, due to a leaky underground pump, Sun contends that no evidence was presented that the soil was contaminated by Sun, or that Sun's failure to clean up or remove soil was wrongful. In support of its position, Sun lists four pieces of evidence regarding soil testing. Firstly, it notes that soil samples taken in 1992 by consultants were spoiled, and never analyzed. While it is unfortunate that the samples were not analyzed, that fact simply shows we do not have all possible information: it does not shed any light, one way or the other, on whether the 1974 spillage contaminated the soil. Secondly, Sun points out that in 1979, Getty Oil commissioned a company to dig around the fill area above the storage tanks, and that the company never said anything to Damon about contaminated -12- soil, but rather stated that the area was clean. However, Sun points to no evidence that the company was asked to do an examination of the soil for contamination: it was testing the tanks for tightness. Thus, the third fact Sun looks to for support, that Cataldo's environmental company found contamination in 1992 around the same fill pipes that Getty Oil, in 1980, had told Damon were clean, is not as conclusive as Sun would like. Set against the Getty results is Cataldo's 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 tend to reduce any residual contamination. However, Cataldo also testified that the on-site testing he conducted in four monitoring wells found volatile organic compounds ("VOCs") which are constituents of gasoline in the groundwater. The constituents found in 1991, he stated, were 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, would you expect to find VOCs in the areas where you did 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. Yes, it is. (Day 2, page 76). 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 third and final argument that the evidence is insufficient to find causation focuses on Cataldo's testimony. It is fundamental that "[e]xpert testimony must be predicated on facts legally sufficient to provide a basis for the expert's opinion. " In re Salvatore, 46 B.R. 247, 253 (D.R.I. 1984). ________________ Thus, "[a]n expert should not be permitted to give an opinion that is based on conjecture or speculation from an insufficient evidentiary foundation." Van Brode Group, Inc. v. Bowditch & _______________________ __________ Dewey, 633 N.E.2d 424, 430 (Mass. App. Ct. 1994). Cataldo's _____ testimony, Sun contends, did not meet this criteria. Although Cataldo testified that the 1974 spill was a "substantial factor" in the 1991 contamination, Sun argues that its cross-examination of Cataldo revealed that he had no factual basis for that conclusion: indeed, he testified at one point 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 of perceived flaws in Cataldo's testimony. First, Cataldo attested that although methods exist which would quantify the amount of contaminants found in 1992 which were representative of the 1974 release, none were performed here. He agreed that he did not know how much gas 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. Thus, Sun maintains, the best Cataldo could testify to at trial was that the property was insufficiently investigated to allow him to come to any ultimate conclusions concerning the contaminate sources; that since the 1974 release was the only known release, it at least partially caused the 1991 contamination; and that 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. This opinion, Sun concludes, is insufficient as a matter of law. We disagree. The issue is not whether Cataldo was right: but, rather, whether he had sufficient factual grounds on which to draw conclusions. See Van Brode Group, Inc., 633 N.E.2d ___ _____________________ at 430. On the basis of our review of the record, we conclude that Cataldo's expert testimony was predicated on facts legally sufficient to provide a basis for his conclusions. There is no doubt that more testing could have been done on the property, which would have been helpful to the factfinder. However, Cataldo noted that although there are methods to attempt to quantify 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." (Day 2, page 71). He and his personnel visited the property, investigated its history, and made tests, from which he drew his conclusions. His testimony reflects his research: asked how gas spilled in 1974 could still be present in 1992, he stated, A. Because the gasoline tends to absorb and holds in to some of the soil. It also fills up the pores between the soil and clings in to that. The [property] was paved, so that all the rain that falls in it doesn't get a chance to percolate through, so you don't have that complete flushing action that you would in an open field. Most of the rainwater probably channeled off, and that's one of the purposes 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 reported release of four gallons subsequent to 1980, which would be sufficient to account for the levels of MTBE found. As the district court noted, his attribution of the contamination, at least in part, to the 1974 contamination, "has an additional earmark of trustworthiness because it was prepared for a third-party, Rooney, pursuant to an order of the DEP, and not in any way in anticipation of this litigation." (District Court Findings of Fact and Conclusions of -16- Law, at 11). Cf. Venturelli v. Cincinnati, Inc., 850 F.2d 825, ___ __________ _________________ 832 (1st Cir. 1988) ("The decision of whether an expert is adequately qualified is a matter primarily for the 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 operation of gasoline station (1972-1977) was more probably than not a substantial factor in causing the contamination found on the property in 1992." (Brief of Appellant, at 19). We disregard this argument, for two reasons. First, in Providence & Worcester, although the SJC found it _______________________ significant that the railroad's expert did not 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." 622 N.E.2d at 264 (noting that the subject "is not one that jurors would be expected to understand in many circumstances without guidance from an expert"). We will not create such a requirement here. Second, even if that requirement existed, plaintiff met it. Cataldo explicitly, if reluctantly, testified that the 1974 spill was "a substantial factor" in the contamination detected in 1991, a fact the district court noted twice in its finding of causation. In sum, then, we find that the district court did not clearly err in finding that Sun's acts were a substantial cause of the DEP -17- decision that contamination sufficient to trigger 21E liability existed at the property. We note that the district court's task of determining causation on this record was not an easy one. Nonetheless, "[w]hen the evidence supports conflicting inferences, the district court's choice from among the several inferences cannot be clearly erroneous." 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. Damages and the Burden of Proof C. Damages and the Burden of Proof _______________________________ The parties dispute who bore the burden of proof regarding whether the harm was divisible. 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. As the district court stated, the presence of MTBE "compel(s) the conclusion that there had been a widespread release of gasoline at the [property] after 1984, when MTBE became common." (District Court Findings of Fact and Conclusions of Law, at 10). Thus, there was at least one release of gasoline when the property was operated by Rooney or the plaintiffs. The Damons concede that the evidence and findings indicate that there was a post-1980 release of gasoline. At the same time, there was no evidence of a spill greater than 10 gallons, and the district court specifically found that during -18- the time the Damons owned the property, no significant leaks occurred.1 The Damons bear the burden of proving that tortious conduct by Sun caused them harm. See Restatement (2d) of Torts ___ 433B(1). They were required to produce evidence that it is more likely than not that Sun's conduct was a substantial factor in bringing about the harm they suffered. See id. comment a ___ ___ (noting that "[a] mere possibility of such causation is not enough"). Sun argues that the Damons did not meet their burden of showing that Sun's conduct substantially caused the harm they suffered. Accordingly, it maintains, the burden of identifying what other actors were also responsible for the harm and of allocating the harm (or showing that it was indivisible) remained with the plaintiffs, who did not fulfill that task. However, we have already established above that the district court did not err in finding that Sun's conduct substantially caused the harm the Damons suffered. Therefore, the burden shifted to Sun, as did the cost of not meeting it. See Restatement (2d) of Torts ___ 433B(2) ("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 ____________________ 1 Sun argues that the district court's factual findings are inconsistent. We disagree: the evidence at trial indicated that a spill as small as four gallons could account for the amount of MTBE present, and that Cataldo's research found no record of any spills over ten gallons. The evidence leads to the inference that a spill made up of less than ten gallons, but which was nonetheless spread out (or several such spills), could account for the MTBE found. -19- harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor."); see also ________ O'Neil v. Picillo, 883 F.2d 176, 178 (1st Cir. 1989) (noting, in ______ _______ CERCLA action, that rule 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, 493 U.S. 1071 (1990). Accordingly, we find no ___ ______ error in the district court's apparent allocation of the burden of proof, 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 challenges the sufficiency of the evidence, contending that the district court's findings were clearly erroneous and highly prejudicial to Sun's case in three instances. We examine such challenges to the district court's factual findings for clear error. See O'Brien v. Papa Gino's of ___ _______ ______________ America, Inc., 780 F.2d 1067, 1076 (1st Cir. 1986). To ______________ demonstrate that the Damons did not meet their burden of proving misrepresentation by a preponderance of the evidence, Sun "must show that the verdict was against the great weight of the evidence, 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. The Alleged Representations A. The Alleged Representations ___________________________ Sun first alleges that the alleged representations were -20- opinions and not statements of fact. The distinction is a crucial one, as it is well established that the latter can ordinarily be the basis of a claim of fraud, but the former cannot. See, e.g., Briggs v. Carol Cars, Inc., 553 N.E.2d 930, ___ ____ ______ ________________ (Mass. 1990) (noting that a statement which is an opinion in form "in some circumstances may reasonably be interpreted by the recipient to imply that the maker of 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 been clear from Damon's questions [to Sun's agents] that he was concerned about the past and future integrity of the entire underground gas delivery system; as Damon testified at trial, "the only thing you've got in a gas station is tanks and pumps and the lines. I mean, what else is there?" (District Court Findings of Fact and Conclusions of Law, at 7 n.1). Sun contends that there is no evidentiary basis for such a finding. Seeking support, it points to the district court's statement during closing arguments that the testimony that [Damon] had, that they told him it was a good station, is not significant in my view because that's absolutely an opinion rather than a statement of fact. (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 significance of the statements, which is certainly within its province to do. Indeed, that is the very mission of closing arguments: to convince the factfinder that a party's view of the facts is correct. Similarly, that Damon's testimony about the conversations could be viewed as inconsistent, as Sun notes, is a question that addresses Damon's credibility, not the district court's finding. Credibility, of course, is an issue for the factfinder, and Sun has shown us no clear error in the district court's judgment on the matter. See 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 record leads us to affirm the district court's finding that the statements were factual in nature. First, we note that the evidence supports the findings. The court found that Damon asked Bunzell if Sun had had any problems with the underground storage tanks, to which Bunzell responded that Sun had had "no problems with it. It's all good." (District Court Findings of Fact and Conclusions of Law, at 5). This is consistent with Damon's testimony at trial. Bunzell's testimony did not contradict him, since he stated in his affidavit, entered 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. Instead, he responded to Damon's questions about whether Sun had any problems with the station, particularly with the underground tanks, by stating "that it was a 'good station' which just needed to be run by a good operator to be successful." (District Court Findings of Fact and Conclusions of Law, at 5). This was consistent with Damon's testimony at trial. 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 and Laubinger statements were opinions or fact, the district court noted that Damon's questions were not just about the current conditions on the property. If they had been, their statements that it was a good station would presumably have been opinion. Rather, the district court specified that 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 tanks specifically. In that context, reading the record in the light most favorable to the Damons, we do not find that the district court erred in finding that the Sun representatives' statements that it was a "good station" were factual. 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 of fact. B. Evidence of the Elements of Fraud B. Evidence of the Elements of Fraud _________________________________ Sun's second contention is that the record contains no evidence of the key elements needed to prove fraud. First, Sun asserts that the statements by Bunzell and Laubinger were not misrepresentations of material facts, and thus the first element of the tort has not been shown. See Barret Assocs., Inc., 190 ___ _____________________ N.E.2d at 868 (noting that the first element is that "defendant made a false representation of a material fact"). We disagree. There can be no doubt that the statements were misrepresentations in terms of the past history of the property: stating that it is a "good station" ignores the fact that there was a 2,000 gallon spill. It may have been a "good station" in 1979, from Sun's perspective: the spill had been cleaned up in accordance with the requirements of the time, and there is no evidence of other problems. Nonetheless, there had been a problem in the past, and to omit that was to misrepresent the situation. The district court found that the fact was material, as it gave credence to Damon's testimony that his affiliation with a car dealership which sold gasoline gave him a general awareness of the growing importance of environmental issues, and that he would not have bought the station had he been aware of the spill. Thus, the statements by the Sun representatives were certainly "'one of the principal grounds, though not necessarily the sole ground, that -24- caused the plaintiff[s] "to take the particular action that the wrongdoer intended he would take as a result of such representations."'" Bond Leather Co., 764 F.2d at 936 (quoting ________________ National Car Rental Sys., Inc. v. Mills Transfer Co., 384 N.E.2d _______________________________ __________________ 1263 (Mass. App. Ct. 1979) (quoting National Shawmut Bank v. ______________________ Johnson, 58 N.E.2d 849 (Mass. 1945))). While this testimony is _______ undoubtedly in Damon's interest, the district court's credence in that testimony has not been shown to be in error. See O'Brien, ___ _______ 780 F.2d at 1076. Finally, we have already established that these were factual statements. Thus, the statements were misrepresentations of material facts. Sun tries to fend off this conclusion by pointing out that "[s]ellers . . . are not liable in fraud for failing to disclose every latent defect known to them which reduces materially the value of the property and of which the buyer is ignorant." Nei v. Burley, 446 N.E.2d 674, 676 (Mass. 1983). ___ ______ However, it is well established that "in Massachusetts . . . a party who discloses partial information that may be misleading has a duty to reveal all the material facts he [or she] knows to avoid deceiving the other party." V.S.H. Realty, Inc. v. Texaco, ___________________ _______ Inc., 757 F.2d 411, 415 (1st Cir. 1985); cf. Nei, 446 N.E.2d at ____ ___ ___ 676 (finding no misrepresentation where seller "did not convey half truths . . . [or] make a partial disclosure of the kind which so often requires a full acknowledgement to avoid deception"). Accordingly, we find Maxwell v. Ratcliffe, 254 _______ _________ N.E.2d 250, 252 (Mass. 1969), analogous to the Damons' position. -25- In that case, potential buyers of a house asked whether the cellar was dry, and the brokers represented that it was, when they had, or should have had, knowledge that there was periodic water seepage. The Court found that "because the question of the dryness of the cellar had been raised expressly, there was special obligation on the brokers to avoid half truths and to make disclosure at least of any facts known to them or with respect to which they had been put on notice." 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 and against liability for violation of environmental laws. However, "Massachusetts case law unequivocally rejects assertion of an 'as is' clause as an automatic defense against allegations of fraud." V.S.H. Realty, ______________ Inc., 757 F.2d at 418 (noting also that Uniform Commercial Code ____ 2-316, which allows disclaimers in the sale of goods between merchants, does not preclude claims based on fraud); see Turner ___ ______ v. Johnson & Johnson, 809 F.2d 90, 95-98 (1st Cir. 1986) __________________ (discussing basis and limits of Massachusetts rule that parties may not contract out of fraud). Nei v. Burley, which Sun cites, ___ ______ offers it no support. There, the court relied on the absence of a duty to disclose the latent defect, not the fact that the -26- sellers provided the buyers with test results, in finding there had been no tort of fraud. 446 N.E.2d at 676-77. Sun challenges the evidentiary basis for a second element, that the party making the representation have knowledge of its falsity. See Barret Assocs., Inc., 190 N.E.2d at 868. ___ _____________________ Clearly Laubinger knew of the 1974 spillage -- he had been on the property during the clean-up, and was able to testify in some detail about the event. It stretches credence to posit that he would not have knowledge of the falsity of stating that it was a good station when asked about past problems. There is no evidence that Bunzell had actual knowledge. However, under Massachusetts law, the party making a misrepresentation "need not know that the statement is false if the fact represented is susceptible of actual knowledge." VMark Software, Inc., 642 _____________________ N.E.2d at 593 n.9; see Snyder v. Sperry and Hutchinson Co., 333 ___ ______ __________________________ N.E.2d 421, 428 (Mass. 1975); Zimmerman v. Kent, 575 N.E.2d 70, _________ ____ 74 (Mass. App. Ct. 1991). The district court found that while inspecting the station Damon asked Bunzell about a depression in |