

                  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 &amp;  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 &amp; 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  &amp; 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  &amp;                                                                           

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  &amp; 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  &amp; 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 &amp;                                                                           

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 &amp;                                                                           

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 &amp; 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 &amp;  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 &amp;  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

the  blacktop, and whether there  had been any  problems with the

underground storage  tanks, to  which Bunzell replied  "No, we've

had  no problems with  it.   It's all good."   This is  clearly a

misstatement  of  facts  "susceptible  of  actual  knowledge"  --

indeed, Bunzell's name  was listed on the "For  Sale" sign at the

station:    presumably,  it would  be  his  responsibility  to be

informed  about  the history  of  the particular  station  he was

selling.

                               -27-

          Relying on  an Odometer Act case  applying Georgia law,

see Huycke v.  Greenway, 876  F.2d 94, 95  (11th Cir. 1989),  Sun                                 

next argues that the Damons did not meet  their burden of proving

intent to defraud.  In fact, however, "Massachusetts law does not

.  .  . require  an intent  to deceive,  let  alone an  intent to

deprive  the  plaintiff of  money,  to prove  misrepresentation."

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

            "[A] long line  of [Massachusetts]  cases
            [establishes]   that   'the   charge   of
            fraudulent  intent,  in  an   action  for
            deceit, may be  maintained by proof  of a
            statement  made as  of  the  party's  own
            knowledge, which is  false; provided  the
            thing  stated is not  merely a  matter of
            opinion,  estimate  or judgement,  but is
            susceptible of actual  knowledge; and  in
            such a  case it is not  necessary to make
            any  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  Roadmaster Indus.,  Inc. v.                                                                        

Columbia  Mfg.  Co., 893  F. Supp.  1162,  1176 (D.  Mass. 1995);                             

Zimmerman, 575 N.E.2d at  74.2  The Damons  have met this  burden                   

of showing that the  Sun representatives made a misrepresentation

of  facts susceptible of actual  knowledge, and so  they have met

                                                  

2   While the  decision Bond  Leather Co. v.  Q.T. Shoe  Mfg. Co.                                                                           
notes  that, contrary to  Sun's contention, an  intent to deceive
need not  be proven, it also reads Sperry as requiring an "intent                                                   
that the plaintiff rely on the challenged false statements."  764
F.2d  at  937.    We  have found  no  case  law  supporting  that
contention.    Nonetheless,  we  note  that it  is  a  reasonable
inference that the representations  made by Sun's representatives
to a  known potential buyer  were made with  the intent that  the
Damons rely on the statements.

                               -28-

their burden as to intent.

          Sun maintains  that the  district court failed  to find

that   Sun    intended   the   plaintiffs   to    rely   on   the

misrepresentations.3    Federal  Rule  of  Civil Procedure  52(a)

mandates  that  courts  "find   the  facts  specially  and  state

separately [their] conclusions of  law thereon" when trying facts

without a jury.  See, e.g., Monta ez v. Bagg, 510 N.E.2d 298, 300                                                      

(Mass.  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  the contested  matters."

Makuc v. American Honda  Motor Co., 835  F.2d 389, 394 (1st  Cir.                                            

1987).  Here,  while it  did not explicitly  discuss intent,  the

district  court   set   out  the   elements   of  the   tort   of

misrepresentation, and found that  Sun's representatives made the

statements, that they  were not opinions,  and that Laubinger  at

least knew about the spill when he made his statement.  In short,

although the  district court  did not  spell out  every pertinent

point, it  is clear that it  has provided us with  more than mere

                                                  

3   Sun  contests that  the district  court's statement  that "it
should have  been  clear  from  Damon's  questions  that  he  was
concerned  about  the past  and  future integrity  of  the entire
underground gas delivery system" (District Court Findings of Fact
and Conclusions  of Law, at 7  n.1), implies that Sun  did not in
fact  know  what  Damon   asked  about,  and  so  no   intent  is
demonstrated on this record.  However, we refuse Sun's invitation
to  read this  implication into  the district  court's statement,
especially  as,  in  its findings  of  fact,  the district  court
specifically   found   that  Damon   had   asked   each  of   the
representatives about past conditions, particularly regarding the
underground tanks. 

                               -29-

conclusions. 

                     C.  Reasonable Reliance                               C.  Reasonable Reliance                                                      

          Sun's  final  attack on  the  evidence  centers on  the

element  of reasonable reliance.   See Elias Bros. Restaurants v.                                                                        

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

the  reliance element of the  tort has been  defined as requiring

that it be reasonable).  First, it states that the district court

was  silent on reasonable reliance.  To the contrary, although it

did not address the reasonableness  of the reliance, the district

court  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,  especially given  Damon's

acknowledged awareness  of environmental issues.   However, it is

well  established  under  Massachusetts  law   that  "failure  to

investigate the veracity of  statements does not, as a  matter of

law, bar recovery for misrepresentation."  Bond Leather Co.,  764                                                                     

F.2d at 936.   To find  that the Damons'  failure to  investigate

effectively bars their claim, as Sun requests, would  run counter

to the established  case law on  that point.   "Only reliance  on

'preposterous  or  palpably  false'  representations  vitiates  a

misrepresentation claim."  Roadmaster  Indus., Inc., 893 F. Supp.                                                             

at     1179  (quoting  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.  There, the Maloneys bought

property,  and subsequently  discovered that  because of  a drain

line  to a local reservoir, it could  not be built on.  Sargisson

was the attorney  with whom  they entered the  purchase and  sale

agreement.    That  agreement was  made  contingent  on  the land

passing a  percolation test and deep  hole test to  qualify for a

building  permit,  with  the tests  to  be  done  at the  buyers'

expense.   The tests were  done, indicated positive  results, and

the sale went  through.  Later, however,  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.  The Maloneys sued Sargisson

alleging, among  other things,  misrepresentation.   The  Appeals

Court  found  that  the  Maloneys   could  not  have  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  may be
            taken to  mean,  the Maloneys  would  not
            have  relied upon them to their detriment
            so far  as they  might have borne  on the
            capacity of the lot  to pass soil tests .
            .  .  .  Concerning  that aspect  of  the
            land's    character,   their    affidavit
            discloses,  the  Maloneys made  their own
            examination.

Id. at 301.             

          Clearly,  Maloney is  distinguishable from  the present                                     

case.  There, the buyer specified in the  agreement that it would

make the  tests, and did  so.   A district court  had found  that

                               -31-

there was no evidence Sargisson knew or should have known of  the

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

facie  evidence in the superior  court and was  not questioned by

the  Appeals Court.   Id. at  300.   There is  no indication that                                   

Sargisson made a  representation as  to the status  of the  soil:

rather, it is clear that the Maloneys relied on  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  on  it fails.4   See  Roadmaster  Indus., Inc.,  893 F.                                                                  

Supp.  at    1179  (holding that  plaintiff  buyer's  failure  to

investigate contamination  of soil  at manufacturing plant  as to

matters of  public record  did not vitiate  its misrepresentation

claim).

                     D.  Factual Conclusions                               D.  Factual Conclusions                                                      

          Sun  makes the  additional argument  that the  district

court made  factual findings, where the  facts were controverted,

without  explaining the  reasoning for  its determination.5   See                                                                           

                                                  

4   Sun's reliance  on  Rhode Island  Hosp. Trust  Nat'l Bank  v.                                                                       
Varadian,  647 N.E.2d  1174 (Mass.  1995), a  promissory estoppel                  
case,  is similarly misplaced.  There, the court found that since
the evidence  did not  warrant a  finding that  a promise  in the
contractual  sense   was  made,   reliance  by   the  experienced
businessmen plaintiffs would be unreasonable  as a matter of law.
Id. at 1179. We fail to see  how that case sheds any light on the             
misrepresentation charge  here, where the court has  found that a
misrepresentation was indeed made. 

5    Sun  also contends  that  several  of  the district  court's
findings were  irreconcilable and  contradictory.  As  we address
those allegations  elsewhere in  the opinion, we  do not  discuss
them here.

                               -32-

Fed.  R.  Civ. P.  52(a) (mandating  that  court "find  the facts

specially and  state separately  its conclusions of  law thereon"

when  trying facts without  a jury).  "To  satisfy the demands of

Rule 52(a), a trial  court must do more than  announce statements

of ultimate fact.  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  finding on extent of  plaintiff's responsibilities where

the conflict "turn[ed]  upon [the parties'] respective  duties").

Our  examination of the findings Sun questions reveal no error by

the district court.6

          First,  Sun questions  the credence the  district court

placed  in Damon's testimony.   Specifically,  it argues  that it

should  be   provided  with  an  explanation  of  why  the  court

"disregarded the  uncontroverted testimony of Mr.  Damon that the

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

1980  when Getty  examined the  station." (Appellant's  Brief, at

40).   Sun's phrasing twists the testimony:  Damon testified that

Getty told  him the  soil was clean,  not that  he knew it  to be

true.    As we  have  already  noted, Sun  has  not provided  any

evidence that Getty was  in fact testing the soil:   the district

court  specifically found that  Getty was  testing the  tanks for
                                                  

6  Two of  Sun's contentions, that the district  court's findings
are insufficient as to intent  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  court stated during  closing arguments

that it also did  not consider that Damon  had made an  admission

that the property was clean.  

          Sun  also argues that the  court had to  explain why it

chose the "version" of his story  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.  Our

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

trial  was  so inconsistent  with  his  earlier testimony  as  to

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

teeth  of  unimpeachable  contradicting  evidence  and  universal

experience.'"  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  different.   There  are  differences, there's  no

question,  but  the  extent of  the  differences  is a  difficult

question, it strikes me."  (Day 4, page 17).  

          Lastly, Sun contends that the  court did not provide an

evidentiary basis for  its conclusion, made  in a footnote,  that

"it  should  have been  clear"  to Sun  what  Damon meant  in his

questioning.   The  findings  here,  however, are  not  like  the

inconsistent  and  contradictory  findings  in  Lyles  v.  United                                                                           

States,  759 F.2d 941,  944 (1st Cir.  1985), cited by  Sun.  The                

court here specifically stated in its findings of fact that Damon

asked  both  Laubinger  and  Bunzell  about past  problems.    In

connection  with its  comment  that Sun's  representatives should

                               -34-

have  understood the  scope  of Damon's  questions, the  district

court cited his testimony  that "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).    A  "judge  need  only make  brief,  definite

pertinent findings  and conclusions  on  the contested  matters."

Makuc v.  American Honda Motor Co.,  835 F.2d 389,  394 (1st Cir.                                            

1987).  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 --  as the

defendant's representatives  stated and  the actual value  of the

property as  contaminated  -- $325,000  -- as  measured when  the

plaintiffs  sold the property to  Rooney in 1992.7   Sun does not

contest the  district court's basic measurement,  but argues that

it should  have  set off  specific  monies against  the  purchase

price, and  should have accounted  for the Damons'  obligation to

mitigate damages.  We disagree, for the following reasons.  

          First, Sun  contends the value of  the indemnity Rooney

gave  the Damons  from and  against all  environmental liability,

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

7    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.  It
took the actual  sale price as  the measure of  the value of  the
property as  contaminated:  Rooney  assumed the  $325,000 of  the
Damons'  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  purchase price.   However, as  the Damons  point

out,  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,  they   would  be   entitled  to

reimbursement, and,  presumably, the  sale price of  the property

would have been higher:  reducing the damages by the value of the

indemnity  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  to per

their  agreement, to  defray costs of  contamination.   Again, if

Sun's  representatives  had  not  misrepresented  the  property's

condition, the Damons would  not have owed that money  to Rooney;

if they had paid  it to Rooney, it would have  been added to, not

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

the actual sale price).   Third, Sun argues that  $29,000 in back

rent  from  Rooney should  have been  offset  as well,  since the

Damons  did not  seek  it from  him.   However,  once again,  the

plaintiffs   would  not   have  lost   that  money   without  the

misrepresentation.    Also,  according  to  paragraph  9  of  the

Agreement and Lease, Rooney was entitled to opt out of  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  also argues  that  the Damons  failed to  mitigate

their  losses by not seeking back rent  from Rooney.  In light of

the  terms  of the  Agreement and  Lease  between Rooney  and the

                               -36-

Damons, the fact  that the  Damons were obligated  to pay  Rooney

$40,000,  which  they did  not, and  the  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  district  court  found  that  Sun's  actions  were

"unfair  or deceptive"  and thus  violated Massachusetts  General

Laws chapter 93A, section 11.   At the same time, the lower court

refused  to award multiple damages under section 11, on the basis

that  "the evidence  of bad  faith or  willful intent  to deceive

[was]  insufficient to merit a punitive  award."  (District Court

Findings of Fact and Conclusions of Law, at 12).   See Mass. Gen.                                                                

L. ch.  93A,    11  (allowing  multiple damages  if "the  use  or

employment  of the . .  . act  or practice was  . .  . willful or

knowing").  Sun argues on appeal  that the court erred in finding

it  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.  Sun's Liability Under Chapter 93A                        A.  Sun's Liability Under Chapter 93A                                                             

                      1.  Standard of Review                                1.  Standard of Review                                                      

          We  begin  our analysis  by  reciting  our standard  of

review.   The  district  court's findings  of  law face  de  novo                                                                           

review, and its  findings of  fact engender  clear error  review.

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

                               -37-

40, 43 (1st Cir. 1995).  We deem a finding of fact to  be clearly

erroneous "'when  although there is  evidence to support  it, the

reviewing  court on the entire evidence is left with the definite

and  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.  The Legal Framework                               2.  The Legal Framework                                                      

          The  district  court  found  that  Sun's  actions  were

"unfair or deceptive" within  the scope of chapter 93A.   Section

11 provides a cause of action to 

            [a]ny  person who engages  in the conduct
            of any trade or  commerce and who suffers
            any  loss of  money or property,  real or
            personal,  as  a  result  of the  use  or
            employment of another person  who engages
            in  any trade  or  commerce of  . .  . an
            unfair  or  deceptive  act   or  practice
            . . . .

Mass.  Gen. L.  ch. 93A,    11; see  Mass. Gen.  L. ch. 93A,    2                                             

(establishing that  "unfair or deceptive acts or practices in the

conduct  of any  trade or  commerce" are  unlawful).   Common law

misrepresentation  claims provide  a  basis  for liability  under

section 11.  See, e.g., Sheehy v. Lipton Indus., Inc., 507 N.E.2d                                                               

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

          Section 11  does not define  what conduct rises  to the

level of an  "unfair or  deceptive" act.   See Cambridge  Plating                                                                           

Co.,  slip op.  at  38-39.   In  weighing whether  a  defendant's             

conduct meets  the statute's requirements, "a  common refrain has

developed.   'The  objectionable conduct  must attain a  level of

rascality  that would raise an  eyebrow of someone  inured to the

rough and tumble  of the world of commerce.'"8   Quaker State Oil                                                                           
                                                  

8  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  of  rascality'  and 'rancid  flavor  of
unfairness'."      Id.  at   438.     Contrary  to   the  Damons'                                
interpretation, the SJC was simply recognizing that the mentioned
phrases  do  not,  despite  their frequent  citation,  lend  much
guidance in  the fact-specific  context of  a chapter 93A  claim.

                               -39-

Ref. Corp.  v. Garrity  Oil Co., 884  F.2d 1510,  1513 (1st  Cir.                                         

1989)  (quoting Levings v. Forbes &amp; 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    of   some   common-law,
            statutory,  or other  established concept
            of   unfairness,"   or   were   "immoral,
            unethical,  oppressive  or  unscrupulous"
            . . . .

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

915, 917 (Mass.  1975)); see Tagliente  v. Himmer, 949 F.2d  1, 7                                                           

(1st  Cir. 1991).   As  the SJC  recently stated, in  weighing an

act's fairness, the  focus is  "on the nature  of the  challenged

conduct and  on the  purpose and effect  of that  conduct as  the

crucial factors."  Massachusetts Employers Ins. Exch., 648 N.E.2d                                                               

at 438.

                3.  Sun's Violation of Chapter 93A                          3.  Sun's Violation of Chapter 93A                                                            

          In its  challenge to the district  court's finding that

Sun  is liable under section  11, Sun maintains  that its conduct

was not "unfair  or deceptive."   However, its  argument on  that

basis is conclusory  at best:  Sun points to  neither evidence in

the record nor case law which would cast into doubt  the district

court's factual  determination on that  point.9   As neither  Sun
                                                  

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

9  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."  We  remind Sun that  "[s]ophistication of the
parties  is not  mentioned in  chapter 93A  and the  amendment of
chapter  93A  to  cover  business  entities  did  not  limit  the

                               -40-

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

district court erred, we affirm  the lower court's application of

section 11.   See Schwanbeck  v. Federal-Mogul Corp.,  578 N.E.2d                                                              

789, 803 (Mass. 1991)  (noting that "whether a particular  set of

acts,  in  their factual  setting, is  unfair  or deceptive  is a

question  of fact"),  rev'd  on other  grounds,  592 N.E.2d  1289                                                        

(Mass. 1992).

          Sun  does  look  to  Winter Panel  Corp.  v.  Reichhold                                                                           

Chems.,  Inc.,  823 F.  Supp. 963  (D.  Mass 1993),  for support.                       

There,  plaintiff  alleged that  the defendant  chemical supplier

made false statements  about its ability to  supply the plaintiff

with chemicals.   Sun acknowledges  that the  Winter Panel  court                                                                    

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

make affirmative  statements complete or non-misleading will give

rise  to an  action  for misrepresentation,  including an  action

under  chapter 93A."  Id. at 975.   Sun nonetheless seeks to save                                   

itself  from  liability by  reliance  on  the court's  additional

statement  that  "[s]imply  neglecting  to  discuss  [defendant's

representatives'] lack  of practical experience  with the precise

methods of production pursued by  Winter Panel, however, does not

at present seem  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).  Regardless of  the level of the parties'  sophistication,
we  apply  the well-developed  standard  for  section 11  actions
between  two  persons  engaged in  business.    Of course,  their
relative levels  of sophistication may enter  into the fact-based
analysis  the court carries out in weighing whether a party's act
was unfair or deceptive.

                               -41-

the level of rascality  necessary to find a violation  of chapter

93A."   Id.   As we  have already  affirmed the district  court's                     

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

below the  level  of  "simply neglecting  to  discuss"  the  1974

contamination.  Winter Panel offers Sun no relief.                                      

          Sun's  primary argument  against  the district  court's

holding blurs the line between section  11 liability and multiple

damages.10   Specifically,  it contends  that since  the district

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

Sun cannot have engaged in common law fraud.  Since  it could not

have engaged in fraud, it concludes, its  conduct did not rise to

the level  of intentional  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   violations"   deserve
            multiple  damages  treatment.    In  this
            instance, we believe  the evidence of bad
            faith or  willful  intent to  deceive  is
            insufficient to merit a punitive award of
            multiple damages.

                                                  

10   Sun also  makes the  circular argument  that if  its conduct
amounts  to  negligence,  it  has  not  met  the  requirement  of
rascality needed for  section 11, since negligence  cannot be the
basis  for a section 11  violation.  To  the contrary, negligence
can provide the basis for chapter 93A liability, so long as it is
paired with an unfair  or deceptive act or  practice -- in  other
words, negligence  plus rascality equals liability.   See Squeri,                                                                          
588 N.E.2d at 24; Glickman  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 &amp;  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.  See Barret Assocs., Inc., 190                                                                      

N.E.2d  at  868.   We understand  the  district court  opinion as

indicating that  there  was evidence  of  bad faith  and  willful

intent  to deceive, but that  some quantum of  knowing or willful

violation  must be  met before  a party  is entitled  to punitive

damages  under chapter  93A. Indeed,  "shades of  culpability are

supposed to matter in applying the punitive damages  provision in

the  statute."   Cambridge  Plating Co.,  slip  op. at  42.   Our                                                 

reading is consistent with  the district court's specific finding

that  when  Damon  asked Laubinger  if  Sun  had  experienced any

problems  with  the  station  and  underground  tanks,  Laubinger

replied  that it was a  "good station," despite  his knowledge of

the  1974 contamination.  Cf.  VMark Software, 642  N.E.2d at 596                                                       

n.15  ("We put great stock in the  findings of the trial judge on

issues such as intent and motivation, since he was in  a superior

position  to assess the weight and  credibility of the witnesses,

and   there  is  no  showing   that  his  findings  were  clearly

erroneous.").

          The case law supports this reading.  In VMark Software,                                                                           

Inc. v. EMC Corp., cited  by the district court, the trial  court                           

found  VMark guilty of  misrepresentation, but did  not grant EMC

                               -43-

multiple damages under section 11.  EMC claimed that the scienter

requirement  for  the  tort  of  misrepresentation  automatically

triggered  section  11's  mandatory  doubling of  damages  for  a

knowing  violation of chapter 93A.   The court disagreed, finding

that  although VMArk's  misstatements  were made  with sufficient

awareness of the facts for it to be liable  under the traditional

tort  formula, "they were not  made so 'knowingly'  as to warrant

the punitive sanctions  of double damages under c. 93A."   Id. at                                                                        

595.  We recently reaffirmed  that "[l]iability under Chapter 93A

for conduct amounting  to intentional misrepresentation does  not

automatically trigger punitive damages.   There must be something

more."  Cambridge Plating Co., slip op. at 42.  Accordingly,  the                                       

district court's  conclusion that Sun's actions  were not knowing

and   willful  enough   to  require   punitive  damages   is  not

inconsistent with intentional misrepresentation.

              4.  Multiple Damages Under Chapter 93A                        4.  Multiple Damages Under Chapter 93A                                                              

          Paragraph 5 of section 11 provides for multiple damages

where  "the court finds that  the use or employment  of the . . .

act or practice was a willful or knowing violation."  The  Damons

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

not  contend that  the  district court  should  have found  Sun's

violation   sufficiently  willful  or knowing  to require  double

damages.11   Instead,  they base  their position  on the  premise
                                                  

11  In  their statement of conclusions, the Damons  do posit that
we should conclude that the district  court's indication that Sun
was  guilty  of some  level  of bad  faith  or willful  intent to
deceive suffices  to require  multiple damages under  section 11,
para. 5.   However, as they offer no support for this contention,

                               -44-

that  we should essentially read into section 11 the provision of

section 9  which awards  multiple damages  for a  defendant's bad

faith  refusal  to  make  a  reasonable  settlement  offer  after

demand.12   Their  argument relies  on the  fact that  sections 9

                                                  

we deem  it waived.  See United States v. Zannino, 895 F.2d 1, 17                                                           
(1st  Cir.) ("[W]e see no reason to abandon the settled appellate
rule   that  issues   adverted  to   in  a   perfunctory  manner,
unaccompanied by  some  effort at  developed  argumentation,  are
deemed waived."), cert. denied, 494 U.S. 1082 (1990).                                        

12  That section provides, in pertinent part:

            Any person receiving  . . . a demand  for
            relief who  . . . makes  a written tender
            of  settlement which  is rejected  by the
            claimant may, in  any subsequent  action,
            file the written  tender and an affidavit
            concerning  its   rejection  and  thereby
            limit any recovery to the relief tendered
            if  the  court   finds  that  the  relief
            tendered  was  reasonable in  relation to
            the  injury  actually  suffered   by  the
            petitioner.   In all other cases,  if the
            court finds for the  petitioner, recovery
            shall be . .  . up to three but  not less
            than  two times  [actual damages]  if the
            court  finds  that . .  . the  refusal to
            grant relief  upon demand was made in bad
            faith  with  knowledge  or reason to know
            that  the act  or practice  complained of
            violated  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  of settlement for
            single  damages.     If  such  tender  or
            settlement is rejected by the petitioner,
            and  if the  court finds that  the relief
            tendered  was  reasonable in  relation to
            the  injury  actually  suffered   by  the
            petitioner,  then  the  court  shall  not
            award more than single damages.

Mass. Gen. L. ch. 93A,   11.

                               -45-

and 11 share the goal of promoting reasonable settlement  offers.

See International Fidelity  Ins. Co. v. Wilson,  443 N.E.2d 1308,                                                        

1318  (Mass.  1983).   According to  this  logic, to  further the

statute's goals we  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  that "[i]t is unclear whether

section  11 permits  recovery of  multiple damages  under such  a

theory where bad faith is proved."  Southworth Mach. v. F/V Corey                                                                           

Pride, 994 F.2d 37, 40  (1st Cir. 1993).  Nonetheless, we  do not               

hesitate in refusing the Damons' argument.   First, we note  that

section 9 is  by its terms  inapplicable to transactions  between

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

include  language   acting  as  a  counterpart   to  section  9's

requirement of multiple  damages where  a party does  not make  a

written tender  of settlement.   See id.   Second, we  note that,                                                  

although it shares  specific goals with section  9, "[s]ection 11

provides a different procedure  for achieving the same objectives

of facilitating settlement and fixing damages."  Nader v. Citron,                                                                          

360  N.E.2d 870, 874 (Mass. 1977).  Indeed, the Massachusetts and

federal  courts have  consistently respected  the differences  in

procedures  between the two sections.   See, e.g.,  Fickes v. Sun                                                                           

Expert,  Inc.,  762 F.  Supp. 998,  1001  (D. Mass.  1991); Aetna                                                                           

Casualty  and Surety  Co. v.  State Park  Ins. Agency,  Inc., 428                                                                      

N.E.2d 376, 377  (Mass. App.  Ct. 1981); see  also Glickman,  486                                                                     

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N.E.2d at 742 &amp;  n.7 (refusing to  analyze section 11 damages  in

terms  of defendants'  response  to  plaintiffs' demand  letter).

"Whatever the merits of implying the demand letter  scheme of   9

into    11, as urged by  defendants, we find no  support for such

implication in the  language and structure of   11."   Nader, 360                                                                      

N.E.2d at 874.  Finally, we  note that the district court did not

find  that Sun's  failure to  tender an  offer of  settlement was

"made in  bad faith with knowledge or reason to know that the act

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

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

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

an  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  it.  There,  the SJC  weighed the goal  of promoting

reasonable  settlements in both sections 9 and 11, and found that

it would  be appropriate to impose  independent liability against

the multiple defendants  in that case, as to do  so would promote

settlements.  443 N.E.2d at 1318.  At the same time, however, the

Court  noted that  "the procedures  set out  in the  two sections

differ,"  despite  their common  goal.   Id.  (citing  Nader, 360                                                                      

N.E.2d  at 870).  Thus,  we read International  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 &amp; Wallace, Inc.,                                                                          

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396  N.E.2d 149,  153 (Mass.  App. Ct.  1979) ("The  remedies and

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

conditions  of one section should not be read by implication into

the  other."); Nader, 360 N.E.2d  at 874 (noting that "analogies,                              

whatever  their utility,  do not  form a  basis for  the judicial

rewriting  of statutes"  in refusing  to read section  9's demand

letter procedure into section 11).

                         ATTORNEY'S FEES                                   ATTORNEY'S FEES

          The  district court  awarded the  Damons $40,620.40  in

attorney's fees and costs.  See Mass. Gen. L. ch. 93A,   11 para.                                         

6  (mandating reasonable  attorney's  fees and  costs be  awarded

where the court finds a violation of    2).  Sun argues that  the

award  was not  reasonable, on  the basis  that the  hourly rates

granted  (specifically,  the  rate  of  $235  an hour  for  court

appearances  and depositions)  were exorbitant  and unreasonable,

and  the  contingency nature  of the  engagement.   Based  on our

review   of  the  record,  we  do  not  find  the  court's  award

unreasonable.

                            CONCLUSION                                      CONCLUSION

          For  the  reasons discussed  above,  we  find that  the

district court's  refusal of Sun's  motion for entry  or judgment

and motions to alter and amend the  judgment and findings and for

a  new  trial were  not  an  abuse  of its  discretion.    Having

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

lacking  in merit.  Consequently,  we affirm the  decision of the                                                      

district court on all points. 

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          No costs on appeal to either party.

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