Plaintiffs brought suit in this case claiming misrepresentation and violation of Mass. Gen.L. ch. 93A, § 11. For the reasons stated herein, we affirm the decision of the district court.
BACKGROUND
The parties stipulated to the following facts: Defendant Sun Oil Company, Inc. (R & M) (“Sun”) owned property located at 225 Brockton Ave., Abington, Massachusetts, (the “property”) from 1971 to 1979. In 1972, Sun built a gasoline station with underground storage tanks on the property and operated a retail gasoline station thereafter until November 1977. On or about December 19, 1974, a leaking underground pipe leading from the underground storage tanks to the pumps released approximately 2,000 gallons of gasoline. Sun’s regional manager of operations, Robert Laubinger (“Laubinger”), was on the property after the leak was discovered. On November 21, 1979, the plaintiffs, Roy Damon (“Damon”) and Eleanor Damon (together, the “Damons”), purchased the property from Sun for $90,000. The plaintiffs had a right to examine the property by terms of the Agreement of Sale. The Damons owned the property from 1979 to March 25, 1992 and operated a retail service station at the property from June 12, 1980 to January 31, 1991.
On January 31, 1991, the plaintiffs leased the property to K. Rooney, Inc. (“Rooney”). Since then, Rooney has operated a retail service station on the property. In November 1991, Rooney began upgrading the station by installing new pumps and Stage II of a vapor recovery system. As digging commenced, the Abington Fire Department observed petroleum product pooling in the surface excavations, shut down the construction *1471 and notified the Massachusetts Department of Environmental Protection (“DEP”). On December 19,1991, the DEP sent a Notice of Responsibility to the plaintiffs and Rooney, requiring that a Phase I Limited Site Investigation Report and Preliminary Assessment Report be completed. A company hired by Rooney performed the investigation and issued a report dated October 1992. As part of the Phase I investigation, monitoring wells were installed and samples of groundwater were taken and analyzed. As a result of the discovery of the pollution, Rooney refused to pay rent from November 1991 to March 1992. The lease agreement between plaintiffs and Rooney granted Rooney an option to purchase the property for $600,000. Rooney did not exercise its lease option. On March 25, 1992, Rooney purchased the property from the Damons by assuming a first mortgage in the amount of $275,000 and a second mortgage in the amount of $50,000. Rooney also made a cash payment of $20,000 to plaintiffs.
The district court’s additional findings of fact included the following. A rupture of an elbow joint in the pipe which connects the tanks and the pumps caused the 1974 spill, which closed the station for approximately six weeks. In June or July 1979, Damon attempted to reach Richard Bunzell (“Bunzell”), whose name was given on the “For Sale” sign at the station. After some unsuccessful attempts to reach Bunzell, a Sun telephone operator referred Damon to Laubinger, Sun’s regional manager for service station maintenance. The questions Damon asked Laubinger about the property included an inquiry concerning the age of the building, and whether Sun had experienced any problems with the station, particularly with the underground tanks. Laubinger knew of the 1974 spill, but did not reveal it. Rather, he answered that it was a “good station” which just needed to be run by a good operator to be successful. After his phone conversation with Laubinger, Damon contacted Bunzell and, after some negotiation, accepted his offer of $90,000. In late August 1979, Damon and Bunzell met at the property to view the property. Damon asked about a depression he noticed in the blacktop near the pumps and Bunzell explained it was caused by the installation of the first stage of a vapor recovery system. In response to Damon’s question of whether Sun had had any problems with the underground storage tanks, Bunzell stated, “No, we’ve had no problems with it. It’s all good.”
In 1980 Damon had the three 6,000 gallon underground gasoline tanks tested for tightness by Getty Oil, Co., his first gasoline supplier: they tested tight, as they did in May 1984 and again in January 1991. In 1992, no holes were observed in any of the underground gasoline tanks or oil tanks. The southern end of the pit dug around the three gasoline tanks yielded the highest level of contamination; 101 cubic yards of contaminated soil were eventually removed for off-site treatment. Finally, samples of contaminated water collected and examined by the company conducting the 1992 Phase I study indicate that the contamination contained the gasoline additive MTBE (“MTBE”), which was not added to Sunoco gasoline until 1984.
The Damons brought suit against Sun, alleging common law misrepresentation and violation of chapter 93A, § 11. The district court, after a four day bench trial, found for the Damons on both the misrepresentation and the chapter 93A counts, awarding them $245,000 plus reasonable attorney’s fees and costs. In its appeal, Sun now challenges the three rulings of the district court — its denial of Sun’s motion for entry of judgment at the close of plaintiffs’ case in chief, see Fed. R.Civ.P. 52(c); the district court’s judgment and findings pursuant to trial; and its denial of Sun’s post-trial motions to alter and amend the judgment and findings and for a new trial, see Fed.R.Civ.P. 59.
CAUSATION AND DAMAGES
A. The Legal Framework
The Damons charged Sun with the tort of misrepresentation, also referred to as fraud or deceit.
See Bond Leather Co. v. Q. T. Shoe Mfg. Co.,
must allege and prove that the defendant made a false representation of a material *1472 fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to his [or her] damage.
Barrett Assocs., Inc. v. Aronson,
Appellant questions the district court’s findings related to two of these elements: causation and damages. The causation element requires that the misrepresentation be a substantial factor in the plaintiffs actions, such that it “tend[s] along with other factors to produce the plaintiffs [harm].”
O’Connor v. Raymark Indus., Inc.,
“Following a bench trial, the court of appeals reviews the trier’s factual determinations for clear’ error, but affords plenary review to the trier’s formulation of applicable legal rules.”
Smith v. F.W. Morse & Co.,
[application of the legal cause standard to the circumstances of a particular case is a function ordinarily performed by, and peculiarly within the competence of, the fact-finder. The SJC has consistently held questions of causation to be for the factfinder.
Swift v. United States,
B. Causation
The district court found that the Damons met their burden of proving “by a preponderance of the evidence that the 2,000 gallon spill was a substantial factor in the DEP decision that a gasoline contamination sufficient to trigger 21E liability existed at the [property].” (District Court Findings of Fact and Conclusions of Law, at 8). Sun argues on appeal that the evidence that the district court relied on in finding that Sun more probably than not was a substantial cause of the contamination found in 1991 is insufficient as a matter of law, for three reasons. Upon review of the record, however, we find that the Damons met their burden of proof, such that the district court did not clearly err in finding that the causation element of misrepresentation has been met. *1473 We address, and dismiss, each of Sun’s arguments in turn.
First, Sun notes that the district court conceded that “it is unclear how much of the 2,000 gallons [of the 1974 spill] was recovered,” (District Court Findings of Fact and Conclusions of Law, at 9), and concludes from that statement that there was no evidence of what (if any) contamination found in 1991 actually dated to 1974. The fact that there was a release, without more, Sun argues, is insufficient to impose liability.
There is more, however: the district court found not only that there was a release, but also that the clean-up efforts at the time of the release were limited, at best.
Defendant’s remedial efforts in 1974 were not conducted for the purpose of ridding the property of contamination; rather, the goal was to make the [property] safe. To this end, the focus was on stopping the flow of gasoline onto the neighboring property — no effort was made to clean or remove contaminated soil on the [property] itself. From the Abington Fire Department records it is unclear how much of the 2,000 gallons was recovered. Presumably, the company hired by Sun to pump the trenches was pumping a mixture of gas and water, but no one knows the relative proportions or the total amount of mixture pumped.
(District Court Findings of Fact and Conclusions of Law, at 9). To suggest that the district court’s statement that “it is unclear how much of the 2,000 gallons was recovered” can be read to imply that it was all recovered is to misread the context of the statement.
Additional evidence the lower court found determinative in its finding of causation included the sheer size of the 1974 spill (2,000 gallons); the fact that Robert Cataldo (“Cataldo”), plaintiffs’ expert, testified that the underground pipe which ran from the pumps to the tanks created a channel along which the gasoline could flow from the rupture and settle under the tanks; and that no gasoline spills larger than 10 gallons occurred at the property between 1974 and 1992, during which time the Damons’ tanks periodically tested tight. Finally, the court also noted that “Cataldo testified, albeit hesitatingly, that in his opinion the 1974 spill was a substantial factor contributing to the contamination found at the [property] in 1992.” (District Court Findings of Fact and Conclusions of Law, at 10). Clearly, the evidence the district court relied on in finding causation goes beyond the simple fact that there was a release in 1974. Sun does not challenge any of these specific findings; indeed, our review of the record finds support for each.
In making its argument, Sun relies on
Providence & Worcester R.R. Co. v. Chevron U.S.A., Inc.,
Sun draws on Providence & Worcester as demonstrating that evidence of the 1974 spill, in and of itself, is insufficient to impose liability. That may be true, as far as it goes. The evidence in the present case, however, shows much more. As in Providence & Worcester, many years passed between the spills in the present case. However, the evidence is that the 1974 spill was not cleaned up immediately, as in Providence & Worcester. Rather, the fire department logs indicate that pumping did not start until two days after discovery of the leak on December 19, 1974: as late as February 4, 1975, more than a month after the leak was first reported, gasoline fumes were still being detected in the basement of an adjacent property. Thus, there was evidence in this case that the *1474 soil was contaminated by the 1974 spill. What is more, plaintiffs’ expert here did state that the 1974 spill was a substantial factor contributing to the 1991 contamination, as we discuss below.
Sun’s second attack on the sufficiency of the evidence focuses on the soil. In the face of the uncontested fact that the 1974 spillage was subsurface, due to a leaky underground pump, Sun contends that no evidence was presented that the soil was contaminated by Sun, or that Sun’s failure to clean up or remove soil was wrongful. In support of its position, Sun lists four pieces of evidence regarding soil testing. Firstly, it notes that soil samples taken in 1992 by consultants were spoiled, and never analyzed. While it is unfortunate that the samples were not analyzed, that fact simply shows we do not have all possible information: it does not shed any light, one way or the other, on whether the 1974 spillage contaminated the soil. Secondly, Sun points out that in 1979, Getty Oil commissioned a company to dig around the fill area above the storage tanks, and that the company never said anything to Damon about contaminated soil, but rather stated that the area was clean. However, Sun points to no evidence that the company was asked to do an examination of the soil for contamination: it was testing the tanks for tightness. Thus, the third fact Sun looks to for support, that Cataldo’s environmental company found contamination in 1992 around the same fill pipes that Getty Oil, in 1980, had told Damon were clean, is not as conclusive as Sun would like. Set against the Getty results is Cataldo’s testimony that the 1974 release was a contributing factor in the 1991 contamination. Finally, Sun notes that Cataldo testified that there was not much thickness of soil, such that “flushing” of the soil by rising and falling subsurface groundwater elevations would tend to reduce any iesidual contamination. However, Cataldo also testified that the on-site testing he conducted in four monitoring wells found volatile organic compounds (“VOCs”) which are constituents of gasoline in the groundwater. The constituents found in 1991, he stated, were similar to those of the 1974 release. As he stated in his testimony:
Q..... And based on your examination of the underground conditions at that [property] and the geology of the [property], and based upon the information of this 2,000 gallon spill in 1974, would you expect to find VOCs in the areas where you did find them in 1992?
A. Yes, I would.
Q. Is the presence of VOCs consistent with the topography and geology of that [property] and a spill in 1974?
A. Yes, it is.
(Day 2, page 76). On this record, we find that the evidence was sufficient to find causation. The evidence to which Sun points does not convince us otherwise, let alone that the district court clearly erred in making its finding.
Sun’s third and final argument that the evidence is insufficient to find causation focuses on Cataldo’s testimony. It is fundamental that “[e]xpert testimony must be predicated on facts legally sufficient to provide a basis for the expert’s opinion.”
In re Salvatore,
Sun points to a series of perceived flaws in Cataldo’s testimony. First, Cataldo attested that although methods exist which would quantify the amount of contaminants found in 1992 which were representative of the 1974 release, none were performed here. He agreed that he did not know how much gas was left on the property after the 1974 release, and that none of the work performed by his firm had to do with aging or dating the petroleum product found on the property. *1475 Nor did they test to determine what percentage of the gas found in 1991 was 1974 gas. After admitting that the ratios of the BTEX chemical constituents were indicative of a more recent — postAL980—release, Cataldo testified that he could not say “one way or the other” that the gasoline constituents encountered in 1992 were more probably than not the result of the 1974 release. Thus, Sun maintains, the best Cataldo could testify to at trial was that the property was insufficiently investigated to allow him to come to any ultimate conclusions concerning the contaminate sources; that since the 1974 release was the only known release, it at least partially caused the 1991 contamination; and that there was no way of apportioning what amounts, if any, of the 1991 contamination were attributable to Sun based on the work done to date. This opinion, Sun concludes, is insufficient as a matter of law.
We disagree. The issue is not whether Cataldo was right: but, rather, whether he had sufficient factual grounds on which to draw conclusions.
See Van Erode Group, Inc.,
A. Because the gasoline tends to absorb and holds in to some of the soil. It also fills up the pores between the soil and clings in to that. The [property] was paved, so that all the rain that falls in it doesn’t get a chance to percolate through, so you don’t have that complete flushing action that you would in an open field. Most of the rainwater probably channeled off, and that’s one of the purposes of blacktop. So it’s my opinion that there would still be some remnants of the gasoline remaining.
(Day 2, page 87). He later noted that biodegradation alone would not have removed contamination of the scale of 2,000 gallons over 18 years, and that there had been a reported release of four gallons subsequent to 1980, which would be sufficient to account for the levels of MTBE found. As the district court noted, his attribution of the contamination, at least in part, to the 1974 contamination, “has an additional earmark of trustworthiness because it was prepared for a third-party, Rooney, pursuant to an order of the DEP, and not in any way in anticipation of this litigation.” (District Court Findings of Fact and Conclusions of Law, at 11).
Cf. Venturelli v. Cincinnati Inc.,
In arguing that Cataldo’s testimony provides insufficient basis, Sun also relies on
Providence & Worcester
for the proposition that the Damons were “required to bring forth an expert opinion that the on-site activity on the subject property during Sun’s operation of gasoline station (1972-1977) was more probably than not a substantial factor in causing the contamination found on the property in 1992.” (Brief of Appellant, at 19). We disregard this argument, for two reasons. First, in
Providence & Worcester,
although the SJC found it significant that the railroad’s expert did not testify as to causation, the court specifically noted that it “[did] not say that expert testimony is required to establish causation in every soil contamination case.”
We note that the district court’s task of determining causation on this record was not an easy one. Nonetheless, “[w]hen the evidence supports conflicting inferences, the district court’s choice from among the several inferences cannot be clearly erroneous.”
Dedham Water Co.,
C. Damages and the Burden of Proof
The parties dispute who bore the burden of proof regarding whether the harm was divisible. The backdrop to their dialogue is the fact that the evidence indicates that Sun was not the only owner or operator of the property whose acts led to the 1991 contamination. As the district court stated, the presence of MTBE “compel(s) the conclusion that there had been a widespread release of gasoline at the [property] after 1984, when MTBE became common.” (District Court Findings of Fact and Conclusions of Law, at 10). Thus, there was at least one release of gasoline when the property was operated by Rooney or the plaintiffs. The Damons concede that the evidence and findings indicate that there was a post>1980 release of gasoline. At the same time, there was no evidence of a spill greater than 10 gallons, and the district court specifically found that during the time the Damons owned the property, no significant leaks occurred. 1
The Damons bear the burden of proving that tortious conduct by Sun caused them harm.
See
Restatement (2d) of Torts § 433B(1). They were required to produce evidence that it is more likely than not that Sun’s conduct was a substantial factor in bringing about the harm they suffered.
See id.
comment a (noting that “[a] mere possibility of such causation is not enough”). Sun argues that the Damons did not meet their burden of showing that Sun’s conduct substantially caused the harm they suffered. Accordingly, it maintains, the burden of identifying what other actors were also responsible for the harm and of allocating the harm (or showing that it was indivisible) remained with the plaintiffs, who did not fulfill that task. However, we have already established above that the district court did not err in finding that Sun’s conduct substantially caused the harm the Damons suffered. Therefore, the burden shifted to Sun, as did the cost of not meeting it.
See
Restatement (2d) of Torts § 433B(2) (“Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.”);
see also O’Neil v. Picillo,
SUFFICIENCY OF THE EVIDENCE
Sun challenges the sufficiency of the evidence, contending that the district court’s findings were clearly erroneous and highly prejudicial to Sun’s case in three instances. We examine such challenges to the district court’s factual findings for clear error.
See O’Brien v. Papa Gino’s of America, Inc.,
780
*1477
F.2d 1067, 1076 (1st Cir.1986). To demonstrate that the Damons did not meet their burden of proving misrepresentation by a preponderance of the evidence, Sun “must show that the verdict was against the great weight of the evidence, viewed in the light most favorable to [the Damons], or would work a clear miscarriage of justice.”
Cambridge Plating Co. v. Napco, Inc.,
A. The Alleged Representations
Sun first alleges that the alleged representations were opinions and not statements of fact. The distinction is a crucial one, as it is well established that the latter can ordinarily be the basis of a claim of fraud, but the former cannot.
See, e.g., Briggs v. Carol Cars, Inc.,
The district court held that It should have been clear from Damon’s questions [to Sun’s agents] that he was concerned about the past and future integrity of the entire underground gas delivery system; as Damon testified at trial, “the only thing you’ve got in a gas station is tanks and pumps and the lines. I mean, what else is there?”
(District Court Findings of Fact and Conclusions of Law, at 7 n. 1). Sun contends that there is no evidentiary basis for such a finding. Seeking support, it points to the district court’s statement during closing arguments that
the testimony that [Damon] had, that they told him it was a good station, is not significant in my view because that’s absolutely an opinion rather than a statement of fact.
(Day 4, page 15), and contends that by making this comment the district court essentially conceded that there was no evidentiary basis to find that the statements by the Sun employees were opinion. To the contrary, all this statement reveals is that the district court changed its mind as to the significance of the statements, which is certainly within its province to do. Indeed, that is the very mission of closing arguments: to convince the factfinder that a party’s view of the facts is correct.
Similarly, that Damon’s testimony about the conversations could be viewed as inconsistent, as Sun notes, is a question that addresses Damon’s credibility, not the district court’s finding. Credibility, of course, is an issue for the factfinder, and Sun has shown us no clear error in the district court’s judgment on the matter.
See O’Brien,
Our review of the record .leads us to affirm the district court’s finding that the statements were factual in nature. First, we note that the evidence supports the findings. The court found that Damon asked Bunzell if Sun had had any problems with the underground storage tanks, to which Bunzell responded that Sun had had “no problems with it. It’s all good.” (District Court Findings of Fact and Conclusions of Law, at 5). This is consistent with Damon’s testimony at trial. Bunzell’s testimony did not contradict him, since he stated in his affidavit, entered at trial, that he neither remembered the sale of the property nor recalled any discussion of it or the terms of the sale. The district court also found that although Laubinger knew about the 1974 spill — indeed, he visited the property at the time — he did not reveal the information to Damon. Instead, he responded to Damon’s questions about whether Sun had any problems with the station, particularly with the underground tanks, by stating “that it was a ‘good station’ which just needed to be run by a good operator to be successful.” (District Court Findings of Fact and Conclusions of Law, at 5). This was consistent with Damon’s testimony at trial. Laubinger testified that he did not recall having a telephone conversation with Damon *1478 or ever not telling anyone about the release in discussing the property, and the trial court was free to credit Damon’s more specific recollection.
Next, in discussing whether the Bunzell and Laubinger statements were opinions or fact, the district court noted that Damon’s questions were not just about the current conditions on the property. If they had been, their statements that it was a good station would presumably have been opinion. Rather, the district court specified that the questions also went to whether there had been problems in the station in the past of which Damon should be aware, with the underground tanks specifically. In that context, reading the record in the light most favorable to the Damons, we do not find that the district court erred in finding that the Sun representatives’ statements that it was a “good station” were factual. Indeed, we are hard put to see how, where there has been a spill of 2,000 gallons in 1974, which Sun knew of, statements five years later that it was a “good station” and that Sun had had “no problems with it” in reply to a question regarding the underground tanks are not misrepresentations of fact.
B. Evidence of the Elements of Fraud
Sun’s second contention is that the record contains no evidence of the key elements needed to prove fraud. First, Sun asserts that the statements by Bunzell and Laubinger were not misrepresentations of material facts, and thus the first element of the tort has not been shown.
See Barrett Assocs., Inc.,
Sun tries to fend off this conclusion by pointing out that “[sjellers . . are not liable in fraud for failing to disclose every latent defect known to them which reduces materially the value of the property and of which the buyer is ignorant.”
Nei v. Burley,
Sun also seeks support from the fact that Damon signed an agreement representing that he had inspected the property and would indemnify Sun from and against liability for violation of environmental laws. However, “Massachusetts ease law unequivocally rejects assertion of an ‘as is’ clause as an automatic defense against allegations of fraud.”
V.S.H. Realty, Inc.,
Sun challenges the evidentiary basis for a second element, that the party making the representation have knowledge of its falsity.
See Ba-trett Assocs., Inc.,
Relying on an Odometer Act case applying Georgia law,
see Huycke v. Greenway,
“[A] long line of [Massachusetts] eases [establishes] that ‘the charge of fraudulent intent, in an action for deceit, may be maintained by proof of a statement made as of the party’s own knowledge, which is false; provided the thing stated is not merely a matter of opinion, estimate or judgement, but is susceptible of actual knowledge; and in such a case it is not necessary to make any further proof of an actual intent to deceive.’ ”
Sperry,
Sun maintains that the district court failed to find that Sun intended the plaintiffs to rely on the misrepresentations.
3
Federal Rule of Civil Procedure 52(a) mandates that courts “find the facts specially and state separately [their] conclusions of law thereon” when trying facts without a jury.
See, e.g., Montañez v. Bagg,
C. Reasonable Reliance
Sun’s final attack on the evidence centers on the element of reasonable reliance.
See Elias Bros. Restaurants v. Acorn Enters.,
Sun points to the fact that the Damons had the right to inspect the property prior to sale and did not do so as vitiating any argument of reasonable reliance, especially given Damon’s acknowledged awareness of environmental issues. However, it is well established under Massachusetts law that “failure to investigate the veracity of statements does not, as a matter of law, bar recovery for misrepresentation.”
Bond Leather Co.,
Sun’s reliance on
Maloney v. Sargisson,
Whatever those alleged statements may be taken to mean, the Maloneys would not have relied upon them to their detriment so far as they might have borne on the capacity of the lot to pass soil tests____ Concerning that aspect of the land’s character, their affidavit discloses, the Maloneys made their own examination.
Id.,
Clearly,
Maloney
is distinguishable from the present case. There, the buyer specified in the agreement that it would make the tests, and did so. A district court had found that there was no evidence Sargisson knew or should have known of the existence of the problem, a finding which carried weight as prima facie evidence in the superior court and was not questioned by the Appeals Court.
Id.
at 300. There is no indication that Sargisson made a representation as to the status of the soil: rather, it is clear that the Maloneys relied on their own tests. Here, the questions went to the past history of the property, not just the present condition. In short, the reasoning in
Maloney
is based on a sufficiently different set of facts such that Sun’s reliance on it fails.
4
See Roadmaster Indus., Inc.,
D. Factual Conclusions
Sun makes the additional argument that the district court made factual findings, where the facts were controverted, without explaining the reasoning for its determination.
5
See
Fed.R.Civ.P. 52(a) (mandating that court “find the facts specially and state separately its conclusions of law thereon” when trying facts without a jury). “To satisfy the demands of Rule 52(a), a trial court must do more than announce statements of ultimate fact. The court must support its rulings by spelling out the subordinate facts on which it relies.”
U.S. for the Use of Belcon, Inc. v. Sherman Constr. Co.,
First, Sun questions the credence the district court placed in Damon’s testimony. Specifically, it argues that it should be provided with an explanation of why the court “disregarded the uncontroverted testimony of Mr. Damon that the station, the underground tanks, and the soil was ‘100% clean’ in 1980 when Getty examined the station.” (Appellant’s Brief, at 40). Sun’s phrasing twists the testimony: Damon testified that Getty told him the soil was clean, not that he knew it to be true. As we have already noted, Sun has not provided any evidence that Getty was in fact testing the soil: the district court specifically found that Getty was testing the tanks for tightness. The district court stated during closing arguments that it also did not consider that Damon had made an admission that the property was clean.
*1482
Sun also argues that the court had to explain why it chose the “version” of his story Damon told at trial, instead of what it deems “varying” earlier versions under oath, especially as regards what questions he put to the Sun representatives. Our review of the record does not indicate that Damon’s testimony at trial was so inconsistent with his earlier testimony as to constitute “ ‘unsupported self-serving testimony that flies in the teeth of unimpeachable contradicting evidence and universal experience.’ ”
Venturelli,
Lastly, Sun contends that the court did not provide an evidentiary basis for its conclusion, made in a footnote, that “it should have been clear” to Sun what Damon meant in his questioning. The findings here, however, are not like the inconsistent and contradictory findings in
Lyles v. United States,
CALCULATION OF DAMAGES
The district court calculated the damages for the tort claim as $245,000, the difference between the actual value of the Damon’s property if it was uncontaminated — $600,-000 — as the defendant’s representatives stated and the actual value of the property as contaminated — $325,000-—as measured when the plaintiffs sold the property to Rooney in 1992. 7 Sun does not contest the district court’s basic measurement, but argues that it should have set off specific monies against the purchase price, and should have accounted for the Damons’ obligation to mitigate damages. We disagree, for the following reasons.
First, Sun contends the value of the indemnity Rooney gave the Damons from and against all environmental liability, which it suggests is approximately $104,000, should have been set off against the purchase price. However, as the Damons point out, if Sun had not made the misrepresentation, the Damons would not be responsible to clean up the mess. Had the Damons cleaned up the property themselves, they would be entitled to reimbursement, and, presumably, the sale price of the property would have been higher: reducing the damages by the value of the indemnity would virtually reverse this process. Second, Sun argues that $40,000 should be taken off the damage figure, as the Damons did not give Rooney $40,000, as they were required to per their agreement, to defray costs of contamination. Again, if Sun’s representatives had not misrepresented the property’s condition, the Damons would not have owed that money to Rooney; if they had paid it to Rooney, it would have been added to, not offset against, the damages (and presumably would be reflected in the actual sale price). Third, Sun argues that $29,000 in back rent from Rooney should have been offset as well, since the Damons did not seek it from him. However, once again, the plaintiffs would not have lost that money without the misrepresentation. Also, according to paragraph 9 of the Agreement and Lease, Rooney was entitled to opt out of his lease if a governmental authority pre *1483 vented him from occupying or using the property as a gasoline station. Thus, it is unclear that Rooney did, in fact, owe the past rent.
Sun also argues that the Damons failed to mitigate their losses by not seeking back rent from Rooney. In light of the terms of the Agreement and Lease between Rooney and the Damons, the fact that the Damons were obligated to pay Rooney $40,-000, which they did not, and the subsequent sale of the property, we are hard put to accept them reasoning.
For the above reasons, the district court’s determination of damages is affirmed.
CHAPTER 93A CLAIMS
The district court found that Sun’s actions were “unfair or deceptive” and thus violated Massachusetts General Laws chapter 93A, section 11. At the same time, the lower court refused to award multiple damages under section 11, on the basis that “the evidence of bad faith or willful intent to deceive [was] insufficient to merit a punitive award.” (District Court Findings of Fact and Conclusions of Law, at 12). See Mass.Gen.L. ch. 93A, § 11 (allowing multiple damages if “the use or employment of the ... act or practice was ... willful or knowing”). Sun argues on appeal that the court erred in finding it violated chapter 93A, while the Damons contend that the court erred in refusing multiple damages. For the reasons discussed below, we affirm the district court’s finding that Sun was liable under chapter 93A, as well as its refusal of multiple damages.
A. Sun’s Liability Under Chapter 93A
1. Standard of Review
We begin our analysis by reciting our standard of review. The district court’s findings of law face
de novo
review, and its findings of fact engender clear error review.
See Industrial Gen. Corp. v. Sequoia Pacific Sys. Corp.,
2. The Legal Framework
The district court found that Sun’s actions were “unfair or deceptive” within the scope of chapter 93A. Section 11 provides a cause of action to
[a]ny person who engages in the conduct of any trade or commerce and who suffers any loss of money or property, real or personal, as a result of the use or employment of another person who engages in any trade or commerce of ... an unfair or deceptive act or practice----
Mass.Gen.L. ch. 93A, § 11;
see
Mass.Gen.L. eh. 93A, § 2 (establishing that “unfair or deceptive acts or practices in the conduct of any trade or commerce” are unlawful). Common law misrepresentation claims provide a basis for liability under section 11.
See, e.g., Sheehy v. Lipton Indus., Inc.,
Section 11 does not define what conduct rises to the level of an “unfair or deceptive” act.
See Cambridge Plating Co.,
*1484 a chapter 93A claimant must show that the defendant’s actions fell “within at least the penumbra of some common-law, statutory, or other established concept of unfairness,” or were “immoral, unethical, oppressive or unscrupulous”....
Id.
(quoting
PMP Assocs., Inc. v. Globe Newspaper Co.,
3. Sun’s Violation of Chapter 93A
In its challenge to the district court’s finding that Sun is liable under section 11, Sun maintains that its conduct was not “unfair or deceptive.” However, its argument on that basis is conclusory at best: Sun points to neither evidence in the record nor case law which would cast into doubt the district court’s factual determination on that point.
9
As neither Sun nor our review of the record provides us with grounds to find the district court erred, we affirm the lower court’s application of section 11.
See Schwanbeck v. Federal-Mogul Corp.,
Sun does look to
Winter Panel Corp. v. Reichhold Chems., Inc.,
Sun’s primary argument against the district court’s holding blurs the line between section 11 liability and multiple damages. 10 Specifically, it contends that since the district court apparently found Sun’s conduct was not willful and knowing, Sun cannot have engaged in common law fraud. Since it could not have engaged in fraud, it concludes, its conduct did not rise to the level of intentional *1485 misconduct, beyond mere negligence or inadvertence, that section 11 demands.
We disagree. As noted above, the district court refused to award multiple damages here on the basis that
[m]ultiple damages are not mandated when misrepresentation occurs. Only “callous and intentional violations” deserve multiple damages treatment. In this instance, we believe the evidence of bad faith or willful intent to deceive is insufficient to merit a punitive award of multiple damages.
(District Court Findings of Fact and Conclusions of Law, at 12 (citations omitted)). As Sun itself indicates, reading the district court opinion as finding that Sun was not at all knowing or willful is inconsistent with the first element of the
tort of
misrepresentation, i.e. that a party make a false representation with the knowledge of its falsity.
See Barrett Assocs., Inc.,
The case law supports this reading. In
VMark Software, Inc. v. EMC Corp.,
cited by the district court, the trial court found VMark guilty of misrepresentation, but did not grant EMC multiple damages under section 11. EMC claimed that the scienter requirement for the tort of misrepresentation automatically triggered section ll’s mandatory doubling of damages for a knowing violation of chapter 93A. The court disagreed, finding that although VMark’s misstatements were made with sufficient awareness of the facts for it to be liable under the traditional tort formula, “they were not made so ‘knowingly’ as to warrant the punitive sanctions of double damages under c. 93A.”
Id.,
4. Multiple Damages Under Chapter 93A
Paragraph 5 of section 11 provides for multiple damages where “the court finds that the use or employment of the ... act or practice was a willful or knowing violation.” The Damons argue that they should have been granted multiple damages, but do not contend that the district court should have found Sun’s violation sufficiently willful or knowing to require double damages.
11
Instead, they base their position on the premise that we should essentially read into section 11 the provision of section 9 which awards multiple damages for a defendant’s bad faith refusal to make a reasonable settlement offer after demand.
12
Their argument relies on
*1486
the fact that sections 9 and 11 share the goal of promoting reasonable settlement offers.
See International Fidelity Ins. Co. v. Wilson,
We have previously noted that “[i]t is unclear whether section 11 permits recovery of multiple damages under such a theory where bad faith is proved.”
Southworth Mach. v. F/V Corey Pride,
Our decision today does not clash with the SJC’s decision in
International Fidelity Ins. Co.,
despite the Damons’ reliance on it. There, the SJC weighed the goal of promoting reasonable settlements in both sections 9 and 11, and found that it would be appropriate to impose independent liability against the multiple defendants in that case, as to do so would promote settlements.
ATTORNEY’S FEES
The district court awarded the Damons $40,620.40 in attorney’s fees and costs. See Mass.Gen.L. ch. 93A, § 11 para. 6 (mandating reasonable attorney’s fees and costs be awarded where the court finds a violation of § 2). Sun argues that the award was not reasonable, on the basis that the hourly rates granted (specifically, the rate of $235 an hour for court appearances and depositions) were exorbitant and unreasonable, and the contingency nature of the engagement. Based on our review of the record, we do not find the court’s award unreasonable.
CONCLUSION
For the reasons discussed above, we find that the district court’s refusal of Sun’s motion for entry or judgment and motions to alter and amend the judgment and findings and for a new trial were not an abuse of its discretion. Having considered all the parties’ arguments, we find both appeals to be lacking in merit. Consequently, we affirm the decision of the district court on all points.
No costs on appeal to either party.
Notes
. Sun argues that the district court's factual findings are inconsistent. We disagree: the evidence at trial indicated that a spill as small as four gallons could account for the amount of MTBE present, and that Cataldo’s research found no record of any spills over ten gallons. The evidence leads to the inference that a spill made up of less than ten gallons, but which was nonetheless spread out (or several such spills), could account for the MTBE found.
. While the decision
Bond Leather Co. v. Q.T. Shoe Mfg. Co.
notes that, contrary to Sun’s contention, an intent to deceive need not be proven, it also reads
Sperry
as requiring an "intent that
*1480
the plaintiff rely on the challenged false statements.”
. Sun contests that the district court’s statement that “it should have been clear from Damon’s questions that he was concerned about the past and future integrity of the entire underground gas delivery system” (District Court Findings of Fact and Conclusions of Law, at 7 n. 1), implies that Sun did not in fact know what Damon asked about, and so no intent is demonstrated on this record. However, we refuse Sun’s invitation to read this implication into the district court’s statement, especially as, in its findings of fact, the district court specifically found that Damon had asked each of the representatives about past conditions, particularly regarding the underground tanks.
.Sun's reliance on
Rhode Island Hasp. Trust Nat'l Bank v. Varadian,
. Sun also contends that several of the district court's findings were irreconcilable and contradictory. As we address those allegations elsewhere in the opinion, we do not discuss them here.
. Two of Sun’s contentions, that the district court’s findings are insufficient as to intent and reliance, and that it did not adequately address the factual basis for Cataldo’s exert opinion on the property's condition, have been addressed elsewhere in the opinion.
. Adopting the sale price suggested by Rooney's gasoline supplier, the district court found the fair market value of the property if it had been not been contaminated to be $600,000. It took the actual sale price as the measure of the value of the property as contaminated: Rooney assumed the $325,000 of the Damons' first and second mortgages, $10,000 in arrears, and made a $20,-000 cash payment, for a total of $355,000.
. The Damons argue that in
Massachusetts Employers Ins. Exch. v. Propac-Mass, Inc.,
. Sun does cite to evidence that Damon was a businessmen who had sold gasoline and used underground storage tanks for some thirty years prior to buying the property, but only to maintain that the court must apply a "heightened standard of an unfair or deceptive act or practice.” We remind Sun that "Sophistication of the parties is not mentioned in chapter 93A and the amendment of chapter 93A to cover business entities did not limit the statute's protection to small, unsophisticated businesses."
V.S.H. Realty, Inc. v. Texaco, Inc.,
. Sun also makes the circular argument that if its conduct amounts to negligence, it has not met the requirement of rascality needed for section 11, since negligence cannot be the basis for a section 11 violation. To the contrary, negligence can provide the basis for chapter 93A liability, so long as it is paired with an unfair or deceptive act or practice — in other words, negligence plus rascality equals liability.
See Squeri,
. In their statement of conclusions, the Damons do posit that we should conclude that the district court’s indication that Sun was guilty of some level of bad faith or willful intent to deceive suffices to require multiple damages under section 11, para. 5. However, as they offer no support for this contention, we deem it waived.
See United States v. Zannino,
. That section, provides, in pertinent part:
Any person receiving ... a demand for relief who ... maltes a written tender of settlement which is rejected by the claimant may, in any *1486 subsequent action, file the written tender and an affidavit concerning its rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner. In all other cases, if the court finds for the petitioner, recovery shall be ... up to three but not less than two times [actual damages] if the court finds that ... the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated said section two.
Mass.Gen.L. ch. 93A, § 9(3). By comparison, section 11 states, in pertinent part:
The respondent may tender with his answer ... a written offer of settlement for single damages. If such tender or settlement is rejected by the petitioner, and if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner, then the court shall not award more than single damages.
Mass.Gen.L. ch. 93A, §11.