
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1616                         FOUR CORNERS SERVICE STATION, INC.,                                Plaintiff, Appellant,                                          v.                                MOBIL OIL CORPORATION,                                 Defendant, Appellee.                                 ____________________        No. 94-1718                         FOUR CORNERS SERVICE STATION, INC.,                                 Plaintiff, Appellee,                                          v.                                MOBIL OIL CORPORATION,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Cyr, Circuit Judge,                                      _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________             David R. Schaefer, with whom Brenner, Saltzman, Wallman & Goldman             _________________            ____________________________________        was on brief for Four Corners Service Station, Inc.             Paul D. Sanson,  with whom Sheila Huddleston,  Shipman & Goodwin,             ______________             _________________   _________________        and Edward H. Beck, III were on brief for Mobil Oil Corporation.            ___________________                                   ________________                                    March 22, 1995                                   ________________                    CYR, Circuit Judge.  Four Corners Service Station, Inc.                    CYR, Circuit Judge.                         _____________          ("Four  Corners") appeals  a  district court  judgment under  the          Petroleum Marketing Practices Act,  15 U.S.C.    2801-2806 (1994)          ("PMPA"),  disallowing its  demands for compensatory  damages and          attorney fees against Mobil  Oil Corporation ("Mobil") for unlaw-          ful  nonrenewal  of Four  Corners'  franchise  agreement.   Mobil          cross-appeals the PMPA liability judgment entered against it.  We          affirm the district court judgment in all respects.                                           I                                          I                                      BACKGROUND                                      BACKGROUND                    Four Corners is a  retail gasoline distributor in Three          Rivers, Massachusetts.   Since 1926, Four Corners  had been party          to a series of renewable franchise agreements ("Agreements") with          Mobil, its exclusive gasoline supplier.  The Agreements obligated          Four Corners to purchase a specified minimum gallonage per annum,          and  also  set maximum  gallonage  limits  or so-called  purchase                         _______          "caps."  These caps  permitted Mobil to plan against  unpredicted          fluctuations  in  franchisee  demands  for gasoline.    The  caps          increased by ten percent each year to allow for normal franchisee          sales growth.                    In March  1987, Four  Corners discovered that  the soil          beneath its Three Rivers service station was severely contaminat-          ed with gasoline.   The Massachusetts Department of Environmental          Quality Engineering  ("DEQE") issued a notice  of responsibility,                                          3          citing six  underground gasoline storage tanks  installed by Four          Corners between 1942 and 1978 as likely sources of the contamina-          tion.  Four Corners promptly notified Mobil that the DEQE-ordered          remediation, involving the removal and replacement of the storage          tanks  and 250 cubic yards of contaminated soil, would require an          immediate and  indefinite closure of the  service station, during          which  Four Corners  would not be  able to meet  its minimum gal-          lonage  purchase obligations under the Agreements.  Over the next          several months,  Four Corners  repeatedly asked Mobil  for advice          and information on possible  methods for implementing and funding          the required remediation, but to no avail.                    Although  it  promptly   completed  the  required  tank          removal,  Four  Corners encountered  problems  arranging a  cost-          effective  method  for  disposing  of the  contaminated  soil,  a          prerequisite to  installing replacement  tanks and  reopening its          service station.  The estimated costs of transporting the contam-          inated  soil  to an  out-of-state  disposal  site ranged  between          $70,000 and  $100,000, but transporters would  not provide "firm"          cost estimates  without first reviewing DEQE site  reports.  DEQE          in turn would  not release  the site reports  until Four  Corners          signed  a final contract with a  transporter.  Consequently, Four          Corners  eventually decided  to "aerate,"  a natural  remediation          method  which achieves  decontamination on  site by  exposing the          soil to the open air for extended periods of time.                      In December  1987, Mobil  notified Four Corners  of its          decision not  to renew their  sixty-year-old franchise agreement,                                          4          effective in March 1988,  due to Four Corners' breach  of certain          terms of their  Agreements, specifically (1) its  failure to meet          the minimum gallonage provision; (2) its dilatory cleanup  of the          environmental contamination;  and (3) its closure  of the service          station for more than seven consecutive days.                      In March  1989,  Four  Corners  initiated  the  present          action in federal district court, alleging  that Mobil had wrong-          fully refused to  renew the franchise agreement, in  violation of          PMPA, 15 U.S.C.    2801-2806, for "reasons beyond [Four Corners']          control."   The complaint sought reinstatement  of the franchise,          actual and exemplary  damages, attorney  fees and costs.   Id.                                                                        ___          2805.                      In the  meantime, Four  Corners had opened  an expanded          and modernized service station at  the same site in late 1988              under new ownership and  management    which purchased its  gaso-          line  supplies from  British Petroleum  until December  1990, and          later  from Exxon.  In July  1991, Four Corners filed a voluntary          chapter 11 petition.                      Following a jury-waived trial, the district court found          that Mobil had violated  PMPA by refusing to renew  the franchise          based on a breach "beyond the reasonable control of the franchis-          ee."    Four Corners Serv. Station,  Inc. v. Mobil Oil Corp., No.                  _________________________________    _______________          89-30044-FHF (D. Mass. Dec.  2, 1993) ("Four Corners I").   Mobil                                                  ______________          did not prove that Four Corners actually caused the soil contami-          nation, that Four Corners had any choice but to close the station          under the mandatory DEQE remediation order, nor that Four Corners                                          5          unreasonably  failed to  take the  most expeditious  approach for          effecting soil decontamination.   Id.,  slip op. at  14-15.   The                                            ___          PMPA violation notwithstanding,  the district  court declined  to          grant reinstatement of the  franchise and addressed Four Corners'          request for a remedy at  law    recovery of lost profits  for the          projected ten-year residual term  of the Mobil franchise. Id.  at                                                                    ___          15.1   The parties were directed to submit supplemental briefs on          the right to recover lost profits.  Id. at 16.                                              ___                    For the  five-year period immediately  preceding trial,          Four Corners calculated the profits lost due to Mobil's  wrongful          nonrenewal at $356,099; it estimated  its future lost profits for          the  ensuing five-year  period at  $171,290.   These calculations          were  based  on  the  contention  that  Mobil's  greater  product          strength in Western Massachusetts would have enabled Four Corners          to sell 30% more  Mobil gasoline than it did  BP gasoline between          1988 and  1990, and  20% more  Mobil gasoline  than it  did Exxon          gasoline between 1991 and 1993.                    The  district court rejected  Four Corners' "lost prof-          its"  calculations.  It found  no evidence that  Mobil would have          permitted Four Corners to exceed  the annual purchase caps estab-          lished  in the Agreements.   Four Corners Serv.  Station, Inc. v.                                       _________________________________          Mobil Oil Corp., No. 89-30044-FHF, slip op. at 5-8 (D. Mass. Mar.          _______________          22, 1994) ("Four Corners II").   Moreover, Four Corners  actually                      _______________          succeeded in selling more BP and Exxon gasoline following Mobil's                               ____                                        ____________________               1As the  district court found  that Mobil  had not  violated          PMPA willfully, it denied  exemplary damages as well.   See infra                                                                  ___ _____          note 3.                                          6          nonrenewal  than it  could  have  sold  under the  maximum  Mobil          gallonage  limits  fixed by  the annual  caps.   Thus,  the court          reasoned, Four Corners experienced an increase in profits,  not a          reduction.   Id. at 8.2   Because Four  Corners proved no  actual                       ___          damages,  the court exercised  its discretion, under  15 U.S.C.            2805(d)(1)(C), and denied an attorney fee award.  On appeal, Four          Corners challenges  only the rulings denying compensatory damages          and attorney fees.3   For its part, the Mobil  cross-appeal chal-          lenges the district court finding that Mobil violated PMPA.                                           II                                          II                                      DISCUSSION                                      DISCUSSION          A.   Statutory Overview          A.   Statutory Overview               __________________                                        ____________________               2The court based its findings on the following evidence:                         Actual Sales   Potential      Franchise                         ____________                           (gallons)    Mobil Sales    Caps                                        ___________    ____               1989      1,100,892      1,431,159        824,602               1990      1,274,643      1,657,035        907,062               1991      1,083,253      1,299,904        997,767               1992        985,406      1,182,487      1,097,545               1993 (1st   185,335        222,402        301,825                quarter)               3Although the Four Corners' notice of  appeal alludes to the          district  court rulings  denying equitable  relief  and exemplary          damages, its appellate briefs do not challenge these rulings. See                                                                        ___          Licari  v. Ferruzzi,  22 F.3d  344, 349  (1st Cir.  1994) (claims          ______     ________          unaccompanied  by adequate  argumentation  are deemed  waived  on          appeal).  As concerns the former issue, therefore, we must assume          that Four  Corners concedes that an award of lost profits for the          projected ten-year residual franchise term, if proven, would have                                                      __ ______          afforded it  a full  and "adequate"  remedy at  law.   Cf., e.g.,                                                                 ___  ____          McDonald  v.  Piedmont Aviation,  793 F.  Supp. 75,  78 (S.D.N.Y.          ________      _________________          1992)  (plaintiff  waives  entitlement  to  equitable  relief  by          failing to appeal  earlier court ruling that damages  award would          confer an "adequate" remedy in lieu of equitable relief).                                          7                    Congress enacted PMPA to  avert the detrimental effects          on  the nationwide  gasoline  distribution system  caused by  the          unequal bargaining power enjoyed  by large oil conglomerates over          their service-station  franchisees.   See  generally  Veracka  v.                                                ___  _________  _______          Shell  Oil Co., 655  F.2d 445, 448  (1st Cir. 1981);  S. Rep. No.          ______________          731, 95th Cong., 2d  Sess. 17-19, reprinted in 1978  U.S.C.C.A.N.                                            _________ __          873,  875-77.   PMPA attempts to  level the playing  field by re-          stricting  the  grounds upon  which  a  franchisor  can assert  a          unilateral  termination or  nonrenewal of  a franchise.   Grounds          upon which  unilateral termination  by a franchisor  is permitted          under PMPA include (1)  "[a] failure by the franchisee  to comply          with  any provision  of  the franchise,  which provision  is both          reasonable   and   of  material   significance,"   15  U.S.C.              2802(b)(2)(A); (2) "[a] failure by  the franchisee to exert  good          faith  efforts to carry out the provisions of the franchise," id.                                                                        ___             2802(b)(2)(B); or (3) "[t]he  occurrence of an  event which is                            __          relevant to the franchise  relationship and as a result  of which          termination  of  the franchise  or  nonrenewal  of the  franchise          relationship is reasonable," id.   2802(b)(2)(C).  The failure of                                       ___          a  franchisee  to  operate   the  marketing  premises  for  seven          consecutive  days  may constitute  a  relevant  event under  PMPA            2802(b)(2)(C).    Id.    2802(c)(9)(A).    However,  unilateral                              ___          termination or  nonrenewal  is not  permitted under  PMPA if  the          failure to comply with  the terms of the franchise  agreement was          "beyond the reasonable  control of the  franchisee." Id.    2801-                                                               ___          (13).          PMPA also  allocates and shifts  burdens of  proof                                          8          between  the parties to the franchise agreement.  In a PMPA-based          action  for unlawful  franchise  termination  or nonrenewal,  the          franchisee bears the initial burden of proving that a termination          or nonrenewal occurred, at which point the burden of proof shifts          to the franchisor to demonstrate that the  termination or refusal          to renew was  based on  a legitimate ground  enumerated in  PMPA.          Id.   2805(c).          ___          B.   Liability: "Reasonable Control"          B.   Liability: "Reasonable Control"               ______________________________               1. Cause of Environmental Contamination               1. Cause of Environmental Contamination                  ____________________________________                    The Mobil cross-appeal  asserts two related  challenges          to  the district court ruling  on liability.   First, it contends          that there is  no record support for the  finding that the actual          cause  of  the soil  contamination  at the  Four  Corners service          _____          station remained  "unclear."  Four Corners  I,  slip op.  at  14.                                        _______________          Mobil notes  that Four Corners  was the only  gas station in  the          vicinity of the contamination; Four Corners had sole responsibil-                                                          ____          ity for maintaining the storage tanks and was the  sole target of          the DEQE  notice of  responsibility; Four Corners  concededly did          not comply with environmental statutes and regulations  requiring          periodic testing of its storage tanks for leakage, see Mass. Gen.                                                             ___          L. Ann. ch. 148,   10 (1994); Mass. Regs. Code tit. 527,    5.05,          9.01 to 9.24 (1983); and noticeable "wet spots" were found on the          outer  shell of  the  storage tanks  upon  excavation.   If  Four          Corners caused the  contamination, Mobil  argues, nonrenewal  was          not beyond Four Corners' "reasonable control."                                            9                    We review  the district court factual  finding on "rea-          sonable control"  and its  subsidiary findings on  causation only          for "clear error."  See, e.g., Roberts v. Amoco Oil Co., 740 F.2d                              ___  ____  _______    _____________          602, 608 (8th  Cir. 1984) (legislative  history of PMPA  suggests          that Congress intended to  favor franchisees by treating "reason-          ableness" determination  as an issue  of fact); Serianni  v. Gulf                                                          ________     ____          Oil Corp.,  662 F. Supp. 1020,  1024 (E.D. Pa.  1986); cf. Dedham          _________                                              ___ ______          Water Co. v. Cumberland Farms Dairy,  972 F.2d 453, 457 (1st Cir.          _________    ______________________          1992)  (causation in  environmental context  is question  of fact          subject to "clear error" review).  Reversal is warranted only if,          after  considering the entire record, we are left with the "defi-          nite  and firm  conviction  that a  mistake has  been committed."          Interstate  Commerce Comm'n  v.  Holmes Transp.,  Inc., 983  F.2d          ___________________________      _____________________          1122,  1129 (1st Cir. 1993) (quoting Anderson v. City of Bessemer                                               ________    ________________          City, 470 U.S. 564, 573 (1985)); see also Fed. R. Civ. P. 52(a).          ____                             ___ ____                    Significantly,  the  burden  of  proof  on  "reasonable          control"  lay with  Mobil,  not Four  Corners.   See 15  U.S.C.                                _____                        ___          2805(c).  On  appeal, Mobil  must point to  evidence that  fairly          compelled a finding that  Four Corners    and Four  Corners alone                                                                      _____              caused the  contamination.   See Reich  v. Cambridgeport  Air                                           ___ _____     __________________          Sys., 26 F.3d 1187, 1188 (1st  Cir. 1994) ("'Where there are  two          ____          permissible  views  of  the  evidence,  the  factfinder's  choice          between them cannot be clearly erroneous.'") (citations omitted).          Since it has not done so, we find no clear error.                    First, DEQE found no holes  in the tanks.  Nor did  the          "wet spots" constitute conclusive evidence of tank leakage, since                                          10          they could  have been  caused by contamination  emanating outside          the  tanks.   Four Corners  cited a  United States  Environmental          Protection Agency document which suggests that gasoline spills by          oil  transporters during  gasoline  delivery are  among the  most          ___  ____________          common  causes of soil contamination at service stations.  See 53                                                                     ___          Fed. Reg. 37087,  37090, 37133  (1988).  Finally,  the notice  of          responsibility  issued  by DEQE  rested  on  Four Corners'  legal          status  as  the current  owner/operator  of  the service  station          facility  for strict liability purposes only.  It did not purport                        ______ _________          to represent a  determination that Four  Corners caused the  con-          tamination.                    Likewise, the record evidence does not compel a finding          that Four Corners might  have averted the bulk  of the soil  con-          tamination  by more diligent testing of its tanks.  Mobil neither          produced  evidence as  to  when the  contamination occurred,  nor                    ________         ____          asserted that the environmental  "detection" statutes and regula-          tions  of  the 1980s  were retroactive.    Further, there  was no          evidence which  would exclude  leakage from other  pumping system          components (pumps,  hoses, pipes);  that is, leakage  which could          not  have been  detected by  testing the  tanks.   Finally, since          there was  no  evidence  that  Mobil investigated  any  of  these          matters before it  decided not  to renew the  Four Corners  fran-                  ______          chise, the district court might well have treated this contention          as  a post hoc rationalization.  See Desfosses v. Wallace Energy,                ____ ___                   ___ _________    _______________          Inc., 836 F.2d 22, 29 (1st Cir. 1987) (noting that PMPA notifica-          ____          tion requirements ensure that franchisor cannot invent after-the-                                          11          fact  justifications for  termination or  nonrenewal).   As Mobil          failed to meet its burden of proof on the factual issues underly-          ing  the  district  court  ruling on  "reasonable  control,"  the          finding stands.                                          12               2.  "Financial Inability" to Remediate               2.  "Financial Inability" to Remediate                    _________________________________                    Mobil likewise  challenges  the district  court  ruling          that  Four Corners lacked the financial  ability to remediate the          soil  contamination.  It contends that the ruling was infected by          legal  error, in that  the court  wrongly regarded  Four Corners'          financial inability to pay for out-of-state disposal, the costli-          er but more expeditious method of  remediation, as a circumstance          beyond the franchisee's  reasonable control.  If this  were true,          Mobil argues, any franchisee  who came upon hard times  and could          not afford  to pay  Mobil for its  oil purchases would  be exempt          from unilateral  termination.   See,  e.g., California  Petroleum                                          ___   ____  _____________________          Distribs.  v. Chevron  U.S.A.,  589 F.  Supp. 282,  288 (E.D.N.Y.          _________     _______________          1984); Cantrell v. Exxon Co., U.S.A., 574 F. Supp. 313, 317 (M.D.                 ________    _________________          Tenn. 1983).  Even  if we were to agree with the reasoning of the          two decisions  cited by Mobil, however, the district court simply          did  not find  that Four  Corners' choice  of a  less expeditious          remediation  program  was beyond  its reasonable  control because                                                                    _______          Four Corners could not afford more expeditious measures.  Indeed,          Four Corners itself adduced evidence that its then owner, Richard          Tenczar,  could have obtained financing for out-of-state disposal          if necessary.                      Mobil's contention is a  thinly veiled attempt to frame          the  present "clear error"  challenge, see  Roberts, 740  F.2d at                                                 ___  _______          608, as an issue of law subject to de novo review.  See  Cumpiano                                             __ ____          ___  ________          v. Banco Santander Puerto Rico, 902 F.2d 148, 154 (1st Cir. 1990)             ___________________________          ("The 'clearly  erroneous' rule  cannot be evaded  by the  simple                                          13          expedient of [the] creative relabelling . . . by dressing factual          disputes in 'legal' costumery.").  The central inquiry    that of          "reasonableness"    must be  undertaken in light of all  the cir-                                                              ___          cumstances.   In  that  vein, we  cannot  ignore  the  subsidiary          finding by the district court that Mobil  repeatedly ignored Four          Corners' pleas for guidance  and assistance on how best  to reme-          diate service-station  soil contamination.   See Four  Corners I,                                                       ___ _______________          slip op. at 14 ("Mobil offered  no assistance that was refused by          Four Corners which would evidence a lack of desire on the part of          Four  Corners to  remedy the problem  as expeditiously  as possi-          ble.");  cf., e.g., Malone v. Crown Cent. Petroleum Corp., 474 F.                   __   ____  ______    ___________________________          Supp.  306, 311  (D. Md.  1979) (upholding  franchise termination          where franchisee deliberately  failed to heed  franchisor's warn-          ings or  accept  its "good  faith" advice  about more  profitable          marketing strategies).  Four Corners was left entirely to its own          devices,  in the awkward position of having to determine the most          cost-effective  remediation  method,  which   involved  balancing          projected  future service-station revenue  losses occasioned by a          more  prolonged   closure,  against  the   unconfirmable      but          unquestionably higher     immediate  costs of a  more expeditious          remediation.  In these  circumstances, the district court reason-          ably could find that  Four Corners acted in good faith,  and that          Mobil's reticence to  assist was  prompted by its  desire to  rid          itself of the franchisee requesting its assistance.  As there was          no clear error, the liability judgment  against Mobil must stand.                                          14                                                    15          C.   Damages          C.   Damages               _______               1.  The Maximum Gallonage Provision               1.  The Maximum Gallonage Provision                   _______________________________                    Four Corners impugns  the district court's reliance  on          the  annual gallonage  caps as  the basis  for finding  that Four                                 ____          Corners lost no profits as a result of the nonrenewal.  It argues          that  the district  court was  required to predict  whether Mobil          would  have waived  the  caps in  each  successive year  had  the          franchise  not been wrongfully terminated in 1988.  It points out          that  a  Mobil manager  testified  that  Mobil had  an  "internal          mechanism" for authorizing  such waivers  where franchisees  have          renovated or expanded service stations in order to increase their          gasoline sales by more  than ten percent over the  previous year.          Consequently, Four Corners contends, were Mobil to have refused a          waiver  in these circumstances  its action would  have been arbi-          trary and discriminatory, in violation of PMPA.                    Normally, the plaintiff must bear the burden of proving          actual  damages.  See, e.g.,  Wells Real Estate,  Inc. v. Greater                            ___  ____   ________________________    _______          Lowell  Bd. of  Realtors, 850  F.2d 803,  816 (1st  Cir.) (citing          ________________________          cases), cert. denied, 488 U.S. 955  (1988).  Four Corners has not                  _____ ______          suggested that a different  burden allocation obtains under PMPA.          Therefore,  we assume that the  burden of proof  rested with Four          Corners.  A  challenge to  the district court's  findings on  the          actual amount  of  damages sustained  by  a claimant  presents  a          question  of fact, which we review only  for "clear error."  See,                                                                       ___          e.g.,  American Title Ins.  Co. v. East West  Fin. Corp., 16 F.3d          ____   ________________________    _____________________          449, 461 (1st Cir. 1994).                                            16                    The record evidence did not compel a finding that Mobil          would  have waived  the 1988-91  caps on  Four Corners'  gasoline          purchases.    Judy Schultz,  district  sales  manager for  Mobil,          testified that  Mobil imposed  these contractual caps  to protect          itself from  the considerable  expense which would  attend unpre-          dictable or unanticipated increases  in franchisee demand for on-          hand gasoline supplies.   She  further noted  that the  gallonage          caps automatically increased by ten percent per year.  A franchi-          see which wanted  a waiver of the cap would  need to obtain prior          approval  from  the general  manager  for the  Mobil  region, the          wholesale manager, and the district  sales manager.  When pressed          by Four Corners, however, Schultz testified that she did not know          of any Mobil franchisee which had actually obtained a waiver.                    Even assuming, arguendo, that  Four Corners' burden  of                                   ________          proof  could have  been sustained  by showing  that Mobil  had an          established "internal  mechanism" for  affording relief  from the          gallonage caps beyond the automatic  ten-percent annual increase,          and that Four Corners itself  met the criteria for such  a waiver          in  the years 1988-91, the  Schultz testimony fell  well short of          such a  showing.  It identified no  criteria, nor did it indicate          that any such waiver  procedure had ever been invoked,  either by                                              ____          Mobil  or  a franchisee.    Moreover, Four  Corners  proffered no                                                                         __          independent  evidence  that any  Mobil  franchisee,  let alone  a                                      ___          franchisee in  a position comparable  to Four Corners',  had ever          requested or been  granted any such  extraordinary waiver.   Cf.,                                                                       ___          e.g.,  Ewing v.  Amoco Oil  Co., 823 F.2d  1432, 1438  (10th Cir.          ____   _____     ______________                                          17          1987)  (noting existence  of factual  dispute whether  franchisor          offered   plaintiff  less   favorable   terms   than  its   other          franchisees); Valentine v. Mobil  Oil Corp., 614 F. Supp.  33, 39                        _________    ________________          (D.  Ariz. 1984)  (finding  no evidence  that franchisor  treated          plaintiff  differently  than  franchisor's   other  franchisees),          aff'd, 789 F.2d  1388 (9th Cir. 1986).  Thus,  there is no record          _____          evidence  even suggesting  that the  district court  finding that          Four Corners would not  have been granted a gallonage  cap waiver          constituted clear error.  See Four Corners II, slip op. at 8.                                    ___ _______________               2.  Lost Profits for 1992 and 1993               2.  Lost Profits for 1992 and 1993                   ______________________________                    Next,  Four Corners  contends that  it lost  profits in          1992,  and during the first  quarter of 1993,  when the gallonage          caps under its wrongfully  terminated Mobil franchise first began          to  exceed its actual Exxon gasoline sales or its potential Mobil              ______          gasoline sales.   See supra note  2.  For example,  in 1992, Four                            ___ _____          Corners could have sold  112,139 more gallons (viz.,  the differ-                                                         ___          ence  between its 1,097,545 gallon Mobil cap and its actual Exxon          sales of  985,406 gallons)  even assuming  that Mobil  refused to                                      ____ ________          waive its  cap.  Thus,  Four Corners  claims, it was  entitled to          recover these  discrete losses, which were  proximately caused by          Mobil's wrongful nonrenewal under PMPA.                    This  claim can succeed only  if the measure of compen-                                                                    _______          satory damages under PMPA  may exceed the level required  to make          ______                         ______          the plaintiff-franchisee whole for whatever injury or loss flowed                                   _____          from the franchisor's wrongful  conduct.  But cf., e.g.,  Linn v.                                                    ___ ___  ____   ____          Andover  Newton Theological Sch., 874  F.2d 1, 8  (1st Cir. 1989)          ________________________________                                          18          (noting  that plaintiff failed to suggest that either the ADEA or          contract law entitled him  to be made "more  than whole").   Four          Corners points to no  authority for this counterintuitive assump-          tion, nor  is there  anything in  PMPA's language or  legislative          history  to suggest that  Congress intended  to deviate  from the          normal presumption, uniformly applied to numerous other causes of          action arising under federal remedial statutes, that compensatory                                                               ____________          damages may not exceed  the amount necessary to make  the injured          party  whole.   See,  e.g.,  Midwest  Petroleum Co.  v.  American                 _____    ___   ____   ______________________      ________          Petrofina  Mktg., Inc., 644 F.  Supp. 1067, 1071  (E.D. Mo. 1986)          ______________________          (noting  PMPA franchisee  is  not entitled  to "double  recovery"          where it  has otherwise mitigated harmful  effects of defendant's          violation); see also Russo  v. Texaco Inc., 630 F. Supp. 682, 687                      ___ ____ _____     ___________          (E.D.N.Y.)  (PMPA is  a  diminution  of  franchisors'  common-law          contract rights, and its remedial provisions should not be unduly          extended beyond  statute's express language and  purpose), aff'd,                                                                     _____          808 F.2d 221 (2d Cir. 1986).                      Since Four  Corners  requested the  district  court  to          presume  that  its  sixty-year-old  Mobil  franchise  would  have          remained  in force  another ten  years but  for Mobil's  wrongful          nonrenewal, the court was required to determine the aggregate net                                                              _________ ___          profits  Four  Corners  would  lose during  the  entire  ten-year                                                           ______          period.  The record evidence  reveals that Four Corners  actually          realized an overall increase approximating $215,000, in total net                              ________          profits  and interest, as a consequence of having been freed from          the  Mobil  gallonage  caps  during the  five  years  immediately                                          19          preceding trial.4   Thus, the profits  allegedly lost in  1992-93          clearly were  not recoverable as  discrete losses over  and above          the incidental profits gained during the entire five-year period.               3.   Future Profits               3.   Future Profits                    ______________                    Four  Corners insists  that  the district  court simply          ignored  its claim  to  $171,290 in  future  lost profits.    See                                               ______                   ___          Thompson v. Kerr-McGee Ref. Corp., 660 F.2d 1380, 1388 (10th Cir.          ________    _____________________          1981) (future lost profits recoverable under PMPA), cert. denied,                                                              _____ ______          455 U.S. 1019 (1982);  cf. Wallace Motor Sales, Inc.  v. American                                 ___ _________________________     ________          Motor Sales Corp., 780  F.2d 1049, 1062 (1st Cir.  1985) (automo-          _________________          bile dealership entitled  to claim damages for  lost profits over          projected  life span of franchise).   Although Four Corners would          incur these  damages in  each future  year because the  gallonage          caps  would continue to  outstrip Four  Corners' actual  sales of          Exxon gasoline, or its  projected sales of Mobil gasoline,  until          1998, this claim too is flawed.                                         ____________________               4Assuming  constant retail prices  and operating  costs, the          following would approximate Four Corners' profits (losses) during          each of the five years immediately preceding trial:                    Change in      Estima-   Interest       Total                    Net Profits    ted Int-  on             Gain or                    as Mobil Sta-  erest     Profit         Loss                    tion with Rate                    Caps in Force           ___________________________________________________________          1988:    ($  1,004)      52%      ($    528)     ($  1,532)          1989:     $ 69,571       45%       $ 31,306       $100,877          1990:     $100,426       34%       $ 34,144       $134,570          1991:     $ 21,655       22%       $  4,764       $ 26,419          1992:    ($ 19,568)      10%      ($  1,956)     ($ 21,524)          1993:    ($ 22,872)       3%      ($    686)     ($ 23,558)          ____________________________________________________________          Total     $148,208                 $ 67,044       $215,252                                          20                    In  truth, the  district court  was fully  cognizant of          Four Corners' claim for future profits, as it explicitly acknowl-          edged  in its  opinion.   See  Four Corners  II, slip  op. at  3.                                    ___  ________________          Moreover,  the record  evidence discloses  that there  was little          likelihood  that Four  Corners  could have  remained in  business          until 1998.   Furthermore, there were serious deficiencies in its          forecasts of future lost profits.  See Levy v. FDIC, 7 F.3d 1054,                                             ___ ____    ____          1056 (1st  Cir. 1993) (appellate court  is free to affirm  on any          ground supported by record).                      Four Corners extrapolated its estimates  of future lost                                                                       ____          profits based on its performance during the two years immediately          preceding  trial; that  is,  it assumed  that Mobil's  refusal to          renew  its franchise was alone  responsible for the dismal profit          picture  during the time  Four Corners  was in  serious financial          straits and  selling Exxon gasoline.5   During the  first quarter          of 1993 alone, Four  Corners lost $47,754, compared with  a $107-          ,154 net  profit in  1990, this notwithstanding  the infusion  of                                          _______________          approximately $215,000 in profits and interest income which could          not have been realized  but for Mobil's termination of  the fran-          chise in 1988.  See  supra note 4.  Thus, Four  Corners projected                          ___  _____          continued future business operations  despite such severe  losses                                        ____________________               5The chapter 11 filing constituted an event of default under          the Agreements, see Agreement    24(B)(4), and may have  afforded                          ___          Mobil an independent basis for termination or nonrenewal in 1991.          Although it  is questionable whether  a franchisor could  rely on          such  an event to  cut off PMPA  damages if it  appeared that the                                                   __          franchisor wrongfully refused  to renew prior  to the chapter  11          petition,  thereby causing  the franchisee's  financial problems,                             _______          Four  Corners'  greater profits  in  the  years  1988-91 tend  to                          _______ _______          undercut such a causal connection.                                           21          as would make  its prospects for  continued operation until  1998                                                                _____  ____          highly speculative.  See  Midwest Petroleum Co., 644 F.  Supp. at                               ___  _____________________          1070 ("To  warrant a recovery  of lost profits,  the [franchisee]          must  present proof  sufficient to  bring the  issue  outside the          realm of conjecture, speculation or opinion unfounded on definite          facts.").                    Finally, even if Four Corners had been able to continue          in  business until  1998, its  claim to  $171,000 in  future lost          profits would be groundless given the record evidence that it had          already realized an aggregate net increase in profits and  inter-                                            ________          est approximating $215,000 during the five-year period immediate-          ly prior to trial.  See supra  note 4.  Accordingly, even if  the                              ___ _____          district court  had allowed  all speculative lost  future profits          claimed,  Four Corners  still would  have  realized approximately          $44,000 in aggregate net profits ($215,000 net increased profits,          less $177,000 future profits)  during the projected ten-year life          span  of  the franchise  following  Mobil's  wrongful refusal  to          renew.           D.   Attorney Fees Under PMPA          D.   Attorney Fees Under PMPA               ________________________                    Lastly, Four  Corners  challenges  the  denial  of  its          request for an attorney fee award against Mobil based on the PMPA          violation.  First,  it claims that  the district court's  factual          findings were inadequate under  Fed. R. Civ.  P. 52.  Second,  it          says that the district  court was somehow constrained to  allow a          fee award because Congress meant to encourage prevailing franchi-          sees to vindicate their rights under PMPA.                                           22                    A  denial of an attorney fee award is reviewed only for          abuse of discretion.  See Catullo v. Metzner, 834 F.2d 1075, 1085                                ___ _______    _______          (1st Cir. 1987).   Under PMPA, see 15 U.S.C.    2805(d)(1)(C), an                                         ___          attorney fee award is  discretionary where the plaintiff recovers          neither  actual nor exemplary damages.  Not only did Four Corners          sustain no  provable damages,  but the record  evidence indicates          that  it generated  approximately $44,000  more in  aggregate net          profits during  the projected  remaining life span  of the  Mobil          franchise  as a consequence of  having been freed  from the Mobil          franchise  gallonage  caps since  1988.    Four Corners  likewise          failed  to win  equitable reinstatement  of its  Mobil franchise.          Cf.  Chestnut Hill Gulf, Inc.  v. Cumberland Farms,  Inc., 749 F.          __   ________________________     _______________________          Supp. 331, 333 (D. Mass. 1990) (plaintiff which obtains equitable          relief under PMPA is  entitled to attorney fee award  even absent          recovery of actual or exemplary damages).                      Without in  any sense diminishing Mobil's  clear viola-          tion of  PMPA, we cannot  say that the district  court abused its          discretion  in  denying an  attorney  fee  award on  the  present          record.  Nor do we think  that Congress intended to compel attor-                                                              ______          ney  fee awards  under PMPA  as an  inducement to  franchisees to          pursue vindication in these circumstances.                    The  district court  judgment is  affirmed.   Costs are                    The  district court  judgment is  affirmed.   Costs are                    __________________________________________    _________          awarded to cross-appellee in appeal No. 94-1718.          awarded to cross-appellee in appeal No. 94-1718.          _______________________________________________                                          23
