Limoliner, Inc. v. Dattco, Inc.

United States Court of Appeals
For the First Circuit
No. 18-1800
LIMOLINER, INC.,
Plaintiff, Appellant,
v.
DATTCO, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Jennifer C. Boal, U.S. Magistrate Judge]
Before
Lynch, Selya, and Boudin,
Circuit Judges.
Robert E. Curtis, Jr., Jonathon D. Friedmann, and Rudolph
Friedmann LLP on brief for appellant.
Christopher S. Williams and Williams & Associates on brief
for appellee.
March 22, 2019

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LYNCH, Circuit Judge. We hold that the plaintiff,
LimoLiner, has not met its burden of showing that the defendant
repair company's technical violations of the Massachusetts
Attorney General's regulations that govern motor vehicle repairs,
940 Mass. Code Regs. § 5.05, caused LimoLiner the loss of any money
or property. On that basis, we affirm the Magistrate Judge's
holding that the repair company is not liable under Chapter 93A.
LimoLiner, Inc. v. Dattco, Inc., No. CV 11-11877-JCB, 2017 WL
6947783, at *9 (D. Mass. Nov. 27, 2017). We reach no other issue.
I.
This lengthy litigation about repair work to a luxury
motor coach has already yielded three appellate opinions. See
LimoLiner, Inc. v. Dattco, Inc. (LimoLiner I), 809 F.3d 33 (1st
Cir. 2015); LimoLiner, Inc. v. Dattco, Inc. (LimoLiner II), 57
N.E.3d 969 (Mass. 2016); LimoLiner, Inc. v. Dattco, Inc. (LimoLiner
III), 839 F.3d 61 (1st Cir. 2016). Further details are in those
opinions, so we keep the background discussion here brief. The
facts are not in dispute.
The plaintiff, LimoLiner, Inc., is a Massachusetts
corporation that owns and operates a fleet of luxury motor coaches.
LimoLiner, 2017 WL 6947783, at *2. The defendant, Dattco, Inc.,
is a Connecticut corporation that repairs motor vehicles,
including buses and coaches. Id.

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In May 2011, LimoLiner met with Dattco to discuss repairs
to one of LimoLiner's coaches. Id. at *3. LimoLiner said it
wanted the coach repaired "as soon as possible," but did not set
a date. Id. Dattco understood that the coach "had been out of
service for quite some time." Id.
LimoLiner orally requested that Dattco repair, among
other things, the vehicle's "inverter," a device that converts the
vehicle's power into a voltage that passengers can use, for
instance, to charge their electronic devices. Id. Dattco agreed
to make the necessary repairs, including to the inverter. Id.
Dattco also provided an oral estimate for the cost of labor, but
did not provide an estimate of the cost of parts. Id. at *5.
Dattco, in response to the oral request, made and sent
to LimoLiner a list of the requested repairs, but that list did
not include specifically repairs to the inverter. Id. at *3. It
was unclear whether the inverter would need repair or replacement,
and the parties disputed who would be responsible, but the
Magistrate Judge found that "the parties agreed that the inverter
would be replaced or repaired by Dattco." Id.
Dattco began working on the coach "around June 16, 2011."
Id. Dattco timesheets show that its mechanics worked on the
inverter on July 19, 2011. Id. The Magistrate Judge found that
Dattco continued to work on the inverter in August 2011. Id. at
*4.

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When a fire destroyed another LimoLiner coach in late
June 2011, LimoLiner told Dattco that it needed the coach in
Dattco's possession so it was urgent that the repairs be completed
quickly. Id. When Dattco had not completed the repairs by August
2011, LimoLiner demanded to know how Dattco would compensate
LimoLiner for the monetary losses it claimed it had sustained to
that point. Id.
Later that month, Dattco told LimoLiner that the coach
was ready to be picked up. Id. at *5. Dattco had worked on the
inverter, but it had not yet been totally fixed. Id. Dattco sent
LimoLiner an invoice for $10,404 for its labor and for some parts,
but not including inverter parts. Id. LimoLiner refused to pay
the invoice; Dattco, in turn, refused to return the coach without
there being any payment. Id.
In October 2011, LimoLiner sued in Massachusetts
Superior Court for breach of contract, misrepresentation,
negligence, replevin, and Chapter 93A violations. As to the
Chapter 93A claim, LimoLiner alleged that Dattco had engaged in an
"unfair or deceptive act[] or practice[]" by, among other things,
failing to record in writing LimoLiner's oral request for inverter
work and charging LimoLiner for repairs without written
authorization. LimoLiner alleged that these actions were in
violation of motor vehicle regulations promulgated by the
Massachusetts Attorney General. 940 Mass. Code Regs. § 5.05.

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Dattco removed the case to federal court and counterclaimed for
breach of contract and quantum meruit.
Following a jury-waived trial, the Magistrate Judge
found for LimoLiner on the breach of contract claim, but for Dattco
on the remaining claims, including the quantum meruit
counterclaim. LimoLiner, Inc. v. Dattco, Inc., No. CIV.A. 11-
11877-JCB, 2014 WL 4823877, at *11 (D. Mass. Sept. 24, 2014). The
Magistrate Judge also rejected LimoLiner's regulatory claim,
concluding that the Attorney General's motor vehicle regulations
did not apply to disputes between businesses. Id. The Magistrate
Judge awarded LimoLiner $35,527.89 in damages for breach of
contract. Id. This damages amount included the "three-week loss
of use" of the coach that resulted from Dattco's failure to repair
the inverter. Id. at *10. The Magistrate Judge also awarded
Dattco $10,404 in damages on its quantum meruit counterclaim,
making LimoLiner's total recoverable damages $25,123.89. Id. at
*11.
On appeal, we affirmed the Magistrate Judge's rulings,
save for the rulings on the regulatory claim, which we certified
to the Massachusetts Supreme Judicial Court (SJC), asking whether
"940 [Mass. Code Regs.] § 5.05 appl[ies] to transactions in which

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the customer is a business entity." 1 LimoLiner I, 809 F.3d at 38.
The SJC answered "yes." LimoLiner II, 57 N.E.3d at 970. We
remanded for further findings on LimoLiner's claims of violation
of the Attorney General's regulations. LimoLiner III, 839 F.3d at
62.
On remand, the Magistrate Judge found that Dattco had
violated two of the Attorney General's motor vehicle regulations:
940 Mass. Code Regs. § 5.05(2)(e) ("Section 5.05(2)(e)") and
§ 5.05(3) ("Section 5.05(3)"). 2 LimoLiner, 2017 WL 6947783, at
*6-7. Dattco has not appealed those findings, so we take them as
established fact.
In alternate holdings, the Magistrate Judge found that
these regulatory violations did not automatically establish
liability under Chapter 93A; 3 LimoLiner still had to show that
1 LimoLiner did not ask that we certify the question of
whether every violation of the motor vehicle regulations was per
se a Chapter 93A violation.
2 Section 5.05(2)(e) states that "[i]t is an unfair or
deceptive act or practice for a repair shop, prior to commencing
repairs on a customer's vehicle, to fail to record in writing . . .
[t]he specific repairs requested by the customer." 940 Mass. Code
Regs. § 5.05(2)(e). And Section 5.05(3) states that "[i]t is an
unfair or deceptive act or practice for a repair shop to charge a
customer for any repairs on a customer's motor vehicle" without
providing an estimate of the cost of parts necessary to perform
the work. Id. § 5.05(3).
3 The Magistrate Judge relied on McDermott v. Marcus,
Errico, Emmer & Brooks, P.C., 775 F.3d 109 (1st Cir. 2014), and on
Sharp v. Hylas Yachts, LLC, 872 F.3d 31 (1st Cir. 2017), to reject
LimoLiner's claim that because Dattco had violated the Attorney
General's motor vehicle regulations, it was per se liable under

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Dattco's regulatory violations were unfair or deceptive and had
failed to do so. Id. at *8. And the Magistrate Judge found
explicitly or by implication that LimoLiner had not proved any
injury from these violations of regulations. See id. at *8-9, *9
n.8. The Magistrate Judge then denied LimoLiner's motion to alter
or amend the judgment.
LimoLiner has appealed, asking for entry of judgment in
its favor, not for remand, on its claim that Dattco is liable under
Chapter 93A.
II.
Because this case comes to us after a bench trial, we
review the Magistrate Judge's legal conclusions de novo and factual
findings for clear error. McDermott v. Marcus, Errico, Emmer &
Brooks, P.C., 775 F.3d 109, 115 (1st Cir. 2014); cf. R.W. Granger
& Sons, Inc. v. J & S Insulation, Inc., 754 N.E.2d 668, 675 (Mass.
2001) ("A ruling that conduct violates [Chapter] 93A is a legal,
not a factual, determination."). We affirm the Magistrate Judge's
conclusion that Dattco is not liable under Chapter 93A. See Chiang
Chapter 93A. LimoLiner, 2017 WL 6947783, at *8. LimoLiner argues
that this court's precedents on per se Chapter 93A liability go
beyond any Massachusetts appellate court decision. We do not
address whether there is any tension between our decisions, on the
one hand, and the SJC's decisions, including Armata v. Target
Corp., 99 N.E.3d 788 (Mass. 2018), on the other. And we note that
LimoLiner has never suggested that we certify the issue of per se
liability for violations of the Attorney General's motor vehicle
regulations to the SJC.

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v. Verizon New Eng. Inc., 595 F.3d 26, 34 (1st Cir. 2010) ("We may
affirm the district court on any basis apparent in the record.").
LimoLiner has not established that Dattco's regulatory violations
caused any injury or harm, which is a required element of its
Chapter 93A claim. See Hiam v. HomeAway.com, Inc., 887 F.3d 542,
547-48 (1st Cir. 2018).
Chapter 93A makes unlawful "[u]nfair methods of
competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce." Mass. Gen. Laws ch. 93A,
§ 2(a). Section 11 of Chapter 93A "bestows a right of action on
'[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 unfair or deceptive act or practice." Auto
Flat Car Crushers, Inc. v. Hanover Ins. Co., 17 N.E.3d 1066, 1076
(Mass. 2014) (quoting Mass. Gen. Laws ch. 93A, § 11). This
provision "serves 'the important public policy of encouraging the
fair and efficient resolution of business disputes.'" Id. (quoting
R.W. Granger, 754 N.E.2d at 683).
A Section 11 plaintiff must show that the defendant's
alleged unfair or deceptive method, act, or practice caused a loss
of money or property. See id. at 1074-75. "A plaintiff's failure
to establish both factual causation and proximate causation is
fatal to her Chapter 93A claim." Walsh v. TelTech Sys., Inc., 821
F.3d 155, 160 (1st Cir. 2016).

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LimoLiner did not show that Dattco's violation of
Section 5.05(2)(e) or Section 5.05(3) caused it any loss of money
or property. As to Section 5.05(3), the Magistrate Judge found
that "LimoLiner [had] presented no evidence that Dattco
overcharged for the parts used in the repairs it made." LimoLiner,
2017 WL 6947783, at *9. Rather, "the parties agreed that LimoLiner
would provide some of the parts in order to avoid having to pay
markups to Dattco, providing a reason why Dattco provided an
estimate for labor but not parts." Id. Because of this, the
Magistrate Judge explicitly found that there was no injury from
Dattco's violation of Section 5.05(3). Id. at *9 n.8. There is
no clear error in that finding.
As to Section 5.05(2)(e), the Magistrate Judge found
that Dattco "violated this provision by failing to record in
writing that LimoLiner had requested the inverter to be repaired."
Id. at *6. It follows from the Magistrate Judge's factual findings
that LimoLiner did not show that this regulatory violation caused
any injury. 4 As the Magistrate Judge found, even without the
inverter being included on the list of requested repairs, Dattco
mechanics worked on the inverter in July and August 2011, which is
when most of the repair work to the coach took place. See id. at
4 Because the Magistrate Judge resolved this case on other
grounds, there was no explicit factual finding on this issue. See
LimoLiner, 2017 WL 6947783, at *8-9.

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*3-4. And in August, the parties were actively discussing finding
an inverter from a supplier, id. at *4, so LimoLiner knew that
Dattco was working on the inverter even though that part was not
listed among the requested repairs. This discussion included "a
miscommunication as to who was responsible for supplying the new
inverter," which the Magistrate Judge said, "appears to have been"
a possible cause of "Dattco's failure to perform the inverter
repairs." Id. at *8. Against these facts, LimoLiner has produced
no evidence, just speculation, that Dattco's failure to record the
inverter repair caused LimoLiner any harm. The record permits
only one conclusion: there is no proof that Dattco's regulatory
violation caused LimoLiner's injury. See Pullman-Standard v.
Swint, 456 U.S. 273, 292 (1982) (noting that when "the record
permits only one resolution of" a factual dispute, it is
"elementary" that an appellate court need not remand but may
resolve it in the first instance).
III.
We affirm. Costs are awarded to Dattco.

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