MARMIK, LLC, & Others v. RALPH PACKER, JR., & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-736

MARMIK, LLC, & others1

vs.

RALPH PACKER, JR., & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Marmik, LLC; Vineyard Markets, Inc.; Mark

Wallace; and Michael Wallace (Marmik or buyers) bought a

property on which a gas station has operated since the 1920s.

As part of the sale, Ralph Packer, Jr., and Cottage City Land

Co., Inc., (Packer or sellers) offered the following guaranty:

"This letter will confirm our agreement that your [the
buyers'] obligation to pay for 21E cleanup costs for the
property will be to pay the first $35,000 worth of cleanup
costs. Thereafter, the seller will be responsible for the

1 Vineyard Markets, Inc.; Mark Wallace; and Michael Wallace.

2Cottage City Land Co., Inc., which did not join this
appeal. The original complaint also named R.M. Packer Co.,
Inc., as a defendant. The trial judge dismissed all claims
against R.M. Packer Co., Inc., in a January 9, 2023 order.
Though the buyers filed a notice of appeal appealing from "[t]he
[c]ourt's [j]udgment dated January 9, 2023," they do not raise
the issue of the dismissal in their brief.
costs necessary to satisfy the Massachusetts Department of
Environmental Protection (DEP). This commitment will
survive the Purchase and Sale Agreement."

After a jury-waived trial, a judge of the Superior Court awarded

the buyers damages for breach of the guaranty in the amount of

$479,202. Packer appeals, contending the judge applied a

standard that was arbitrary and inconsistent with the evidence

and that the award of damages amounts to unjust enrichment. In

their cross appeal, the buyers contest so much of the judgment,

and denial of their motion to amend the judgment, as denied

costs they incurred in the assessment of the contamination issue

on the property, prejudgment interest thereon, and to set the

breach at an earlier date.3 We affirm.

Background. Packer owned the property at issue until May

1, 2000. In the 1990s, the Department of Environmental

Protection (DEP) became aware of petroleum contamination on the

property, and ultimately, in July of 1999, issued a Notice of

Responsibility (NOR) to Cottage City regarding the contamination

on the property.

Mark and Michael Wallace (Wallaces) are brothers and were

business partners in Marmik. They operated a convenience store

3 Additionally, the buyers alleged one count of nuisance,
one count of trespass, one violation of G. L. c. 93A, and one
count of tortious misrepresentation. In the same order, the
trial judge dismissed those counts with prejudice. The buyers
do not appeal from this portion of the judgment.

2
on the property.4 The Wallaces were aware of the contamination;

they could see and smell it for themselves. Sometime around the

spring of 2000, they approached Packer to purchase the property.

The parties agreed on a purchase price of $1.3 million. Packer

admits that he, individually, and Cottage City are jointly

liable on the guaranty to clean up the property.

In 2005, the DEP issued a NOR to Marmik stating that Marmik

was required to remediate the contamination on the property.

The Wallaces informed Packer and Packer retained a licensed site

professional (LSP), Dawn Horter, to assess the property.5 Based

on her analysis of soil and groundwater samples, Horter

submitted a remediation plan to the DEP. Horter's plan would

have required the Wallaces to agree to an activity and use

limitation (AUL), restricting the property to commercial use.

Although AULs often are imposed on gas stations and the property

at the time of sale could be used only for commercial purposes,

the Wallaces did not agree to adding an AUL. Horter stopped all

work on the property in 2013 after encountering issues getting

4 An automobile mechanic also leased space in the building.

5 Horter was the second LSP to review the site. Around the
time of the sale, Packer retained another company to assess the
property and develop a report for the DEP. The DEP found that
first report deficient because, while it addressed contamination
surrounding the fuel tanks, it did not address possible vertical
and horizontal movement of contamination. Horter agreed that
the first LSP attempted to falsely inform the DEP in 2001 that
the site was clean.

3
permission from the town to do excavation work and in getting

access to the property.6

In June 2015, DEP issued a notice of noncompliance to

Marmik requiring it to submit a "[t]emporary or a [p]ermanent

solution" by December 31, 2015. The buyers retained a new LSP,

Michael Pierdinock, who conducted his own assessment and

analysis of contamination on the property. Pierdinock

identified four possible options for addressing the

contamination on the property. One plan proposed by Pierdinock

would have required not only that the buyers accept an AUL on

the property, but also that two adjoining property owners

subject their own properties to AULs as well. The abutting ice

cream shop owner would not accept an AUL, making the plan a

"[p]artial [t]emporary [s]olution" that would require continuous

monitoring that Pierdinock described as a temporary "band aid

solution." Continuous monitoring would have cost $24,000.7

6 The trial judge found insufficient evidence to determine
whether the buyers or the sellers were responsible for the
access problem. In her order denying the buyers' motion to
amend the judgment the judge did note that Horter encountered
problems in getting permission from the Wallaces to access the
property.

7 Had the trial judge determined that this satisfied the
guaranty, the buyers would therefore not be entitled to any
damages because they were responsible for the first $35,000 of
cleanup costs.

4
Pierdinock also developed three permanent solutions, each

of which would "satisfy the DEP" and eliminate both the need for

continuous monitoring and the need for the abutters to agree to

an AUL. After a jury-waived trial,8 the judge issued a judgment

that would provide the buyers reimbursement up to the lowest

cost of these three permanent options, option 3. That option

required the buyers to accept imposition of an AUL on their

property even though such a limitation was not provided for in

the sale contract.9

This awarded the buyers damages in the amount of $479,202

for breach of contract, the cost of option 3 minus the $35,000

the buyers agreed to pay in the guaranty. Packer, unsatisfied

with having prevailed in obtaining the lowest cost permanent

solution, argues on appeal that the buyers were entitled to be

paid only for an option that achieved merely a temporary

solution that required continuous monitoring of the property for

an indefinite period.

8 The buyers filed the complaint in January 2018 alleging
breach of contract and numerous other causes of action and
seeking damages to cover the costs of the property cleanup. The
buyers then filed a motion for summary judgment on their claim
for breach of contract. A judge of the Superior Court allowed
the motion, leaving the issue of damages for trial.

9 Option 1 was the most expensive and had a projected cost
of $1,060,744; option 2 had a projected cost of $585,372; and
option 3 had a projected cost of $514,202. Neither option 1 nor
2 required an AUL.

5
The buyers argued in a motion to amend the judgment, and

argue on appeal, that they were entitled to an additional

$102,917.89 in damages, plus prejudgment interest from June 3,

2015, the alleged date of breach, for the cost of the third LSP,

Pierdinock. The trial judge denied that motion. She reasoned

that the work Pierdinock did could not

"be considered to be 'cleanup costs' within the meaning of
the [g]uaranty, but rather the costs preliminary to
determining how much the actual clean up would cost.
Moreover, even if they could be deemed to be part of those
costs, the evidence was insufficient to support the
conclusion that these expenditures were reasonable and
necessary."

Elaborating, the judge found that the evidence was insufficient

to find that the buyers should be reimbursed for the LSP they

selected "without some additional evidence regarding the

insufficiency of [Horter's] work and how Pierdinock's work did

or did not duplicate it." Accordingly, the buyers failed to

demonstrate that those costs were "reasonable and necessary."

Because the buyers had not done the cleanup, the order also

clarified that "[a]ll that the [c]ourt has decided is that

plaintiffs are entitled to be reimbursed up to an amount

equaling $479,202."

Discussion. 1. Scope of the guaranty. Packer argues that

the evidence presented at trial did not support the award the

judge granted the buyers. Specifically, Packer argues that he

is liable only for cleanup costs "necessary to satisfy" the DEP

6
and that the evidence at trial showed that the DEP was

"satisfied" with the least costly plan, the plan that required

continual monitoring of the property. The question is whether

Packer's agreed-to obligation to pay "for 21E cleanup costs for

the property" (above $35,000) was satisfied if only a temporary

solution were achieved. This is a question of contract law,

i.e., what the parties intended, not one of whether the evidence

of damages was sufficient.10 See Haverhill v. George Brox, Inc.,

47 Mass. App. Ct. 717, 720 (1999).

10The buyers argue that Packer's argument is a sufficiency
argument that has not been preserved because the sellers failed
to file a motion for directed verdict or a motion for judgment
notwithstanding the verdict. We disagree and, in any event, the
"argument is misplaced as it is premised on a jury trial." K &
K Dev. v. Andrews, 103 Mass. App. Ct. 338, 343 (2023). See
Mass. R. Civ. P. 52 (b), as amended, 423 Mass. 1402 (1996)
("[w]hen findings of fact are made in actions tried by the court
without a jury, the question of the sufficiency of the evidence
to support the findings may thereafter be raised whether or not
the party raising the question has made in the trial court an
objection to such findings or has made a motion to amend them or
a motion for judgment"). Massachusetts Rule of Civil Procedure
52 is largely modeled on Fed. R. Civ. P. 52, which Federal
courts have interpreted to not require a party to make a
posttrial motion to preserve a sufficiency challenge to a
judgment after a jury-waived trial. Federal Ins. Co. v. HPSC,
Inc., 480 F.3d 26, 32 (1st Cir. 2007), quoting Colonial Penn
Ins. v. Market Planners Ins. Agency, Inc., 157 F.3d 1032, 1036
n.3 (1998) ("nothing indicates that a similar [requirement to
move for directed verdict and judgment notwithstanding the
verdict] applies to an appeal of the sufficiency of
evidence . . . to support a judgment following a bench trial").
"As a general principle, the Massachusetts Rules of Civil
Procedure are given the same construction as the cognate Federal
rules." Sahin v. Sahin, 435 Mass. 396, 400 n.7 (2001).

7
The trial judge concluded that the language of the guaranty

was ambiguous because cleanup costs were not defined and could

encompass costs associated with a temporary or permanent

solution. The judge found based on the evidence at trial that

the parties intended to cover cleanup costs for a permanent

solution to the contamination. This was a reasonable

interpretation of the intentions of the parties.

At trial, Pierdinock testified that the "band aid"

monitoring solution could not be permanent, as it required the

abutting properties to accept an AUL, which the ice cream shop

owner was unwilling to do. With the monitoring solution, no

actual cleanup would occur. The sellers' expert also testified

that current soil conditions "do not satisfy DEP standards."

The judge was entitled to credit that testimony. See Prenaveau

v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012) ("In a bench

trial credibility is quintessentially the domain of the trial

judge" [quotation and citation omitted]).

The judge's determination that the buyers were entitled to

reimbursement up to the amount of the cost of option 3, the

least expensive option, less the $35,000 they agreed to pay in

Accordingly, we conclude that a party is not required to make a
posttrial motion to preserve a sufficiency challenge after a
jury-waived trial where the presiding judge made detailed
findings of fact.

8
the guaranty also was reasonable. Looking to the remaining

solutions, the judge found that option 1, double the price of

the other two permanent options and nearly equivalent to the

purchase price, was not within the reasonable expectations of

the parties. Option 3 was substantively identical to option 2

except that it required the buyers to accept an AUL on the

property. Given that the property was zoned for commercial

purposes at the time the buyers purchased it and remained

unavailable for residential development until 2017, long after

the purchase, the evidence supported the judge's finding that

the buyers did not have a reasonable expectation of developing

the property for residential use and if they wanted to do so,

they had to bear that cost themselves. The award therefore

appropriately reflected the intentions of the parties.11

11Packer maintains that the award is barred by quantum
meruit, which he argues amounts to unjust enrichment. See
Sugarman & Sugarman, P.C. v. Shapiro, 102 Mass. App. Ct. 816,
820 n.7 (2023) ("quantum meruit is closely related to a claim
for unjust enrichment"). In this three-sentence argument Packer
fails to provide any legal support for the assertion that the
doctrine of quantum meruit may be used as a defense to recovery
for breach of contract. Accordingly, the argument does not
reach the level of appellate argument and we do not address it.
See Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993)
("bald assertions of error, lacking legal argument and
authority," do not "rise[] to the level of appellate argument").
We take the argument to mean that the amount the judge
determined the buyers could be reimbursed was unjust. Given
that the award was based on a contract, we disagree.

9
2. Buyers' cross appeal for additional costs of testing

and evaluation. The buyers argue (1) that they should be

entitled to reimbursement for $102,917.89 paid to Pierdinock for

his work assessing contamination on the property and developing

remediation plans; and (2) that they were entitled to

prejudgment interest from June 3, 2015, the date of the breach.

The judge did not award this element of damages in the judgment.

In her order denying the buyers' motion to amend the judgment,

the judge again rejected reimbursement and prejudgment interest

because she concluded that Pierdinock's expenses were not

"cleanup costs" and there was insufficient evidence that the

expenditures were "reasonable and necessary."

To the extent that the judge concluded that the costs that

the buyers incurred in assessing the contamination at the

property were not "cleanup costs" within the meaning of the

contract, there is significant force to the buyers' argument

that this was error. However, the judge denied the buyers'

claim for reimbursement of such costs on an alternative ground

as well, namely, that the buyers failed to demonstrate that such

costs were reasonable and necessary in circumstances where

Packer already had paid his own LSP to conduct an assessment of

the property. We affirm on this basis.

"A finding is clearly erroneous when there is no evidence

to support it, or when, 'although there is evidence to support

10
it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed.'" Adoption of Talik, 92 Mass. App. Ct. 367, 370

(2017), quoting Custody of Eleanor, 414 Mass. 795, 799 (1993).12

On this record, we cannot conclude that the judge's finding that

there was insufficient evidence to establish how Pierdinock's

work did or did not duplicate Horter's work was clearly

erroneous.

The trial judge heard testimony from both Pierdinock and

Horter and reviewed the containment plans produced by both

LSPs.13 Pierdinock did not explain in his testimony how his work

was different from Horter's. Pierdinock and Horter's testimony

were in conflict over whether DEP rejected Horter's report.

Horter completed reports for four phases out of five, including

the phase two comprehensive site assessment and phase three

12The buyers' brief does not contain a concise statement of
the applicable standard of review as required by
Mass. R. A. P. 16 (a) (9) (B), as appearing in 481 Mass. 1628
(2019). Packer did not file a responsive brief as cross-
appellee. The buyers appealed from both the judgment (so much
as it denied costs incurred) and the order denying their motion
to amend the judgment. We apply the standard of review for a
factual finding under the judgment, which is more favorable.
Cf. R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435
Mass. 66, 79 (2001) (we review denial of motion to amend
judgment for abuse of discretion).

13Pierdinock's plans are provided as part of the appellate
record, but Horter's are not. Our review is accordingly
limited.

11
remedial action plan. See 310 Code Mass. Regs. §§ 40.0830 &

40.0850 (2024). She also testified that some of the methods

that Pierdinock presented for cleanup were "pretty consistent

with some of the options that [she] presented in [her] reports."

While Horter did not address vapor intrusion in her reports,

where she presented the consistent remedial action options, we

cannot discern on this record the significance of this fact.

Moreover, the buyers do not include Pierdinock's bill (and many

other exhibits) in the appellate record to allow us to review it

to determine if it shows obvious non-duplication, such as

ongoing monitoring. Without the full record before us and in

light of the substantial deference we accord the judge in a

jury-waived trial, we are not left with the "definite and firm

12
conviction that a mistake has been committed."14 Haskell v.

Versyss Liquidating Trust, 75 Mass. App. Ct. 120, 125 (2009).15

Judgment affirmed.

By the Court (Milkey, Henry &
Desmond, JJ.16),

Clerk

Entered: August 8, 2024.

14It is the responsibility of the party appealing to
provide an adequate record. Spivey v. Neitlich, 59 Mass. App.
Ct. 742, 744 (2003).

15Because we affirm the denial of LSP expenses, we need not
reach the buyers' claim that they are entitled to prejudgment
interest on that amount.

16 The panelists are listed in order of seniority.

13