
USCA1 Opinion

	




        August 5, 1992      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2319                              BOSTON CAR COMPANY, INC.,                                d/b/a ACURA OF BOSTON,                                Plaintiff, Appellant,                                          v.                              ACURA AUTOMOBILE DIVISION,                           AMERICAN HONDA MOTOR CO., INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                             Lay,* Senior Circuit Judge,                                   ____________________                          and O'Scannlain,** Circuit Judge.                                             _____________                                 ____________________            Robert C. Gerrard with whom Thomas  S. Fitzpatrick and Davis, Malm            _________________           ______________________     ___________        & D'Agostine, P.C. were on brief for appellant.        __________________            J. Donald McCarthy with whom Lyon  & Lyon, P.C., Hope E. Melville,            __________________           __________________  ________________        William H. Baker, Christopher  R. O'Hara and Nutter, McClennen  & Fish        ________________  ______________________     _________________________        were on brief for appellee.                                 ____________________                                 ____________________        _____________________        *  Of the Eighth Circuit, sitting by designation.        ** Of the Ninth Circuit, sitting by designation.                 O'SCANNLAIN, Circuit Judge:  This diversity case arises                               _____________            from  a  dispute  about the terms of an automobile franchise             agreement  entered  into  by  American   Honda   Motor   Co.             ("American  Honda"),  the  distributor  of the Acura line of             cars, and Boston Car Co., Inc. ("Boston Car"), holder of  an             Acura  dealer  franchise.   The  district  court  ruled  for             American Honda, and Boston Car appeals.  We affirm.                                         I                 In 1985, James Carney, the  principal  of  Boston  Car,             began  discussions  with  the  Acura  Automobile Division of             American  Honda  with  the  object  of  obtaining  an  Acura             dealership.   Damien  Budnick  represented American Honda in             these discussions.                 On May 7,  1985,  Carney  signed  a  letter  of  intent             ("LOI")  setting  forth  the conditions under which American             Honda would grant Carney an Acura dealership, to be  located             in the town of Newton in suburban Boston.  In the vernacular             of the trade, Carney was to be granted the  Newton  "point,"             or dealership location.  The LOI listed several other points             American Honda  expected  to  establish  as  part  of  their             marketing plan for the Boston metropolitan area.                 Carney  was  unable  to  secure  a suitable location in             Newton but identified a fitting site in the  Brighton  area,             near  Newton but within the city limits of Boston.  Based on             this location, Carney sought the  so-called  "Boston  point"             from   American   Honda.   Since  his  prospective  location                                          -2-            remained close to Newton, Carney  wanted  the  Newton  point             deleted  from  American  Honda's  marketing  plan.   He also             expressed concerns about the Lexington  and  Natick  points.              Both  parties  agree that several discussions ensued between             Carney and Budnick  on  the  subject  of  the  location  and             planned opening date of other points in the Boston area.                 Eventually,  American  Honda  granted Carney the Boston             point  as  the  first  Acura  dealership   in   the   Boston             metropolitan  area.   The  Newton  point  was  dropped,  and             replaced  by  a  Dedham  point.   American  Honda  kept  the             Lexington  and  Natick points, although it apparently agreed             to delay the opening of the Lexington point.  The final  LOI             issued  by  American Honda on August 2, 1985 and accepted by             Carney stated:                     The  primary  market  area  that  you  have                      applied  for  is  only  part  of our market                      representation plan.  It is  our  intention                      to  establish  additional  Acura dealers in                      the  surrounding  primary   market   areas:                       Danvers, Lexington, Dedham, Natick, Norwood                      and Norwell.                                      By January 1988, American Honda had filled four of  the             six  points  mentioned  in  the  LOI.  The Norwood point was             filled by a dealership in the neighboring town  of  Walpole,             the  Danvers  point  was  filled  by  a  dealership  in  the             neighboring town of Peabody, the Natick point was filled  by             a  dealership in the neighboring town of Framingham, and the             Norwell point was filled by a  dealership  in  Norwell.   In             each  case,  American  Honda  sent  a  letter  to Boston Car                                                    -3-            informing it of the new dealership.  Each letter stated that             "[t]his  action  is  consistent  with  our previously stated             marketing plan as  contained  in  your  original  Letter  of             Intent dated August 2, 1985."                 On  April  27,  1988,  American  Honda issued an LOI to             William York to establish an  Acura  dealership  in  Revere.              This  dealership was to replace the Dedham point because the             planned Dedham site turned out to be contaminated.   On  May             4,  1988,  York  signed the LOI.  The following day, Budnick             hand delivered a letter to Boston  Car  and  to  other  area             dealers  giving notice of American Honda's intent to start a             dealership in Revere.   This  letter,  unlike  the  previous             notice  letters, did not state that establishment of the new             dealership was consistent with Boston Car's LOI.                 In response to notice of the Revere LOI, the  principal             of  the  Peabody dealership formally notified American Honda             on May 26, 1988, of its intent to file  suit.   The  Peabody             dealership  also  informed  Boston Car that, in order to sue             under the Massachusetts franchise law, Boston Car would have             to give notice within thirty days of American Honda's notice             of intent to establish the Revere dealership.  On  June  28,             1988,  Carney  sent  a letter to American Honda objecting to             the new franchise in Revere.  The letter did  not  state  an             intention  to  sue  American  Honda,  however.   The Peabody             dealership proceeded to file suit.  That suit was settled in             the fall of 1988.                                           -4-                 On  January  24,  1989,  Boston  Car  filed this action             against American Honda in state court,  alleging  violations             of the Massachusetts automobile franchise law, Mass. Gen. L.             Chap.  93B,  misrepresentation  and  breach   of   contract.              American  Honda  removed  the  case  to federal court on the             basis of diversity of  citizenship.1   American  Honda  also             brought  a  counterclaim seeking a declaratory judgment that             it had the legal right to establish a dealership in Revere.                 American Honda moved for summary judgment.  Judge  Wolf             heard  oral  argument  on  the  motion,  but  then requested             testimony  from  Carney  and  Budnick.   Thus,  the  summary             judgment proceeding turned into something like a short bench             trial, after which the judge made findings of fact.2                 Following these  proceedings,  on  November  25,  1991,             Judge  Wolf  issued  an  oral  opinion granting judgment for             American Honda.  In a thorough and lucid opinion, Judge Wolf             ruled  that the LOI between Carney and American Honda was an             enforceable  agreement.   Nonetheless,  he  concluded,   the             listing  of  future  points  was  not a promise but merely a             statement of American Honda's present  intention.   Further,             Judge  Wolf  found no evidence that American Honda had acted             in bad faith or misrepresented its true  present  intentions                                               ____________________             1       Boston  Car  is a  citizen  of  Massachusetts, while             American              Honda is a citizen of California.             2      Neither  party has  objected to  this procedure.   We             assume,  without deciding, that it  was proper.  Because the             judge resolved disputed issues of fact, we will review as we             would  an ordinary bench  trial pursuant to  federal Rule of             Civil Procedure 52.                                         -5-                 at  the  time  the  letter  was  executed,  and he therefore             rejected Boston Car's misrepresentation claim.                 Regarding Boston Car's claim under Chapter  93B,  Judge             Wolf  found  that  Boston Car had waived any cause of action             under the statute, because it had failed to give  notice  to             American Honda of its intention to sue within thirty days of             receiving notification of the  new  franchise.   Judge  Wolf             found   that   American   Honda's  letter  of  May  5,  1988             constituted the  statutorily  required  notice  to  existing             franchisees of a proposed new franchise, and that Boston Car             had failed to give notice of intent  to  sue  within  thirty             days of receipt of that letter.    Boston Car filed a timely             notice of appeal.                                         II                 We must first determine if we  have  jurisdiction  over             this  appeal.   Boston  Car  filed  its  notice of appeal on             December 4, 1991.  On December 20, 1991, this  court  issued             an  order  to  show  cause  why  the  appeal  should  not be             dismissed for lack of jurisdiction, noting  that  the  order             appealed  from did not expressly dispose of American Honda's             counterclaim.  The parties  then  filed  with  the  district             court  a  "Joint Motion For Amended Order and Entry of Final             Judgment On All Claims," asking the district court to  amend             its  order  of  November  25,  1991,  to  grant judgment for             American Honda on its counterclaim.  Judge Wolf granted  the             joint motion of the parties and adopted their proposed order             on January 30, 1992.  No new notice of appeal was filed.                                         -6-                 We conclude that the November 25 order  was  final  and             appealable  and  that we have jurisdiction over this appeal.              Judge Wolf's order stated that American Honda's  motion  for             summary judgment was granted.  The motion requested "summary             judgment on all issues in  this  case."   Although  American             Honda's  counterclaim  was not specifically mentioned in the             accompanying opinion, it was  necessarily  resolved  by  the             November 25 order.                 Nor  did  the  subsequent  Joint  Motion  undermine the             effectiveness of Boston Car's notice of appeal.  True, under             Rule  4(a)(4) of the Federal Rules of Appellate Procedure, a             notice of appeal filed prior to the disposition of a  timely             motion  to alter or amend judgment pursuant to Rule 52(b) or             Rule 59  is  a  nullity.   However,  the  Joint  Motion,  if             construed  as  a  Rule 52 or Rule 59 motion, was not timely.              It was filed January 2, 1992, more than  thirty  days  after             entry of judgment.  Because motions under Rules 52(b) and 59             must be served within ten days, if  the  Joint  Motion  were             brought  under these rules it was untimely and had no effect             on the notice of appeal.  See  Flint  v.  Howard,  464  F.2d                                       ___  _________________            1084,   1086  (1st  Cir.  1972)  ("an  untimely  motion  for             reconsideration . . . is a nullity").                 In any event, we think it more reasonable  to  construe             the  Joint  Motion  as  a request for correction of an error             arising from oversight or omission, pursuant to Rule  60(a).              Rule  60  motions  can  be  brought  at any time, and do not                                          -7-            disturb a notice of appeal previously filed.   We  therefore             conclude  that,  because  the order was final and appealable             and the notice of appeal was effective, we have jurisdiction             and may proceed to the merits.                                        III                 Boston  Car  contends  that the district court erred in             holding that American Honda was not bound by the  recitation             of  its  market  plan  in  the  August  1985  LOI.   We must             determine whether the  district  judge  properly  considered             evidence  of  the  party's intent beyond the four corners of             the LOI, and if he correctly determined that the listing was             not a promise.  Our standard of review on these questions is             bifurcated.   "The  determination  of  whether  a   contract             provision  is  ambiguous  is  a  question  of law subject to             plenary review."  ITT Corp. v. LTX  Corp.,  926  F.2d  1258,                               _______________________            1261   (1st  Cir.  1991).   If  the  contract  provision  is             ambiguous, "a finding as to the meaning of a writing will be             reviewed   under   the  clearly  erroneous  standard."   Gel                                                                      ___            Systems, Inc. v. Hyundai Eng. & Constr. Co., 902 F.2d  1024,             ___________________________________________            1027 (1st Cir. 1990).                 The  document's denomination as a letter of intent does             not determine whether it was binding upon the  parties.   In             Massachusetts,  a  letter of intent is binding to the extent             the parties so  intend.   See  Schwanbeck  v.  Federal-Mogul                                       ___  _____________________________            Corp.,  592  N.E.2d 1289, ____ (Mass. 1992).  The parties do             _____            not dispute that the LOI was in some respects  binding.   We                                          -8-            are  asked  to  determine  here  only  whether  one specific             provision,  the  market  plan  listing,  was  promissory  or             informational.                 "Under  Massachusetts  law,  parol  evidence may not be             admitted to contradict the clear terms of an  agreement,  or             to  create  ambiguity  where  none  otherwise  exists."  ITT                                                                      ___            Corp., 926 F.2d at 1261.  However, we have recognized that:             _____                     in order to utilize extrinsic evidence  of                      the  parties'  intent,  a  court  need not                      invariably  find  facial  ambiguity.   The                      Massachusetts courts have said:                                               When   the   written   agreement,  as                           applied to the subject matter, is  in                           any  respects  uncertain or equivocal                           in meaning, all the circumstances  of                           the  parties leading to its execution                           may  be  shown  for  the  purpose  of                           elucidating, but not of contradicting                                        ________________________                          or changing its terms.                           ______________________                                               Keating v. Stadium Mgmt. Corp., 508 N.E.2d                      ______________________________                     121,  123 (Mass. App. Ct.), review denied,                                                  _____________                     511 N.E.2d 620 (Mass. 1987).                                 ITT Corp., 926 F.2d at 1264.             _________                Thus, the threshold question  is  whether  the  term  at            issue  is ambiguous, or at least uncertain or equivocal.  The            disputed provision of the LOI states:                     The primary  market  area  that  you  have                      applied  for  is  only  part of our market                      representation plan.  It is our  intention                      to  establish  additional Acura dealers in                      the  surrounding  primary  market   areas:                       Danvers,    Lexington,   Dedham,   Natick,                      Norwood and Norwell.                                On its face, the language appears clear:  American Honda  is            merely   stating   its   "intention"  to  establish  certain                                          -9-           additional dealerships.  On the other hand, the context  may            impart uncertainty.  The remaining provisions of the LOI set            forth a detailed list of binding conditions on the grant  of            the  dealership.   Moreover, the market plan roster is quite            specific, naming six particular towns where dealerships will            be  located.   On  balance, we are persuaded that Judge Wolf            did not err in considering parol evidence  with  respect  to            the  parties'  intentions for the purpose of elucidating the            terms of the LOI.                Considering the  language  of  the  provision  and  the            testimony  of  Carney and Budnick, Judge Wolf's finding that            the market plan listing was merely an expression of American            Honda's  present intentions rather than a binding promise is            not  clearly  erroneous.   As  just  stated,  the   language            supports  the  view that the provision is merely a statement            of present intention.  Indeed, the provision  states,  "[i]t            is  our  intention  .  .  .  ."   This  language  stands  in            conspicuous contrast to the other  provisions  of  the  LOI,            which are couched in promissory terms such as "we agree" and            "you shall."                Carney's own  testimony  confirms  this  understanding.             Carney conceded that he understood at the time he signed the            provision that the number and  location  of  dealerships  as            stated  in  the  letter  was  not irrevocably fixed, but was            subject to change  as  market  conditions  changed.   Carney            clearly  realized  that  the precise locations of the listed                                          -10-           points were subject to change:  he himself had  insisted  on            changing  the  location  of his original point, and three of            the four subsequently  filled  points  were  established  in            towns  other than those listed in the LOI, with no objection            from Carney.                Boston Car makes much  of  the  fact  that  Carney  and            Budnick  had extensive discussions regarding where the other            Boston area points would be  located  and  when  they  would            open.   Boston Car argues that these discussions demonstrate            the binding  nature  of  the  provision  setting  forth  the            points,  because  sophisticated  businessmen would not waste            their time  negotiating  a  non-binding  term.   An  equally            plausible  account,  however,  is  that  Carney  indeed  was            concerned about the number and location of the other  Boston            area  points,  that he and Budnick talked extensively on the            subject, but  that  ultimately  American  Honda,  which  was            unwilling  to  bind itself to an inviolable plan, prevailed.             In any event, the mere fact of negotiations  on  the  number            and  location of the Boston points does not persuade us that            the statement of intention regarding such points is binding.                                        IV                Boston Car also appeals  the  rejection  of  its  claim            under   Chapter  93B  of  the  Massachusetts  General  Laws.             Chapter 93B forbids the grant  of  a  new  franchise  by  an            automobile  manufacturer  or  distributor  "arbitrarily  and            without notice to existing franchisees."  Mass. Gen. L.  ch.                                          -11-           93B,     4(3)(l).   Notice  must be provided at least "sixty                          _           days prior to  granting  such  franchise"  to  all  existing            dealers  within  a  twenty-mile  radius  of the proposed new            franchise.  Id.  An existing  dealer  may  bring  an  action                        ___           under   this  section  to  challenge  the  grant  of  a  new            franchise, but only if it "first give[s] written  notice  of            its  intention  to  do  so . . . within thirty days from the            date on which it received notice of such intention to  grant            or   enter   into   the   additional  franchise  or  selling            agreement."  Id.  American Honda contends, and the  district                         ___           court  found,  that  Boston Car failed to give notice of its            intention to sue within thirty days of receiving word of the            new  Revere  franchise,  and  that  accordingly Boston Car's            statutory claim was barred.  Boston Car argues that it never            received  proper notice from American Honda of the intent to            grant the  Revere  franchise,  and  hence  could  bring  its            statutory  claim anytime before the franchise actually began            business.                The district court determined that American Honda's May            5,  1988, letter to Boston Car informing it of the execution            of an LOI for a new Revere dealership  was  the  statutorily            required sixty day notice.  It is undisputed that Boston Car            did not respond to this letter until  June  28,  1988,  well            past  the  thirty  day  limit for giving notice of intent to            sue.  Moreover, Boston  Car's  response  did  not  state  an            intention   to   sue,   but   merely  expressed  generalized                                          -12-           opposition to the Revere dealership.   If  American  Honda's            May  5  letter  was  effective  notice  of  the proposed new            franchise, therefore, Boston  Car's  Chapter  93B  claim  is            barred  by its failure to issue a timely notice of intent to            sue.                Boston Car argues that the  franchise  was  effectively            granted  by  the  LOI, and consequently the May 5 letter did            not provide sixty days notice of the new franchise.   Boston            Car contends that the LOI entered into with York amounted to            the grant of a franchise because it obligated American Honda            to  grant  a  sales  agreement  if York fulfilled all of the            listed conditions.3                                              ____________________             3    Boston Car suggests for the first time on  appeal  that             the  issue  of  whether  the  LOI constituted the grant of a             franchise within  the  meaning  of  Chapter  93B  should  be             certified  to  the  Supreme Judicial Court of Massachusetts.             We decline to certify this  question.   We  have  previously             noted  that failure to request certification in the district             court "considerably weakens" the case for  certification  on             appeal.   Fischer  v.  Bar Harbor Banking and Trust Co., 857                       _____________________________________________             F.2d 4, 8 (1st Cir. 1988).  We agree with the Eighth Circuit             that  "[t]he  practice  of requesting certification after an             adverse judgment has been  entered  should  be  discouraged.             Otherwise,  the  initial  federal  court  decision  will  be             nothing but a gamble with certification sought only after an             adverse decision."  Perkins v. Clark Equipment Co., 823 F.2d                                 ______________________________             207, 210 (8th Cir. 1987).  Boston  Car  does  not  cite  any                                         -13-                Chapter 93B defines a  franchise  as  an  agreement  in            which  a  manufacturer  or  distributor  grants  a  dealer a            license to use the  manufacturer's  trade  name  or  service            mark,  "and in which there is a community of interest in the            marketing of motor vehicles or  services  related  thereto."             We  conclude  that  this  definition  does not encompass the            relationship established by the LOI between  American  Honda            and  York.  The major premise of Boston Car's argument, that            the LOI obligated American Honda to enter into a  dealership            agreement  with  York,  is  fatally  flawed.   The  LOI  was            entirely contingent.  Significantly, it specifically  stated            that American Honda was not obligated to grant the franchise            if legal  problems  developed.   Although  American  Honda's            freedom  to  opt  out of a dealership agreement was somewhat            circumscribed by the LOI,  the  franchise  was  not  a  fait            accompli once the LOI was executed.  American Honda remained            free to decline  to  enter  a  dealership  agreement  if  it            appeared  that  establishment  of  a  new  dealership  would            violate Chapter 93B.                Boston Car cites Ricky Smith Pontiac v. Subaru  of  New                                  ______________________________________           England,  440 N.E.2d 29 (Mass. App. 1982), in support of its            _______                                              ____________________             compelling  reason  for certification.  There is no split of             authority,  the  words  of  the   statute   itself   provide             sufficient  guidance  that  our  decision will not be merely             conjectural, and we do not find  the  question  particularly             close.                                                               -14-           contention that the issuance of an LOI constitutes the grant            of a franchise within the meaning of Chapter 93B.  In dicta,            Ricky   Smith   states   that   section   4(3)(l)   "plainly            _____________                                  _           contemplates   written  notice  to  existing  dealers  of  a            manufacturer's or distributor's  intent  to  appoint  a  new            dealer   within  their  relevant  market  area  followed  by            discussion between the parties of the reasons which  warrant            the  appointment."   Id.  at  43.   According to Boston Car,                                 ___           unless notice is  given  before  the  LOI  is  issued,  such            discussions  will  be  reduced  to  an  empty formality.  We            disagree.  As already pointed out, the LOI  issued  to  York            expressly  conditioned the grant of a sales agreement on the            absence of any legal bar to establishment of the dealership.             Nothing  in  the  LOI,  therefore,  would forestall American            Honda  from  terminating  its   agreement   with   York   if            discussions  with  existing  dealers showed that Chapter 93B            would bar the grant of the Revere franchise.  Moreover,  the            notice  sufficiently  predated the projected opening date of            the Revere dealership to allow for  effective  negotiations,            with  both  York and existing dealers, on the exact location            of the new dealership, or other accommodations.  Discussions            engendered  by  the  notice  would not necessarily be futile            gestures.4                                              ____________________             4    We  need  not  decide  for  purposes  of  this   appeal             precisely  what  action,  event,  or  document  did or would                                         -15-                We also reject  Boston  Car's  argument  that  even  if            American  Honda's  letter  of  May  5  constituted effective            notice, American Honda was required  to  renew  that  notice            when  it  extended the projected opening date for the Revere            dealership from January  1989  to  January  1990.   American            Honda  never abandoned its plan to establish a Revere point,            nor was Carney ever given  to  understand  that  the  Revere            point  would  be dropped.  The existing dealers were already            on notice and had been  given  an  opportunity,  which  they            exercised,   to   protest  the  new  dealership.   Requiring            republication of the notice when opening of that  dealership            was delayed would serve no purpose.                This  case  is  readily  distinguishable  from  Smith's                                                                 _______           Cycles, Inc. v. Alexander, 219 S.E.2d 282 (N.C. App.  1975),            _________________________           upon  which  Boston Car also relies.  In Smith's Cycles, the                                                     ______________           distributor  served  notice  that  it  would  grant  a   new            dealership  on  or  before  a  certain date.  When that date                        ______________           passed, the notice lapsed by its  own  terms,  and  existing            dealers  were  entitled to assume that no new dealership was                                               ____________________             constitute the grant of  a  franchise  to  York  within  the             meaning  of  Chapter 93B.  We hold only that issuance of the             LOI was not the grant of  a  franchise,  and  that  American             Honda's  letter of May 5 satisfied its obligation to provide             notice of its intention to grant a franchise.   Accordingly,             Boston  Car's failure to comply with the notice of intent to             sue provision of Chapter  93B  bars  its  claim  under  that             chapter.                                         -16-           contemplated.  The distributor could not, therefore, rely on            the earlier notice when it opened a new dealership more than            a year after the date stated.                By contrast, American Honda's notice of intent to grant            a  Revere franchise stated that the new franchise would open            no earlier than January 1, 1989.  It did not state or  imply            _______________           that  if  the  new  dealership  did not open on that date it            should be considered abandoned.  The delays in  opening  the            Revere  dealership  did  not  require  republication  of the            notice.                For the foregoing reasons, the judgment of the district            court is                Affirmed.                _________                                         -17-
