
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-2095                         GEORGE LABARRE AND CHERLINE LABARRE,                                Plaintiffs, Appellees,                                          v.                       MERRILL J. SHEPARD AND THOMAS M. PARKS,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS               [Hon. Charles S. Swartwood, III, U.S. Magistrate Judge]                                                _____________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Timothy  G. Kerrigan with  whom Hamblett  & Kerrigan,  P.A. was on            ____________________            ___________________________        brief for appellants.            David V. Shablin with  whom Raymond J.  Reed and Reed & Reed  were            ________________            ________________     ___________        on brief for appellees.                                 ____________________                                     May 28, 1996                                 ____________________                      STAHL,  Circuit  Judge.    Merrill J.  Shepard  and                      STAHL,  Circuit  Judge.                              ______________            Thomas  M. Parks  appeal from  the  judgment against  them in            favor of George LaBarre  and Cherline LaBarre.  A  jury found            that   Shepard  and   Parks:  (1)  improperly   and  unfairly            foreclosed the mortgage they held on the LaBarres' residence;            (2) breached an agreement to avert the foreclosure; committed            (3) misrepresentation and  (4) fraud; and  (5) engaged in  an            unfair  trade  practice  in  violation   of  New  Hampshire's            Consumer Protection  Act.  On appeal, Shepard and Parks raise            two narrow issues:  first, that admission  of evidence of  an            alleged oral agreement, whereby  the LaBarres would deliver a            deed in lieu of foreclosure,  violated the Statute of Frauds;            and,  second,  that  the   damages  awarded  were  improperly            duplicative.     Disagreeing   with  the   appellants'  first            contention, but agreeing as to the second, we affirm in part,            reverse in  part, and  remand for  correction of the  damages            award.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                      On October 20, 1989, the LaBarres purchased a newly            erected house  and surrounding land in  Weare, New Hampshire,            from Shepard and  Parks, the builders.1   The purchase  price                                            ____________________            1.  This is a  unusual case.  The record reveals  a number of            anomalies in  the  underlying real  estate  transaction,  the            foreclosure  process, and  the  litigation in  the state  and            federal trial  courts.  Because none  of these irregularities            is material to the  narrow issues on appeal, we  merely point                                         -2-                                          2            was $229,000; the LaBarres paid $11,450 cash and gave Shepard            and  Parks  a promissory  note  in  the  amount of  $217,550,            secured by a first mortgage on  the premises.  No payments of            principal or interest were  due on the note until  either the            LaBarres sold certain other real estate or the passage of two            years from the date of the note's execution.2                      In  October 1990,  the  LaBarres  sued Shepard  and            Parks   in   New   Hampshire   state  court   for   defective            construction,  seeking recision and  money damages.   Shepard            and Parks counterclaimed for principal and interest allegedly            due on  the mortgage note.   After  a bench trial,  the court            denied recision,  but found defective construction that would            cost  $38,000 to repair.   Accordingly, on June  7, 1993, the                                            ____________________            them out in footnotes  to help the reader understand  the odd            posture of this case.            2.  The promissory  note, while  providing for a  deferral of            payments  for  up  to two  years,  did  not  provide for  any            installment payments  thereafter nor  for a  balloon payment.            The  parties, however, do not raise any issues concerning the            note and agree on the amount due thereunder.                                         -3-                                          3            court entered  judgment,3 deducting the cost  of repairs from            the mortgage balance.4                      In the summer of  1993, Shepard and Parks initiated            foreclosure  proceedings against the LaBarres for the balance            then  due  on the  mortgage note.5    A foreclosure  sale was                                            ____________________            3.  This judgment is impossible to decipher.  The state trial            judge  found that the LaBarres had "sustained their burden of            proof on their claim of damages" and "assessed" those damages            at  $38,000.    The  judge then  stated  that  "[d]efendants'            counterclaim is DENIED without prejudice to assert a separate            action, if necessary."  In spite of denying the  counterclaim            for the mortgage balance due, the judge did not make an award            of  money damages,  but  rather deducted  the $38,000  damage            award from the balance due on the note.  The judge went on to            present  "the correct  methodology  for recalculation  of the            promissory note," arriving  at a "[t]otal due under  terms of            promissory  note" of $239,729.   The decree ended:  "Judgment            entered in accordance with the foregoing."                      Inexplicably, both parties and the magistrate judge            consider  this to  be a  judgment for  Shepard and  Parks for            $239,729, when  the state court judge  expressly denied their                                                             ______            counterclaim.   We ignore  this problem, though,  because the            magistrate judge  ultimately used the state  court "judgment"            to  measure  the  proper  award on  the  mortgage  deficiency            counterclaim brought  by Shepard and Parks;  hence, there was            no  award on the state judgment itself.  Neither party raises            any question about the state court judgment on appeal.  Given            this  posture, we too shall refer to the state court mortgage            balance calculation as a "judgment," though it seems at  best            to be a finding of fact.            4.  The balance was recalculated as follows:            Original Principal balance on mortgage note      $217,500            less: Cost to repair defects                       38,000                                                               ______            Net principal due on mortgage note               $179,500            plus: Interest due on net principal as of 5/20/93  59,609                                                               ______            TOTAL DUE AS OF 5/20/93                          $239,109            Interest Per Diem:  $34.32            TOTAL DUE AS OF JUDGMENT DATE 6/7/93             $239,729            5.  The  record does  not  reveal whether  Shepard and  Parks            initiated  the foreclosure  proceedings  before or  after the            entry of the state  court judgment recalculating the mortgage                                         -4-                                          4            scheduled for September 22, 1993.  At some point prior to the            foreclosure sale,  Shepard  and Parks  obtained a  "drive-by"            appraisal that indicated a fair market value of $150,000, and            the LaBarres were informed of that appraisal.                      According  to  the  LaBarres,  their  lawyer orally            agreed  with  the  lawyer  for  Shepard  and  Parks that  the            LaBarres  would deliver a deed in lieu of foreclosure, and in            return,  Shepard and  Parks  would credit  the full  $150,000            appraised value of the property in determining the deficiency            owed under the  state court judgment.   In consideration  for            the agreement,  the LaBarres  allegedly  offered Shepard  and            Parks access  to their  home for  a more  thorough appraisal.            Shepard  and Parks  assert that no  such agreement  was made.            There is no written agreement, nor any other writing or notes            concerning the alleged oral agreement between the lawyers.                        The  LaBarres claim to  have been seeking financing            to  facilitate a bid on the property at the foreclosure sale,            but say  that they abandoned those efforts when the agreement            to deliver the deed  in lieu of foreclosure was reached.  One            day  before  the  scheduled foreclosure  sale,  however,  the            LaBarres received  a faxed  appraisal from Shepard  and Parks            indicating  that the  property was  worth only  $125,000, and            that  they would  give the  LaBarres credit  for 70%  of that                                            ____________________            balance.   Thus, it is unclear whether the foreclosure was an            attempt to collect on the judgment or the note; we will treat            it as a mortgage foreclosure on the note.                                         -5-                                          5            amount, i.e., $87,500 against the amount  due.6  The LaBarres            apparently rejected that offer, and the foreclosure sale went            ahead as scheduled.  The only bidders were Shepard and Parks,            who,  upon  the  advice  of counsel,  jointly  purchased  the            property for $87,500.                      Sometime later, the LaBarres paid Shepard and Parks            $17,500  to  obtain the  release  of  an  attachment  on  the            Labarres'  property  in  Massachusetts;  this  was  the  only            payment made  by the LaBarres  other than their  initial down            payment.                                         II.                                         II.                                         ___                                  Proceedings Below                                  Proceedings Below                                  _________________                      The  LaBarres  brought  this  diversity  action  in            federal district court in  Massachusetts, seeking redress for            the  refusal of Shepard and  Parks to honor  their promise to            accept, on terms acceptable  to the LaBarres, a deed  in lieu            of  foreclosure.    The LaBarres' complaint,  as amended, was            framed in  five counts: (I) unfair  and improper foreclosure,            (II) breach of contract, (III) intentional misrepresentation,            (IV) fraud, and (V) unfair and deceptive trade practice under            New Hampshire's Consumer Protection Act, N.H. Rev. Stat. Ann.                                            ____________________            6.  It is  unclear from  the  record, and  neither party  has            explained,  whether  the  credit was  to  be  applied  to the            outstanding  balance on  the mortgage  note or  to the  state            court judgment.  Given  the cryptic nature of  that judgment,            see supra note 3,  this lack of precision is  not surprising.            ___ _____            For simplicity, we will  speak in terms of credit  toward the            balance on the mortgage note.                                         -6-                                          6            ch.  358-A   ("RSA  358-A").    Shepard   and  Parks  brought            counterclaims  for  (I)  the  deficiency  on  the  foreclosed            mortgage  and  (II) the  judgment  debt  on the  earlier  New            Hampshire state court judgment.                        The  parties consented  to  a jury  trial with  the            magistrate judge presiding.   The magistrate judge determined            that the case was  governed by New  Hampshire law.  Prior  to            trial, Shepard  and  Parks moved  in  limine to  exclude  all                                              __  ______            evidence of  the alleged  oral agreement, which  they claimed            was barred by  New Hampshire's Statute  of Frauds, N.H.  Rev.            Stat.  Ann.    506:1  ("RSA  506:1")  (precluding actions  to            enforce  oral contracts  for the  conveyance of  land).   The            magistrate  judge  ruled that  the  statute did  not  bar the            LaBarres' breach  of contract  claim.   After the  trial, the            magistrate judge explained that, under New Hampshire law, the            Statute of Frauds did not bar a cause of action for breach of            an oral settlement agreement between attorneys.                      After a  three-day trial in March of 1995, the jury            found for the LaBarres  on all five counts.   Through special            interrogatories, the  jury specifically  found that  the fair            market value of the  property at the time of  foreclosure was            $170,000, and that Shepard and Parks breached an agreement to            accept a deed  in return  for credit of  $150,000 toward  the            LaBarre's  mortgage obligation.    The jury  also found  that            Shepard  and  Parks committed  an  unfair  trade practice  in                                         -7-                                          7            violation of the Consumer Protection Act, RSA 358-A, and that            the  LaBarres suffered actual damages of $82,500 as a result.            Although the jury was not asked how it arrived at that actual            damages   figure,  $82,500  is  the  difference  between  the            property's fair market value of $170,000 and the $87,500 that            Shepard and Parks bid at the foreclosure sale.  The jury also            answered that  the Consumer Protection Act  damages should be            trebled.7                      The magistrate judge directed a verdict for Shepard            and Parks on their counterclaims, and then ruled, in essence,            that the  mortgage balance  due, as calculated  in the  state            court judgment,  was the  proper measure  for a  single, non-            duplicative recovery, satisfying both counterclaims.8                                            ____________________            7.  In his memorandum of decision dated September 5, 1995,            the magistrate judge explained that, although he should have            decided whether to double or treble the Consumer Protection            Act damages rather than the jury, Shepard and Parks had            waived the issue.  Shepard and Parks raised no objection at            trial, and they now concede that the error has not been            preserved for appeal.  We express no opinion whether the            multiplication of damages under New Hampshire's Consumer            Protection Act is for the jury or the judge.            8.  The special interrogatory form indicated that Shepard and            Parks  were entitled to recover on  the state court judgment,            specifying that amount as $239,109; the actual calculation in            that  judgment  was  $239,729.    See  supra  note  4.    The                                              ___  _____            difference between  the two  figures is the  interest applied            for the period from  May 20, 1993  (apparently the date of  a            stipulated  interest calculation)  through June 7,  1993 (the            date of the state  court judgment).  Neither figure  includes            interest  from mid-1993  through the  March 1995  judgment in            this case.                      The parties,  however, do  not assert any  error in            the calculation  of the counterclaim recovery  by Shepard and            Parks.                                         -8-                                          8                      Recognizing that the claims for breach of contract,            misrepresentation,  and fraud  were, in  essence, alternative            theories  of  improper   foreclosure,  the  magistrate  judge            treated   Counts II, III, and IV  as subsumed in Count I, the            improper  foreclosure count.   Rather  than  awarding damages            outright  on Count  I, the  magistrate judge  implemented the            jury's  findings  on Counts  I  through IV  by  crediting the            LaBarres  with the full  fair market  value of  the property,            $170,000, in  calculating the amount due to Shepard and Parks            on their counterclaims.                      The magistrate judge then awarded treble damages of            $247,500 to the LaBarres on  Count V, the Consumer Protection            Act   count,   in   accordance  with   the   jury's   special            interrogatory answers.  The judge ruled that although Count V            was "based on the same factual allegations as were alleged in            each of  the other  four counts  of the LaBarres'  Complaint,            they  are entitled to  an independent recovery  under Count V            for  violation  of  the  New  Hampshire  Consumer  Protection            statute."    The  magistrate  judge also  awarded  costs  and            reasonable  attorney fees to the LaBarres, as provided in the            Consumer Protection Act.                      Shepard  and  Parks moved  for  a  new trial  under            Federal  Rule  of Civil  Procedure 59(a),  to  no avail.   On            appeal, Shepard  and  Parks  raise  two of  the  issues  they            asserted  in their Rule 59(a) motion.  First, they argue that                                         -9-                                          9            evidence  of  the alleged  oral  agreement  should have  been            excluded from  trial under  the Statute of  Frauds.   Second,            they maintain  that the award  of damages under  the Consumer            Protection  Act must be reduced by $82,500.  They assert that            the award  of full  market value  credit against  the balance            owed on  the mortgage note,  in addition to  trebled Consumer            Protection Act damages, constituted an improperly duplicative            recovery  because  all  the  counts were  based  on  the same            factual allegations.  In effect, they point out, the LaBarres            received a quadruple recovery, but were  entitled only to the            damages  under the  largest single  count, i.e.,  the trebled            Consumer Protection Act damages.                                         III.                                         III.                                         ____                                      Discussion                                      Discussion                                      __________            1.  The Statute of Frauds            _________________________                      The  same factual  allegation  underlies  all  five            counts: Shepard and Parks orally promised to accept a deed in            lieu of  foreclosure on terms acceptable to the LaBarres, but            then reneged on that agreement the day before the foreclosure            sale.   Shepard and Parks assert that New Hampshire's Statute            of Frauds  barred all testimony  and evidence of  the alleged            oral  agreement.   The  statute,  RSA 506:1,  provides:   "No            action  shall be maintained upon  a contract for  the sale of            land unless the agreement  upon which it is brought,  or some                                         -10-                                          10            memorandum  thereof, is in writing and signed by the party to            be charged, or by some person authorized by him in writing."                      Because the  magistrate judge awarded  damages only            on  Count  I (improper  foreclosure)  and  Count V  (Consumer            Protection  Act),   Shepard  and  Parks  recognize  that  the            judgment  was not based on enforcement of the contract.  They            argue, rather, that the "entire trial proceeding was tainted"            by  the  introduction  of  evidence of  the  oral  agreement,            requiring reversal.                      The  parties agree  that the  Statute of  Frauds is            applicable  on its  face to  the  oral agreement  in question            here.   They expend  much energy, however,  disagreeing about            whether  one or more exceptions to the statute apply in these            factual circumstances.   In  doing so,  the parties  miss the            real issue and misunderstand the operation of the Statutes of            Frauds.                        There  is no  need  here to  decide the  existence,            scope, or applicability of the asserted common-law exceptions            to  the Statute  of  Frauds (the  so-called "oral  settlement            agreement   between  attorneys"   exception  and   the  part-            performance  exception).   We  hold instead  that, under  New            Hampshire law,  the Statute of  Frauds is  only a bar  to the            enforcement  of certain oral contracts;  it is not  a rule of            evidence.   Evidence of the  oral agreement in  this case was            relevant  to  the   counts  alleging  improper   foreclosure,                                         -11-                                          11            misrepresentation,   fraud,  and  unfair  trade  practice  in            violation  of the Consumer Protection Act.  Shepard and Parks            raise  no claim that the Federal Rules of Evidence barred its            admission.  Thus, we find no reversible error.                      We find  clear guidance  in New Hampshire  caselaw.            The  New Hampshire Supreme Court held  in Munson v. Raudonis,                                                      ______    ________            387  A.2d 1174, 1176 (N.H. 1978), that the Statute of Frauds,            RSA  506:1, did not bar an action  for deceit even though the            oral promise  that was breached could not be enforced because            of  the lack  of a  writing.  In  reaching that  holding, the            Munson court expressly rejected  the argument pressed here by            ______            Shepard and Parks, i.e., that  evidence of the oral agreement            should  have  been  excluded because  the  four  non-contract            counts  were merely  a  back-door attempt  to circumvent  the            Statute  of Frauds.  The court in Munson reasoned as follows:                                              ______            "Barring an  action  in  deceit because  of  the  Statute  of            Frauds, however, would not further the policy of the statute.            Quite the contrary,  it would foster an injustice."   Id.  In                                                                  ___            our view, Munson embodies New Hampshire  law on the question,                      ______            and the argument raised by Shepard and Parks  must fail.  See                                                                      ___            also  Morgan v. Morgan, 47 A.2d 569, 571 (N.H. 1946) (Statute            ____  ______    ______            of Frauds did  not bar action  for misrepresentation even  if            agreement was unenforceable as a contract).                       The  Restatement (Second)  of  Contracts, a  source            often  relied  upon  by  the  New  Hampshire  Supreme  Court,                                         -12-                                          12            provides  additional support  for  this result.   See,  e.g.,                                                              ___   ____            Tsiatsios  v.  Tsiatsios, 663  A.2d  1335,  1339 (N.H.  1995)            _________      _________            (following  the Restatement);  Patch  v. Arsenault,  653 A.2d                                           _____     _________            1079, 1082  (N.H. 1995) (same); Simpson v.  Calivas, 650 A.2d                                            _______     _______            318,  327 (N.H. 1994) (same).  Section 143 of the Restatement            provides  that "[t]he  Statute  of Frauds  does  not make  an            unenforceable  contract  inadmissible  in  evidence  for  any            purpose  other  than  its  enforcement in  violation  of  the            statute."   Restatement (Second)  of Contracts    143 (1981).                        __________________________________            The  Comment  to  Section  143 explains  that  "the  Statute,            despite occasional  statements to the contrary,  does not lay            down a rule of evidence, and an unenforceable contract may be            proved for any legitimate purpose."  Id.   143 cmt. a.                                                 ___                      It  does not  matter  that  the magistrate  judge's            reason for  admitting evidence of the  alleged oral agreement            was his  conclusion  that a  purported  "lawyer's  settlement            agreement" exception (or alternatively,  the part-performance            exception) put  the agreement outside the  Statute of Frauds.            While we  are skeptical whether that  conclusion was correct,            we  can affirm the admission of evidence on any proper basis,            even  if the trial judge  relied on a  different ground.  See                                                                      ___            United  States v. Nivica, 887 F.2d 1110, 1127 (1st Cir. 1989)            ______________    ______            (no  reversal  where  trial   court  admits  evidence  on  an            incorrect  basis, if  properly  admissible for  same  purpose            under  different rule  of evidence),  cert. denied,  494 U.S.                                                  _____ ______                                         -13-                                          13            1005 (1990);  cf. Ticketmaster-New  York, Inc. v.  Alioto, 26                          ___ ____________________________     ______            F.3d 201, 204 (1st Cir. 1994) (appellate court free to affirm            the district court's judgment on any independently sufficient            ground manifest in the record).                      Because the  evidence of the alleged oral agreement            was  admissible  for  purposes   other  than  enforcing  that            agreement, i.e.,  to prove the four  non-contract counts, and            because the  breach  of contract  count  did not  affect  the            judgment,  there is  no  reversible error  in the  magistrate            judge's ruling on the applicability of the Statute of Frauds.            2. Duplicative Damages            ______________________                      The jury  found that the  fair market value  of the            LaBarres' property  was $170,000 at the  time of foreclosure.            As damages for Counts I through IV, the magistrate judge gave            the LaBarres  credit  for  the  full $170,000  as  an  offset            against the judgment  for Shepard and  Parks on the  mortgage            balance.  This placed the LaBarres in an even better position            than if they had delivered a deed in lieu of foreclosure  for            $150,000  credit,   as  the  parties  had  allegedly  agreed.            Shepard and Parks have not appealed the award of the $170,000            credit for Counts I through IV.                        Because Shepard  and Parks had bid  only $87,500 at            the foreclosure  sale, the $170,000 credit  is the equivalent            of  a damages award of  $82,500, placing the  LaBarres in the            position they would have been in if Shepard and Parks had bid                                         -14-                                          14            fair market value at the foreclosure.  There is no doubt that            this  award  made the  LaBarres  whole,  or  better, for  the            improper foreclosure.                      The  jury  also found  that  the  violation of  the            Consumer  Protection  Act by  Shepard  and  Parks caused  the            LaBarres actual  damages of  $82,500, which the  jury trebled            for an award of $247,500.  See RSA 358-A:10.  Because the net                                       ___            effect of the credit toward the mortgage was to award $82,500            above  the amount bid by  Shepard and Parks,  and because the            Consumer Protection  Act award  was for three  times $82,500,            the LaBarres  effectively enjoyed a quadruple  recovery.  The            magistrate  judge  opined  that the  Consumer  Protection Act            provided  an  independent recovery,  and  thus  there was  no            improper duplication.  Shepard and Parks assert that this was            error,  and that the Consumer Protection  Act award should be            reduced  by $82,500 to limit the net award to treble damages.            We agree.                      It  is evident  from the  record, and  the LaBarres            appear to concede, that  the damages under Count  I (improper            foreclosure) are based on the same factual allegations as the            damages under Count  V (Consumer Protection Act).   The award            on  Count I  (in which  all the  four common-law  counts were            subsumed)  was based  on the  $82,500 difference  between the            fair  value and  the  bid price;  the  same amount,  $82,500,            obviously reflecting  the same  difference  between the  fair                                         -15-                                          15            value  and  the bid,  was awarded  and trebled  (to $247,500)            under the RSA  358-A count.  Nonetheless, the  LaBarres argue            that  this  quadruple award  was  proper  because   they  are            entitled to an  "independent recovery" under  New Hampshire's            Consumer Protection Act.                      The  LaBarres, however,  point  to  nothing in  the            statute  or in  any New  Hampshire case  that  supports their            contention  that  the  Consumer  Protection Act  provides  an            "independent  recovery."   We  have  found  no New  Hampshire            authority directly on  point, but we  are confident that  New            Hampshire's Supreme  Court  would  follow  its  general  rule            against duplicative  recoveries and  would find the  award in            this case erroneous.   See Phillips v. Verax Corp.,  637 A.2d                                   ___ ________    ___________            906, 912  (N.H. 1994)  ("[T]he plaintiff  is not  entitled to            multiple  recoveries  for the  same  loss  merely because  he            alleged alternative theories of recovery."); Clancy v. State,                                                         ______    _____            185 A.2d 261, 263 (N.H. 1962) ("Duplication of damages should            be avoided."); Burke v. Burnham, 84 A.2d 918, 922 (N.H. 1951)                           _____    _______            (recovery  of  same  damages   under  two  causes  of  action            impermissible).   We  hold that  the award  in this  case was            duplicative, and  that the LaBarres' recovery  may not exceed            the treble damages  allowable under  the Consumer  Protection            Act.                      The  LaBarres argue  that a  Massachusetts decision            affirming a  damage award  under  the Massachusetts  Consumer                                         -16-                                          16            Protection Act, Mass.  Gen. L. ch.  93A, supports by  analogy            the magistrate judge's award  in this case.  The  cited case,            Multi Technology, Inc. v. Mitchell Management Sys., Inc., 518            ______________________    ______________________________            N.E.2d 854,  857 (Mass. App. Ct.), review  denied, 521 N.E.2d                                               ______  ______            398  (Mass. 1988),  does not,  however, provide  any support.            The   plaintiffs  in   Multi  Technology   received  Consumer                                   _________________            Protection  Act  damages  in  addition  to  contract  damages            because the separate counts entailed factually separate items            of damage.   Id.  The  plaintiff had agreed to  a reduced fee                         ___            based on the defendant's misrepresentations. Accordingly, the            court awarded the agreed amount as contract damages, and also            awarded the difference between  the plaintiff's standard  fee            and the  agreed-upon reduced  fee as Consumer  Protection Act            damages.  Id.  Here, there are no factually separate items of                      ___            damage, and the holding in Multi Technology is inapplicable.                                       ________________                      Contrary  to the  LaBarres'  assertions  and  their            misleading  citation  of  Multi  Technology,   the  quadruple                                      _________________            recovery in this case is clearly improper under Massachusetts            law, as well as  New Hampshire law.   In Calimlim v.  Foreign                                                     ________     _______            Car Ctr., Inc., 467 N.E.2d 443, 448 (Mass. 1984), the Supreme            ______________            Judicial Court held that  "[w]here injury is incurred because            of conduct which  comprises the elements  of any common  law,            statutory, or regulatory cause of action, and which is also a            violation  of  the  Consumer  Protection  Act,  recovery   of            cumulative damages under multiple counts may not be allowed."                                         -17-                                          17            The reasoning and  holding in  Calimlim would  unquestionably                                           ________            bar the cumulative  recovery in this case, where  the factual            allegations  and the  items of  actual damages  are identical            under  the common  law  and Consumer  Protection Act  counts.            Id.; see also Lexton-Ancira Real Estate Fund, 1972 v. Heller,            ___  ___ ____ ____________________________________    ______            826 P.2d  819,  822-24  (Colo.  1992) (en  banc)  (no  double            recovery for  violation of  Colorado Consumer  Protection Act            and  common law misappropriation  arising out of  same set of            facts,and collectingcaseswith similarholdingsin otherstates).                      To  recapitulate, we  hold  that the  LaBarres were            improperly awarded quadruple damages, when they were entitled            to no more than treble damages.                                         IV.                                         IV.                                         ___                                     Conclusion                                      Conclusion                                     __________                      For the foregoing reasons, the judgment is affirmed                                                                 ________            in part, and  reversed in part.   The damages awarded  to the            ______________________________            LaBarres  shall  be  reduced  by $82,500,  and  any  interest            awarded on the judgment  shall be adjusted accordingly.   The            case  is  remanded to  the magistrate  judge  for entry  of a            corrected damages award consistent with this opinion.                                         -18-                                          18
