USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 94-1616
FOUR CORNERS SERVICE STATION, INC.,
Plaintiff, Appellant,
v.
MOBIL OIL CORPORATION,
Defendant, Appellee.
____________________
No. 94-1718
FOUR CORNERS SERVICE STATION, INC.,
Plaintiff, Appellee,
v.
MOBIL OIL CORPORATION,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
__________________________
____________________
Before
Cyr, Circuit Judge,
_____________

Bownes, Senior Circuit Judge,

____________________
and Stahl, Circuit Judge.
_____________
____________________

David R. Schaefer, with whom Brenner, Saltzman, Wallman & Gold

_________________
_________________________________
was on brief for Four Corners Service Station, Inc.
Paul D. Sanson, with whom Sheila Huddleston, Shipman & Goodw
______________
_________________
_______________
and Edward H. Beck, III were on brief for Mobil Oil Corporation.
___________________
________________
March 22, 1995
________________

CYR, Circuit Judge.

CYR, Circuit Judge.
_____________
("Four

Corners") appeals

Four Corners Service Station, Inc.

district court

Petroleum Marketing Practices Act,

("PMPA"),

disallowing its

nonrenewal

of Four

15 U.S.C.

the

2801-2806 (1994)

demands for compensatory

attorney fees against Mobil

ful

judgment under

damages and

Oil Corporation ("Mobil") for unlaw-

Corners'

franchise

agreement.

Mobil

cross-appeals the PMPA liability judgment entered against it.

We

affirm the district court judgment in all respects.

I
I
BACKGROUND
BACKGROUND
Four Corners is a
Rivers, Massachusetts.

retail gasoline distributor in Three

Since 1926, Four Corners

had been party

to a series of renewable franchise agreements ("Agreements") with

Mobil, its exclusive gasoline supplier.

The Agreements obligated

Four Corners to purchase a specified minimum gallonage per annum,

and

also

"caps."

set maximum
_______
These caps

fluctuations

in

gallonage

limits

or so-called

permitted Mobil to plan against

franchisee

demands

purchase

unpredicted

for gasoline.

The

caps

increased by ten percent each year to allow for normal franchisee

sales growth.
In March

1987, Four

Corners discovered that

the soil

beneath its Three Rivers service station was severely contaminated with gasoline.
Quality Engineering

The Massachusetts Department of Environmental

("DEQE") issued a notice

of responsibility,

citing six

underground gasoline storage tanks

installed by Four

Corners between 1942 and 1978 as likely sources of the contamination.

Four Corners promptly notified Mobil that the DEQE-ordered

remediation, involving the removal and replacement of the storage

tanks

and 250 cubic yards of contaminated soil, would require an

immediate and
which

indefinite closure of the

Four Corners

lonage

would not be

service station, during

able to meet

its minimum gal-

purchase obligations under the Agreements.

several months,

Four Corners

and information on possible

Over the next

repeatedly asked Mobil

for advice

methods for implementing and funding

the required remediation, but to no avail.

Although
removal,

Four

effective

method

service station.
soil

$70,000 and

promptly

Corners encountered

prerequisite to

inated

it

for

disposing

completed
problems
of the

installing replacement

required

arranging a

contaminated
tanks and

tank

cost-

soil,

reopening its

The estimated costs of transporting the contam-

to an

out-of-state

disposal

$100,000, but transporters would

cost estimates

the

site ranged

between

not provide "firm"

without first reviewing DEQE site

reports.

DEQE

in turn would
signed

the site reports

a final contract with a

Corners
method

not release

eventually decided
which achieves

until Four

transporter.

to "aerate,"

decontamination on

Corners

Consequently, Four

a natural

remediation

site by

exposing the

soil to the open air for extended periods of time.

In December
decision not

1987, Mobil

to renew their

notified Four Corners

of its

sixty-year-old franchise agreement,

4

effective in March 1988,

terms of their

due to Four Corners' breach

Agreements, specifically (1) its

of certain

failure to meet

the minimum gallonage provision; (2) its dilatory cleanup

environmental contamination;

and (3) its closure

of the

of the service

station for more than seven consecutive days.

In March

1989,

Four

Corners

initiated

action in federal district court, alleging

fully refused to
PMPA, 15 U.S.C.
control."

the

present

that Mobil had wrong-

renew the franchise agreement, in

violation of

2801-2806, for "reasons beyond [Four Corners']

The complaint sought reinstatement

actual and exemplary

damages, attorney

of the franchise,

fees and costs.

Id.

___
2805.
In the

meantime, Four

Corners had opened

and modernized service station at

under new ownership and
line

supplies from

later

from Exxon.

the same site in late 1988

management

which purchased its

British Petroleum
In July

an expanded

until December

gaso-

1990, and

1991, Four Corners filed a voluntary

chapter 11 petition.

Following a jury-waived trial, the district court found

that Mobil had violated

PMPA by refusing to renew

the franchise

based on a breach "beyond the reasonable control of the franchisee."

Four Corners Serv. Station, Inc. v. Mobil Oil Corp., No.

_________________________________
_______________

89-30044-FHF (D. Mass. Dec.

2, 1993) ("Four Corners I").

______________

Mobil

did not prove that Four Corners actually caused the soil contami-

nation, that Four Corners had any choice but to close the station

under the mandatory DEQE remediation order, nor that Four Corners
5

unreasonably

failed to

take the

most expeditious

approach for

effecting soil decontamination.

Id.,
___

PMPA violation notwithstanding,

grant reinstatement of the
request for a remedy at

the district

14-15.

court declined

law

recovery of lost profits

to

for the

of the Mobil franchise. Id.

___

at

The parties were directed to submit supplemental briefs on

the right to recover lost profits.

For the

Id. at 16.
___

five-year period immediately

preceding trial,

Four Corners calculated the profits lost due to Mobil's

nonrenewal at $356,099; it estimated
the

The

franchise and addressed Four Corners'

projected ten-year residual term

15.1

slip op. at

ensuing five-year

were

based

on

the

period at
contention

its future lost profits for

$171,290.
that

wrongful

These calculations

Mobil's

greater

product

strength in Western Massachusetts would have enabled Four Corners

to sell 30% more
1988 and

Mobil gasoline than it did

1990, and

20% more

BP gasoline between

Mobil gasoline

than it

did Exxon

gasoline between 1991 and 1993.

The
its"

district court rejected

calculations.

It found

no evidence that

permitted Four Corners to exceed

lished

in the Agreements.

Four Corners' "lost prof-

Mobil would have

the annual purchase caps estab-

Four Corners Serv. Station, Inc. v.

_________________________________

Mobil Oil Corp., No. 89-30044-FHF, slip op. at 5-8 (D. Mass. Mar.
_______________
22, 1994) ("Four Corners II").
_______________

Moreover, Four Corners

actually

succeeded in selling more BP and Exxon gasoline following Mobil's

____
____________________

1As the district court found that Mobil had not violated
PMPA willfully, it denied exemplary damages as well.
See infra
___ _____
note 3.
6

nonrenewal
gallonage

than it
limits

could

have

fixed by

sold

the annual

under the
caps.

maximum
Thus,

the court

reasoned, Four Corners experienced an increase in profits,

reduction.
damages,

Id. at 8.2
___

Because Four

the court exercised

Corners proved no

its discretion, under

2805(d)(1)(C), and denied an attorney fee award.

Corners challenges
and attorney fees.3

not a

actual

15 U.S.C.

On appeal, Four

only the rulings denying compensatory damages

For its part, the Mobil

cross-appeal chal-

lenges the district court finding that Mobil violated PMPA.

II
II
DISCUSSION
DISCUSSION
A.
A.

Mobil

Statutory Overview
Statutory Overview
__________________

____________________
2The court based its findings on the following evidence:
Actual Sales
____________
(gallons)
1989
1,100,892
1990
1,274,643
1991
1,083,253
1992
985,406
1993 (1st
185,335
quarter)

Potential

Franchise

Mobil Sales
___________

Caps
____

1,431,159
1,657,035
1,299,904
1,182,487
222,402

824,602
907,062
997,767
1,097,545
301,825

3Although the Four Corners' notice of appeal alludes to the

district court rulings denying equitable relief and exemplary
damages, its appellate briefs do not challenge these rulings. See
___
Licari v. Ferruzzi, 22 F.3d 344, 349 (1st Cir. 1994) (claims
______
________
unaccompanied by adequate argumentation are deemed waived on
appeal). As concerns the former issue, therefore, we must assume
that Four Corners concedes that an award of lost profits for the
projected ten-year residual franchise term, if proven, would have
__ ______
afforded it a full and "adequate" remedy at law.
Cf., e.g.,
___ ____
McDonald v. Piedmont Aviation, 793 F. Supp. 75, 78 (S.D.N.Y.
________
_________________
1992) (plaintiff waives entitlement to equitable relief by
failing to appeal earlier court ruling that damages award would
confer an "adequate" remedy in lieu of equitable relief).
7

Congress enacted PMPA to

avert the detrimental effects

on

the nationwide

gasoline

distribution system

unequal bargaining power enjoyed

their service-station

franchisees.

See
___

generally
_________

F.2d 445, 448

731, 95th Cong., 2d

Sess. 17-19, reprinted in 1978

_________ __

875-77.

stricting

PMPA attempts to

the

grounds upon

upon which

unilateral termination

any provision

reasonable

and

nonrenewal of

the franchise,
material

field by recan assert

a franchise.

Grounds

is permitted

to comply

which provision

significance,"

15

is both

U.S.C.

the franchisee to exert

good

efforts to carry out the provisions of the franchise," id.

___

2802(b)(2)(B); or (3) "[t]he

__
relevant to the franchise
termination

of

occurrence of an

franchisee

the franchise

consecutive

to
days

2802(b)(2)(C).
termination or

operate

or

the

may constitute
Id.
___

nonrenewal

marketing
a

is not

franchise

The failure of

premises

relevant

of which

of the

2802(b)(2)(C).

2802(c)(9)(A).

nonrenewal

event which is

relationship and as a result

relationship is reasonable," id.

___
a

U.S.C.C.A.N.

by a franchisor

2802(b)(2)(A); (2) "[a] failure by

faith

franchisor

v.

S. Rep. No.

"[a] failure by the franchisee

of
of

(1st Cir. 1981);

which

termination or

with

Veracka
_______

level the playing

unilateral

under PMPA include (1)

the

by large oil conglomerates over

Shell Oil Co., 655

______________

873,

caused by

for

event under

However,

permitted under

failure to comply with

the terms of the franchise

"beyond the reasonable

control of the

seven

PMPA

unilateral
PMPA if

the

agreement was

franchisee." Id.

2801-

___
(13).

PMPA also

allocates and shifts

burdens of

proof

between
action

the parties to the franchise agreement.

for unlawful

franchise

termination

In a PMPA-based

or nonrenewal,

the

franchisee bears the initial burden of proving that a termination

or nonrenewal occurred, at which point the burden of proof shifts

to the franchisor to demonstrate that the
to renew was
Id.
___

based on

termination or refusal

a legitimate ground

enumerated in

PMPA.

2805(c).

B.
B.

Liability: "Reasonable Control"

Liability: "Reasonable Control"
______________________________
1. Cause of Environmental Contamination
1. Cause of Environmental Contamination
____________________________________
The Mobil cross-appeal

to

the district court ruling

that there is
cause
_____

of

asserts two related

on liability.

no record support for the

the soil

contamination

at the

challenges

First, it contends

finding that the actual

Four

Corners service

station remained
Mobil notes

"unclear."

that Four Corners

Four Corners I,
_______________
was the only

slip op.

at

14.

gas station in

the

vicinity of the contamination; Four Corners had sole responsibil____

ity for maintaining the storage tanks and was the

sole target of

the DEQE

concededly did

notice of

responsibility; Four Corners

not comply with environmental statutes and regulations

requiring

periodic testing of its storage tanks for leakage, see Mass. Gen.
___
L. Ann. ch. 148,

10 (1994); Mass. Regs. Code tit. 527,

5.05,

9.01 to 9.24 (1983); and noticeable "wet spots" were found on the
outer

shell of

the

Corners caused the

storage tanks

upon

contamination, Mobil

excavation.

If

argues, nonrenewal

Four

was

not beyond Four Corners' "reasonable control."

We review
sonable control"
for "clear error."

the district court factual

and its

subsidiary findings on

finding on "rea-

causation only

See, e.g., Roberts v. Amoco Oil Co., 740 F.2d

___ ____ _______
_____________

602, 608 (8th

Cir. 1984) (legislative

that Congress intended to

ableness" determination
Oil Corp.,
_________

as an issue

662 F. Supp. 1020,

(causation in

of fact); Serianni
________

1024 (E.D. Pa.

nite

1986); cf. Dedham

___ ______

is question

of fact

Reversal is warranted only if,

considering the entire record, we are left with the "defiand firm

conviction

that a

Interstate Commerce Comm'n

___________________________
1122,

v. Gulf
____

972 F.2d 453, 457 (1st Cir.

environmental context

subject to "clear error" review).

after

suggests

favor franchisees by treating "reason-

Water Co. v. Cumberland Farms Dairy,

_________
______________________
1992)

history of PMPA

v.

mistake has

been committed."

Holmes Transp., Inc., 983

_____________________

F.2d

1129 (1st Cir. 1993) (quoting Anderson v. City of Bessemer

________
________________

City, 470 U.S. 564, 573 (1985)); see also Fed. R. Civ. P. 52(a).
____
___ ____
Significantly,
control"

lay with

2805(c).

On

the

Mobil,
_____

not Four

appeal, Mobil

compelled a finding that

caused the

of

the

proof

Corners.

must point to

contamination.

views

of

Four Corners

Sys., 26 F.3d 1187, 1188 (1st

____
permissible

burden

on

"reasonable

See 15
___

evidence that
and Four

See Reich
___ _____

U.S.C.

fairly

Corners alone
_____

v. Cambridgeport Air
__________________

Cir. 1994) ("'Where there are

evidence,

the

factfinder's

two

choice

between them cannot be clearly erroneous.'") (citations omitted).

Since it has not done so, we find no clear error.
First, DEQE found no holes

in the tanks.

Nor did

the

"wet spots" constitute conclusive evidence of tank leakage, since

10

they could
the

have been

tanks.

caused by contamination

Four Corners

cited a

emanating outside

United States

Environmental

Protection Agency document which suggests that gasoline spills by

oil
___

transporters during
____________

common

delivery are

among the

causes of soil contamination at service stations.

Fed. Reg. 37087,

responsibility
status

gasoline

as

facility

37090, 37133
issued

by DEQE

the current

(1988).

Finally,

to represent a

on

Four Corners'

owner/operator

of

the service

determination that Four

See 53
___

the notice

rested

for strict liability purposes only.

______ _________

most

of

legal

station

It did not purport

Corners caused the

con-

tamination.

Likewise, the record evidence does not compel a finding

that Four Corners might
tamination
produced

have averted the bulk

of the soil

by more diligent testing of its tanks.

evidence as
________

to

when the
____

con-

Mobil neither

contamination occurred,

nor

asserted that the environmental

tions

of

the 1980s

evidence which

not

have been

there was

no

were retroactive.

would exclude

components (pumps,

evidence

Further, there

leakage from other

hoses, pipes);

detected by

matters before it
______

"detection" statutes and regula-

that

decided not

pumping system

that is, leakage

testing the

tanks.

Mobil investigated
to renew the

was no

which could

Finally, since
any

of

these

Four Corners

fran-

chise, the district court might well have treated this contention
as

a post hoc rationalization.

____ ___

See Desfosses v. Wallace Energy,

___ _________
_______________

Inc., 836 F.2d 22, 29 (1st Cir. 1987) (noting that PMPA notifica____

tion requirements ensure that franchisor cannot invent after-the11

fact

justifications for

termination or

nonrenewal).

As Mobil

failed to meet its burden of proof on the factual issues underlying

the

district

finding stands.

court

ruling on

"reasonable

control,"

the

12

2.
2.

"Financial Inability" to Remediate

"Financial Inability" to Remediate
_________________________________
Mobil likewise

challenges

the district

that

Four Corners lacked the financial

soil

contamination.

legal

court

ruling

ability to remediate the

It contends that the ruling was infected by

error, in that

the court

wrongly regarded

Four Corners'

financial inability to pay for out-of-state disposal, the costlier but more expeditious method of
beyond the franchisee's

reasonable control.

Mobil argues, any franchisee

not afford

to pay

from unilateral
Distribs.
_________

remediation, as a circumstance
If this

were true,

who came upon hard times

Mobil for its

termination.

v. Chevron U.S.A.,
_______________

oil purchases would

See,
___
589 F.

and could

be exempt

e.g., California Petroleum

____ _____________________
Supp. 282,

288 (E.D.N.Y.

1984); Cantrell v. Exxon Co., U.S.A., 574 F. Supp. 313, 317 (M.D.
________
_________________
Tenn. 1983).

Even

if we were to agree with the reasoning of the

two decisions

cited by Mobil, however, the district court simply

did

that Four

not find

remediation

program

Corners' choice

was beyond

of a

its reasonable

less expeditious

control because
_______

Four Corners could not afford more expeditious measures.

Indeed,

Four Corners itself adduced evidence that its then owner, Richard
Tenczar,

could have obtained financing for out-of-state disposal

if necessary.
Mobil's contention is a

thinly veiled attempt to frame

the

present "clear error"

challenge, see
___

Roberts, 740
_______

608, as an issue of law subject to de novo review.

__ ____

F.2d at

See
___

Cumpiano
________

v. Banco Santander Puerto Rico, 902 F.2d 148, 154 (1st Cir. 1990)
___________________________
("The 'clearly

erroneous' rule

cannot be evaded

by the

simple

13

expedient of [the] creative relabelling . . . by dressing factual

disputes in 'legal' costumery.").
"reasonableness"
cumstances.

In

must be
that

The central inquiry

undertaken in light of all

___

vein, we

cannot

finding by the district court that Mobil

Corners' pleas for guidance
diate service-station

ignore

the

slip op. at 14 ("Mobil offered

the cir-

subsidiary

repeatedly ignored Four

and assistance on how best

soil contamination.

that of

to reme-

See Four Corners I,

___ _______________

no assistance that was refused by

Four Corners which would evidence a lack of desire on the part of

Four

Corners to

ble.");

remedy the problem

as expeditiously

as possi-

cf., e.g., Malone v. Crown Cent. Petroleum Corp., 474 F.

__
____ ______
___________________________

Supp.

306, 311

(D. Md.

1979) (upholding

where franchisee deliberately

ings or

accept

its "good

marketing strategies).
devices,

more

failed to heed

faith" advice

franchisor's warn-

about more

profitable

Four Corners was left entirely to its own

in the awkward position of having to determine the most

cost-effective
projected

franchise termination

remediation

method,

which

future service-station revenue

prolonged

closure,

unquestionably higher
remediation.

In these

against
immediate

the

involved

balancing

losses occasioned by a
unconfirmable

costs of a

but

more expeditious

circumstances, the district court reason-

ably could find that

Four Corners acted in good faith,

Mobil's reticence to

assist was

prompted by its

itself of the franchisee requesting its assistance.

no clear error, the liability judgment

14

and that

desire to

rid

As there was

against Mobil must stand.

15

C.
C.

Damages
Damages
_______
1.
1.

The Maximum Gallonage Provision

The Maximum Gallonage Provision
_______________________________
Four Corners impugns

the

annual gallonage

the district court's reliance

for finding

that Four

Corners lost no profits as a result of the nonrenewal.

It argues

that

the district

would

have waived

franchise
that

caps as
____

court was
the

the basis

on

required to predict

caps in

each

successive year

not been wrongfully terminated in 1988.

Mobil manager

testified

mechanism" for authorizing

that

such waivers

whether Mobil

Mobil had

had

the

It points out
an

"internal

where franchisees

have

renovated or expanded service stations in order to increase their

gasoline sales by more

than ten percent over the

previous year.

Consequently, Four Corners contends, were Mobil to have refused a

waiver

in these circumstances

its action would

have been arbi-

trary and discriminatory, in violation of PMPA.

Normally, the plaintiff must bear the burden of proving

actual

damages.

See, e.g.,
___ ____

Lowell Bd. of Realtors, 850

________________________

Wells Real Estate, Inc. v. Greater

________________________
_______
F.2d 803,

816 (1st

Cir.) (citing

cases), cert. denied, 488 U.S. 955

_____ ______
suggested that a different
Therefore,
Corners.

challenge to

actual amount
question
e.g.,
____

of

Four Corners has not

burden allocation obtains under PMPA.

we assume that the

A

(1988).

burden of proof

the district court's

damages sustained

by

of fact, which we review only

rested with Four

findings on

a claimant

the

presents

for "clear error."

See,
___

American Title Ins. Co. v. East West Fin. Corp., 16 F.3d

________________________
_____________________

449, 461 (1st Cir. 1994).

16

The record evidence did not compel a finding that Mobil

would

have waived

purchases.

Judy Schultz,

testified that
itself from

the 1988-91

Mobil imposed

the considerable

caps on

district

She

sales

expense which would

Mobil,

to protect

attend unpre-

in franchisee demand for on-

further noted

that the

caps automatically increased by ten percent per year.

see which wanted

gasoline

manager for

these contractual caps

dictable or unanticipated increases

hand gasoline supplies.

Four Corners'

a waiver of the cap would

gallonage

A franchi-

need to obtain prior

approval

from

the general

manager

for the

wholesale manager, and the district

Mobil

region, the

sales manager.

When pressed

by Four Corners, however, Schultz testified that she did not know
of any Mobil franchisee which had actually obtained a waiver.
Even assuming, arguendo, that
________
proof

could have

been sustained

established "internal

by showing

mechanism" for

gallonage caps beyond the automatic

and that Four Corners itself
in

the years 1988-91, the

such a

showing.

Mobil

or

Schultz testimony fell

Mobil

requested or been
Ewing v.
_____

granted any such

Corners

franchisee,

a waiver

either by

proffered no
__
let alone

to Four Corners',

1432, 1438

had ever

extraordinary waiver.

Amoco Oil Co., 823 F.2d

______________
17

from the

criteria, nor did it indicate

evidence

a position comparable

had an

well short of

procedure had ever been invoked,

____

that any
___

of

ten-percent annual increase,

Moreover, Four

franchisee in

e.g.,
____

affording relief

a franchisee.

independent

that Mobil

met the criteria for such

It identified no

that any such waiver

Four Corners' burden

Cf.,
___

(10th Cir.

1987)

(noting existence

offered

franchisees); Valentine v. Mobil Oil Corp., 614 F. Supp.

_________
________________

33, 39

plaintiff

evidence

(finding

differently

aff'd, 789 F.2d

_____

favorable

than

even suggesting

Thus,

franchisees),

there is no record

district court

finding that

have been granted a gallonage

cap waiver

See Four Corners II, slip op. at 8.

___ _______________

Four Corners

and during the first

caps under its wrongfully

contends that

it lost

quarter of 1993,

profits in

when the gallonage

terminated Mobil franchise first began

exceed its actual Exxon gasoline sales or its potential Mobil

______

gasoline sales.

See supra note

___ _____

Corners could have sold

ence

other

treated

Lost Profits for 1992 and 1993

Lost Profits for 1992 and 1993
______________________________
Next,

to

than

that franchisor

franchisor's

that the

constituted clear error.

1992,

no evidence

1388 (9th Cir. 1986).

Four Corners would not

2.
2.

terms

franchisor

other

Ariz. 1984)

less

dispute whether

its

(D.

plaintiff

of factual

2.

For example,

in 1992, Four

112,139 more gallons (viz.,

___

the differ-

between its 1,097,545 gallon Mobil cap and its actual Exxon

sales of
waive its

985,406 gallons)
cap.

recover these

Thus,

even assuming
____ ________

Four Corners

that Mobil

claims, it was

discrete losses, which were

refused to

entitled to

proximately caused by

Mobil's wrongful nonrenewal under PMPA.

This

claim can succeed only

satory damages under PMPA

______

if the measure of compen_______

may exceed the level required

______

to make

the plaintiff-franchisee whole for whatever injury or loss flowed

_____
from the franchisor's wrongful

conduct.

Andover Newton Theological Sch., 874

________________________________

But cf., e.g.,

___ ___ ____

F.2d 1, 8

Linn v.
____

(1st Cir. 1989)

18

(noting

that plaintiff failed to suggest that either the ADEA or

contract law entitled him

Corners points to no
tion, nor
history

is there

to be made "more

than whole").

Four

authority for this counterintuitive assumpanything in

to suggest that

PMPA's language or

Congress intended

legislative

to deviate

from the

normal presumption, uniformly applied to numerous other causes of

action arising under federal remedial statutes, that compensatory

____________
damages may not exceed
party

whole.
_____

See,
___

the amount necessary to make

e.g.,
____

Midwest Petroleum Co.

______________________

the injured
v.

American
________

Petrofina Mktg., Inc., 644 F.

______________________
(noting

PMPA franchisee

where it

is

Supp. 1067, 1071

not entitled

has otherwise mitigated harmful

violation); see also Russo

___ ____ _____
(E.D.N.Y.)

(PMPA is

(E.D. Mo. 1986)

to "double

recovery"

effects of defendant's

v. Texaco Inc., 630 F. Supp. 682, 687

___________

diminution

of

franchisors'

common-law

contract rights, and its remedial provisions should not be unduly

extended beyond

statute's express language and

purpose), aff'd,
_____

808 F.2d 221 (2d Cir. 1986).

Since Four
presume

that

remained

its

in force

Corners

requested the

sixty-year-old
another ten

Mobil

district

franchise

years but

court
would

for Mobil's

to

have

wrongful

nonrenewal, the court was required to determine the aggregate net

_________ ___
profits

Four

Corners

would

period.

The record evidence

lose during

the

entire
______

ten-year

reveals that Four Corners

actually

realized an overall increase approximating $215,000, in total net

________
profits
the

and interest, as a consequence of having been freed from

Mobil

gallonage

caps

during the
19

five

years

immediately

preceding trial.4
clearly were

Thus, the profits

not recoverable as

allegedly lost in

discrete losses over

1992-93

and above

the incidental profits gained during the entire five-year period.

3.
3.

Future Profits
Future Profits
______________
Four

ignored

Corners insists

its claim

to

that

$171,290 in

the district
future
______

court simply

lost profits.

See
___

Thompson v. Kerr-McGee Ref. Corp., 660 F.2d 1380, 1388 (10th Cir.
________
_____________________

1981) (future lost profits recoverable under PMPA), cert. denied,

_____ ______
455 U.S. 1019 (1982);

cf. Wallace Motor Sales, Inc.

___ _________________________

Motor Sales Corp., 780

_________________
bile dealership entitled
projected

to claim damages for

life span of franchise).

incur these
caps

F.2d 1049, 1062 (1st Cir.

damages in

would continue to

Exxon gasoline, or its

v. American
________

1985) (automo-

lost profits over

Although Four Corners would

each future
outstrip Four

year because the

gallonage

Corners' actual

sales of

projected sales of Mobil gasoline,

until

1998, this claim too is flawed.

____________________

4Assuming constant retail prices and operating costs, the

following would approximate Four Corners' profits (losses) during
each of the five years immediately preceding trial:
Change in
Net Profits
as Mobil Sta-

Estimated Interest

Interest
on
Profit

Total
Gain or
Loss

tion with Rate

Caps in Force
___________________________________________________________
1988:
($ 1,004)
52%
($
528)
($ 1,532)
1989:
$ 69,571
45%
$ 31,306
$100,877
1990:
$100,426
34%
$ 34,144
$134,570
1991:
$ 21,655
22%
$ 4,764
$ 26,419
1992:
($ 19,568)
10%
($ 1,956)
($ 21,524)
1993:
($ 22,872)
3%
($
686)
($ 23,558)
____________________________________________________________
Total
$148,208
$ 67,044
$215,252
20

In

truth, the

district court

was fully

cognizant of

Four Corners' claim for future profits, as it explicitly acknowledged

in its

opinion.

Moreover,

the record

likelihood

that Four

until 1998.

See
___

Four Corners II, slip

________________

evidence discloses
Corners

could have

3.

was little

remained in

business

Furthermore, there were serious deficiencies in its

forecasts of future lost profits.

1056 (1st

that there

op. at

See Levy v. FDIC, 7 F.3d 1054,

___ ____
____

Cir. 1993) (appellate court

is free to affirm

on any

ground supported by record).

Four Corners extrapolated its estimates

of future lost
____

profits based on its performance during the two years immediately

preceding
renew

trial; that

is,

it assumed

its franchise was alone

picture

during the time

straits and

that Mobil's

refusal to

responsible for the dismal profit

Four Corners

selling Exxon gasoline.5

was in

serious financial

During the

first quarter

of 1993 alone, Four

Corners lost $47,754, compared with

,154 net

1990, this notwithstanding

_______________

profit in

a $107-

the infusion

of

approximately $215,000 in profits and interest income which could

not have been realized
chise in 1988.

See
___

but for Mobil's termination of

supra note 4.
_____

continued future business operations

Thus, Four

the fran-

Corners projected

despite such severe

losses

____________________

5The chapter 11 filing constituted an event of default under

the Agreements, see Agreement
24(B)(4), and may have afforded
___
Mobil an independent basis for termination or nonrenewal in 1991.
Although it is questionable whether a franchisor could rely on
such an event to cut off PMPA damages if it appeared that the
__
franchisor wrongfully refused to renew prior to the chapter 11
petition, thereby causing the franchisee's financial problems,
_______
Four Corners' greater profits in the years 1988-91 tend to
_______ _______
undercut such a causal connection.
21

as would make

its prospects for

highly speculative.
1070 ("To
must

See
___

Midwest Petroleum Co., 644 F.

_____________________

warrant a recovery

present proof

continued operation until

_____

of lost profits,

sufficient to

bring the

1998
____

Supp. at

the [franchisee]
issue

outside the

realm of conjecture, speculation or opinion unfounded on definite

facts.").

Finally, even if Four Corners had been able to continue

in

business until

1998, its

claim to

$171,000 in

future lost

profits would be groundless given the record evidence that it had

already realized an aggregate net increase in profits and
________

inter-

est approximating $215,000 during the five-year period immediately prior to trial.
district court
claimed,

See supra
___ _____

had allowed

Four Corners

note 4.

Accordingly, even if

all speculative lost

still would

have

the

future profits

realized approximately

$44,000 in aggregate net profits ($215,000 net increased profits,

less $177,000 future profits)
span

of

the franchise

during the projected ten-year life

following

Mobil's

wrongful refusal

to

renew.
D.
D.

Attorney Fees Under PMPA

Attorney Fees Under PMPA
________________________
Lastly, Four

Corners

challenges

the

denial

of

its

request for an attorney fee award against Mobil based on the PMPA
violation.

First,

it claims that

findings were inadequate under

says that the district

the district court's

Fed. R. Civ.

P. 52.

factual

Second,

court was somehow constrained to

it

allow a

fee award because Congress meant to encourage prevailing franchisees to vindicate their rights under PMPA.
22

denial of an attorney fee award is reviewed only for

abuse of discretion.
(1st Cir. 1987).

See Catullo v. Metzner, 834 F.2d 1075, 1085

___ _______
_______

Under PMPA, see 15 U.S.C.

___

attorney fee award is

neither

that

discretionary where the plaintiff recovers

actual nor exemplary damages.

sustain no

provable damages,

it generated

profits during

the projected

as a consequence of

franchise

gallonage

Cf.
__

to win

Not only did Four Corners

but the record

approximately $44,000

franchise

failed

2805(d)(1)(C), an

more in

aggregate net

remaining life span

having been freed

caps since

1988.

equitable reinstatement

Chestnut Hill Gulf, Inc.

________________________

evidence indicates

of the

from the Mobil

Four Corners
of its

Mobil

likewise

Mobil franchise.

v. Cumberland Farms, Inc., 749 F.

_______________________

Supp. 331, 333 (D. Mass. 1990) (plaintiff which obtains equitable
relief under PMPA is

entitled to attorney fee award

even absent

recovery of actual or exemplary damages).

Without in
tion of

PMPA, we cannot

discretion
record.
ney

any sense diminishing Mobil's

in

denying an

Nor do we think

fee awards

say that the district

attorney

fee

clear viola-

court abused its

award on

the

present

that Congress intended to compel attor______

under PMPA

as an

inducement to

franchisees to

pursue vindication in these circumstances.

The district court judgment is affirmed.
The district court judgment is affirmed.
__________________________________________
awarded to cross-appellee in appeal No. 94-1718.
awarded to cross-appellee in appeal No. 94-1718.
_______________________________________________

23

Costs are
Costs are
_________