
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 96-1398                              CLAIR INTERNATIONAL, INC.                            AND FOREIGN MOTORS WEST, INC.,                               Plaintiffs, Appellants,                                          v.                        MERCEDES-BENZ OF NORTH AMERICA, INC.,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                       Aldrich and Cyr, Senior Circuit Judges,                                        _____________________                                                                                      ____________________             Richard B. McNamara, with whom Gregory A. Holmes and Stephanie A.             ___________________            _________________     ____________        Bray were on brief for appellants.        ____             Mark P. Szpak, with whom Peter K. Levitt and Ropes & Gray were on             _____________            _______________     ____________        brief for appellee.                                                                                      ____________________                                  September 5, 1997                                                                                      ____________________                    CYR,   Senior   Circuit   Judge.     Plaintiffs   Clair                    CYR,   Senior   Circuit   Judge.                                ________________________          International,  Inc. and Foreign Motors West,  Inc. appeal from a          district court  judgment dismissing  their respective  claims for          breach  of contract  and violation  of  Mass. Gen.  Laws ch.  93B          against  Mercedes-Benz  of  North  America  ("MBNA"),  the  North          American distribution organization for Mercedes-Benz automobiles.          The  central  controversy   concerns  whether  the  restructuring          effected by MBNA among its franchisees in the Greater Boston area          during  the  mid-1990s  breached its  dealership  agreement  with          plaintiffs-appellants.  We affirm the district court judgment.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    During the  early 1990s,  MBNA was  represented by  two          dealerships  in the  North Shore  area of  Greater Boston:   Auto          Engineering, Inc.  ("Auto Engineering"),  located in  Burlington,          and Gauthier Motors,  Inc. ("Gauthier"), located in Salem.   Auto          Engineering closed in  April 1993,1 leaving Gauthier  as the only          MBNA  presence on  the North  Shore.   Gauthier, among  the older          Mercedes-Benz dealerships  in  the United  States, operated  from          what  MBNA considered an  inadequate facility, a  small, outmoded          dealership located  in  downtown  Salem.   In  early  1993,  MBNA          approved a plan for relocating  the Gauthier dealership to  Route                                        ____________________               1Auto  Engineering  relocated  its dealership  without  MBNA          authorization on November 2,  1992.  See McLane  v. Mercedes-Benz                                               ___ ______     _____________          of  North America, Inc., 3  F.3d 522, 523 (1st  Cir. 1993).  As a          _______________________          result,  Mercedes gave notice  of termination.   Auto Engineering          then  obtained  a  temporary  injunction prohibiting  termination          until April 11,  1993, at which time the injunction expired.  See                                                                        ___          id. at 523-24.  See infra p. 9.          ___             ___ _____                                          2          128,  which would  enable it  to service  the entire  North Shore          area.   Whereupon,  Gauthier  began  its search  for  an  outside          investor to finance its relocation plan.                     Unable to secure  a suitable investor, in  October 1994          Gauthier  decided  to  sell its  dealership  outright  to Michael          Cantanucci, an  experienced automobile dealer  who already  owned          more  than twenty non-MBNA franchises.  In due course, Cantanucci          obtained a purchase and sale agreement on a  parcel of land along          Route  128, as  the  site  of the  proposed  new, exclusive  MBNA          dealership.   After completing  a routine "due  diligence" check,          which took approximately  one month, MBNA approved  the franchise          transfer to Cantanucci.                      The exclusivity provision was important to MBNA,  which          faced  increased competition from new luxury automobile lines and          planned to shift  to larger,  exclusive dealerships  in order  to          meet the challenge.  At the time, moreover, MBNA had no exclusive          dealership  in the  Greater Boston  area,  and Mercedes-Benz  was          developing several new products, at  least one of which, a sports          utility vehicle, was to be sold only at exclusive dealerships.                    Upon  learning   of  the  proposed   location  for  the          Cantanucci dealership, Herb  Chambers, a Mercedes-Benz  dealer in          Somerville, Massachusetts, protested to  MBNA, claiming that  the          proposed  Route   128  site  was  too  close  to  his  Somerville          dealership.  In December 1994, Chambers brought an action against          MBNA to enjoin construction of its proposed Route 128 dealership.          Although the  suit was  dismissed in April  1995, six  months had                                          3          elapsed   during  which   Cantanucci  had   not   proceeded  with          construction  of the new dealership facility  due to the Chambers          litigation.                    Meanwhile, differences were developing between MBNA and          Cantanucci concerning  the proposed new  dealership, particularly          the  timetable  for  construction, since  MBNA  had  been without          adequate  North Shore representation for approximately two years.          Moreover,  during the  summer of  1995 Cantanucci  had agreed  to          acquire  a Mercedes  dealership in  Connecticut, which  concerned          MBNA  for  two  reasons.    First,  MBNA  had  never  dealt  with          Cantanucci before, yet suddenly was faced with the  prospect that          he could  control two MBNA  dealerships in New England.   Second,          the   $10,000,000  investment   required   for  the   Connecticut          dealership could leave  Cantanucci without adequate  financing to          proceed with the North Shore dealership, where MBNA considered an          adequate Mercedes-Benz presence vital.                     These   concerns  were   borne   out  when   Cantanucci          approached MBNA for permission to construct a smaller facility on          Route 128, then attempted to renege on the exclusivity provision.          Although Cantanucci later agreed to meet the original terms after          MBNA declined his  request, the new  permanent facility on  Route          128 could not be completed for approximately ten more months, and          Cantanucci declined to  open a temporary service  facility during          the interim as MBNA had requested.                    At this point,  with Gauthier running out  of operating          capital and MBNA  confronting the prospect that  there might soon                                          4          be no Mercedes-Benz presence on  the North Shore, MBNA decided to          offer its North Shore dealership to Chambers.                    The MBNA decision  was based in  part on its  perceived          need to move quickly, due to the extended period during which the          North Shore had  been without a suitable  Mercedes-Benz presence,          especially in light of the competition from new luxury automobile          lines being marketed  at large, exclusive dealerships.   Further,          MBNA  considered Chambers the  Mercedes-Benz dealer best  able to          become an immediate force in the North  Shore market area.  As an          established Massachusetts automobile  dealer, Chambers had access          to  advertising opportunities  on  a scale  no  new dealer  could          match.  Indeed, MBNA regarded  Chambers as its top dealer  in the          Greater Boston area, especially since  he had the highest  profit          margin  and  was rated  its  best  dealer  "at point  of  sale."2          Moreover,  Chambers was well  capitalized and planned  to proceed          immediately with construction of an exclusive dealership facility          ___________          meeting  all MBNA  specifications, on  a very  desirable site  he          already owned in Danvers, Massachusetts.                    In  the  meantime,  Chambers had  agreed  to  operate a          temporary  MBNA dealership  facility  at  a  site  in  Lynnfield,          Massachusetts, pending  construction of  the permanent  facility.          Finally, he not only agreed to operate an exclusive Mercedes-Benz          dealership  on  the  North Shore,  but  to  convert  his existing                                        ____________________               2The  "point of sale" rating assesses the degree of customer          satisfaction  with  the   dealer  at  the  time  the  vehicle  is          purchased.   Chambers  fared less  well in  terms of  the vehicle          "service" rating.                                          5          Somerville  dealership to an exclusive dealership as well, giving          MBNA two exclusive dealerships in an important market  area where          it had none.                    At this  point, MBNA approached  Cantanucci, explaining          that it intended to honor its commitment  to him but would prefer          that the North Shore dealership go to Chambers.  MBNA offered  to          make Cantanucci whole, however, by reimbursing him for the amount          paid  to Gauthier for  the North Shore franchise,  as well as any          out-of-pocket  costs  incurred.3    In  August  1995,  Cantanucci          readily agreed to withdraw.                    On  September  27, 1995,  Gauthier  ceased  to operate,          leaving  MBNA with no  permanent Mercedes-Benz dealership  on the          North  Shore,   though  Chambers  was   operating  the  temporary          dealership   in  Lynnfield,  Massachusetts.    See  supra  p.  5.                                                         ___  _____          Thereafter, MBNA  never sought  another candidate  for the  North          Shore  area,  having  already  concluded,  even  before  Gauthier          proposed Cantanucci,  that Chambers was the  preferred candidate,          except for  the fact that Chambers already  owned a Mercedes-Benz          ______ ___  ___ ____ ____ ________ _______  _____ _ _____________          dealership in Somerville, a contiguous MBNA market area.          __________ __ __________  _ __________ ____ ______ ____                    MBNA  had a  longstanding  policy against  granting the          same dealer more  than one dealership in contiguous market areas.          Its dealership agreements in 1992 stated the policy as follows:                      [T]o foster  competition among  Mercedes-Benz                                        ____________________               3MBNA further proposed to make up any difference between the          price Cantanucci had paid to acquire the Route 128 site,  and the          price received for  it.  Ultimately, however, Cantanucci sold the          land to Chambers  for the original purchase price.  But see infra                                                              ___ ___ _____          pp. 16-17.                                          6                    dealers, it is  Mercedes-Benz's policy not to                    permit,      except      in     extraordinary                                 ______      __     _____________                    circumstances, an existing  dealer, owner, or                    _____________                    operator to have interest in the ownership or                    management of  another competitive  Mercedes-                    Benz sales and service dealership in the same                    area  of responsibility  or  in a  contiguous                    market area.           (Emphasis added.)   Nonetheless, a standard  dealership agreement          provision states:                     Notwithstanding any provision  of this Agree-                    ment, the final decision whether to establish                          ___ _____ ________ _______ __ _________                    additional dealers, or relocation of [sic] an                    __________ _______                    existing dealer, shall be made by MBNA solely                                     _____ __ ____ __ ____ ______                    pursuant to  its own  business judgment,  and                    ________ __  ___ ___  ________ ________                    nothing in this  Agreement shall be construed                    to   require   Dealer's    consent   to   the                    establishment  of  an  additional  dealer  or                    relocation of an existing dealer.          (Emphasis added.)   This  "business judgment"  provision and  all          other standard dealership  agreement provisions are  incorporated          by reference into each dealership agreement.                      By the time MBNA awarded the North Shore  dealership to          Chambers, however,  it was  operating under  a policy adopted  in          April 1993:                    [A]  policy that  existed in  the  past which                     _   ______                             _____                    prohibited a proven  successful Mercedes-Benz                    __________ _         __________                    operator from operating more  than one Point,                    ________ ____ _________ ____  ____ ___ _____                    does not  lend itself to  the most  effective                    ____ ___  ____ ______ __                    and efficient way to meet today's competitive                                         ____ _______ ___________                    challenges.   Today it is the strength of the                    __________                    overall  dealership  operation  that  insures                    customer  satisfaction in  terms of  products                    and services.                      Therefore,  it is in  our best interests   to                                __ __ __  ___ ____ _________   __                    permit,  in  appropriate  circumstances,  the                    ______   __  ___________  _____________                    common ownership  of  more  than  one  dealer                    ______ _________  __  ____  ____  ___  ______                    point for the express purpose  of meeting the                    _____                    challenges of a competitive marketplace.                                          7          (Emphasis added.)4                    On December 4, 1995, three dealers brought suit against          MBNA:  Clair  International,  Inc., located  in  Dedham;  Foreign          Motors West,  Inc., located in  Natick; and Smith Motor  Sales of          Haverhill,  Inc., in  Haverhill.   Their  complaint alleged  that          awarding Chambers a second dealership,  to be based in Danvers             a  market area  contiguous to  the  Somerville market  area where          Chambers  already had a  dealership    breached  their dealership          contracts and  violated Mass. Gen.  Laws ch. 93B.   The complaint          sought only to  enjoin Chambers from opening and  operating a new          dealership in Danvers, Lynnfield, or any other area contiguous to          the Somerville dealership.                    Following a  three-day bench trial,  the district court          found that MBNA had breached  its contract with Smith, though not          with Clair or Foreign Motors.5  It determined that the dealership          provision governing contiguous  market areas, see supra  pp. 6-7,                                                        ___ _____                                        ____________________               4Although  MBNA did not  provide advance notice  to existing          dealers regarding its amended policy, appellants raise the notice          issue solely in connection with their belated attempt to assert a          chapter 93B claim independently of any  breach-of-contract claim.          See infra pp. 16-17 & note 7.          ___ _____               5The trial court decided that MBNA's conduct vis-a-vis Smith          had been based on a "mixed" motive.  It  found that Smith did not          operate the type  of dealership MBNA wanted  to work with in  the          future  and that  MBNA had  already  tried to  persuade Smith  to          relocate to the larger Manchester, New Hampshire, market.   Thus,          the court found that MBNA had installed Chambers not only to meet          its own  pressing marketing  needs in the  North Shore  area, but          also to  foster its  goal of promoting  larger dealerships.   The          district court  further found that  MBNA had  not violated  Mass.          Gen.  Laws ch.  93B, however,  and  denied the  injunctive relief          requested by  Smith.   Finally, since the  court directed  that a          trial on damages  be scheduled in the Smith case at a later date,          Smith is not a party to the present appeal.                                          8          was contractual in nature, rather  than a mere recital of company          policy.    The  court  nonetheless  ruled  that  the  unambiguous          contract  language required  it to  ascertain,  from the  vantage                                                          ____ ___  _______          point  of  MBNA,  whether  or not  "extraordinary  circumstances"          _____  __  ____          warranted  its  business  judgment  to  install  Chambers  in  an          additional dealership in  a contiguous  market area.   The  court          went  on to  find that  the  demise of  the Gauthier  dealership,          coupled with the  closing of Auto Engineering, see  supra note 1,                                                         ___  _____          had given  rise to an  extraordinary circumstance in the  eyes of          MBNA.   The court  further found that  it was vital  to MBNA that          Chambers be  installed in the  North Shore dealership,  given the          extended duration of its dealership  problems in the area and the          increased  competition from other  luxury automobile lines.   The          district  court findings  foreclosed  all  relief  to  Clair  and          Foreign  Motors, whose claims for injunctive relief under chapter          93B  were premised  exclusively on  the  alleged breach  of their          contracts by  MBNA.   Finally, the  district court  certified the          judgment  against Clair  and Foreign Motors  pursuant to  Fed. R.          Civ. P. 54(b) ("Rule 54(b)").                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          1.   Appellate Jurisdiction           1.   Appellate Jurisdiction               ______________________               A.   Rule 54(b)               A.   Rule 54(b)                    _________                    MBNA has moved  to dismiss  the appeal,  on the  ground          that the  Rule  54(b) certification  was  improper.   Rule  54(b)          permits entry of a final judgment as to fewer than all parties in                                          9          a civil  action upon "an  express determination that there  is no          just  reason for delay."  After  provisionally denying the motion          to  dismiss, we  instructed the  parties to  brief both  the Rule          54(b)  certification challenge and whether 28 U.S.C.   1292(a)(1)          might afford an  alternate jurisdictional ground for  the appeal,          see part II, 1.B, infra.          ___               _____                    The Rule 54(b) certification is problematic.  First, it          includes  no findings on  the relationship between  certified and          uncertified claims.  See Credit Francais Int'l, S.A. v. Bio-Vita,                               ___ ___________________________    _________          Ltd., 78 F.3d  698, 706 (1st Cir. 1996);  Feinstein v. Resolution          ____                                      _________    __________          Trust  Corp., 942  F.2d 34,  39-40  (1st Cir.  1991); Spiegel  v.          ____________                                          _______          Trustees  of Tufts  College, 843  F.2d  38, 43  (1st Cir.  1988).          ___________________________          Moreover,  our review of  the record reveals  substantial overlap          between the Clair and Foreign Motors cases, on the one  hand, and          the Smith  case awaiting  trial in the  district court.   Yet the          present  appeal would  have us  interpret contractual  provisions          common to all three dealership agreements.  See Bio-Vita, 78 F.3d                                                      ___ ________          at  707-08  (Rule 54(b)  certification  improvidently  granted in          light of overlap between certified and pending claims); Kersey v.                                                                  ______          Dennison Mfg. Co., 3 F.3d 482, 487-88 (1st Cir. 1993) (Rule 54(b)          _________________          certification improper given  interlocking factual issues  common          to  adjudicated and unadjudicated  claims); Spiegel, 843  F.2d at                                                      _______          44-45  (Rule 54(b)  certification  improper  where dismissed  and          pending   claims  "stem   from  essentially   the  same   factual          averments").                    Second, the central benefit identified in  the district                                          10          court's decision to  certify the adverse judgments  against Clair          and Foreign Motors    that  the appellate court might resolve the          Mass. Gen. Laws  ch. 93B claims  in the process     is  illusory,          especially  since  the  district  court has  yet  to  address any          chapter 93B claim.  See infra p. 16.6                               ___ _____               B.   Interlocutory Jurisdiction (28 U.S.C.   1292(a)(1))               B.   Interlocutory Jurisdiction (28 U.S.C.   1292(a)(1))                    ___________________________________________________                    The  courts of  appeals are invested  with jurisdiction          over  appeals from "[i]nterlocutory orders of the district courts          . .  . granting,  continuing, modifying,  refusing or  dissolving          injunctions, or refusing to dissolve  or modify injunctions."  28          U.S.C.     1292(a)(1).    Clair  and  Foreign  Motors   have  not          demonstrated   that   section    1292(a)(1)   confers   appellate          jurisdiction over their claims.                     The  district court order  had the practical  effect of          denying  injunctive relief  to  these  appellants.    See,  e.g.,                                                                ___   ____          Manchester Knitted Fashions, Inc. v. Amalgamated Cotton Garment &          _________________________________    ____________________________          Allied Indus.  Fund, 967 F.2d  688, 690 (1st Cir.  1992) (partial          ___________________          summary judgment had  practical effect  of granting  injunction);          Plymouth Cty. Nuclear Info. Comm., Inc. v. Boston Edison Co., 655          _______________________________________    _________________          F.2d  15,  17-18  (1st Cir.  1981)  (order  precluding injunctive          relief  on  stricken  claims had  "practical  effect"  of denying                                        ____________________               6We would have no occasion  to address any chapter 93B claim          at the present time.  Were we to conclude that the district court          erred in its interpretation of the dealership contract, or in its          determination that MBNA  did not  breach the  contract, we  would          remand to  the district court  for further  consideration of  the          Clair  and Foreign  Motors claims.   As there  is no  chapter 93B          ruling to review, however, our  remand order would leave any such          claims  for  resolution  by  the  district  court  in  the  first          instance.                                          11          injunction).   Consequently, appellants must satisfy the test set          out in Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981).                 ______    _____________________                    There,   the   Supreme   Court    announced   that   an          interlocutory order which  has the practical effect  of granting,          denying, or altering an injunction, is not immediately appealable          as of right  under section 1292(a)(1),  unless the appellant  can                                                  ______          show that the  order "might have a serious,  perhaps irreparable,          consequence, and that [it] can  be effectually challenged only by          immediate appeal."  Id. (internal quotation marks omitted).   See                              ___                                       ___          also Casas Office Machines, Inc.  v. Mita Copystar America, Inc.,          ____ ___________________________     ___________________________          42 F.3d 668,  672-73 (1st Cir. 1994).   Appellants, however, have          identified  no immediate  and  irreparable  harm  that  would  be          occasioned  were   the  district  court   order  not  immediately          appealable.                     Nevertheless, given  both the problematic nature of the          Rule 54(b) certification and the  time which has passed since its          entry, we conclude that the  interests of justice are best served          by proceeding to  the merits.   See United  States v. Connell,  6                                          ___ ______________    _______          F.3d 27,  29 n.3  (1st Cir. 1993)  (It is  well settled  that "an          appellate court  may forego  the resolution  of a  jurisdictional          question if,  as is  true here, the  appeal is  uncomplicated and          easily  resolved in  favor  of  the party  to  whose benefit  the          jurisdictional  question would  redound.");  see  also Norton  v.                                                       ___  ____ ______          Mathews, 427 U.S. 524, 532 (1976);  Sierra Club v. Larson, 2 F.3d          _______                             ___________    ______          462,  466 (1st Cir.  1993); In re  Unanue Casal, 998  F.2d 28, 33                                      ___________________          (1st Cir. 1993); Narragansett Indian  Tribe v. Guilbert, 934 F.2d                           __________________________    ________                                          12          4, 8 n.5 (1st Cir. 1991); Federal Deposit Ins. Corp. v. Caledonia                                    __________________________    _________          Inv. Corp., 862 F.2d 378, 381 (1st Cir. 1988).          __________          2.   Construing the Dealership Agreements          2.   Construing the Dealership Agreements               ____________________________________                    The  dealership  agreements   included  two  provisions          directly pertinent  to the MBNA  decision to install  Chambers in          the North Shore area  dealership.  The first  provision prohibits          MBNA  from awarding franchises  to the same  dealer in contiguous          market areas except in "extraordinary circumstances."  The second          provision sweeps more broadly, however, enabling MBNA to exercise          its  business  judgment  as to  whether  an  additional franchise          should be  awarded to an  existing dealer in a  contiguous market          area.                      The  district court  made  two important  legal rulings          regarding these  provisions.  First, it held that the "extraordi-          nary  circumstances"  provision  is  contractual  in  nature  and          binding   upon  MBNA.    It  then  construed  the  "extraordinary          circumstances" provision  in relation to the  "business judgment"          provision, as follows:                     But what does  it mean?  In  the context read                    in light of  the more sweeping  clause . .  .                    which leaves  to Mercedes-Benz  the virtually                    unfettered,  save  by  the covenant  of  good                    faith  and fair dealing .  . . what does this                    more limited  but more  precise clause  mean?                    Legally . . . to read it in harmony in .  . .                    a  way that effectuates  the intention of the                    parties, it  means that  this clause  is read                    such that, absent extraordinary circumstances                    in the  eyes of Mercedes-Benz, they  will not                    appoint  a  dealer  to  have  two  points  in                    contiguous  market areas  and that  they will                    interpret the  implementation of  this policy                    in a  fashion  as to  foster competition,  to                    give   the  phrase   to  foster   competition                                          13                    significance,  in its  context.   Now, that's                    what this language means on its face.          Thus, the  district court rejected  both the MBNA claim  that the          "extraordinary  circumstances"  provision  was  simply  a  policy          statement,  and  the  theory  advanced  by  appellants  that  the          "business judgment" provision  had no application in  the present          context.                     Appellants challenge the  district court ruling on  the          ground  that  its   "extraordinary  circumstances"  determination          should have been  based on an objective  reasonableness standard,          not merely on reasonableness in the eyes of MBNA.  As the present          claim challenges the district court's construction of unambiguous          contractual terms in  an integrated agreement, we  review de novo                                                                    __ ____          the "plain  meaning" the district court ascribed  to these terms.          State Police Ass'n  v. Commissioner of Internal  Revenue, No. 97-          __________________     _________________________________          1319,  slip op.  at 5  (1st Cir.  Aug. 20,  1997); United  States                                                             ______________          Liability  Ins. Co. v. Selman, 70  F.3d 684, 687 (1st Cir. 1995).          ___________________    ______          The   choice-of-law  provision   in   the  dealership   agreement          designates New Jersey  law.  See McCarthy v. Azure,  22 F.3d 351,                                       ___ ________    _____          356 n.5 (1st Cir. 1994) (reasonable choice-of-law provision to be          respected).   Since MBNA has  its principal place of  business in          New Jersey, we honor this designation.                    As the district court recognized, "a document should be          read to  give effect  to all  its provisions  and to render  them          consistent  with each  other."   Mastrobuono  v. Shearson  Lehman                                           ___________     ________________          Hutton, Inc. 115  S. Ct. 1212, 1219 (1995)  (Illinois law; citing          ____________          RESTATEMENT (SECOND) OF CONTRACTS   203  and cmt. b (1979);   202                                          14          (5)); see also Coolidge & Sickler, Inc. v. Regn, 80 A.2d 554, 557                ___ ____ ________________________    ____          (N.J. 1951) ("'The design of the parties to a written contract is          to be collected from the instrument as an entirety. . . .  Words,          phrases and  clauses are  not to be  isolated but related  to the          context  and the  contractual scheme  as a  whole, and  given the          meaning that comports with  the probable intention.   The literal          sense  of  the terms  may  be  qualified  by context.'"  (quoting          Mantell  v. International Plastic  Harmonica Corp., 55  A.2d 250,          _______     ______________________________________          255 (N.J.  1947))); Andreaggi v.  Relis, 408 A.2d 455,  468 (N.J.                              _________     _____          Super.  1979) ("All  provisions of  a document  must be  read and          should  be  harmonized  where possible  in  interpreting  a docu-          ment.").   Unlike appellants,  the district  court construed  the          dealership agreement  as a whole,  in the  sense that it  did not          render meaningless the broad contractual caveat that MBNA, in the          exercise  of  its  exclusive business  judgment,  was  to be  the          ultimate  arbiter.   Thus construed,  the "extraordinary  circum-          stances" provision  simply encapsulates  the essential  nature of          the business judgment MBNA is permitted to make regarding whether          to award the  same dealer more than one  dealership in contiguous          market areas.          3.   "Extraordinary Circumstances"          3.   "Extraordinary Circumstances"                ___________________________                    The   district    court   based    its   "extraordinary          circumstances" determination  on the  evidence adduced  at trial.          Focusing especially on the extended period  during which MBNA had          been without adequate representation on the North Shore, it found          that  "the demise  or imminent  demise of  Gauthier on  the North                                          15          Shore, coupled with the squeezing  out of Auto Engineering .  . .          [was] an extraordinary circumstance in the eyes of Mercedes."  We          review its finding  only for "clear  error."  Selman, 70  F.3d at                                                        ______          687  ("clear error" standard  "pertains whenever the  trial court          decides  factual matters that  are essential to  ascertaining the          parties' rights in  a particular situation (though  not dependent          on the meaning of contractual terms per se)").                    The district court reasonably  found that the  extended          absence  of  an  adequate  MBNA  presence  on  the  North   Shore          constituted  an extraordinary circumstance  in the eyes  of MBNA,          especially  since MBNA was facing aggressive competition from new          luxury   automobile   lines  operating   from   large,  exclusive          dealerships,  whereas MBNA  had no  exclusive  dealership in  the          North Shore market area and  soon could be without any dealership          there.   MBNA's  decision to  award a  North Shore  dealership to          Chambers in these extraordinary  circumstances, see supra Section                                                          ___ _____          I, was  well within the  broad and exclusive  "business judgment"          discretion conferred upon it by the dealership agreement.   There          was no clear error.                    Next, we  consider appellants' claims  under Mass. Gen.          Laws ch. 93B.   Since there  was no breach  of contract by  MBNA,          their  chapter 93B claims  fail as well.   See supra  pp. 10-11 &                                                     ___ _____          note 6.                     Appellants assert that MBNA promulgated a secret policy          inconsistent  with  the   contractual  restrictions  on  multiple          dealerships in contiguous  market areas, and that  MBNA "secretly                                          16          subsidized"  Chambers by  affording him  financial  assistance in          acquiring the Route 128 property from Cantanucci.  See supra note                                                             ___ _____          3.  Appellants  mischaracterize the trial court  record, however,          in attempting  to demonstrate  that enough  evidence of  "general          unfairness" by MBNA  came in by consent,  at trial, to raise  the          specter of a chapter 93B violation notwithstanding the absence of          a breach of contract.                    The district court initially  excluded all evidence  of          subsidies, since appellants had never alleged a chapter 93B claim          independent  of  their  breach-of-contract claims.7    Clair  and          Foreign  Motors then changed course, and ultimately the proffered          evidence  was  admitted,  but  only  to establish  "extraordinary          circumstances."  We  cannot conclude, on such a  record, that the          proffered  evidence  came  in by  consent  to  establish "general          unfairness."    To the  contrary, neither  MBNA nor  the district          court acquiesced, let alone consented,  to the trial of a chapter          93B claim  predicated on  general unfairness.   Nor did  Clair or          Foreign Motors move to amend their pleadings, see Fed. R. Civ. P.                                                        ___          15(b),  to  reflect  their  newfound  general unfairness  theory.          Given  the  explicit  restrictions  repeatedly  imposed  by   the          district  court  in  allowing  the "extraordinary  circumstances"          evidence, we conclude that the general unfairness  theory was not          tried below.   See DCPB, Inc. v.  City of Lebanon, 957  F.2d 913,                         ___ __________     _______________                                        ____________________               7Further,  based on the fact that  the complaint included no          independent  chapter 93B  claim, the  district  court ruled  that          MBNA's failure to give  its dealers notice of the  new policy was          immaterial,  since  MBNA  had  complied  with the  "extraordinary          circumstances" provision in the dealership agreement.                                           17          917  (1st  Cir.  1992) ("The  introduction  of  evidence directly          relevant to  a pleaded issue  cannot be  the basis for  a founded          claim that  the opposing  party should have  realized that  a new          issue was  infiltrating the  case.").  See  also In re  Rauh, ___                                                 ___  ____ ___________          F.3d ___,  ___,   1997 WL  394424, *7  (1st Cir.  July 18,  1997)          (collecting cases). 8                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    Accordingly, the district  court judgment is  affirmed;                                 ___ ________  _____ ________ __  ________          costs to MBNA.          _____ __ ____                                        ____________________               8Appellants' further contention    that an injunction should          have  been granted  under  the common-law  standard     was never          raised below.   See Violette v. Smith  & Nephew Dyonics, Inc., 62                          ___ ________    _____________________________          F.3d  8,  10-11  (1st Cir.  1995),  cert.  denied, 116 S.Ct. 1568                                              _____  ______          (1996); Desjardins v.  Van Buren Community Hosp.,  969 F.2d 1280,                  __________     _________________________          1282 (1st Cir. 1992) (collecting cases).                                          18
