          United States Court of Appeals
                      For the First Circuit

No. 13-1128

                      VFC PARTNERS 26, LLC,

                       Plaintiff, Appellee,

                                v.

       CADLEROCKS CENTENNIAL DRIVE, LLC and DANIEL CADLE,

                     Defendants, Appellants.




          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]




                              Before

                   Howard, Stahl, and Thompson,
                          Circuit Judges.



     David H. Rich, with whom Benjamin J. Wish and Todd & Weld, LLP
were on brief, for appellants.
     Armando E. Batastini, with whom Nixon Peabody LLP was on
brief, for appellee.


                        November 12, 2013
           STAHL, Circuit Judge.   This lawsuit concerns a dispute

between a borrower (along with its guarantor) and a lender over

various expenses associated with a foreclosure on a parcel of real

estate following a loan default. After a bench trial, the district

court entered judgment in favor of the lender.    For the following

reasons, we reverse in part.

                      I.   Facts & Background

           Defendant Cadlerocks Centennial Drive, LLC ("Cadlerocks")

is a Massachusetts limited liability company whose single asset is

a mixed-use commercial and industrial property located at One

Centennial Drive, Peabody, Massachusetts ("Property"). A warehouse

located on the Property, built in 1964, was occupied during the

time period relevant to this lawsuit by a daycare center and other

tenants.   Defendant Daniel Cadle ("Cadle") is President of The

Cadle Company, which is the sole manager of Cadlerocks.

           A.     The Original Loan and Cadlerocks's Default

           In December 1999, Cadlerocks entered into a loan with

lender Salomon Brothers Realty Corporation ("Original Lender") in

the principal amount of $1,925,000 ("Loan").     A Promissory Note

("Note") with an effective date of December 14, 1999, memorialized

the Loan. The Note was secured by a Mortgage, Assignment of Rents,

and Security Agreement ("Mortgage") on the Property, along with a

separate Assignment of Leases and Rents, Exceptions to Non-Recourse

Guaranty ("Guaranty") and an Environmental Indemnity Agreement


                                -2-
("Indemnity    Agreement"   or    "Agreement").         Cadle   executed     the

Guaranty in his personal capacity, and both Cadlerocks and Cadle

executed the Indemnity Agreement.

            The Original Lender conducted a Phase I Environmental

Site Assessment ("1999 Phase I") prior to the closing of the Loan,

which revealed the possible presence of tetrachloroethylene, also

known as perchloroethylene ("PCE"), on the Property.                    PCE is a

known carcinogen that is listed as a hazardous substance in the

Massachusetts   Contingency      Plan,    310   Mass.   Code    Regs.    40.1600

(2012).    The likely source was New England Carbide, a tenant prior

to Cadle's acquisition of the Property, who used a degreasing agent

containing PCE.    Instead of following the Phase I test with a more

comprehensive Phase II test, Cadlerocks decided to obtain an

environmental insurance policy naming the Original Lender as the

insured.     At trial, Cadle was unable to produce an executed,

authenticated copy of that policy.

            On August 21, 2000, the Original Lender assigned the

Mortgage and all related loan documents and agreements to Wells

Fargo Bank as Trustee for the registered holders ("Trust").                 ORIX

Capital Markets, LLC ("ORIX") was the special servicer of the Trust




                                    -3-
and acted pursuant to a Limited Power of Attorney.1        ORIX began

servicing the Loan in December 2009.

          The balloon balance due on the Note at its maturity date

of January 1, 2010, was $1,464,935. Cadlerocks failed to make that

payment, defaulting on the Note, although it continued making

payments on the interest and principal until August 2010.      During

that period, the parties discussed the possibility of a loan

modification.     After these discussions proved unsuccessful, the

Trust decided to commence foreclosure proceedings.

          B.       Environmental Testing on the Property

          Cadle offered a "deed-in-lieu," meaning a transfer of

title without recourse, in settlement of the Trust's claims prior

to foreclosure.    As part of ORIX's routine due diligence during

these negotiations, ORIX engaged EBI Consulting ("EBI") to conduct

a new Phase I test ("2010 Phase I"), which, like the 1999 Phase I,

revealed the possible presence of PCE on the Property.2    Because of



     1
       This Court granted ORIX and VFC Partners 26, LLC's Motion to
Substitute on July 24, 2013, substituting VFC for ORIX as
Plaintiff-Appellee as a result of an assignment of the Loan and
Judgment that are the subject of this appeal. For convenience,
however, we will continue to refer to ORIX as appellee throughout
the opinion, because ORIX was the loan servicer during the relevant
time period.
     2
        A Phase I test is a visual inspection of the Property and
review of the Property's history, including records of prior
environmental tests or government action related to environmental
hazards. The 2010 Phase I test did not definitively reveal the
presence of PCE on the Property, only the possibility of its
presence based on the past usage of New England Carbide.

                                 -4-
the results of the test, ORIX rejected the offer of the deed-in-

lieu, postponed the foreclosure sale, and sought the appointment of

a receiver.      Cadlerocks did not oppose the appointment motion, and

on    December      15,    2010,    the   district    court   appointed     Francis

Morrissey ("Receiver") to serve as receiver for the Property.

              Meanwhile, ORIX ordered EBI to conduct a Phase II test of

the Property, consisting of an integrity test of an underground

storage tank on the Property and a soil vapor investigation of the

exterior of the warehouse. The tank passed the integrity test, but

the soil vapor investigation identified the presence of PCE in the

soil outside of the building.             As a result, EBI recommended a test

of the indoor air quality of the warehouse.

              On March 20, 2011, Mark Germano, the Licensed Site

Professional ("LSP") overseeing EBI's testing, conducted a "grab"

test3 that detected PCE in concentrations of 1.65 micrograms per

cubic meter (µg/m³) in the portion of the building occupied by the

daycare center.           On March 23, 2011, ORIX notified the Receiver of

these results.       The Receiver immediately authorized EBI to perform

a    second   air    quality       test   and    retained   its   own   independent

environmental professionals, LSP James Young and attorneys McGregor

& Associates.        Young advised the Receiver that the result of the




       3
       A "grab" test detects whether hazardous substances are
present in the air, but does not determine the rate of exposure
over a period of time.

                                           -5-
March 20 grab test, even if accurate, did not represent an imminent

health or safety risk.

          Thereafter, on March 25, 2011, EBI conducted a second air

quality test, which revealed PCE in concentrations of 1.16 µg/m³.

The following day, the Receiver provided the daycare center with

Young's assessment of these results, which explained that "the

concentration[s] measured are two to five orders of magnitude below

available short-term guidelines and do not represent an acute

(short-term) risk.     To evaluate the risk of chronic (long-term)

risk, a more thorough investigation is required."

          In April 2011, Young walked through the building in an

effort to "better assess the possible origin of the PCE vapors."

He also conducted follow-up air tests to determine whether the

levels of PCE were hazardous over an extended period of time.         He

collected eight-hour samples on June 24, 2011, and twenty-four-hour

samples   on   July   9,   2011,   but   none   of   the   tests   showed

concentrations of PCE at hazardous levels.

          The Receiver sought reimbursement from Cadlerocks for the

expenses he incurred related to the 2011 environmental tests.

Cadlerocks did not respond, and the Receiver therefore requested

payment from ORIX.    ORIX agreed that the Receiver could draw down

on income and sales proceeds generated from the Property that

otherwise would have been applied to pay down Cadlerocks's debt.




                                   -6-
              There was no further testing until the fall of 2012, when

a prospective buyer insisted on more recent data than the previous

test results provided. At the Receiver's request, ORIX paid EBI to

conduct   a    new    round    of    tests.      These   2012    tests    included

groundwater testing, soil borings, and indoor air testing.                     No

testimony indicates that these tests revealed a hazardous level of

PCE.

              C.      Litigation

              On November 22, 2010, ORIX filed this lawsuit against

Cadlerocks and Cadle, alleging breaches of the various agreements

related to the Loan.          The district court partially granted ORIX's

motion for summary judgment on October 18, 2012, holding that Cadle

was personally liable for $33,438 in misappropriated rent.                     The

court held a three-day bench trial on the remaining claims on

December 18–20, 2012.          At the conclusion of the trial, the court

entered an order awarding ORIX $1,520 in damages related to the

condition of the property and $102,536 for expenses related to the

environmental        testing    on   the      Property   under   the     Indemnity

Agreement.     In a separate order, the court awarded ORIX $50,000 in

attorney's fees and $5,609.75 in costs.                  Appellants appeal the

award of expenses related to the environmental testing, and ask

this court to remand the award of attorney's fees and costs for

reconsideration.




                                        -7-
                               II.   Analysis

               The Indemnity Agreement provides in relevant part that

Cadle and Cadlerocks would indemnify the Original Lender and its

assignees and successors ("Indemnitees") "from and against all

. . . costs, . . . demands, . . . expenses" and other liabilities

"of any kind or nature whatsoever . . . sought from or asserted

against Indemnitees in connection with, in whole or in part,

directly or indirectly, . . . the presence, suspected presence,

release, suspected release, or threat of release of any Hazardous

Material" on or around the Property.4           It further specifies that

"[s]uch Liabilities shall include" seven particular categories of

liability, only one of which is arguably applicable here: "the cost

required to take necessary precautions to protect against the

release of any Hazardous Materials in, on, or under the Property,

the air, any ground water, waterway or body of water, any public

domain or any surrounding areas to the Property."

               The district court held that ORIX was entitled to recover

the majority of the costs associated with the environmental testing

under    the    Indemnity   Agreement.     ORIX   Capital   Mkts.,   LLC   v.

Cadlerocks Centennial Drive, LLC, 922 F. Supp. 2d 130, 137 (D.

Mass. 2013).       The court did not award ORIX the costs of the 2010



     4
       The Agreement also covers liabilities arising "in connection
with . . . the breach of any representation, covenant or agreement
of either of the Indemnitors contained in this Agreement." ORIX
has not claimed any such breach, however.

                                     -8-
Phase I, which ORIX conducted as part of its routine due diligence.

"Because ORIX would have conducted a Phase I regardless of any

previous knowledge of the presence of PCE at the Property, that

testing was not conducted in response to suspected environmental

hazards and thus is not covered" by the Indemnity Agreement.            Id.

But   it    held   Appellants   liable    for   the   remainder    of   the

environmental testing costs5 because the testing conducted after

the 2010 Phase I "was reasonable and necessary, particularly given

the Receiver's need to ensure that conditions were safe for the

occupants of the day care facility on the premises."         Id.

            Appellants argue that all of the costs for environmental

testing fall outside of the scope of the plain terms of the

Indemnity Agreement, while Appellee urges this Court to affirm the

district court's broad reading of the Agreement.           Neither party

argues that the Agreement is ambiguous, or attempts to introduce

extrinsic evidence regarding its interpretation.         Thus, the issue

before us is whether the district court correctly determined the

scope of the Indemnity Agreement.        "Contract interpretation, when

based on contractual language without resort to extrinsic evidence,

is a question of law that is reviewed de novo."       OfficeMax, Inc. v.

Levesque, 658 F.3d 94, 97 (1st Cir. 2011) (internal quotation marks

omitted).



      5
       These costs included both the testing itself and the fees
and expenses of the environmental consultant and attorneys.

                                   -9-
            Under Massachusetts law, we interpret contracts "in a

manner which will effectuate the intent of the parties."    Bukuras

v. Mueller Grp., LLC, 592 F.3d 255, 262 (1st Cir. 2010) (quoting

Kingstown Corp. v. Black Cat Cranberry Corp., 839 N.E.2d 333, 336

(Mass. App. Ct. 2005)).   "[T]he parties' intent must be gathered

from a fair construction of the contract as a whole and not by a

special emphasis on any one part."    Id. (internal quotation marks

omitted).   "'Words that are plain and free from ambiguity must be

construed in their usual and ordinary sense,' and the agreement

should be read 'in a reasonable and practical way, consistent with

its language, background, and purpose.'"     Id. (quoting Cady v.

Marcella, 729 N.E.2d 1125, 1129–30 (Mass. App. Ct. 2000)).

            In its findings of fact, the district court held that

Cadlerocks agreed to "indemnify the lender for all costs and

damages related to any 'suspected' or actual presence of 'Hazardous

Materials' at the Property."    ORIX, 922 F. Supp. at 132.      The

court's decision to deny ORIX relief for the 2010 Phase I, but

award it the costs for all subsequent testing, shows that the

district court interpreted the Indemnity Agreement as covering all

"reasonable and necessary" expenses "conducted in response to

suspected environmental hazards."     Id. at 137.   We believe this

interpretation of the Agreement is too broad.

            The district court's interpretation of the Indemnity

Agreement is erroneous in two respects. First, it overlooks the


                               -10-
term of the Agreement limiting coverage to those liabilities

"sought from or asserted against" the Indemnitees.       Second, it

ignores the sentence that limits coverage to certain specified

categories of liability.

          A.     Coverage Limited to Claims by Third Parties

          By its plain terms, the Agreement only covers liabilities

"sought from or asserted against" the Indemnitees.    Grammatically,

this phrase requires the existence of a third party imposing some

type of liability on the Indemnitees; ORIX cannot seek costs from

or assert claims against itself.      Therefore, any costs that ORIX

incurred on its own behalf, for its own purposes, do not fall

within the scope of the Indemnity Agreement.

          ORIX argues that "the Receiver plainly made demand upon

ORIX for all the costs and expenses related to the environmental

testing." This statement is only partially true. The Receiver did

not begin to seek any costs from ORIX or incur his own expenses

related to environmental testing until after he received the

results of EBI's tests on March 23, 2011.   Prior to that date, ORIX

ordered the tests from EBI and paid for them itself.      These were

costs that ORIX incurred on its own; there was no third party

seeking or asserting any liabilities against it. Thus, they do not

fall within the scope of the Indemnity Agreement.      The district

court therefore erred in awarding ORIX the costs associated with




                               -11-
the Phase II test and the subsequent grab test conducted by Mark

Germano on March 20, 2011.

              B.       Coverage Limited to Specified Liabilities

              The next question is whether the second sentence of

paragraph four (beginning "Such Liabilities shall include . . .")

functions as a limitation on the much broader preceding sentence,

or rather provides non-exclusive examples of certain types of

liabilities        covered.     The    district   court's   approach    to   this

question is unclear.          On one hand, it specifically found that the

Receiver's tests were "reasonable and necessary."                   The first

sentence of paragraph four does not require that the covered

expenses be necessary or reasonable.              The word "necessary" only

appears in subclause (iv) of the second sentence, which extends

coverage to "the cost required to take necessary precautions to

protect against the release of any Hazardous Materials" in or

around the Property. Thus, the district court appears to interpret

the second sentence as limiting the first, at least to some extent.

              But while the district court appears to have read the

second sentence as requiring the tests to be necessary, it did not

address whether the tests were necessary for the purpose specified

in subclause (iv): as a precaution against the release of hazardous

materials.     On appeal, ORIX argues that the second sentence "does

not   limit    the    scope    of     indemnification,   but   rather   expands

liability by defining certain specific instances wherein rights to


                                         -12-
indemnification attach."      Further, ORIX argues that even if the

second sentence does apply as a limitation, the tests conducted in

this case were necessary because of the undisputed presence of PCE

on   the   Property.   Appellants   argue    that    the    tests   were    not

necessary, because "there was never a recognized immediate threat

to public health at the Property."      They also ask us to define the

word "necessary" as it is used in the Comprehensive Environmental

Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§

9601–75.

             Neither party's arguments are persuasive.         The parties'

contract makes no mention of CERCLA as the defining touchstone for

the Agreement, and nothing in the Agreement provides that the

testing must be in response to an immediate public threat. But the

Agreement is not as broad as ORIX attempts to define it.

             We begin by holding that the second sentence limits the

terms of the first.     It is a well-established principle that "a

subsequent    specification   impliedly     limits    the    meaning   of    a

preceding generalization."     G. T. Schjeldahl Co., Packaging Mach.

Div. v. Local Lodge 1680 of Dist. Lodge No. 64 of Int'l Ass'n of

Machinists, 393 F.2d 502, 504 (1st Cir. 1968); see also McDowell v.

von Thaden, 2006 Mass. App. Div. 148 (Dist. Ct. 2006) ("Specific

and exact contractual terms are accorded greater weight than

general language."); 11 Williston on Contracts § 32:10 (4th ed.)

("Even absent a true conflict [between the general and specific


                                 -13-
provisions of a contract], specific words will limit the meaning of

general words" when the specific words are consistent with the

purpose of the agreement as a whole). This principle is applicable

here.

             Unless the second sentence operates as a limit, the first

sentence     would      expose     Appellants       to    liability         even   for

environmental      testing       that     was   completely        unreasonable     or

unnecessary.     The Receiver in this case acted responsibly, but had

he   ordered    tests    arbitrarily,       without      any    reasonable     basis,

Appellants would still be liable for those costs under ORIX's

reading of the Agreement, as long as the tests were at least

indirectly     related    to     the    suspected   presence       of   a   hazardous

material.      Nothing in the first sentence prevents such a result.

But we do not think that Cadlerocks and the Original Lender

intended this result when they negotiated the Agreement.                      "Common

sense is as much a part of contract interpretation as is the

dictionary or the arsenal of cannons [sic]."                   Bukuras, 592 F.3d at

262 (internal quotation marks omitted).                  It makes more sense to

read the second sentence as imposing reasonable limitations on the

first.

             We also note that the second sentence does not include

the typical language parties often use to introduce a list of non-

exclusive examples, such as "shall include but not be limited to,"

or "without limiting the foregoing, [the term] shall include."


                                         -14-
See, e.g., In re Complaint of Martin, 596 F. Supp. 2d 142, 153 (D.

Mass. 2009); Signet Elec. Sys., Inc. v. Taylor, No. Civ. 03-280-P-

C, 2003 WL 22948035, at *1 n.1 (D. Me. Dec. 9, 2003) (unpublished).

Although such language is of course not obligatory, its absence

does weigh against reading the second sentence as a list of non-

exclusive examples.

              We must determine, therefore, whether the Receiver's

expenses fall within the enumerated categories of liability listed

in the second sentence.       As we pointed out above, the only one that

is arguably applicable is subclause (iv).              Appellants are only

liable for the Receiver's expenses related to environmental testing

if those expenses were "required to take necessary precautions to

protect against the release of any Hazardous Materials."

              The test results that ORIX gave to the Receiver on March

23,   2011,    did   not   indicate   the    possibility   of   a   release   of

hazardous materials into the atmosphere (or anywhere else).

Instead, the testing indicated a detectible presence of PCE already

in the air, but at a level unlikely to pose a health threat to the

building's occupants.         And in fact, the amount of PCE detected

declined slightly in the second grab test that EBI conducted on

March 25, 2011.      No one testified that they understood any of the

test results as showing that a hazardous level of PCE was likely to

be released into the air.       There was never a point at which ORIX or

the Receiver took steps to prevent such a release.              Therefore, we


                                      -15-
cannot conclude that the tests conducted by the Receiver were

"necessary precautions to protect against the release of any

Hazardous Materials."

            Instead, the testimony and exhibits all indicate that the

purpose of the Receiver's additional testing was to confirm that

the known presence of PCE in the air was at a safe level, in order

to ensure the building was safe for the daycare center and to

facilitate the foreclosure sale.          The propriety of the tests for

that purpose is not actually in question.            It was undoubtedly

necessary for ORIX and the Receiver to ensure that the Property was

free from harmful contaminants before selling it.         The question is

how the Indemnity Agreement allocates the cost of those tests.

Cadlerocks agreed to indemnify "necessary precautions to protect

against the release of any Hazardous Materials."            The Agreement

does not extend to tests conducted for the purpose of confirming

the safety of tenants or attracting buyers in a foreclosure sale,

however necessary those tests may be. Accordingly, those cost fall

on ORIX.

            In sum, the cost of the tests that ORIX conducted prior

to March 23, 2011, falls outside of the scope of the Indemnity

Agreement   because   they   were   not    liabilities   "sought   from   or

asserted against" ORIX by a third party.         The Receiver's expenses

related to environmental testing fall outside of the scope of the

Agreement because they were not costs "required to take necessary


                                    -16-
precautions   to   protect   against   the   release   of   any   Hazardous

Materials."   Accordingly, we reverse the district court's order

awarding ORIX the costs associated with environmental testing.

                             III.   Conclusion

           For the foregoing reasons, we reverse the part of the

district court's order awarding costs associated with environmental

testing.   We award the costs of the appeal to Appellants.              We

remand the district court's order awarding costs and attorneys'

fees to ORIX for reconsideration in light of our decision.




                                    -17-
