Professional Documents
Culture Documents
No. 93-1685
NORTH ATTLEBORO ARMS REALTY TRUST,
Plaintiff, Appellant,
v.
HARTFORD FIRE INSURANCE COMPANY,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Torruella, Circuit Judge.
_____________
____________________
"Developer")
is a
real
The plaintiff
estate
-- a
maker
its contract
walls."
And,
trust
that hired
of exterior
walling systems
to supply the
it has
in this case
sued that
--
condominiums with
Subcontractor's
law,
none
an award of damages.
The
Developer
court's factfinding
52(a).
The
adequate
record
district
court's
support;
and,
findings,
we
Fed.R.Civ.P.
however,
therefore
affirm
have
its
judgment.
We have
favorable
to
the winning
party,
a light appropriately
defendant
Surety.
See
___
1982).
following relevant
So read,
background facts:
1)
2)
Contractor's
architect
provided
the
Subcontractor with a "punch list" of five
items to be corrected (such as "rust stains"
on certain walls, "misalignment" of certain
panels, "incomplete trim" around some sliding
doors, etc.)
About ten days later, the
architect sent an expanded list of eight
items.
3)
4)
He
added that
these "damages
are not
speculative," and that he would like to work
with the Surety "in acquiring a settlement."
Counsel wrote further letters, threatened
legal action, and then, in preparing for
litigation
in
September 1990,
had the
architect draw up
a final repair
cost
estimate totalling roughly $345,000.
After the Surety refused to pay,
diversity
action, arguing,
among
things, that
the
although
it
accepted Developer's
sole
his opinion.
Specifically,
the court
correction-cost estimate,
(by
what
seemed
coincidence") amounted to
price.
Developer
would cost
in the
to
"an
extraordinary
wall contract
court
fact that,
$345,000 to
the
even if
one assumed
dismantle portions of
for the
that it
the building
the punch
cost would
so
unreasonable
omitted).
the
proper
economic
waste."
(internal
of
damages was
quotation
the
Developer's
marks
market
N.E.2d
(Mass.
236,
Contracts
_________
238
348(2) &
Joseph
M.
1987).
Because
1964);
cmt. c
Perillo, Contracts
_________
v. Galanti,
_______
202
Restatement (Second) of
_________________________
(1979);
14-29,
John D.
Calamari &
at 633-36
(3d ed.
evidence as
issue
Subcontractor's
of
the
as
(alleged)
default,
the Developer's
no
record
"at
reduced
citations to
prices,"
result
but
have
of
the record.
independently,
tending to
the all-
suffered
significant evidence
sales
But, on
loss
contains virtually
reviewed
its factfinding.
any
other
the
brief
We
have
found
no
sales" or
evidence
of
-- the
-55
Developer's trustee,
We, like the
of
Alfred Pace,
Sr. -- did
loss, other
than
the evidence
about
not testify.
concrete evidence
the $345,000
in
correction costs,
be
both (1)
recovery.
unbelievable
and (2)
an
court found to
improper basis
opinion.
for
decision to
v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir.
____________________________
1992).
We also
agree with
the
district court,
for the
&
cmt.
c.
Of
Subcontractor itself
$3,000 to $4,000 as
course,
conceded
we
that it
recognize
that
would cost
the
roughly
the punch
list items, and that, with minor exceptions, they were never
completed.
But, as
far as we
not
not
in this context
did
Thus, we
whose fault it
actually
district
court
Subcontractor's refusal
to make
November
amount
1988
did not
-66
also
held
a "default,"
that
the
repairs in
for
that
failure represented
to proceed in
And,
in its
light, we
agree with
the district
claim.
Levings
_______
The finding
is also
of
no proven
damages
v.
1979).
sufficient
to
-77