USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 95-1822
CUMBERLAND FARMS, INC.,
Appellant,
v.
MONTAGUE ECONOMIC DEVELOPMENT AND INDUSTRIAL CORPORATION,
Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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W. Mark Russo with whom David A. Wollin and Adler, Pollock &
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Sheehan Incorporated were on brief for appellant.
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Debra L. Purrington with whom Morse, Sacks & Fenton, Martine B.
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Reed, and Brown, Hart, Reed & Kaplan were on brief for appellee.
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March 12, 1996
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STAHL, Circuit Judge. On September 21, 1990, the
STAHL, Circuit Judge.
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Montague Economic Development Industrial Corporation
("MEDIC"), after reaching impasse in negotiations to purchase
from Cumberland Farms, Inc. ("Cumberland") a convenience
store in Turner's Falls, Massachusetts, took the property by
eminent domain. That same day, pursuant to Mass. Gen. L. ch.
79, 1, the order of taking was recorded, and as a result,
Cumberland's ownership rights in the property were
extinguished. Mass. Gen. L. ch. 79, 3.
Cumberland, the owner of hundreds of convenience
stores in various states, objected to MEDIC's taking
decision. Cumberland's legal maneuvering, and its
bankruptcy, converted what began as a simple eminent domain
case into a six-year litigious war.
We summarize briefly. Initially, Cumberland
demanded pro tanto compensation for the property, but when
MEDIC obliged, Cumberland rejected its offer and chose
instead to contest the taking. Cumberland initiated various
state and federal court actions, all designed to frustrate
the taking and to deny MEDIC possession. Eventually, in May
of 1992, while still in possession of the contested property,
the Cumberland chain filed for protection and reorganization
under Chapter 11 of the Bankruptcy Code, which further
delayed MEDIC's gaining possession. Suffice it to say that
none of Cumberland's delaying actions had merit, and finally
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on September 3, 1993, nearly three years after acquiring
legal title, MEDIC obtained physical possession of the
premises.
Previously, Cumberland had commenced a state court
action objecting to the amount of MEDIC's original pro tanto
offer and claiming reimbursement for relocation expenses and
damages. MEDIC removed the action to the United States
Bankruptcy Court for the District of Massachusetts, where
Cumberland's bankruptcy case was pending.
The bankruptcy court found that Cumberland was
entitled to recover from MEDIC $380,000 as compensation for
the value of the property and $36,850 for relocation costs,
reduced by $137,250 for the rental value of its use and
occupancy during Cumberland's holdover on the premises,
therefore judgment was issued for the net amount of $279,600.
The court allowed MEDIC's rent claim, even though the eminent
domain statute did not speak to a taking entity's right to
charge reasonable rent during a wrongful holdover beyond the
date when the taken premises must be vacated. The court
disallowed Cumberland's claim for interest on the
compensation payment, because Cumberland could have accepted
the pro tanto payment and obtained use of the funds at that
time. The decision of the bankruptcy court was subsequently
affirmed by the United States District Court for the District
ofMassachusetts, and fromthat affirmance thisappeal followed.
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On this appeal, Cumberland argues that the
bankruptcy court erred in awarding MEDIC fair market rent
during the holdover period during which Cumberland was
challenging the eminent domain proceeding, erred in the
amount of relocation damages awarded to it, and erred by not
awarding damages for the authority's alleged failure to
provide timely and adequate relocation assistance. We find
that none of Cumberland's arguments on appeal merit extensive
consideration.1 We review the bankruptcy court's findings of
fact for clear error and subject its rulings of law to de
novo review. T I Fed. Credit Union v. Delbonis, 72 F.3d 921,
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928 (1st Cir. 1995).
Discussion
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We begin with Cumberland's claim that it is not
liable for the use and occupancy charges that the bankruptcy
court awarded to MEDIC, an issue that we review de novo. The
applicable Massachusetts eminent domain statute allowed
Cumberland to remain on the premises for a period of four
months after it received the notice of taking. Mass. Gen. L.
ch. 79, 8B. Before exercising its possessory rights, MEDIC
was required to give Cumberland a thirty-day notice to
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1. Cumberland's notice of appeal included a complaint about
the court's failure to grant interest to it on the
compensation awarded for the taking. We deem this issue
waived, as Cumberland has not referred to it in its brief.
See, e.g., Willhauck v. Halpin, 953 F.2d 689, 700 (1st Cir.
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1991) (issues not fully presented in appellate brief are
deemed waived).
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vacate, sent by registered mail or posted on the property.
Mass. Gen. L. ch. 79, 3.
The bankruptcy court found that MEDIC provided
notice of the taking to Cumberland on October 9, 1990, and
provided thirty-day notice of eviction on January 8, 1991.
Thus, MEDIC was within its rights in requiring Cumberland to
vacate the property by February 13, 1991. MEDIC's
counterclaim to Cumberland's petition for damages sought rent
for the period from February 14, 1991, to August 30, 1993,
when MEDIC finally obtained possession.
Although the taking statute does not address a
holdover occupant's liability for the fair rental value of
its use and occupancy, the Massachusetts regulation on
relocation assistance appears to contemplate charges for use
and occupancy rent following a taking, because it directs a
taking authority to inform a property owner of the rent to be
paid during any holdover period. 760 C.M.R. 27.03(13).
MEDIC, in its January 8, 1991, notice to vacate, informed
Cumberland that it would seek fair market rent if Cumberland
remained in possession.
The bankruptcy court ruled that Cumberland,
following its failure to vacate as directed, became a tenant
at sufferance, and as a result MEDIC was entitled to rent
pursuant to Mass. Gen. L. ch. 186, 3, which provides that
tenants at sufferance are liable for rent during the period
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of continued occupancy after a demand for the premises has
been made. It also found that MEDIC's claim was fully
justified under a theory of unjust enrichment, because
Cumberland's continued use of the premises was profitable.
Although we find no decision exactly on point, the Supreme
Judicial Court in Lowell Housing Authority v. Save-Mor
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Furniture Stores, Inc., 193 N.E.2d 585, 587 (1963), approved
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a taking authority's claim for use and occupancy charges from
a tenant who remained in possession after a public housing
authority took the property from the landlord-owner by
eminent domain. Cumberland argues that as an owner its
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position is different from that of a tenant. We find
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Cumberland's argument unconvincing, and that Cumberland's
wrongful holdover does not differ in any relevant regard from
that of the tenant in Lowell Housing. See 193 N.E.2d at 587.
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Because we find that Lowell Housing is apposite, we conclude
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that the bankruptcy court did not err in awarding MEDIC the
fair rental value of Cumberland's continued use and occupancy
of the premises. Accordingly, we need not consider unjust
enrichment, the second basis for the court's finding.
Cumberland next argues that the bankruptcy court
erred in failing to grant all of its claimed relocation
expenses, and again our review is de novo. Specifically,
Cumberland claims that the court erred in not finding that it
was entitled to reimbursement for the cost of new gasoline
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pumping equipment for its new location, for license and
inspection fees, and for the cost of certain physical changes
to its new location.
We find no error in the bankruptcy court's award of
relocation costs under Mass. Gen. L. ch. 79A, 7, which
provides that a taking authority must reimburse a property
owner for:
1. actual documented reasonable expenses
in moving himself, his family, his
business, farm operation, or other
personal property;
2. actual direct losses of tangible
personal property as a result of moving
or discontinuing a business or farm
operation, but not to exceed an amount
equal to the reasonable expenses that
would have been required to relocate such
property, as determined by the relocation
agency; and
3. actual reasonable expenses in
searching for a replacement business or
farm.
Although the bankruptcy court awarded payment for certain of
Cumberland's claimed relocation expenses as required by Mass.
Gen. L. ch. 79A, 7, it denied Cumberland's request for the
costs of obtaining new gasoline pumps, for license and
inspection fees, and for certain physical changes to its new
facility. Cumberland urges that the court erred in ruling
these expenses were not recoverable under Mass. Gen. L. ch.
79A, 7 and, in particular, the implementing regulations,
760 C.M.R. 27.09(8), 27.09(13), and 27.09(14). MEDIC's short
answer is that MEDIC is a taking authority governed by Mass.
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Gen. L. ch. 121C, and that the relocation payment regulations
that Cumberland relies upon apply to authorities governed by
Mass. Gen. L. ch. 121A and 121B, but not to 121C agencies.2
See 760 C.M.R. 27.01(4) (listing activities and entities to
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which the relocation payment regulations apply). We agree
with MEDIC, as did the district court, and conclude that
Cumberland is entitled to reimbursement only as provided in
Mass. Gen. L. ch. 79A, 7, and not under the more expansive
provisions of 760 C.M.R. 27.09.3
Finally, Cumberland claims that the bankruptcy
court erred in ruling that MEDIC had fulfilled its relocation
assistance obligations to Cumberland. We review this factual
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2. The relocation assistance regulations, in contrast to the
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relocation payment regulations, appear to apply broadly to
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all entities authorized to take by eminent domain. See 760
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C.M.R. 27.01(4).
3. We note that the record contains documents provided by
MEDIC to Cumberland that seem to promise reimbursement of the
types of expenses that the bankruptcy court denied.
Cumberland's brief, however, does not contain any arguments
based on estoppel or similar theories. Therefore such
arguments, whatever their merit, are waived. See, e.g.,
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Willhauck, 953 F.2d at 700.
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We have not considered any of the arguments raised
by Cumberland in its Motion for Leave to Present Rebuttal
Argument Pursuant to Local Rule 34.1(b). Cumberland had an
opportunity to raise rebuttal arguments in a reply brief, but
chose not to submit one. Moreover, Local Rule 34.1(b)
pertains to oral rebuttal during the scheduled argument, and
does not provide an opportunity for further briefing of
issues after oral argument.
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finding4 for clear error, and we find no error, let alone
clear error, in the bankruptcy court's denial of Cumberland's
claims for damages due to MEDIC's failure to provide
relocation assistance.
Affirmed. Costs to appellee.
Affirmed.
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4. Cumberland's brief could be read to suggest that the
bankruptcy court's ruling in this regard was a legal
conclusion concerning an earlier order of the Massachusetts
Superior Court. Even though Cumberland has not clearly
presented that argument, a de novo review of the bankruptcy
court's ruling would yield the same result: no error.
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