               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit

No. 05-1728

              UNITED MUSICAL INSTRUMENTS USA, INC.,

                        Plaintiff, Appellee,

                                     v.

         GORDON MUSIC, INC. d/b/a GORDON LASALLE MUSIC,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

     [Hon. Charles B. Swartwood, III, U.S. Magistrate Judge]


                                  Before

                        Howard, Circuit Judge,

           Coffin and Campbell, Senior Circuit Judges.


     Stephen Gordon, for appellant.
     Michael R. Byrne, with whom Melick Porter & Shea, LLP was on
brief, for appellee.



                             April 11, 2006
            Per    Curiam.          Defendant-appellant       Gordon    Music,   Inc.

("Gordon") appeals from a judgment entered after a bench trial in

favor of plaintiff-appellee United Musical Instruments USA, Inc.

("United").       We affirm.

            Only the briefest summary of the facts is warranted.                   In

1998,    United,        a     manufacturer        and   distributor     of   musical

instruments, entered into a written agreement with Gordon, a seller

and lessor of musical instruments, by which Gordon agreed to be a

retail dealer of United's merchandise.                  All went well until 2000,

when United began experiencing difficulty collecting amounts due

from    Gordon.         Late      charges   accumulated,     the     possibility   of

returning merchandise for credit was unsuccessfully explored, sales

to Gordon ceased, and the Gordon account was placed in collection.

            In 2002, United filed a diversity action alleging breach

of contract (Count 1), violation of the Massachusetts Commercial

Code    (Count    2),       and   violation   of    the   Massachusetts      Consumer

Protection Act, Mass. Gen. Laws ch. 93A (Count 3).                     Gordon raised

a chapter 93A counterclaim, which alleged that United's practice of

giving larger discounts than Gordon received to a competing retail

dealer constituted an unfair and deceptive trade practice.                       At a

bench trial, United's comptroller (Thomas Lawdenski), United's

regional    sales       representative        (Joseph     Saravo),     and   Gordon's

president (Mark Gordon) testified.                      United also presented an

extensive record of invoices (paid, unpaid, and partially paid),


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shipping confirmations, credit memorandums, and payment records.

The presentation was rather one-sided; Mark Gordon admitted that

Gordon's relevant computer records had been automatically "purged"

and testified that other relevant records (including such basic

items as cancelled checks) had been lost or discarded.          Gordon's

basic defenses were that the parties' contract did not satisfy the

Statute of Frauds (no quantity of merchandise specified) and that

Gordon did not order or receive the disputed merchandise.           The

court found in favor of United on counts one and two and awarded

judgment in the amount of $259,148.16 (consisting of the amount of

the unpaid invoices, finance charges, and prejudgment interest).

The court rejected both sides' chapter 93A claims.

            On appeal, Gordon claims that the district court made

three errors: (1) holding that recovery was not barred by the

Statute of Frauds; (2) finding that the disputed goods and invoices

were actually sent by United and received by Gordon; and (3)

dismissing Gordon's chapter 93A counterclaim.       In assessing the

results of a bench trial, we review the district court's findings

of fact for clear error and its legal conclusions de novo.          See

Rational Software Corp. v. Sterling Corp., 393 F.3d 276, 276 (1st

Cir. 2005).

            We begin with the Statute of Frauds.   The district court

concluded     that   the   dealer   agreement,   confidential    dealer

information memorandum, and the invoices collectively satisfied the


                                    -3-
writing   requirement.       Gordon    did        not   challenge     this     legal

conclusion, even tangentially, until its reply brief.1                  This is too

late.     See    In   re   Gosselin,        276    F.3d   70,    72     (1st   Cir.

2002)(arguments not raised in primary brief are waived).                       Thus,

Gordon's only surviving challenge to this holding is a factual one

-- whether the invoices were actually sent and received -- which

duplicates Gordon's second issue on appeal, which we address next.

           Lawdenski and Saravo testified about how orders were

processed, goods shipped, and invoices generated and sent. Saravo,

who had serviced the Gordon account, also testified that Gordon had

not complained about being billed for merchandise it had not

ordered   or   received.    As   noted      above,      United   also    presented

abundant documentary evidence.         Significantly, the invoices that

Gordon had paid had been processed and documented in an identical

manner to the invoices Gordon did not pay.              Against this evidence,

Gordon offered little.      The district court expressed doubt about

Mark Gordon's credibility and specifically noted Gordon's "sloppy

and poor business practices." Mark Gordon also repeatedly conceded

that he could not tell if the disputed invoices were valid or not,

and he undermined Gordon's contention that merchandise had not been


1
 Gordon's arguments were primarily directed to the court's
alternative holdings on the Statute of Frauds issue (e.g., whether
the dealer agreement could be considered a requirements contract
and the effect of course of dealing). In light of the failure to
contest the court's primary holding, Gordon's presentation on the
alternative holdings is irrelevant. Cf. In re Miles, 436 F.3d 291,
294 (1st Cir. 2006).

                                      -4-
delivered with his testimony that he had sought to return a

significant quantity of United's merchandise for credit.          On this

record,   the   district   court's    finding   that   the   invoices   and

merchandise were sent by United and received by Gordon is not

clearly erroneous.     Cf. Narragansett Indian Tribe v. Warwick Sewer

Auth., 334 F.3d 161, 168 (1st Cir. 2003)(testimony that documents

were properly mailed with return addresses and not returned gives

rise to presumption that documents were received).

           Gordon's chapter 93A claim also merits little discussion.

In presenting this claim, Gordon focused on whether United had

engaged in an unfair or deceptive practice in granting a competing

dealer a larger discount. But, in addition to showing an unfair or

deceptive act, Gordon also had the burden of showing that it

sustained a loss of tangible property or money as a result of the

act.   See Arthur D. Little, Inc. v. Dooyang Corp., 147 F.3d 47, 56

(1st Cir. 1998)(construing chapter 93A).         Since Gordon does not

challenge the district court's conclusion that it had failed to

prove damages,2 Gordon could not prevail on this claim.         Cf. Eureka

Broadband Corp. v. Wentworth Leasing Corp., 400 F.3d 62, 71 (1st

Cir. 2005)(failure to show damages defeats conversion claim).

           Affirmed.



2
 Nor could Gordon make such a challenge, as the only evidence on
this point in the record is Mark Gordon's concession on the witness
stand that he could not prove any loss of any sort due to United's
alleged wrongful conduct.

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