             United States Court of Appeals
                         For the First Circuit

No. 12-1710


IN RE: IDC CLAMBAKES, INC., d/b/a The Newport Regatta Club,

                                 Debtor


            GOAT ISLAND SOUTH CONDOMINIUM ASSOCIATION, INC.,
                 AMERICA CONDOMINIUM ASSOCIATION, INC.,
              CAPELLA SOUTH CONDOMINIUM ASSOCIATION, INC.,

                              Appellants,

              HARBOR HOUSES CONDOMINIUM ASSOCIATION, INC.,

                               Plaintiff,

                                   v.

          IDC CLAMBAKES, INC., d/b/a The Newport Regatta Club,

                               Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF RHODE ISLAND

              [Hon. William E. Smith, U.S. District Judge]


                                Before
                          Lynch, Chief Judge,
                        Boudin, Circuit Judge,*
                    and Woodlock, District Judge.**

     *
      Judge Boudin heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel’s opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).
     **
         Of the District of Massachusetts, sitting by designation.
     William R. Grimm and Charles D. Blackman on brief for
appellants.
     William P. Devereaux, with whom Thomas R. Gonnella, Matthew C.
Reeber, Benjamin L. Rackliffe were on brief for appellee.




                         August 14, 2013
               WOODLOCK, District Judge. This case arises out of nearly

twenty years of litigation conducted along multiple fronts between

real    estate     development   entities    on   the    one   hand   and   the

condominium entities generated by this development on the other.

Since     at     least   1994,   the    Plaintiff/Appellant       Condominium

Associations and the IDC development entities -- IDC, Inc.; IDC

Properties, Inc.; and IDC Clambakes, Inc., the Defendant/Appellee

in this matter -- have been disputing the ownership and use of

certain property on Goat Island in the City of Newport, Rhode

Island.

               The focus of the matter now before us is framed by the

fact that IDC Properties constructed and Defendant IDC Clambakes

operated The Newport Regatta Club on the contested property after

the Associations had asserted that the rights of IDC entities to

own or develop the property had lapsed.                 Eventually the Rhode

Island Supreme Court found in favor of the Associations. The

Associations thereafter sought to evict IDC Properties from the

land, and IDC Clambakes declared bankruptcy. This case comes to us

on appeal from a bankruptcy court decision and concerns the

question whether IDC Clambakes trespassed on the Associations’

property or whether, through their actions during the pendency of

the litigation, the Associations impliedly consented to operation

of the Regatta Club by IDC Clambakes while title to the land

remained unclear.




                                       -3-
           Despite ongoing formal disputes in the state and federal

courts,   the    parties    apparently         enjoyed    a   generally   congenial

relationship regarding the Regatta Club.                 The Associations did not

challenge building, liquor, or operating permits for IDC Properties

during construction other than to question the sufficiency of

planned parking space and zoning compliance.                     Instead, various

members of the Associations regularly contracted with the Regatta

Club for event space for annual meetings and private events.

           The    record     is   marbled        with    contradictory     evidence

regarding manifestations of consent for Clambakes to operate on the

property. Ultimately, however, we find that the bankruptcy court’s

decision as to implied consent is a plausible interpretation of a

problematic record.        That decision is fully reasoned and supported

by the evidence.       Accordingly, we affirm as to that issue but

nevertheless find it necessary to remand as to the issue of whether

compensation is owed for Clambakes’ authorized use and occupancy.

                                          I.

           The     material       facts     and     history      are   essentially

undisputed. For the sake of clarity, we summarize only those facts

pertinent to this appeal.         A more complete factual and procedural

history underlying the protracted litigation may be found in

decisions of the District Court, the Bankruptcy Court, and the

Rhode Island Supreme Court.         See, e.g., In re IDC Clambakes, Inc.,

C.A. No. 10-267 S, 2012 WL 1194122, at *1-3 (D.R.I. Apr. 10, 2012);

In re IDC Clambakes, Inc., 431 B.R. 51, 54-57 (Bankr. D.R.I. 2010);


                                          -4-
Am. Condo. Ass’n., Inc. v. IDC, Inc., 844 A.2d 117, 119-26 (R.I.

2004) (“America I”).

              In 1997 and 1998, IDC Properties constructed the Newport

Regatta Club on a piece of property -- known throughout this

litigation as the Reserved Area -- in spite of an ongoing dispute

over ownership and development rights to the land.                     IDC Properties

began this development “with full knowledge of plaintiffs’ claims

and after they voluntarily entered into [a] tolling agreement.” In

re IDC Clambakes, Inc., 360 B.R. 24, 26 (Bankr. D.R.I. 2007).                       The

Associations, IDC Properties, and Thomas Roos (the sole shareholder

of each of the IDC entities) entered into this tolling agreement on

January 5, 2008, having engaged in years of discussions and

negotiations        regarding    the     validity       of    amendments       to   the

Condominium Master Declaration purporting to grant IDC Properties

the   right    to   develop     the    land    when    it    did.      After   several

extensions, the Tolling Agreement was set to expire on May 31,

1999.

              During the process of construction and permitting for the

Regatta Club, the Associations formally objected only to the

parking requirements.           When IDC Properties filed for a building

construction permit, the America Condominium Association raised a

concern   by     writing   to     the    Zoning       Officer       that,   “It’s   our

understanding that a permit application has been filed with your

Office for the purpose of constructing a bldg. . . . While we don’t

have a particular objection as to the land use with respect to the


                                         -5-
building itself, we do have a substantial problem with the parking

requirements for that bldg. . . . .”               The Associations were aware

that Clambakes applied for a liquor license transfer and sought to

delay the transfer, but only so the Zoning Board of Appeals could

resolve the parking issue dispute.                Ultimately, the City Council

approved the liquor license transfer from Dorell, Inc. to IDC

Clambakes, Inc., the entity created in 1996 to lease and operate

the   Regatta    Club,    and    the     debtor    appellee   in   this    action.

Nevertheless, Mr. Roos has stipulated that IDC Properties built the

Regatta Club at a time when he understood that the Associations

were “trying to say that Properties had no right to construct the

Regatta Club.”

              IDC Clambakes was not a party to the Tolling Agreement,

and because the lease between IDC Properties and IDC Clambakes was

never recorded and Clambakes did business under the name “Newport

Regatta Club,” the record remains vague regarding the extent to

which the Associations understood or were aware of the precise role

Clambakes had in the development and operation of the Regatta Club.

              On May 29, 1999, about six months after the use and

occupancy certificate was approved, Clambakes began operating the

Regatta Club and three days before the Tolling Agreement expired,

the Associations filed a seven-count state court action against Mr.

Roos,   IDC    Properties,       and   IDC,     Inc.,   seeking    damages     and   a

declaration     that     the    voting    scheme    that   purported      to   extend

development rights to IDC at the time it built the Regatta Club was

                                          -6-
invalid.   This action “did not involve any claims of trespass, or

appear to involve any issues related to trespass or damages flowing

therefrom.”   Goat Island S. Condo. Ass’n., Inc. v. IDC Clambakes,

Inc., 382 B.R. 178, 180 (D.R.I. 2008); see also America I, 844 A.2d

at 125, 125 n.13. Over the next six years, the parties litigated

ownership of the Reserved Area in the Rhode Island state courts

until April 8, 2005 when the Rhode Island Supreme Court declared

that “title [to the Reserved Area] rested with the unit owners in

common ownership” and not with IDC.      Am. Condo. Ass’n., Inc. v.

IDC, Inc., 870 A.2d 434, 443 (R.I. 2005) (“America II”).

           Meanwhile,   during   this   protracted   and   contentious

litigation over ownership of the property, the Harbor Houses

Condominium Association, a plaintiff below but not an appellant in

this appeal, contracted with Clambakes to use the Regatta Club for

its annual meetings and various condominium unit owners regularly

contracted with Clambakes to host private events at the Regatta

Club. None of the Associations made any effort to enjoin Clambakes

or to evict it from the property.   It was not until after the Rhode

Island Supreme Court’s decision in America II that the Associations

filed for Writs of Execution and Ejectment.

           Following the Rhode Island Supreme Court’s decision in

America II, Clambakes tried a variety of initiatives to avoid the

seemingly inevitable consequences of the Court’s ruling.      One week

after the decision in America II, Clambakes filed a civil action in

Rhode Island Superior Court, arguing among other things that it

                                 -7-
owned the contested property by adverse possession.      Two months

later, on June 16, 2005, Clambakes filed the current Chapter 11

case to trigger the automatic stay, see 11 U.S.C. § 362, and stave

off enforcement of the state court judgment while relitigating some

of the issues that the state courts had already addressed. These

strategies proved unsuccessful.    Eventually, a bankruptcy plan was

confirmed for Clambakes.

          The district court vacated the bankruptcy court’s initial

decision, see Goat Island S. Condo. Ass’n., Inc., 382 B.R. at

179-80, and remanded the case for a more thorough development of

the facts and compliance with due process.1         On remand, the

bankruptcy court held a nine-day trial and, relevant to this

appeal, held that Clambakes was not liable for trespass between

March 1, 1998 and April 8, 2005 because the Associations impliedly

consented to Clambake’s operation of the Regatta Club.          The

bankruptcy court denied any award of damages for this period.



     1
        The bankruptcy court’s initial decision held that IDC
Clambakes had been a trespasser but that the Associations were not
entitled to damages for the trespass because the state court’s
award of damages (unrelated to trespass) in the America litigation
had preclusive effect on the bankruptcy court claims and,
additionally, that damages would result in unjust enrichment based
on the “totality of circumstances.” In re Clambakes, Inc., 360
B.R. 24 (Bankr. D.R.I. 2007). The district court held that the
bankruptcy court misapplied Rhode Island trespass law, that
“totality of the circumstances” is not a proper ground to deny an
award of damages, and that preclusion was inappropriate both
because the America litigation did not address trespass and because
the parties had not filed any motion for summary judgment regarding
trespass as the bankruptcy court claimed. Goat Island S. Condo.
Ass’n., Inc. 382 B.R. 178.

                                  -8-
           Both    parties      appealed        to   the   district       court.      The

district court affirmed, see In re IDC Clambakes, Inc., 2012 WL

1194122, and this appeal followed.

                                          II.

           We    review    the     bankruptcy         court’s      decision      without

deference to the district court’s ruling.                   “The court of appeals

undertakes an independent review of [a] bankruptcy court order,

utilizing the same appellate standards governing the district court

review.”   In re LaRoche, 969 F.2d 1299, 1301 (1st Cir. 1992).

Thus, we review the bankruptcy court’s factual findings for clear

error and its conclusions of law de novo.                  Jeffrey v. Desmond, 70

F.3d 183, 185 (1st Cir. 1995); In re G.S.F. Corp., 938 F.2d 1467,

1474 (1st Cir. 1991).

           “[A factual] finding is ‘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.” In re the Bible Speaks, 869 F.2d 628,

630 (1st Cir. 1989).         If the bankruptcy court’s “account of the

evidence   is   plausible     in    light       of   the   record    viewed      in   its

entirety, [we] may not reverse.”                 Id. at 630.        However, we may

affirm   the    decision   of      the    bankruptcy       court    “on    any     ground

supported by the record.”           In re Carp, 340 F.3d 15, 21 (1st Cir.

2003).

           Mixed questions of law and fact “invok[e] a sliding

standard of review . . . .”              Braunstein v. McCabe, 571 F.3d 108,

                                          -9-
124 (1st Cir. 2009).        The more fact intensive the question, the

more deferential the level of review (though never more deferential

than the “clear error” standard); the more law intensive the

question, the less deferential the level of review.             See Sierra

Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 181 (1st Cir.

1997).

                                     III.

            Rhode Island law, which governs this trespass action,

defines a trespasser as “[o]ne who intentionally and without

consent    or   privilege   enters    another’s    property.”   Bennett   v.

Napolitano, 746 A.3d 138, 141 (R.I. 2000).           There is no question

that the Associations have made out two of the basic elements for

a trespass claim:     Clambakes intentionally and voluntarily entered

the land and the land was in the Associations’ rightful possession.

Clambakes does not dispute this.        The relevant question on appeal

is   whether    the   bankruptcy   court     appropriately   found   implied

consent.

                                     - A -

            We address two preliminary issues before turning to the

substance of the bankruptcy court’s decision.            In doing so, we

confront two arguments mounted by the Associations which, while

technically accurate as statements of legal principle, have no

bearing on this case.




                                     -10-
1. Mistake as to Ownership

             The Associations’ first argument –- that a mistake as to

ownership is not a defense to trespass –- misses the point. Mistake

as   to   ownership   played   no   role   in   the   bankruptcy   court’s

determination, and therefore was not the source of any error.

Further, any mistaken belief by Clambakes that IDC Properties owned

the land does not have the preclusive effect Appellants suggest.

The fact that Clambakes entered into a lease with IDC Properties,

which was under the mistaken belief that it owned the disputed

property, does not preclude a finding that Clambakes may have

thought it    had the Associations’ implied consent to operate.       The

two forms of permission are not mutually exclusive, particularly in

a situation where all parties involved understood that title was in

dispute.     Neither of the Associations’ cited cases, Campbell v.

Lederer Realty Corp., 129 A. 732, 733 (R.I. 1925); Rhode Island

Economic Development Corp. v. The Parking Co., L.P., 909 A.2d 943,

945 (R.I. 2006), can support the proposition that an entity

entering into a lease for contested property with the apparent

landowner is thereby prohibited from also seeking or receiving

permission from another party claiming ownership.

2. Reasonable Reliance

             The Associations’ next argument –- that there can be no

apparent consent without a finding of reasonable reliance -– finds

no application in this appeal.       Appellants appear to contend that

the bankruptcy court made no finding of reasonable reliance,

                                    -11-
despite the court’s specific statement that “[the Associations’]

conduct demonstrates a continuing unequivocal expression of consent

. . . , upon which Clambakes reasonably relied.”          In re IDC

Clambakes, Inc., 431 B.R. at 60 (emphasis added). The propriety of

this finding presents a separate issue, discussed in more detail

below, but the argument that this case warrants reversal for

failure to find reasonable reliance cannot withstand even the most

cursory glance.

           With those preliminary issues resolved, we move on to the

substantive issues underlying the central question of implied

consent.

                               - B -

           Consent, in any form, is fatal to a claim for trespass.2

Consent can be spoken or unspoken, express or implied, and there is

no requirement that it be communicated to the actor.     Restatement

(Second) of Torts § 892 (1970).   Apparent consent arises from the

parties’ conduct and from context.     Griggs-Ryan v. Smith, 904 F.2d

112, 117 (1st Cir. 1990). It is sufficient that a party reasonably

understands words or conduct as conveying consent.       Restatement




     2
      Beginning with the bankruptcy court’s opinion on remand, the
opinions and briefs in this case -- from post-trial motion through
this appeal -- use the terms “implied consent” and “apparent
consent” interchangeably. Although the terms are not necessarily
synonyms, any distinctions are not relevant to this case and we
therefore treat them as interchangeable in their phraseology and
application here.

                                -12-
(Second) of Torts § 892.3           This is true “[e]ven when the person

concerned does not in fact agree to the conduct of the other” as

long as his “words or acts or even his inaction . . . justify the

other in acting in reliance upon them.”                Id. at § 892 cmt. c.

However, there is no consent “if a reasonable person would not

understand from the words or conduct that consent is given . . .

even though he honestly so believes . . . .”                Id.

          We        first   address        whether    the    bankruptcy        court

appropriately found that actions by the Associations reasonably

conveyed apparent consent.          We then turn to the question whether

the bankruptcy court properly found that Clambakes did, in fact,

reasonably rely on those actions.

1. Manifestation of Apparent Consent

          The        bankruptcy      court’s     determination          that    the

Associations’ actions manifested consent for Clambakes’ operation

of the Regatta Club falls within that court’s authority as fact

finder.   To be sure, the evidence is not one sided.                     There is

evidence in the record sufficient to support either a finding of

consent   or    a    finding   of     no    consent    as   well   as    evidence

irreconcilably inconsistent with either alternative outcome.                    Yet

determinations of the character and weight of the evidence are best

left to the finder of fact.         United States v. Young, 105 F.3d 1, 5



     3
       The Rhode Island Supreme Court looks to the Restatement of
Torts in deciding trespass claims.    E.g., Mesolella v. City of
Providence, 508 A.2d 661, 667 n. 8 (R.I. 1986).

                                       -13-
(1st Cir. 1997) (“[T]he trial judge, who hears the testimony,

observes the witnesses’ demeanor and evaluates the facts first

hand,   sits    in     the    best   position   to    determine   what   actually

happened.”).        And “[w]here there are two permissible views of the

evidence, a factfinder’s choice between them cannot be clearly

erroneous.”         In re The Bible Speaks, 869 F.2d at 630.

            The Associations rely on the parties’ long history of

bitterly contentious disputes over ownership of the property,

arguing that their own actions foreclose the possibility of any

manifestation of consent when understood in the context of the

specter of the parties’ various legal struggles.              The Associations

entered into the Tolling Agreement with IDC, Inc., IDC Properties,

and Mr. Roos before IDC Properties began building the Regatta Club,

in order to preserve their claims that the voting scheme purporting

to extend development rights for IDC was invalid.                 Thus, from the

very outset -- and before the Regatta Club was built, let alone

operating      at    full    scale   under   Clambakes’    management     –-   the

Associations manifested some opposition to development on the

disputed property.           The Associations also opposed certain permits

and licenses required for the construction of the Regatta Club,

though never on grounds of trespass.                 They opposed the building

permit, stating, “[w]hile we don’t have a particular objection as

to the land use with respect to the building itself, we do have a

substantial problem with the parking requirements for that bldg.,

as well as for other commercial parking on and around that site.”

                                        -14-
The Associations also delayed the liquor license transfer based on

the parking concerns but did not raise any other objection and the

City Council ultimately approved the transfer.

            Having failed to prevent the construction of the Regatta

Club, the Associations notably declined to take action against the

Club’s   operation     until    after   resolution       of    the   state    court

litigation.   As the bankruptcy court noted, Clambakes continued to

operate the Regatta Club “for more than seven years, with no

written or verbal notice, signage, or any other type of claim made

against Clambakes to quit the premises.”                 In re IDC Clambakes,

Inc., 431 B.R. at 60.      The only evidence in the record of a post-

construction effort opposing Clambakes’ operations is a letter from

Daniel Kinder, an individual unit owner, to the Newport City

Council opposing Clambakes’ application to expand its outdoor

entertainment license.         Mr. Kinder states that “IDC applies for a

license to which it had no right.          IDC does not own the property in

question.”    However, this letter is dated May 7, 2003, after the

Rhode    Island   Superior       Court’s      decision    in    favor    of    the

Associations, albeit before the Rhode Island Supreme Court’s final

decision.    The Associations also lean heavily on a letter from the

American Condominium Association to the Mayor of the City of

Newport, dated June 17, 2000 –- more than a year after Clambakes

began operating the Regatta Club -- which seeks to enforce an

unheeded    November   1999     Cease   and    Desist     letter     against   IDC

Properties ordering it to halt construction of a gazebo or pavilion

                                     -15-
at the Regatta Club.     This letter cannot support the weight the

Associations seek to place on it. Read in context, the letter does

not seek to eject Clambakes’ operation, but rather to “ensure that

IDC does not, in any way, use or occupy [the structure] prior to

the resolution of the Zoning issues”      (emphasis added).   This,

then, is not an effort to halt the Regatta Club’s operation

permanently, but apparently only to enforce the zoning ordinances

governing parking and liquor.4   Moreover, there does not appear to

be any evidence in the record that Clambakes or Mr. Roos ever saw

this letter, and it therefore does not bear on the Associations’

manifestation of consent one way or the other.

          The completion of the Regatta Club did not, of course,

mark the end of hostilities between the parties. In May 1999, just

before the expiration of the Tolling Agreement, the Associations

filed a state court action that dragged out for more than six years

regarding ownership of the land.   In October 1999, they recorded a

Notice of Lis Pendens.    However, these disputes over ownership of

the land are not necessarily equivalent to disputes over operations

taking place on the land during the pendency of the ownership issue

litigation.   As the Associations point out, Mr. Roos has testified

that “[the Associations] were challenging every single right that

they could possibly think of.”      But, in that statement, he was



     4
       The American Condominium letter does not expressly state
which zoning ordinances the C&D referenced, and the record does not
appear to include a copy of the C&D.

                                 -16-
commenting on the time frame in 1997 when IDC Properties was

beginning construction, not the post-construction time frame which

revealed the Associations’ apparent disinclination to challenge the

actual operation of the Regatta Club. In fact, in the swirling fog

of   the   litigious    war   between    the    parties,    this   small   but

discernible area of calm and clarity is especially striking.                As

the bankruptcy court supportably found, “it is clear that the

Associations and the Roos entities have fought over and litigated

every conceivable issue except Clambakes’ occupancy and operation

of the Regatta Club . . . .”      In re IDC Clambakes, Inc., 431 B.R.

at 60-61 (emphasis in original).

            For    these   reasons,     the    Associations’   actions     and

inactions do not necessarily foreclose the possibility that it

reasonably manifested apparent consent for Clambakes’ operations.

And in support of its holding, the bankruptcy court relied on a

number of other factors affirmatively indicating consent.

            First, the bankruptcy court put particular emphasis on

the fact that the Associations specifically omitted Clambakes from

the Tolling Agreement, all subsequent extensions, and the America

litigation.       Id. at 60 (“From the outset, Clambakes was never

included as a party to the . . . Tolling Agreement . . . .              During

the construction and even after it commenced operations, Clambakes

still was not added as a party to the Tolling Agreement . . . .

Clambakes was not a party in [the America] litigation.”).                   On

appeal,    the    Associations   contend      that   the   bankruptcy    court

                                      -17-
committed clear error because “[t]here is no evidence in the record

that supports the conclusion that the Associations knew that

‘Clambakes’ (as opposed to IDC Properties or IDC, Inc.) was

operating the Regatta Club . . . .”

              The evidence in the record on this issue is a jumble of

contradictions: On the one hand, IDC Properties held itself out as

the operator of the Regatta Club in its answers to interrogatories;

letters from the Regatta Club to the Associations frequently came

from IDC, Inc.; the lease between IDC Properties and Clambakes was

not recorded; all of the event contracts for the Regatta Club were

in the name of IDC, Inc.; and Clambakes has described itself as a

“bookkeeping entity.”            On the other hand, a newspaper reported

Clambakes as the owner of the Regatta Club when the liquor license

was granted; letters from Raymond Morrissette, President of the

American Condominium Association, and Mr. Kinder both acknowledge

Clambakes’ applications for various licenses to operate the Regatta

Club;   and    the      Associations   asked    for   a   list   of   Clambakes’

shareholders during the state court litigation. Resolution of this

evidence based on its character, weight, and credibility involves

determinations of fact by the trial court to which we defer, absent

clear error.       See In re The Bible Speaks, 869 F.2d at 630; Young,

105   F.3d    at   5.      The   bankruptcy    court’s    determination    finds

reasonable support in the record, and we therefore find no clear

error in the bankruptcy court’s reliance on this determination.



                                       -18-
          Second, during construction of the Regatta Club, the

Associations   specifically   stated       “we    don’t    have   a    particular

objection as to the land use with respect to the building itself,

we do have a substantial problem with the parking requirements for

that bldg. . . . .” See In re IDC Clambakes, Inc., 431 B.R. at 60.

The Associations suggest this letter is taken out of context and

merely asserts no disagreement as to the impact of the building’s

zoning on the number of required parking spaces.              A review of the

fuller context of the letter belies the Associations’ argument and

indicates that the letter means precisely what it says.

          Third,    the    Harbor     Houses       Condominium        Association

contracted with Clambakes to use the Regatta Club for its annual

meetings and various condominium unit owners regularly contracted

with Clambakes to host private events.             See id.    It is true that

the individual unit owners do not have the power to bind the

Associations, cf. R.I. Gen. Laws § 34-36.1-3.02(a)(9) (granting the

unit owners association the right to enter into leases, licenses

and   concessions   over   the      common       elements),    and     that   the

Associations currently maintain that they did not, in fact, consent

to Clambakes’ operation of the Regatta Club.              However, the actions

of individual owners and one of the Associations themselves, freely

contracting at market rates for meeting and event space without

objection, are the kinds of actions that manifest consent and

justify reasonable reliance “[e]ven when the [Associations] do[]

not in fact agree to the conduct of the other.”                       Restatement

                                    -19-
(Second) of Torts at § 892 cmt. c.           The Associations should have

understood that their repeated, public patronage of the Regatta

Club (and that of their members) reasonably contributed to a

manifestation of apparent consent.

            Fourth, the bankruptcy court considered that, until the

America II decision in 2005, the negotiations and litigation

concerned ownership of the land only, not the operation of the

business, and never included a claim for trespass, ejectment, or

eviction.      The bankruptcy court stated that “this apparently

consensual relationship between Clambakes and the Associations

continued for more than seven years, with no written or verbal

notice, signage, or any other type of claim made against Clambakes

to quit the premises.”       In re IDC Clambakes, Inc., 431 B.R. at 60.

            The Associations argue that this fourth factor (a) is

inconsistent    with   the    statute   of   limitations   and   (b)   would

impermissibly require them to move for a preliminary injunction

rather than allow them to rest on their claims for legal and

equitable remedies at final judgment. Both arguments misunderstand

the bankruptcy court’s ruling.

            A party may bring a claim for trespass until the last day

passes for determining when the statute of limitations runs.            But

if the party consents to the use of the property, no trespass

exists to which the statute of limitations would apply.                 The

bankruptcy court did not hold that the Associations waited too long



                                    -20-
to bring their valid claim.        It held that they had no claim in the

first instance due to their apparent consent.              Id. at 61.

             Furthermore, the bankruptcy court did not suggest that

the Associations must move for a preliminary injunction preventing

Clambakes’ encroachment on the property or else risk manifesting

consent.     A party can choose the relief it seeks, but it must

actually seek the relief it wants.             The bankruptcy court grounded

its finding that the Associations manifested consent on the fact

that they specifically did not seek to hold any IDC entity liable

for trespass or to eject or evict them, but rather focused their

claims exclusively on land ownership.                The Associations now say

they wanted all of the IDC entities to cease operations on the

disputed property, but they did not meaningfully pursue such relief

until   after    the    decision   in    America     II.    To   be   sure,    the

Associations did identify this kind of relief in the prayers of

their state court complaint, where they demanded judgment “for a

preliminary and permanent injunction requiring restoration of the

[property] to their condition as of December 31, 1994 [before

construction of the Regatta Club]” as well as “for a mandatory

injunction requiring Declarant to restore the easement to its

condition prior to Declarant’s wrongful conversion.”              However, the

Associations also submitted in their complaint that they would

accept “an award of compensatory damages in an amount to be

determined at trial.”         The Associations’ subsequent actions in

litigating      the    complaint   indicate      a   disinclination    to     stop

                                        -21-
Clambakes from operating in favor of compensation for use of the

land.

            Assuredly, the Associations actions over the course of

this period have been far from consistent, but the record contains

substantial, credible evidence from which the bankruptcy court

reasonably found that the Associations manifested apparent consent.

2. Reasonable Reliance

            The bankruptcy court’s finding that Clambakes actually

and   reasonably    relied   on   the     Associations’     manifestations      of

apparent consent, In re IDC Clambakes, Inc., 431 B.R. at 60, also

falls within the Court’s authority as fact finder. We come to that

conclusion recognizing that the Associations point to considerable

evidence    that   they   claim    is    inconsistent      with   a   finding    of

reasonable reliance.

            The    Associations’    claim      is   that   Clambakes    did     not

actually believe that the Associations had provided consent and

therefore could not have reasonably relied on any manifestations of

consent.    Chief among the parade of factors that the Associations

emphasize    is    Mr.    Roos’   stipulation       that    “[IDC]    Properties

constructed the Regatta Club at a time when Roos understood the

Condominium Associations representatives were trying to say that

Properties had no right to construct the Regatta Club.”                  This is

important evidence of Mr. Roos’ understanding of consent -- or lack

thereof -- at a critical time in this case, but it is not, alone,



                                        -22-
dispositive on the issue of reasonable reliance as the Associations

argue.

             This court treats Mr. Roos’ statement -- as a stipulated

fact -- to be true, Morales Feliciano v. Rullan, 303 F.3d 1, 8 (1st

Cir. 2002) (“A party’s stipulations are binding on that party and

may not be contradicted by him at trial or on appeal.”), but that

does not guarantee that the fact is by itself dispositive.               The

stipulation must be weighed against other evidence in the record in

order to determine whether the bankruptcy court committed clear

error. For instance, the stipulated understanding of Mr. Roos must

be weighed against the fact that the Associations only objected to

the parking aspects of Clambakes’ application for a building permit

and the Zoning Board eventually approved Clambakes’ liquor license

transfer.     Moreover, Mr. Roos stipulated only that he knew the

Associations were opposed to construction of the Regatta Club,

which, as discussed above, is consistent with the Associations

pursuing claims of land ownership only, and does not necessarily

contradict     consent   for   operation   of   the   Regatta   Club    once

constructed.     Finally, the stipulation speaks only to Mr. Roos’

understanding at the time of construction.            As discussed above,

many of the Associations’ manifestations of consent (such as

contracting with the Regatta Club, only pursuing land ownership

claims, and not joining Clambakes in the tolling agreement or

America litigation) arose after the time of construction.              Thus,

even if Mr. Roos had understood at the time of construction that

                                   -23-
the Associations would not have consented to Clambakes’ operation

of the Regatta Club, subsequent events could reasonably be found to

have changed his understanding.        A trial court might permissibly

find that Mr. Roos’ stipulation weighs against a finding of

reasonable reliance, though it does not necessarily carry as heavy

a weight as the Associations contend.

           Similarly, the Associations argue that Clambakes admitted

that it did not have their consent to operate the Regatta Club when

it filed a state court complaint on December 28, 2006 alleging

adverse possession, which necessarily includes the allegation that

possession was hostile and without consent. See Reitsma v. Pascoag

Reservoir & Dam, LLC, 7724 A.2d 826, 834-35 (R.I. 2001).              This

proves too much.      Clambakes argued in the alternative that the

Associations     “consented   to,   agreed,     permitted,   and   allowed

Clambakes’ use and occupancy of the Reserved Area.”                As mere

allegations in the alternative, neither position is a binding

representation and neither demands greater consideration than the

other.   Nor did the state court resolve either of these arguments

such that Clambakes would be bound by judicial estoppel.                We

therefore decline to consider the allegations in Clambakes’ state

court    complaint   as   undercutting     to   the   bankruptcy   court’s

determination.

           The Associations also contend that Clambakes could not

have reasonably relied on any manifestations of consent because it

relied, not on consent, but on Mr. Roos’ level of confidence that

                                    -24-
the   IDC   entities   had    a    right   to   the   property.     This    is   a

troublesome aspect of the reasonable reliance analysis.                      The

bankruptcy court’s finding of reasonable reliance -- indeed, any

finding of reasonable reliance in this case -- necessarily rests on

the notion that Clambakes relied on a belief that it had permission

from both parties claiming to own the land.              As discussed above,

Clambakes entered into its lease with IDC Properties under the

mistaken belief that IDC Properties owned the land.               This does not

necessarily    preclude      the   possibility    that   Clambakes    may   have

believed it also had the Associations’ consent, but the greater the

degree of confidence in IDC Properties’ ownership of the land, the

weaker the permissible inference that Clambakes actually relied on

the Associations’ manifestations of apparent consent in choosing to

continue to operate the Regatta Club.

            Some of the evidence regarding Mr. Roos’ confidence may

amount to posturing or litigation strategy, such as the early

threats to sue the Associations for slander of title, and the

various legal positions taken throughout the America litigation.

Other evidence, however, appears to show that Mr. Roos had little

question in his mind as to the validity of the amendments to the

Condominium agreement conferring ownership on IDC Properties. When

asked “you believed that IDC Properties, Inc. owned [the Reserved

Area],” Mr. Roos responded: “I knew we owned it,” and when asked if

he believed the sixth amendment to the condominium agreement gave

him title, he responded: “The 6th amended did give me title.”                The

                                      -25-
fact that the IDC entities built and operated a multi-million

dollar banquet hall and business on land they knew the Associations

also claimed to own equally underscores their confidence in their

own title to the land.

             Ultimately, these facts may reflect a dispute whether

Clambakes     truly   relied   upon    any   apparent   consent   from   the

Associations, whether it simply believed IDC Properties’ claim to

the land was beyond reproach, or whether it simply pressed on,

building and operating the Regatta Club on the gamble that events

would resolve in its favor.      However, the fact of a dispute is not

sufficient to justify reversal.

             Reasonable reliance presents a mixed question of law and

fact, and it is clear from the bankruptcy court’s decision that the

reasonable reliance analysis was deeply fact intensive.                  The

bankruptcy court focused, in particular, on evidence that Clambakes

maintained     years-long      contractual     relationships      with   the

Associations and individual owners, presumably expecting continued

business regardless of the outcome of the America litigation.            The

bankruptcy court also focused on the evidence of the striking

absence of trespass claims or claims against Clambakes in the

otherwise comprehensive litigation.

             While this may be a disputable question, and the record

contains evidence in support of and irreconcilably contradicting

both sides, resolution ultimately depends on determinations as to

the character and weight of the evidence.           It is clear that the

                                      -26-
bankruptcy court’s ruling rested, not on any particular piece of

evidence, but on its assessment of the whole factual record. Thus,

on the sliding scale, the standard of review approaches “clear

error,” see Braunstein, 571 F.3d at 124.           Here, an alternative

reading of the record does not amount to “a strong, unyielding

belief that a mistake has been made.”     In re Carp, 340 F.3d at 22.

We therefore uphold the bankruptcy court’s finding of reasonable

reliance.

                                 IV.

            Having found that the Associations impliedly consented to

Clambakes’ operation of the Regatta Club from the time of its

construction through the end of the America litigation, we turn to

the Associations’ argument that implied consent necessarily gives

rise to an implied obligation to pay. The Associations essentially

argue that, even if they did consent to Clambakes occupying and

operating on the Reserved Area, their conduct could not reasonably

have been understood to confer permission to do so free of charge.

            The   record   reveals     colorable    support   for   the

Associations’ position.     Clambakes entered into a lease for the

land, paying IDC Properties.     Thus, Clambakes understood that it

owed money to the property owner (which it mistakenly believed to

be IDC Properties) for use of the land.      And although the America

complaint brought no claim for trespass, it did seek either to

force the IDC entities to return the land to its condition before

development or to pay compensatory damages.           The Associations’

                                 -27-
actions manifested apparent consent for Clambakes to use the

property, but not necessarily to do so rent free.                      The America

litigation made abundantly clear that even if the Associations

consented to the operation of the Regatta Club, they would pursue

their    rights     to     ownership   of   the   land    and   their     right   to

compensation for the land’s use.

               In their brief on appeal, the Associations cite three

cases, which they claim stand for the proposition that implied

consent under these conditions gives rise to an implied obligation

to pay: Narragansett Elec. Co. v. Carbone, 898 A.2d 87 (R.I. 2006);

R&B Elec. Co., Inc. v. Amco Constr. Co, Inc., 471 A.2d 1351 (R.I.

1984); Bailey v. West, 249 A.2d 414 (R.I. 1969).                 All are implied

contract cases.          Clambakes contends that the Associations waived

this argument by failing to raise it at the trial (bankruptcy)

court level.        The District Court, on appeal, agreed.                 See IDC

Clambakes, Inc., 2012 WL 1194122, at *8 n.4 (“The Associations

argue . . . implied consent necessarily gives rise to an implied

obligation to pay fair value of the benefit received. . . . [T]his

argument was not raised before the bankruptcy court below and is,

accordingly, not properly before this Court on appeal.”).                        This

reflects a clearly erroneous view of the record.                       Although the

bankruptcy court never addressed the issue, the Associations did

raise the argument. In a post-trial motion filed December 4, 2008,

just    over    a   week    after   the   trial   and    18   months    before    the

bankruptcy court issued its decision, the Associations argued that

                                          -28-
“[e]very theory of implied consent gives rise to a corresponding

implied obligation to pay for the value of what was received.

Debtor should not . . . be permitted to retain the benefit . . .

but pay . . . nothing.”      In fact, before the bankruptcy court, the

Associations grounded this argument on precisely the same three

cases which were cited in its briefing before this court.

             Despite the fact that the Associations presented their

implied-obligation-to-pay argument in their post-trial motion, the

bankruptcy court did not decide, or even mention, the issue.                 See

IDC Clambakes, Inc., 431 B.R. 51.               The issue is insufficiently

developed for proper adjudication on appeal, see Greenpack of P.R.,

Inc. v. Am. President Lines, 684 F.3d 20, 30 (1st Cir. 2012); Bakia

v. Cnty. of Los Angeles, 687 F.2d 299, 301 (9th Cir. 1982)

(remanding where appeals court did not have benefit of trial

judge’s evaluation of the arguments), and is more appropriately

directed to the trial court in the first instance for determination

whether the facts in this case and the law of Rhode Island support

a finding of consent to operate free of charge or whether the

Associations    conditioned      their   implied    consent     on   an   implied

obligation to pay.       We therefore remand as to the question whether

implied   consent   in    this   case    also    gives   rise   to   an   implied

obligation to pay the fair value for use and occupancy of the

property.5

     5
      We note that as part of its bankruptcy responsibilities, IDC
Clambakes has placed “sufficient funds . . . in escrow to pay the
Associations in full, if their claims are allowed.      That fund

                                     -29-
          We affirm as to implied consent for the use and occupancy

of the property but remand for further proceedings consistent with

this opinion regarding the issue whether the implied consent in

this circumstance gives rise to an obligation to pay the fair value

for such use and occupancy and, if so, in what amount.   Each party

shall bear their own costs.




remains intact.”   In re IDC Clambakes, Inc., 431 B.R. at 57.

                               -30-
