
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-1822                               CUMBERLAND FARMS, INC.,                                      Appellant,                                          v.              MONTAGUE ECONOMIC DEVELOPMENT AND INDUSTRIAL CORPORATION,                                      Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            W. Mark  Russo  with whom  David A.  Wollin and  Adler, Pollock  &            ______________             ________________      _________________        Sheehan Incorporated were on brief for appellant.        ____________________            Debra L.  Purrington with whom Morse,  Sacks & Fenton, Martine  B.            ____________________           ______________________  ___________        Reed, and Brown, Hart, Reed & Kaplan were on brief for appellee.        ____      __________________________                                 ____________________                                    March 12, 1996                                 ____________________                      STAHL, Circuit Judge.   On September 21,  1990, the                      STAHL, Circuit Judge.                             _____________            Montague   Economic   Development    Industrial   Corporation            ("MEDIC"), after reaching impasse in negotiations to purchase            from  Cumberland  Farms,  Inc. ("Cumberland")  a  convenience            store  in Turner's Falls, Massachusetts, took the property by            eminent domain.  That same day, pursuant to Mass. Gen. L. ch.            79,   1,  the  order of taking was recorded, and as a result,            Cumberland's  ownership   rights   in   the   property   were            extinguished.  Mass. Gen. L. ch. 79,   3.                      Cumberland,  the owner  of hundreds  of convenience            stores  in   various  states,  objected   to  MEDIC's  taking            decision.      Cumberland's   legal   maneuvering,  and   its            bankruptcy, converted what  began as a simple  eminent domain            case into a six-year litigious war.                      We  summarize   briefly.     Initially,  Cumberland            demanded  pro tanto compensation  for the property,  but when            MEDIC  obliged,  Cumberland  rejected  its  offer  and  chose            instead  to contest the taking.  Cumberland initiated various            state  and federal court  actions, all designed  to frustrate            the taking and to deny  MEDIC possession.  Eventually, in May            of 1992, while still in possession of the contested property,            the Cumberland chain filed  for protection and reorganization            under  Chapter 11  of  the  Bankruptcy  Code,  which  further            delayed  MEDIC's gaining possession.   Suffice it to say that            none  of Cumberland's delaying actions had merit, and finally                                         -2-                                          2            on  September 3,  1993, nearly  three  years after  acquiring            legal  title,  MEDIC  obtained  physical  possession  of  the            premises.                      Previously, Cumberland had  commenced a state court            action objecting to the amount of MEDIC's original  pro tanto            offer and  claiming reimbursement for relocation expenses and            damages.   MEDIC  removed the  action  to the  United  States            Bankruptcy  Court for  the District  of Massachusetts,  where            Cumberland's bankruptcy case was pending.                      The  bankruptcy  court  found that  Cumberland  was            entitled to recover  from MEDIC $380,000 as  compensation for            the value  of the property and $36,850  for relocation costs,            reduced  by $137,250  for the  rental  value of  its use  and            occupancy  during  Cumberland's  holdover  on  the  premises,            therefore judgment was issued for the net amount of $279,600.            The court allowed MEDIC's rent claim, even though the eminent            domain statute  did not speak  to a taking entity's  right to            charge  reasonable rent during a wrongful holdover beyond the            date  when the  taken premises  must be  vacated.   The court            disallowed   Cumberland's   claim   for   interest   on   the            compensation payment, because Cumberland  could have accepted            the pro tanto payment  and obtained use of the funds  at that            time.  The decision of the bankruptcy court  was subsequently            affirmed by the United States District Court for the District            ofMassachusetts, and fromthat affirmance thisappeal followed.                                         -3-                                          3                      On   this  appeal,   Cumberland  argues   that  the            bankruptcy court  erred in  awarding MEDIC  fair market  rent            during  the  holdover  period  during  which  Cumberland  was            challenging  the  eminent  domain  proceeding,  erred  in the            amount of relocation damages awarded  to it, and erred by not            awarding  damages for  the  authority's  alleged  failure  to            provide timely and  adequate relocation assistance.   We find            that none of Cumberland's arguments on appeal merit extensive            consideration.1  We review the bankruptcy court's findings of            fact for  clear error  and subject its  rulings of law  to de            novo review.  T I Fed. Credit Union v. Delbonis, 72 F.3d 921,                          _____________________    ________            928 (1st Cir. 1995).                                       Discussion                                      __________                      We begin  with Cumberland's  claim that  it is  not            liable for the  use and occupancy charges that the bankruptcy            court awarded to MEDIC, an issue that we review de novo.  The            applicable  Massachusetts  eminent   domain  statute  allowed            Cumberland to  remain on  the premises for  a period  of four            months after it received the notice of taking.  Mass. Gen. L.            ch. 79,   8B.  Before exercising its possessory rights, MEDIC            was  required to  give  Cumberland  a  thirty-day  notice  to                                            ____________________            1.  Cumberland's notice of appeal included a complaint  about            the  court's  failure  to   grant  interest  to  it   on  the            compensation  awarded for  the  taking.   We deem  this issue            waived, as  Cumberland has not  referred to it in  its brief.            See, e.g., Willhauck  v. Halpin, 953 F.2d 689,  700 (1st Cir.            ___  ____  _________     ______            1991)  (issues not  fully presented  in  appellate brief  are            deemed waived).                                         -4-                                          4            vacate,  sent by registered  mail or posted  on the property.            Mass. Gen. L. ch. 79,  3.                      The  bankruptcy  court  found  that MEDIC  provided            notice of  the taking to  Cumberland on October 9,  1990, and            provided  thirty-day notice of  eviction on January  8, 1991.            Thus, MEDIC was  within its rights in requiring Cumberland to            vacate   the  property  by   February  13,  1991.     MEDIC's            counterclaim to Cumberland's petition for damages sought rent            for the  period from February  14, 1991, to August  30, 1993,            when MEDIC finally obtained possession.                      Although  the taking  statute  does not  address  a            holdover  occupant's liability for  the fair rental  value of            its  use  and  occupancy,  the  Massachusetts  regulation  on            relocation assistance appears to  contemplate charges for use            and  occupancy rent following a  taking, because it directs a            taking authority to inform a property owner of the rent to be            paid  during any  holdover period.  760  C.M.R.    27.03(13).            MEDIC, in its  January 8,  1991, notice  to vacate,  informed            Cumberland  that it would seek fair market rent if Cumberland            remained in possession.                      The   bankruptcy  court   ruled  that   Cumberland,            following its failure to vacate  as directed, became a tenant            at sufferance,  and as  a result MEDIC  was entitled  to rent            pursuant  to Mass. Gen. L. ch. 186,    3, which provides that            tenants at sufferance are liable  for rent during the  period                                         -5-                                          5            of  continued occupancy after  a demand for  the premises has            been  made.   It  also  found that  MEDIC's  claim was  fully            justified  under  a  theory  of  unjust  enrichment,  because            Cumberland's continued use  of the premises was  profitable.             Although we  find no decision  exactly on point,  the Supreme            Judicial  Court  in  Lowell  Housing  Authority  v.  Save-Mor                                 __________________________      ________            Furniture  Stores, Inc., 193 N.E.2d 585, 587 (1963), approved            _______________________            a taking authority's claim for use and occupancy charges from            a tenant who  remained in possession  after a public  housing            authority  took  the  property  from  the  landlord-owner  by            eminent  domain.   Cumberland  argues that  as  an owner  its                                                               _____            position  is  different from  that  of  a  tenant.   We  find                                                       ______            Cumberland's  argument  unconvincing, and  that  Cumberland's            wrongful holdover does not differ in any relevant regard from            that of the tenant in Lowell Housing.  See 193 N.E.2d at 587.                                  ______________   ___            Because we find that Lowell Housing is  apposite, we conclude                                 ______________            that the bankruptcy  court did not err in  awarding MEDIC the            fair rental value of Cumberland's continued use and occupancy            of  the premises.   Accordingly, we need  not consider unjust            enrichment, the second basis for the court's finding.                      Cumberland next  argues that  the bankruptcy  court            erred  in failing  to  grant all  of  its claimed  relocation            expenses, and  again our review  is de  novo.   Specifically,            Cumberland claims that the court erred in not finding that it            was  entitled to reimbursement  for the cost  of new gasoline                                         -6-                                          6            pumping  equipment  for  its new  location,  for  license and            inspection fees, and for the cost of certain physical changes            to its new location.                      We find no error in the bankruptcy court's award of            relocation  costs under  Mass. Gen.  L. ch.  79A,    7, which            provides  that a taking  authority must reimburse  a property            owner for:                      1. actual documented  reasonable expenses                      in  moving   himself,  his   family,  his                      business,   farm   operation,   or  other                      personal property;                       2.  actual  direct   losses  of  tangible                      personal property as  a result of  moving                      or  discontinuing  a   business  or  farm                      operation,  but not  to exceed  an amount                      equal  to  the reasonable  expenses  that                      would have been required to relocate such                      property, as determined by the relocation                      agency; and                      3.   actual   reasonable    expenses   in                      searching for  a replacement  business or                      farm.            Although  the bankruptcy court awarded payment for certain of            Cumberland's claimed relocation expenses as required by Mass.            Gen. L.  ch. 79A,   7, it denied Cumberland's request for the            costs  of obtaining  new  gasoline  pumps,  for  license  and            inspection fees, and for certain  physical changes to its new            facility.  Cumberland  urges that the  court erred in  ruling            these expenses were  not recoverable under Mass.  Gen. L. ch.            79A,    7 and,  in particular, the  implementing regulations,            760 C.M.R. 27.09(8), 27.09(13), and 27.09(14).  MEDIC's short            answer is that MEDIC is  a taking authority governed by Mass.                                         -7-                                          7            Gen. L. ch. 121C, and that the relocation payment regulations            that  Cumberland relies upon apply to authorities governed by            Mass. Gen. L. ch. 121A  and 121B, but not to 121C  agencies.2            See 760 C.M.R.  27.01(4) (listing activities and  entities to            ___            which  the relocation payment  regulations apply).   We agree            with  MEDIC, as  did the  district court,  and  conclude that            Cumberland is entitled  to reimbursement only as  provided in            Mass. Gen. L.  ch. 79A,   7, and not under the more expansive            provisions of 760 C.M.R. 27.09.3                      Finally,  Cumberland  claims  that  the  bankruptcy            court erred in ruling that MEDIC had fulfilled its relocation            assistance obligations to Cumberland.  We review this factual                                            ____________________            2.  The relocation assistance regulations, in contrast to the                               __________            relocation  payment regulations,  appear to apply  broadly to                        _______            all entities authorized  to take by eminent domain.   See 760                                                                  ___            C.M.R. 27.01(4).            3.  We  note that the  record contains documents  provided by            MEDIC to Cumberland that seem to promise reimbursement of the            types  of   expenses  that   the  bankruptcy   court  denied.            Cumberland's brief, however,  does not contain  any arguments            based  on estoppel  or  similar  theories.    Therefore  such            arguments,  whatever their  merit, are  waived.   See,  e.g.,                                                              ___   ____            Willhauck, 953 F.2d at 700.              _________                      We  have not considered any of the arguments raised            by Cumberland  in its  Motion for  Leave to  Present Rebuttal            Argument Pursuant to Local  Rule 34.1(b).  Cumberland  had an            opportunity to raise rebuttal arguments in a reply brief, but            chose  not  to submit  one.    Moreover,  Local Rule  34.1(b)            pertains  to oral rebuttal during the scheduled argument, and            does  not  provide  an opportunity  for  further  briefing of            issues after oral argument.                                          -8-                                          8            finding4 for  clear error,  and we find  no error,  let alone            clear error, in the bankruptcy court's denial of Cumberland's            claims   for  damages  due  to  MEDIC's  failure  to  provide            relocation assistance.                        Affirmed.  Costs to appellee.                      Affirmed.                      ________                                            ____________________            4.  Cumberland's  brief could  be read  to  suggest that  the            bankruptcy   court's  ruling  in  this  regard  was  a  legal            conclusion concerning an  earlier order of the  Massachusetts            Superior  Court.    Even though  Cumberland  has  not clearly            presented that argument,  a de novo review  of the bankruptcy            court's ruling would yield the same result: no error.                                          -9-                                          9
