USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-1822

CUMBERLAND FARMS, INC.,

Appellant,

v.

MONTAGUE ECONOMIC DEVELOPMENT AND INDUSTRIAL CORPORATION,

Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________

____________________

Before

Cyr, Boudin and Stahl,

Circuit Judges.
______________

____________________

W. Mark Russo
______________

with whom

David A. Wollin and

________________

Adler, Pollock
______________

Sheehan Incorporated were on brief for appellant.

____________________

Debra L. Purrington with whom Morse, Sacks & Fenton, Martine

____________________
______________________ ________
Reed, and Brown, Hart, Reed & Kaplan were on brief for appellee.
____
__________________________

____________________

March 12, 1996

____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.

On September 21,

1990, the

_____________

Montague

Economic

Development

Industrial

Corporation

("MEDIC"), after reaching impasse in negotiations to purchase

from

store

Cumberland

1,

the

Cumberland's

extinguished.

convenience

That same day, pursuant to Mass. Gen. L. ch.

order of taking was recorded, and as a result,

ownership

in

decision.

rights

in

the

Mass. Gen. L. ch. 79,

Cumberland,

stores

Inc. ("Cumberland")

in Turner's Falls, Massachusetts, took the property by

eminent domain.

79,

Farms,

various

the owner

states,

Cumberland's

bankruptcy, converted what

objected

to

of convenience

MEDIC's

maneuvering,

began as a simple

case into a six-year litigious war.

were

3.

of hundreds

legal

property

and

taking

its

eminent domain

We

demanded

MEDIC

summarize

pro tanto compensation

obliged,

instead

state

briefly.

Cumberland

the taking and to deny

Cumberland

for the property,

rejected

to contest the taking.

and federal court

Initially,

its

offer

but when

and

chose

Cumberland initiated various

actions, all designed

MEDIC possession.

to frustrate

Eventually, in May

of 1992, while still in possession of the contested property,

the Cumberland chain filed

for protection and reorganization

under

Bankruptcy

Chapter 11

delayed

none

of

the

MEDIC's gaining possession.

Code,

which

further

Suffice it to say that

of Cumberland's delaying actions had merit, and finally

-22

on

September 3,

legal

title,

1993, nearly

MEDIC

obtained

three

years after

physical

acquiring

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

entitled to recover

the value

reduced

court

found that

from MEDIC $380,000 as

of the property and $36,850

by $137,250

occupancy

during

for the

rental

Cumberland's

Cumberland

was

compensation for

for relocation costs,

value of

holdover

on

its use

the

and

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

charge

date

did not speak

to a taking entity's

right to

reasonable rent during a wrongful holdover beyond the

when the

disallowed

taken premises

Cumberland's

must be

claim

for

compensation payment, because Cumberland

vacated.

interest

The court

on

the

could have accepted

the pro tanto payment

time.

and obtained use of the funds

The decision of the bankruptcy court

at that

was subsequently

affirmed by the United States District Court for the District

ofMassachusetts, and fromthat affirmance thisappeal followed.

-33

On

this

bankruptcy court

during

the

challenging

appeal,

erred in

holdover

the

Cumberland

awarding MEDIC

period

eminent

during

domain

damages for

provide timely and

the

that

the

fair market

which

rent

Cumberland

proceeding,

amount of relocation damages awarded

awarding

argues

erred

was

in the

to it, and erred by not

authority's

alleged

failure

adequate relocation assistance.

to

We find

that none of Cumberland's arguments on appeal merit extensive

consideration.1

fact for

We review the bankruptcy court's findings of

clear error

novo review.

and subject its

rulings of law

to de

T I Fed. Credit Union v. Delbonis, 72 F.3d 921,

_____________________
________

928 (1st Cir. 1995).

Discussion
__________

We begin

liable for the

with Cumberland's

claim that

it is

not

use and occupancy charges that the bankruptcy

court awarded to MEDIC, an issue that we review de novo.

applicable

Massachusetts

Cumberland to

remain on

eminent

domain

the premises for

statute

allowed

a period

of four

months after it received the notice of taking.

ch. 79,

was

8B.

The

Mass. Gen. L.

Before exercising its possessory rights, MEDIC

required to

give

Cumberland

thirty-day

notice

to

____________________

1.

Cumberland's notice of appeal included a complaint

the

court's

compensation
waived, as

failure

awarded for

grant
the

Cumberland has not

See, e.g., Willhauck

___ ____ _________
1991)

to

(issues not

deemed waived).

interest

taking.

to

it

about
on

the

We deem

this issue

referred to it in

its brief.

v. Halpin, 953 F.2d 689,

______
fully presented

in

700 (1st Cir.

appellate brief

are

-44

vacate,

sent by registered

Mass. Gen. L. ch. 79,

The

notice of

provided

mail or posted

3.

bankruptcy

the taking to

court

found

that MEDIC

Cumberland on October 9,

thirty-day notice of

Thus, MEDIC was

on the property.

eviction on January

provided

1990, and

8, 1991.

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

holdover

occupant's liability for

its

and

use

occupancy,

the

occupancy rent following a

the fair rental

Massachusetts

relocation assistance appears to

and

does not

address

value of

regulation

on

contemplate charges for use

taking, because it directs a

taking authority to inform a property owner of the rent to be

paid

during any

MEDIC, in its

Cumberland

holdover period.

January 8,

760

1991, notice

C.M.R.

to vacate,

27.03(13).

informed

that it would seek fair market rent if Cumberland

remained in possession.

The

bankruptcy

court

following its failure to vacate

at sufferance,

pursuant

and as

ruled

to Mass. Gen. L. ch. 186,

-55

Cumberland,

as directed, became a tenant

a result MEDIC

tenants at sufferance are liable

that

was entitled

to rent

3, which provides that

for rent during the

period

of

been

continued occupancy after

made.

justified

It

under

also

found that

theory

Cumberland's continued use

Although we

Judicial

a demand for

of

in

unjust

claim was

enrichment,

of the premises was

find no decision

Court

MEDIC's

the premises has

because

profitable.

exactly on point,

Lowell Housing Authority

__________________________

fully

the Supreme

v.

Save-Mor
________

Furniture Stores, Inc., 193 N.E.2d 585, 587 (1963), approved

_______________________

a taking authority's claim for use and occupancy charges from

a tenant who

authority

eminent

position

remained in possession

took

domain.

is

the

property

Cumberland

different from

after a public

from

the

argues that

that

of

housing

landlord-owner

as

an owner
_____

tenant.
______

We

by

its

find

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.

___

Because we find that Lowell Housing is

______________

apposite, we conclude

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

erred

in failing

expenses, and

to

argues that

grant all

again our review

of

is de

the bankruptcy

its claimed

novo.

court

relocation

Specifically,

Cumberland claims that the court erred in not finding that it

was

entitled to reimbursement

for the cost

of new gasoline

-66

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
in

moving

himself,

business,

farm

reasonable expenses
his

family,

operation,

or

his
other

personal property;
2.

actual

direct

losses

personal property as
or

discontinuing

operation,
equal

but not

to

of

tangible

a result of
business
to exceed

the reasonable

moving
or

farm

an amount

expenses

that

would have been required to relocate such

property, as determined by the relocation
agency; and
3.

actual

searching for

reasonable
a replacement

expenses

in

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

inspection fees, and for certain

facility.

Cumberland

these expenses were

79A,

7 and,

pumps,

for

court erred in

not recoverable under Mass.

ruling

Gen. L. ch.

implementing regulations,

760 C.M.R. 27.09(8), 27.09(13), and 27.09(14).

answer is that MEDIC is

and

physical changes to its new

urges that the

in particular, the

license

MEDIC's short

a taking authority governed by Mass.

-77

Gen. L. ch. 121C, and that the relocation payment regulations

that

Cumberland relies upon apply to authorities governed by

Mass. Gen. L. ch. 121A

See 760 C.M.R.

___

which

with

and 121B, but not to 121C

27.01(4) (listing activities and

the relocation payment

MEDIC, as

did the

Cumberland is entitled

Mass. Gen. L.

ch. 79A,

entities to

regulations apply).

district court,

and

agencies.2

We agree

conclude that

to reimbursement only as

provided in

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

____________________

2.

The relocation assistance regulations, in contrast to the

__________

relocation

payment regulations,
_______

all entities authorized

appear to apply

broadly to

to take by eminent domain.

See 760
___

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

Cumberland's brief, however,

based

on estoppel

arguments,

or

the

court

does not contain

similar

whatever their

bankruptcy

theories.

merit, are

denied.

any arguments
Therefore

waived.

See,
___

such
e.g.,
____

Willhauck, 953 F.2d at 700.

_________
We
by Cumberland

have not considered any of the arguments raised

in its

Motion for

Argument Pursuant to Local

Leave to

Rule 34.1(b).

Present Rebuttal
Cumberland

had an

opportunity to raise rebuttal arguments in a reply brief, but

chose

not

pertains
does

not

to submit

one.

Moreover,

Local Rule

34.1(b)

to oral rebuttal during the scheduled argument, and

provide

an opportunity

for

further

briefing of

issues after oral argument.

-88

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.
Affirmed.
________

Costs to appellee.

____________________

4.

Cumberland's

bankruptcy

brief could

court's

ruling

conclusion concerning an
Superior

Court.

be read
in

suggest that

regard

earlier order of the

Even though

presented that argument,

this

to

Cumberland

a de novo review

has

was

legal

Massachusetts
not clearly

of the bankruptcy

court's ruling would yield the same result: no error.

-99

the