# UnitedStates C ou rt o f App eals For th e First C ircuit

No. 08-2393 MARILYN KUNELIUS, Plaintiff, Appellant,

v . TOWN OF STOW; THE TRUST FOR PUBLIC LAND; CRAIG A. MACDONNELL, in his individual capacity,

Defendants, Appellees,
A PARTNERSHIP OF UNKNOWN NAME BETWEEN TOWN OF STOW AND THE TRUST FOR PUBLIC LAND,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, Jr., U.S. District Judge]

Before Torruella, Lipez and Howard,

Circuit Judges.

Michael C. McLaughlin for appellant. Richard A. Oetheimer, with whom Dahlia S. Fetouh and Goodwin Procter LLP, were on brief, for appellees The Trust for Public Land and Craig A. MacDonnell. Debor a h I . Ecker, with whom Deidre Brennan Regan and Brody, Hardoon, Perkins & Kesten, LLP, were on brief for appellee Town of Stow.

November 9, 2009-2- HOWARD, Circuit Judge . Similar to other states, Massachusetts pr o v i des tax relief to landowners of agricultural, horticultural or forest land. When such land is converted to other

uses , t h e C o mm o n w e a l t hr e q u i r e s l a n d o w n e r s t o c o mp e n s a t e t h eir respective municipalities. The compensation may be take the form of, for example, payment of a conveyance tax when the land is sold, or payment of roll-back taxes if the land otherwise ceases to qualify for preferential tax treatment. In addition to these tax features, Massachusetts law also provides that once a landowner decides to sell the land for other than agricultural, horticultural, or as relevant here, forest uses, the municipality is entitled to a right of first refusal ("ROFR"). Mass. Gen. Laws ch. 61. This ROFR provides the municipality with a 120-day period in which to meet a bona fide offer t o p u r chase the land. The municipality thus has the right but not the obligation to preserve salutary land uses by purchasing land that the landowner desires to sell, and the landowner receives the compensation that a willing buyer in an arm's-length transaction is prepared to pay.

In this case, plaintiff-appellant Marilyn Kunelius accepted a b o n a fide offer to purchase a parcel of land, which included acreage that had been certified under Mass. Gen. Laws ch. 61 as forest land. Pursuant to the statute, the Town of Stow chose to exercise its ROFR. In addition, the Town assigned this right,

a s also permitted by the statute, to the Trust for Public Land-3-

( " T P L" or "Trust"), a nonprofit conservation organization. From the beginning, it was clear that a number of circumstances had to align in a precise constellation fo r t he Trust and the Town to

con s u mmate the transaction. Despite potential difficulties with the transaction, the Town a n d TPL nevertheless went through with the assignment of the ROFR. The Trust's optimistic hopes for obtaining private phila n t h r opy, state grants, and local zoning relief, however, were not fulfilled. As a result, the Town and the Trust failed to complete the transa c t i o n . In the interim, Kunelius's previous buyer chose to develop other land.

Conceding that it had breached its obligations under its contract with Kunelius, the Trust paid liquidated d a m a g e s in the amount specified in the purchase and sale contract that had been negotiated between Kunelius and h e r original buyer. Kunelius, however, believing that she was entitled to significantly more, brought suit in the district court. The complaint sought several species of relief, including the invalidation of the liquidated damages clause, speci f i c performance or full contract damages, remedies for t h e Town and Trust's breach of the covenant of good faith and fair dealing, relief under the business-to-business provisions of Chapter 93A, and relief under the Contracts Clause of the United States Constitution. On cross-motions for summary judgment, the district court granted summary judgment to all of the de f e n d a n t s : t h e T o w n , t h e T r u s t , a n a l l e g e dp a r t n e r s h i p b etween-4-

the Town and Trust, and Trust employee Craig MacDonnell. Kunelius now appeals. I. Background

By and large, the facts are not in dispute, but t o the extent that they are, we recite them in the light most favorable to the non-moving party, here, the appellant. See Essex Ins. Co. v. BloomSouth Floori n g C o rp., 562 F.3d 399, 401 (1st Cir. 2009); CoxCom, Inc. v. Chaffee, 536 F.3d 101, 108 (1st Cir. 2008). A. The Original Transaction Beginning in 2001, Kunelius sought to sell her horse farm located at 142 and 144 Red Acre Road in Stow, Massachusetts. The land abuts two conservation areas, the Red Acre Woods conservation area and the Captain Sargent conservation area, and it sits atop the Town's largest aquifer. The total land area of this parcel is approximately 50.67 acres, 42.1 acres of which had been designated as forest land since 1985, pursuant to Mass. Gen. Laws ch. 61 § 2. Upon the remainder of the parcel (approximately 8.57 acres) sit a main house and a caretaker's house, as well as the accouterments of a horse farm, including a paddock, barn, and other improvements.

In mid-2002, Kunelius entered into negotiations with Cohousing Resources LLC ("Cohousing"), a consulting company based in the state of Washington th a t assists local communities in forming and developing co-housing projects. Co-hou s i n g projects like the one Cohousing contemplated here place an emphasis on open-5-

space and communal living. Because Cohousing requires the groups on whose behalf it undertakes development to commit to a certain
t h reshold level of funding before Cohousing becomes involved, Cohousing's projects have a relatively high probability of coming to fruition. Through extensive negotiation and personal contact, Kunelius, her attorney and her real estate agent came to trust Cohousing and its principal representative, Chris ScottHansen. As

a result, Kunelius was comfortable offering terms to Cohousing that she may not have offered to another counterparty.

Cohousing's initial offer was for a purchase price of $ 1
. 1 million, with a deposit of $50,000 to be held in escrow pending closing. In this first signed offer, the only contingency

was an ev a l u a t ion of the property's suitability for the eventual construction of a thirty-unit development. The offer contained a provision that permitted the seller to select from a range of remedies in the event of the buyer's breach:

U p o n default by Buyer, Seller, at its sole option, may (i) retain the deposit as liquidated damages as its sole remedy, or (ii) repay the deposit to the Buyer and subsequently enforce this Agreement and pursue a n y a nd all remedies available at law or equity, including an action for specific performance and damages. This offer was not accepted, and negotiations continued. Cohousing's next offer was for the same purchase price, but contemplated that Kunelius would provide substantial seller financing. In addition, the deposit amount was reduced to onlyThe record reflects that Kunelius intended to donate the 42.1 1 acres of forest land to the Town. We need not speculate about her reasons for structuring her affairs in the way that she did, rather than attempting to sell only the 8.57 acres in a transaction separate from the contemplated land donation. See Mass. Gen. Laws ch. 61 § 8 (2001) (providing that only land taxed under Chapter 61 is subject to the right of first refusal); see also Town of Sudbury -6- $10,000 up front and a payment of $1,500 per month thereafter. The record suggests that the monthly payment was to replace Kunelius's horse farm income, because h e r customers would likely look elsewhere to board their horses. After a period for the feasibility study, Kunelius was free to make use of the deposits.

This revised offer also specifically contemplated the probability that Cohousing would file an application for relief from local zoning requirements, invoking the streamlined approval process for affordable housing set forth in Chapter 40B of the Massachusetts General Laws. See Mass. Gen. Laws ch. 40B §§ 20-23. In view of the anticipated approval process, the time for closing on this offer was approximately two years.

At Kunelius's request, this revised offer, although written to include all of her p r o p erty, contemplated the possibility that "a significant portion of the undeveloped land . . . not to exceed 42 acres may be encumbered by or deeded to the Town of Stow," and that this encumbranc e o r t r a n sfer was to occur after all 40B approvals had been made and before closing. The upshot of this feature was to allow Kunelius to receive any tax credit for the tr a n s f e r or encumbrance. Finally, the liquidated 1v. Scott, 787 N.E.2d 536, 542 & n.11 (Mass. 2003) (clarifying that

Mass. Gen. Laws ch. 61A § 17 should be interpreted to allow "the municipality to exercise its first refusal rights as to the portion of the land that is to be separated from the remainder, when sold or converted, as set forth in [Mass. Gen. Laws ch. 61A § 14], while the remainder of the land may remain in c. 61A"(emphasis added)). -7- damages provision in Cohousing's revised offer remained the same as in the prior offer.

Although K u n e l ius did not accept the second offer, negotiations continued, and the p arties eventually reached an agreement. The terms of the contract, which was drafted by Kunelius's attorney, diverged in several ways from previous offers. The s l i g h tly increased purchase price was to be paid in the same fashion as before, with Kun e l i u s holding a note for a portion of the price. The time for performance was set at September 26, 2003, although Cohousing had the opportunity to extend this period for a year if "the Chap. 40B approval process is proceeding forward."

Among other chang e s w e re the inclusion of at least two references to the possibility of the Town exercising its ROFR. One provision stated flatly that "[i]n the event that the Town of Stow exercises its right of first refusal pursuant to Mass. Gen. Laws ch. 61, all monies deposited hereunder shall be forthwith returned to BUYER without further recourse by either party in equity or law." Another change involved a clarification of Kunelius's right to transfer that portion of her land classified as forest land: after the 40B development was approved and the seller received all-8-

"purchase monies," the seller would transfer "all right, title, and interest in the said 42.1 acre parcel currently under [sic.] Mass. Gen. Laws ch. 61, as a charitable contribution."

For purposes of this action, however, the most important change between the prior offers and the signed contract was the clause specifying the remedies available to the seller in the event of the buyer's breach. The revised clause reads:

If BUYE R s h all fail to fulfill the BUYER'S agreements herein, all deposits made hereunder by the BUYER shall be retaine d b y the SELLER as liquidated damages and this shall constitute SELLER'S sole remedy in equity and law.
Both Kunelius and Cohousing signed this agreement sometime in October of 2002.

B. The Town Assigns Its ROFR to TPL Within days o f s i gning her agreement with Cohousing, Kunelius provided notice to the Town, and other parties required to be notified by statute, of her intent to sell all of her 50.67 acres. Spearheaded by a group known as the Friends of Red Acre ("FORA"), which included many of Kunelius's immediate neighbors on Red Acre Road, opposition to the pr o p o sed co-housing development sprouted quickly. This opposition eventually focused on a l l egedexcess costs the Town would have to bear as the result of the cohousing development. Urging that the Town exercise its ROFR was one of the principal arrows in the opposition's quiver.-9- By December 2002, FORA proposed an alternative to the Cohousing's proposed development. The FORA plan provided that the Town would contribute $100,000 from C o mmunity Preservation Act funds and $300,000 from general town funds, as well as assign its ROFR to a non-profit conservation group. Additional funds would be raised by selling both homes on the property as affordable housing,and selling the horse farm operations to Eye of the Storm, a nonprofit equine rescue organization. (These p r o posed sales contemplated relief from various zoning regulations). All of the remaining purchase price fu n d i ng was to come through private donations. The Trust for Public Land was identified as the nonprofit conservation organization most likely to accept assignment of the Town's ROFR. TPL expressed a strong interest in accepting the assignment, but only if certain conditions were met. Those conditions i n c luded the Town's appropriating $400,000 to support the project, FORA and oth e r s raising the $22,000 in required deposits under Kunelius's contract with Cohousing, TPL determining that the proj e c t w as feasible, and its governing board approving the assignment. On January 13, 200 3 , t he Town decided to borrow and appropriate $305,000 from its general funds to support the Town's exercise o f the ROFR. (The remaining $95,000 was to come from Commun i t y P reservation Act funds). But because the Town wished to exempt the borrowing from the limitations of Proposition-10-

2 1⁄2, see Mass. Gen. Laws ch. 59 § 21C, th e v o t e w a s tentative, pending confirmation in a Special Town Election. By a vote of 515 to 355, however, Stow voters declined to approve the project.

Undaunted, FORA and the Trust pushed ahead and convinced the Town to extend consid e r a t ion of the ROFR to the full 120-day period specifi e din the statute. During that time, Craig McDonnell, the TPL project manager for this transaction, prepared a lengthy "Project Fact Sheet" to brief TPL's governing board on the project and assist the board in arriving at a d e c ision about how to proceed. In this document, McDonnell explained that Kunelius was planning to deed most of forest acres to the Town free of charge, but that TPL's involvement in the project would result in the conservation of three additional acres and provide the Town access to a pond on the 8.57 acres that Cohousing was planning to develop for fire suppression purposes.

As to the financing and risks of the proposal, McDonnell noted that with the failure of the appropriation, TPL would have to accept the assignment before the Town could replace the d e f e ated $300,000 appropriation with additional Community Preservation Act funds, but that this risk was mitigat e d b y t he fact that he believed that TPL's exposure was limited to liquidated damages in the amount of $22,000, as provided in the contract between Kunelius and Cohousing. (Concomitantly, with this candid private assessment of TPL's obligations and exposure with respect to this transaction,-11-

McDonnell publicly made disparaging statements about developers and touted TPL's commitment to complete the transaction andm a ke Kunelius "whole.") McDonnell further noted that Kunelius was upset
at t h e p r o spect of the Town assigning its ROFR to the Trust. He suggested, however, that the litigation risk was "minimal" due to the clarity of the liquidated damages clause, and he predicted that the Trust would prevail on summary judgment after minimal discovery in any suit brought by Kunelius. Eventually, TPL's governing board approved the acceptance o f t he assignment, but the board nonetheless withheld authority for TPL to close on the transaction.

Armed with this limited authority, McDonnell went ahead with efforts to acquire an assignment of the ROFR. Without disclo s i ng to the Town the constraints placed on TPL, McDonnell negotiated with the Town's Board of Selectmen regarding the terms unde r w h i c h T P L w o u l d a c c e p t t h e a s s i g n m e n t . B y a n d l a rge, the negotiations did not reflect significant disagreement between the Town and TPL, although TPL refused to indemnify the Town for pot e n t i a l d a m a g e s o rd e f e n s e c o s t s i n t h e e v e n t o f p o t e n t i al litigation. TPL did acknowledge that "the decided cases under Chapter 61 do not explicitly resolve all of the potential issues that arise when a municipality assigns its right of first refusal to a nonprofit conservation organization, including which terms of the underlying contract should obligate the assignee."The day before, o n F e b ruary 10, 2009, The Stow Community 2 Preservation Committee, the body that administers Community Preservation Act Funds, heard a joint FORA/TPL plea to use funds to support the Trust's planned exercise of the ROFR. The Committee voted to recommend that the Town approve the necessary expenditures at the Town's annual meeting in May 2009. -12- At a Board of Selectmen meeting on Febr u a ry 11, 2003, 2 days before the Town's ROFR was scheduled to lapse, the Town assigned the ROFR to the Trust on the terms described above. At the meeting, McDonnell gave a presentation describing the benefits of the transaction and urged approval o f the assignment, but McDonnell did not disclose the c o n ditions that the Trust's governing board placed on its acceptance of the assignment. By a vote of three to one, the Town's Board of Selectmen voted to assign the ROFR to the Trust, which the Trust accepted in writing the next day. In due course, Kunelius was provided with written notice that the Town had assigned the ROFR to the Trust, which provided notice of its acceptance. C. The Transaction Sours

About a month later, by March 19, 2 0 0 3, McDonnell was singing a different tune. On that date, McDonnell wrote in confidence to members of FORA, "I recently have spent some time thinking through this project in detail . . . and have a realized that a number of key assumptions about structure and timing are unworkable." In an attached c onfidential memorandum, McDonnell explained that the TPL would require $1.154 million at closing andThere is no indication in the re c o r d that these limitations 3 on TPL's authority were disclosed to Kunelius or the Town at this time. -13- proposed relying on Eye of the Storm, a fledgling non-profit with little infrastructure, to raise $400,000 either through fundraising or a loan secured by its interest in 144 Red Acre Road before

c l o s i ng. In addition, McDonnell contemplated raising $450,000 through private philanthropy prior to closing.

FORA agreed with these observ a t i ons but concluded that McDonnell's proposed fund raising timetable was overly optimistic and urged the Trust to close with borrowed funds. To that end, FORA arranged for a line of credit for the Trust.

McDonnell replied with another confidential memorandum dated March 27, after the assignment but before the Town provided any funds. In this memorandum, for the first time, McDonnell disclosed to FORA that "TPL's national board has given only a tentative approval to this excellent adventure we are undertaking togethe r . . . . We have not received the go-ahead to actually purchase the property. Our board is awaiting progress on both the political and fundraising fronts. Unless we secure approval at the May t o w n meeting and make substantial progress on the remaining finances, I do not believe we will get national approval for this project." Although McDonnell did not foreclose the possibility of

3 TPL's obtaining "conservation financing," he made clear that itIn April 2003, McDonnell repres e n t ed to the Massachusetts 4 Department of Housing and Community Development that TPL had access to a six million dollar line of credit from a bank and would consider using this resource, even though internal TPL discussions suggested that TPL's governing board was unlikely to a p p r ove the use of financing in this project. -14- would have to be limi t e d t o $ 6 00,000, the combined value of the main house and the horse farm/caretaker's house. 4

Despite these doubts with respect to the financing of the project, the Trust, FORA, and the Town pressed onward. The Trust and the Town applied for state aid to rehabilitate the two homes on the Kunelius property, and prepared for the Town meeting, which was
to co n f i rm the Town's contribution of Community Preservation Act funds. At the meeting, the funds were approved, but this approval marked the high-water mark of the potential transaction.

Soon thereafter, in mid-June 2003, although contrary indications were evident even before the Trust accepted the ROFR, it became clearer that the Trust's plan of dividing the parcel in order to sell the two homes on the Kunelius property was unlikely to fare well in the zoning process. In another blow to the project, in early July 2003, the State Department of Housing and Community Development denied the grant application to renovate the two houses on the property. The c o mb ination of these body blows forced the Trust to ramp u p p lanning for abandoning the transaction, and to that end, McDonnell wrote to TPL colleagues "I think the most important thing about the 'exit strategy' is not toAt this time, TP L received discouraging news on the zoning 5 front: outside counsel advised TPL that approval of the variances was extremely unlikely. -15- be seen as TPL pulling the plug, but for a consensus to emerge from all that the project has now got some fatal flaws . . . ."

The prediction of fatal flaws prove d p rescient, though some of them were of TPL's own m a k i n g . Peter Christiansen, a leader of FORA, wrote that McDonnell's conduct led him to "feel raped," and that McDonnell had told him that TPL would neither engage in any fundraising nor supply any fundraising prospects. Christiansen further claime d t hat the Trust solicited leads that FORA members had identified for funding of other projects. This alleged poaching, combined with TPL's threats to pull out of the purchase altogether, made it difficult for FORA members to harness their relationships with potential donors. Once it appeared likely that TPL would withdraw from the transaction, that appearance would bode ill for FORA-members' relationships with repeat players in the conservation world.

By July 31, 2003, the Trust informed FORA that it was "not par t icularly sanguine" that the transaction could close. Indeed, TPL unequivocally stated that only price concessions from Kunelius, who was forced to deal with TPL by virtue of the ROFR, could save the transaction. TPL then requested $350,000 in price 5 concessions from K u nelius, which she refused. Although TPL and FORA continued to trade arguments a b out the feasibility ofOn appeal, Kunelius has not advanced any developed argument 6 in s u p p o r t o fh e rc l a i m s a g a i n s t M c D o n n e l l i n h i s p e rsonal capacity, and therefore those arguments have been waived. Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 85 n.4 (1st Cir. 2006)
We note that during the pendency of discovery, all defendants 7 jointly filed a motion to certify a central question of this suit to the Massachusetts Supreme Judicial Court. The defendants argued that "there is no controlling precedent in the decisions of the SJC or the Massachusetts Appeals Court" regarding whether a liquidated damages clause negotiated between the owner of Chapter 61 lands and a willing buyer should, by operation of law, become a provision that is applicable to a municipality or non-profit conservation organization exercis i n gan ROFR. This motion was eventually withdrawn, subject to renewal. -16- financing, the project was effectively de a d
. TPL unilaterally withdrew its application for a zoning variance o n September 25, 2003, and did not close on September 26, 2003. D. Proceedings Below Although further discussions occurred between TPL and Kunelius (sometimes with the faci l itation of Town officials), resolution proved elusive. Kunelius filed the present suit against the Town, the Trust, an alleged partnership between the Town and Trust, and McDonnell in his individual capacity. 6 After preliminary skirmishing, including the dismissal of one count not at issue here, and after the conclusion of discovery, the di s t r i c t c o u r t g r a n t e d s u mm a r y j u d gm e n t t o a l l d e f e n d a n t s . This 7 appeal timely followed. II. Discussion

We review summary judgment rulings de novo, and the presence of cross-motions f o r summary judgment does not alter or-17-

dilute this standard. Desrosiers v. Hartford Life and Accident Ins. Co., 515 F.3d 87, 92 (1st Cir. 2008). We will affirm entry of summary judgment if the record -- viewed in the light most favorable to the nonmoving party, including all reasonable inferences drawn in favor of the nonmoving party -- discloses no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215, 218 (1st Cir. 2008).

We apply the substantive l a w of the forum state, here Massachusetts, to claims invoking the court's diversity jurisdiction, see Citibank Global Mkts., Inc. v. Rodriguez-Santana, 573 F.3d 17, 23 (1st Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)), but we of course apply federal law to the federal claims. Where no autho r i tative decision from the state court of last resort resolves an issue of state substantive law, we must predict, as b e s t a s w e can, that court's resolution of the issue before us. Essex Ins. Co., 562 F.3d a t 4 0 4 ( citation omitted). Although we have no single Polaris to guide our prediction of t h e state court's resolution of such questions, we rely on analogous cases decided in the forum state, persuasive reasoning in cases from other states, and other secondary sources, such as Restatements and treatises. Id. (citing Trans-Spec Truck Serv. v. Caterpillar Inc., 524 F.3d 315, 323 (1st Cir.), cert. denied, 129 S. Ct. 500 (2008)).-18- We will first discuss the appellant's claims that the original contract's liquidated damages provision does not apply to the Town or to TPL, and that the liquidated damages clause is in any event invalid. After that, w e w i l l a d dress the Chapter 93A cl a i m , t h e claim based on the covenant of good faith and fair dealing. Finally, we will briefly discuss Kunelius's remaining claims. A. Applicability of the Liquidated Damages Clause to the Town and Trust
We begin with the question of wheth e r the liquidated damages clause in Kunelius's contract with Cohousing is a term that inures to the benefit of the Trust and the Town. The district court noted that all parties agree that TPL breached the purchase and sale contract, but they disagree as to the proper remedy. Kunelius sought specific performance or full benefit-of-the-bargain damages, while the Trust claimed that Kunelius's remedy for breach was limited to the $19,000 in deposits and monthly payments that it had already paid and Kunelius has retained.

The district court observed, as the parties had, that it is unclear whether Massachusetts courts would find that an exercise of an ROFR requires the purchaser to "literally meet every last detail of the prior offer or only the essential terms, such as, for instance, the identity of the subject property, the price, the time for performance and the like, but not subsidiary agreements, such-19-

as, for instance, mortgage contingencies, rights to inspect . . . or pertinent to this controversy, provisions regarding remedies for breach." Kunelius v. Town of Stow, No. 05-11697-GAO, 2008 WL 437 2 7 5 2 at *2 (D. Mass. Sept. 23, 2008) (footnote omitted). The district court determined that it did not need to answer this question because the parties agreed that the purchase and sale agreement "set[] forth the terms of their contract." As evidence of this agreement on the part of plaintiff, the district court cited paragraph 58 of her complaint which states, "The P & S is a valid and enforceable contract between Kunelius and Stow and TPL." Id. Unlike the district court, we are not persuadedt h at Kunelius has admitted that the liquidated damages provision applied to the Town and t h e T r ust. Paragraph 55 of her complaint specifically states that "The obligations of Stow and TP L under Mass. Gen. Laws ch. 61 could not be avoided by relying on the liquidated damage[s] clause . . . since such liquidated damage[s] clause . . . was applicable only to Coh o u s i n g s ince it sought certain permits and approvals in connection with its [Chapter] 40B . . . Development." (emphasis added). In light of this paragraph, we think that the complaint is best read as asserting that the Town and the Trust's j o i nt exercise of the ROFR, by operation of law, obliged them to purchase the property identified in the contract at the price stated.-20- The district court is, of course, correct that the Trust has consistently taken the position that it assumed the role of Cohousing in the contract and that the liquidated damages provision inured to its benefit. The plaintiff, however, claims that through her then-counsel, she communicated to the Town attorney her belief that the liquidated damages clause did not appl y t o the Town and the Trust. Moreover, the record also reveals that the Trust, in a communication to the Town, acknowledged that the question of which provisions of the P & S apply to the exercisor or a s s i g n ee of an ROFR under Chapter 61 remai n s an open question. Ultimately, therefore, we are satisfied that the plaintiff adequately preserved this question below, and has properly raised it on appeal.

Ordinarily, in Massachusetts "contract interpretation is for the court, unless disputed issues of fact bear upon the interpretation of ambiguous language." Liberty Mut. I n s . Co. v. Greenwich Ins. Co., 417 F.3d 193, 197 (1st Cir. 2005) (citing Fishman v. LaSalle Nat'l Bank, 247 F.3d 300, 303 (1st Cir. 2001)). We have explained that "judges construe contracts, if only the words need be considered, and the jury does the job under instructions if evidentiary issues have to be resolved." Fishman, 237 F.3d at 303 (citations omitted). Here, there are no evidentiary questions to resolve; rather, we must decide, as a matter of law, whether the liquidated damages provision, by operation of law, was made applicable to the Town and the Trust.-21- For the reasons that follow, we believe that the Supreme Judicial Court ("SJC") would hold that the liquidated damages provision inures to the benefit of the Trust and the Town. Although there is scant case law interpreting Mass. Gen. Laws ch. 61 § 8, we may look to case law decided under the nearly identically-worded ROFR provision of agricultural and horticultural lan d s , M ass. Gen. Laws ch. 61A § 14. See Comm. v. Smith, 728 N.E.2d 272, 276 (Mass. 2000) (noting that it is most appropriate to use construction of one statute to inform construction of another when the two statutes relate to the same class of things or share a similar purpose) (citation omitted).

At the time that K u n elius entered into the transaction with Cohousing, the SJC had not decided any cases under either statute, but that court has since decided at least two cases under ch. 61A § 14. In Town of Sudbury v. Scott, a divided S J C, after reviewing the various features of Chapter 61A, incl u d i ng the conveyance tax, the roll-back tax, and the ROFR, held that in order for p a r t i e s t o the sale of lands certified under Chapter 61A to avoid a municipality's ROFR, the putative purchaser must not have the intent t o c o nvert the land to non-agricultural or nonhorticultural purposes at the time of purchase. 787 N.E.2d at 544. The court there f o re vacated summary judgment in favor of the purchaser and r e m a n d ed the case for a determination of the purchaser's intent at the time of the purchase. Id. at 546-47. InThe Massachusetts legislature has since abrogated the rule in 8 Wyllie, and Mass. Gen. Laws ch. 61A § 14 and C. 61 §8 now require that in order to be "bona fide," an offer must not be "dependent on potential changes to current zoning or conditions or contingencies relating to the potential for or the potential extent of subdivision of the propert y f o r residential use or the potential for, or the potential extent of development of the property for industrial or commercial use, made by a party unaffiliated with the land o w n e rf o rf i x e dc o n s i d e r a t i o n p a y a b l e u p o n d e l i v e r yo ft he deed." St. 2006 C. 394 §§ 18, 31. We apply the law as it was before the legislature amended it, effective March 22, 2007. See Fleet Nat'l Bank v. Comm'r of Revenue, 852 N.E.2d 22, 28-29 (Mass. 2007) (noting that retroactive application of statutes adjusting substantive rights, as opposed to remedies, is disfavored and t h u s t he court employs a presumption against retroactive application that it uses to resolve uncertain cases)(citing Austin v. Boston Univ. Hosp., 363 N.E.2d 515 (Mass. 1977)); see also City of Newburyport v. Woodman, No. 309692, 2007 WL 3256964, at *3-4 (Mass. Land Ct. 2007) (noting that General Court enacted C. 394 to overturn the decision in Wyllie, but that this enactment was not to be applied retroactively). -22- Town of Franklin v. Wyllie, a unanimous SJC held that a developer's offer to purchase undeveloped land subject to Chapter 61A was bona fide, even though the final purchase price was contingent on the number of lots ultimately approve d for development. 819 N.E.2d 943, 948 (Mass. 2005). The court went on to conclude that since the offer was bona fide, had the Town of Franklin c h o s e n to exercise its ROFR it would have been obliged to determine how many lots would be approved for development to fix the purchase price, in order to purchase the property "on substantially the same terms and conditions" as those struck between the non-municipal buyer and the seller. Id. at 950 (citing Stone v. W.E. Aubuchon Co., 562 N.E.2d 852 (Mass. App. Ct. 1990)). 8-23- Thus, neither Scott nor Wyllie ad d r e s ses the precise question at issue here. Nevertheless, the appellees make much of the fact that in both decisions the SJC suggested more broadly that the s t a tutory ROFR conferred on a municipality under C. 61A § 14 and C. 61 § 8 "ripen[s] into an option to purchase according to the terms of the offer." Wyllie, 819 N.E.2d at 949 (citing Greenfield Country Estates Tenants Ass'n v. Deep, 666 N.E.2d 988, 993 n.14 (Mass. 1 9 8 9 ) ) ; s ee also Wyllie, 819 N.E.2d at 949 ("There is no indication, however, that the L e gislature intended that a municipality's 'first refusal option' to purchase would encompass the right to purchase such land on different terms and conditions than [those] set forth in the 'bona fide offer.'" (emphasis added) (citing Scott, 787 N.E.2d at 544 n. 14))). From this language, the appellees argue that they should be obliged to take on no more risk or offer no more certainty that their transaction would close than Cohousing offered in its bona fide offer.

The plaintiff's position is that she was able to offer a streamlined liquidated damages clause to Cohousing because she had established a considerable amount of mutual trust and understanding with ScottHansen, and because she felt comfortable that Cohousing's development was properly financed and Chapter 40B approvals would be forthcoming. Consequently, the argume n t g o es, it would be grossly unfair to give the Town and the Trust these same concessions, particularly in l i ght of the fact that the Trust's-24-

ability to close was tenuous from the beginning and its statements to the contrary were disingenuous. Embedded in this argument is the policy concern that granting mu n i c i palities and nonprofits added leverage to disrupt transac tions involving certified land would tilt the statutory structure too far toward the municipality and would therefore reduce the number of landowners willing to participate in the scheme.

These arguments are not without some appeal, although the most obvious response is that Ku n e lius understood herself to be bargain i n g in the shadow of the Town's ROFR. She therefore also should have understood the desirability of accounting for the fact that any deal she struck would be available to the Town, or to any non-profit conservation organization to which the Town might choose to assign the lease. She may well have been able to negotiate terms that would have better protected her in the event that less reliable counterparties, such as the Town and the Trust, would become parties to this transaction. Whether or not such terms ultimately would have protected her, we must decide the case on the facts as they are. Despite her knowledge that the ROFR lurked in the w e e d s , K u n e l i u s i n f a c t d i d n o t i n c l u d e a n y l a n g u a ge in the contract to limit her risk in the event of the exercise of the known ROFR.

In addition to Kunelius's control over the drafti n gof her contract, the cases at common law (which applies to statutory-25-

R O F R s , see Scott, 787 N.E.2d at 543 n.12), cut against her legal position. Most common law courts do not appea r t o h a v e focused carefully on this question, and thus have not addressed the

s p e c ific concerns that the appellant identifies, but most have generally stated that once a seller receives a bona fide offer, the ROFR ripens into an option to purchase the property "at the price and otherwise on the terms stated in the offer." T.W. Nickerson, Inc. v. Fleet Nat. Bank, 898 N.E.2d 868, 878 (Mass. App. Ct. 2009) (quoting Frostar Corp. v. Malloy, 823 N.E.2d 417 (Mass. App. Ct. 2005) (emphasis added)); see also Gleason v. N o r west Mortgage, Inc., 243 F.3d 130, 1 3 9 n . 5 (3d Cir. 2001) (applying Minnesota law) (citing Allison v. Agribank FCB, 949 S.W.2d 182, 186 (Mo. Ct. App. 1997)); Henry Simons Lumber Co v. Simons, 44 N.W.2d 726, 727 (Minn. 1950). As a result, the holder of an ROFR must have knowledge of the terms and conditions of the entire offer so that the holder may decide if she wishes to meet the offer. T.W. Nickerson, 898 N.E.2d at 878 (citing Gyurkey v. Babler, 651 P.2d 928 (Idaho 1982)); see also Uno Rest., Inc. v. Boston Kenmore Realty Corp., 805 N.E.2d 957, 962-63 (Mass. 2004); Miller v. LeSea Broadcastin g , Inc., 87 F.3d 224, (7th Cir. 1996) (applying Wisconsin law) (noting that requirement that holder of ROFR exactly match a bona fide offer is in fact a protection for the grantor of the ROFR). Requiring that the holder of an ROFR have access toAlternatively, these courts p e rmit the exercise of an ROFR 9 even if t h e r e are insubstantial variations between the bona fide offer and the holder of the ROFR's offer, which is essentially the same thing. See Miller, 87 F.3d at 226. -26- such terms would serv e l i t t l e purpose if the holder of the ROFR were not required to meet them.

Thus, the decisions interpreting th e s tatutory ROFR at iss u e in this case (or more precisely, its twin), as well as decisions dealing with common law rights of first refusal more generally, all suggest that the holder of an ROFR must meet all of the terms and conditions of the offer, including subsidiary terms such as the liquidated damages clause at issue here. Many courts do, however, make an exception for immaterial terms with which the holder of an ROFR need not comply, e.g., W. Tex. Transmi s s i on, 9 L.P. v. Enron Corp., 907 F.2d 1554, 1556 (5th Cir. 1990); John D. Stump & Assocs., Inc. v. Cunningham Mem'l Park Inc., 419 S.E.2d 699, 705 (W. Va. 1992); Brownies Creek Collieries, Inc. v. Asher Coal Mining Co., 417 S.W.2d 249 , 2 5 2 ( K y . 1967), and even those that do n o t make a materiality exception generally make three exceptions to the rule of exact matching. First, the grantor can waive exact matching by agreeing that certain terms should not apply to the holder of an ROFR. Miller, 87 F.3d at 227; see also State Dept. of Transp. v. Providence and Worcester R.R. Co., 674 A.2d 1239, 1243-44 (R.I. 1996) (state, acting pursuant to a statutory ROFR, did not void the ROFR by pointing out that seller-27-

was not required to undertake onerous action that would have been required had the bona fide offer been accepted). Second, it is of course clear that the names of the parties will not exactly match the proper names contained in the bona fide offer when the holder of an ROFR exercises it. Miller, 87 F.3d at 227; Providence and
Worcester R.R. Co., 674 A.2d at 1243-44 (noting that name of buyer should be changed to "the state"). Finally, courts will relax the rule of perfect matching in the presence of bad faith. Wyllie, 819 N.E.2d at 949 n. 8; Miller, 87 F.3d at 228 (citin g O r . R SA No.6, Inc. v. Castle Rock Cellular of Or., L.P., 76 F.3d 1003, 1007 (9th Cir. 1996)). Aside f rom these exceptions, however, most courts hold that the terms of the bona fide offer become binding on the holder of an ROFR. This authority persuades us that the SJC likely would adopt a similar rule.

In an argument faintly reminiscent of the third exception noted above, the appellant asserts that the Trust acted in bad faith such that the Trust should not be entitled to rely on the liquidated damages provision. As examples of that bad faith, the appellant points to the Trust's unwillingness to allow her to make a charitable donation of the 42.1 acres, its refusal to proceed under Chapter 40B, and its attempt to lower the purchase price. While declining to proceed with a Chapter 4 0 B application was entirely proper , t he Trust's other actions may suggest the possibility of a violation of Chapter 93A, a breach of the implied-28-

covenant of good f a i t h and fair dealing, or the Trust's anticipatory breach of its contract with the appellant (the first two of which we address later, and the last being a cause of action tha t h a s not found much hospitality under Massachusetts law, see
genera l l y D a n i e l s v . N e w t o n , 1 1 4 M a s s . 5 3 0 ( 1 8 7 4 ) )
. W e f ail to see, however, in what way these action support an argument for varying the terms under which the Trust could accept the contract. Accordingly, this argument does not disturb our conclusion that the liquidated damages provision applies to the Trust and the Town.

B. Validity of the Liquidated Damages Provision Having determined that the liquidated damages provision of Kunelius's contract with Cohousing f o r m e da part of her relationship with the Town and the Trust, we turn to her argument that the provision is nevertheles s i nvalid. In Massachusetts, whether a liquidated damages clause is valid and enforceable is a question of law, and therefore we review the issue de novo. NPS LLC v. Minihane, 886 N.E.2d 670, 673 & n.5 (Mass. 2008). Although it was once unsettled, it is now clear that in Massachusetts, the party resisting the enforcement of the liquidated damages provision bears the burden of persuasion. Id. (citing TAL Fin. Corp. v. CSC Consulting, Inc., 8 44 N.E.2d 1085, 1092 (Mass. 2006)); see also Honey Dew Assocs., Inc. v. M&K Food Corp., 241 F.3d 23, 27 (1st Cir. 2001).There are g o od reasons to wonder whether worrying about 10 whether liquidated damages take o n a penal aspect is wise as a matter of contract law or economic policy. See generally, Charles J. Goetz and Robert E. Scott, Liquidated Damages, Pe n a l t i es, and the Just Compensation Principle, 77 Colum. L. Rev. 554, 556 (1977) -29- Massachusetts courts have long accepted contracts with liquidated damages provisions, particularly those involved in the purchase and sale of real estate. Kelly v. Marx, 705 N.E.2d 1114, 111 6 ( M a ss. 1999). Generally, a contract containing a provision awarding liquidated damages to the seller of real property in the event of a buyer's breach will be enforced so long as "at the time the agreement was made, potential damages were difficult to determine and the [liquidated damages provision] was a reasonable forecast of damages expected to occur." Perronce l l o v . Donahue, 859 N.E.2d 827, 831 (Mass. 2007) (quoting Kelly, 705 N.E.2d at 1115). Under this rubric, Massachusetts courts have specifically eschewed the "second look" approach and evaluate both of these factors only at the time of contract formation. Kelly, 705 N.E.2d at 1116. Nevertheless, liquidated damages clauses will not be enforced if they provide for an amount that is "'grossly disproportionate to a reasonable estimate of actual damages' made at the time of contract formation." Id. (quoting Lynch v. Andrew, 481 N.E.2d 1383, 1386 (Mass. App. Ct. 1985).

Interestingly, most cases challenging liquidated damages provisions do so on the theory that overly large liquidated damage awards impermissibly function as a penalty. See, e.g., NPS LLC, 10(arguing that un c r i t i cal application of the penalty doctrine

"frequently induces a co s t l y reexamination of the initial allocation of risks and may a l s o deny the non-breaching party either adequate compensation for the harm caused by the breach or the opportunity to insure more optimally against such harm"). In this regard, we not e t h a t the record suggests that the 11 current, less favorable liquidated dam a g e s provision was not included among Cohousing's original offers but was made a part of the agreement that Kunelius's attorney ultimately drafted. While this fact is not dispositive of her claim, it is clear that the appellant was not stuck with this clause as th e result of an adhesion contract, and the record further suggests that the appellant did not arrive at this particular clause due to a substantial inequality in bargaining power. -30- 886 N.E.2d at 673. In this case, the appellant complains that the liquidated damages provision wa s inadequate because it vastly underestimated her damages and therefore functions as a penalty against her. 11

This theory is relatively novel, and t h e weight of authority is against it. E.g., Margaret H. Wayne Trust v. Lipsky, 846 P.2d 904, 910 (Idaho 1993); Mahoney v. Tingley, 529 P.2d 1068, 1070-71 (Wash. 1975) ("Except where extraordinary circumstances are involved such as fraud or serious overreaching by the purchaser, a seller who chooses to utilize the device of liquidated damages in an earnest money agreement . . . cannot avoid the effect of thatagreement."); see also Nasco Inc. v. Pub. Storage, Inc., No. 92-CV12731-RCL, 1995 WL 337072 (D. Mass. May 20, 1995). Nevertheless, it appears that in Kelly, and the cases decided thereafter, the SJC has left open the possibility that a liquidated damages clause will be set aside if it grossly overestimated or underes t i mated aIn order to uphold the liquidated damages provision, we also 12 need to conclude that Kunelius's damages were difficult to measure at the time of contract formation. In light of the Kelly court's observation that such damages are often hard to value in transactions involving the purchase and sale of real estate, this is an easy threshold to clear. -31- party's damages at the time of contract formation. See Kelly, 705 N.E.2d at 1116 (liquidated damages provision will not be enforced if it provides for an amount "grossly disproportionate to a reasonable damages made at the time of contract formation"); Howard v. Wee, 811 N.E.2d 1050, 1 0 5 2 (Mass. App. Ct. 2004) (noting that $1,000 in liquidated damages was not "unreasona b l y l ow," but not questioning that unreasonably low liquidated damages can be set aside under Kelly).

We must therefore determine whether the liquidated damages provision at issue in this case was, as a matter of law, grossly disproportionate to a r e asonable estimate of the damages Kunelius would incur in the event t h a t the sale of her $1.16 million property was not successful. Massachusetts courts have 12 held that an earnest money deposit of 5% of the purchase price in a contract for the purchase and sale of real estate is reasonable as a matter law. Kelly, 705 N.E.2d at 1 1 1 7 ; see also NRT New England, Inc. v. Moncure, 24 Mass. L. Rptr. 599, 2008 WL 4739794, at *5 (Mass. Super. 2008); Old Oxford Realty Partners LLC v. Shea, No. 305754, 2005 WL 1323110, at *5 (Mass Land Ct. 2005). Although we have found one reported decision in which a Massachusetts courtThe Town and the Trust had six months to close. Closing had 13 to occur on or before September 26, 2003 because the contract term granting an extension of the closing date was contingent on the "Chap. 40B approval process . . . proceeding forward." Although it could be argued that the pertinent time of contract formation for purposes of evaluating the liquidated damages clause was the time Kunelius negotiated the bona fide offer, evaluating the propriety of the damages clause at the time the Trust exercised its assignment is not a "second look" in the classic sense, because it was at that point tha t t he Trust accepted the contract, and an agreement was formed between Kunelius and the Trust. See T.W. Nickerson, Inc., 898 N.E.2d at 878. Rather, a second look occurs when a court evaluates the propriety of a damages provision at the time of breach. See Kelly, 705 N.E.2d at 1 1 1 6 ( e x p laining that under a so-called "second look" analysis, a court looks to the actual damages resulting from the breach) (emphasis added). -32- blessed a lower amount of liquidated damages, it was in a factual circumstance that diffe r s m a terially from this case. In Howard, the court of appeals found that liquidated damages in the amount of $1000 was not "unreasonably low" considering that this amount was to cover damages incurred over a period of about eleven days. 811 N.E.2d at 1052.

Here, Kunelius w as to receive $19,000 in liquidated damages. This amount is approximately 2% of th e t o t a l purchase

13 price of $1.16 million, o b v i ously less than the 5% that Massachusetts courts have upheld. But Kunelius failed to produce evidence or argue in the district court that the 2% liquidated damages clause was "grossly dispropo r tionate" to a reasonable estimate of her actual damages at the time of contract formation, and therefore, this argument has been waived. CoxCom, Inc., 536 F.3d at 110 n.11. As a result, like the district court we too mustWe note that appellant's complaint did not specify whether 14 she was proceeding under the consumer o r business protection provisions of Chapter 93A. At summary judgment, counsel for the appellant specified for the first time that she was proceeding under the business-to-business provisions. We note t h a t had the plaintiff proceeded on the consumer prong of Chapter 93A, summary judgment for the defendants would have been appropriate because the plaintiff did not serve the defendants with a demand letter as required by that section. See Mass. Gen. Laws ch. 93A § 9. -33- c o n c lude that the liquidated damages provision is enforceable in this case.

C. The Chapter 93A Claim

The appellant also presses a claim under the business-tobusiness provisions of the consumer protection statute, Mass. Gen. Laws ch. 93A, § 11. It is helpful h e r e to review briefly the structure of the Massachusetts consumer protection statute. Section 2 of this statute prohibits unfair and deceptive acts and practices, see Mass. Gen. Laws ch. 93A § 2(a), and sections 9 and 11 provide consumers and "businessmen" with private causes of action to enforce this prohibition. Id. §§ 9, 11; see also Lantner v. Carson, 373 N.E.2d 973, 975-76 (Mass. 1978). 14

In order for a defendant to be liable under the statute for damages from unfair or deceptive practices, the transaction at issue must have occurred in the conduct of "any trade or commerce," see Mass. Gen. Laws ch. 93A §§ 9, 11, which the statute defines as including "the advertising, [or] offering for sale . . . of-34-

[selling] any propert y . . . real, personal, or mixed." Id. §(1)(b). Recognizing the potentially broad ambit of this statute, the SJC, relying on the statute's creation of a separate cause of action for "businessmen" who are h a rmed by unfair and deceptive practices, has made clear that "the proscription in [Mass. G en. Laws ch. 93A § 2] of 'unfair or deceptive acts or practices in the conduct of any trade or commerce' must be read to apply to those
acts or p ractices which are perpetrated in a business context." Lantner, 373 N.E.2d at 976.

In interpreting section 11, Massachusetts courts have looked not only at whether defendants were sufficiently involved in trade or commerce to be held liable under the statute, but also at whether plaintiffs were engaged in trade or commerce. This distinction is important because Massachusetts courts have understood that the private rights of action found in sections 9 and 11 are mutually exclusive. Frullo v. Landenberger, 814 N.E.2d 1105, 1112 (Mass. App. Ct. 2004) (citing Divenuti v. Reardon, 637 N.E.2d 234, 239 (Mass. App. Ct. 1994)); see also Milliken & Co. v. Duro Textiles, LLC, 887 N.E.2d 244, 259 (Mass. 2008) (noting that ch. 93A § 11 is only available after satisfaction of dual threshold inquiries of whether a transaction was commercial in natu r e , a nd whether the parties to the transaction were engaged in trade or

commerce "such that they were acting in a busines s context") (citing Linkage Corp. v. Trs. of Boston Univ., 679 N.E.2d 191, 206--35-

07 (Mass. 1997))). Thus, in order for Kunelius to move past the threshold on her Chapter 93A claim, she must show (1) that the sale of the entire parcel, including her home and a horse farm, was a commercial transaction, and (2) that both she and the Trust were engaged in trade or commerce, such that this transaction occurred in a business context.

It is true that the Massachusetts courts have held that Chapter 93A does not "reach strictly private transactions such as the isolated sale of a private home." Begelfer v
. N a jarian, 409 N.E.2d 167, 175 (Mass. 1980). In that case, the court noted that whether an isolated transaction takes place in a "business context" must be determined from the circumstances in each case, such as the frequency o f s imilar transactions, the motivation behind the transaction, and the role of th e p a r ticipant in the transaction. Id. at 176. The SJC has made clear, however, that a commercial transaction need not "take place only in the ordinary course of a person's business or occupation before its participants m a y be subject to liability." Id.

Considering these factors, the record c a n be read to support, at least in the summary judgment posture of this case, an inference that the sale of the property was a commercial transaction. Whether a party is engaged in trade or commerce is a question of fact, see Feeney v. Dell I n c ., 908 N.E.2d 753, 770 (Mass. 2009), and thus our review on summary judgment is de novo,The agent testified that he paid the appellant about $250 per 15 month to board his horse at her farm. Thus, the record supports the inference that appellant likely received payment for boarding five horses at her farm at the time she entered the contract. -36- with all inferences drawn in favor of the non-movant (here, the plaintiff). The record includes testimony from the appellant's real estate agent that he met Kunelius as a result of the need to move his horses to her farm. He further testified that as of May 24, 2007, the date of his deposition, his horse remained boarded on the appellant's property. The agent testified that Kunelius agreed to permit Cohousing (and eventually the Trust) to substitute a $50,000 deposit for a $10,000 deposit plus monthly payments of $1,500 to replace income she feared she would lose because "her boarding tenants would begin to leave" once they learned that her horse farm was for sale. This evidence, combined with Kunelius's 15 own affidavit stating that she rented stalls for horses on her property, harvested firewood, and was the barn manager, could permit a reasonable factfinder t o c o nclude that Kunelius was not merely selling her home, but her business and the principal source of her livelihood.

Massachusetts courts have held that the sale of a business or substantially all of the assets of a business can be a commercial transaction subject to the proscriptions of Chapter 93A. Rex Lumber Co. v. Acton Block Co., Inc., 562 N.E.2d 845, 850 (Mass. App. Ct. 1990). I n R e x L u mber, the defendant, Acton Block Co.,-37-

proposed to sell the land and building on which its former business, which had been discon t i n u e d for two years, had once operated, in order to fund the retirement of the defendant's owner. Id. at 846. The appeals court nonetheless held that the transaction was a commercial one made in a business context, under Lantner and Begelfer, despite the fact that it was not made in the ordinary course of business. Rex Lumber, 562 N.E.2d at 850. Thus, while it is a close question, we b e l i e v e t hat at this summary judgment stage it is possible to conclude that the sale of appellant's horse farm and other property, from which she derived significant income, was a commercial transaction. Similarly, there is enough evidence in the record to support the conclusion that Kunelius was engaged in trade or business with respect to the transaction in which she dispos e d o f a l l of the assets that she harnessed to produce her income, and fund her retirement, if Rex Lumber is good law
. T h e r e f ore, the district court was on shaky footing in determining that Kunelius was not engaged in trade or commerce generally or with respect to this particular transaction.

Rel y i n g on our authority to affirm the decision of the district court on any basis made manifest in the record, States
Res. Corp. v. The Architectural Team, Inc., 433 F.3d 73, 8 0 ( 1st Cir. 2005) (citing Uncle Henry's, Inc. v. Plaut Consulting Co., 399 F.3d 33, 41 (1st Cir. 2005)), the Trust urges that summary judgment was appropriate because the Trust was not engaged in trade orThe district court dismissed the Chapter 93A claim against 16 the Town because the Town assigned the ROFR to the Trust and never became a party to the appellant's con t r a c t with the Trust. Kuneliu s , 2 0 0 8 W L 4 3 7 2 7 5 2 a t * 4 n . 7
. T h e a p p e l l a n t h a s not challenged this ruling on appeal and it is therefore waived. Stamp v. Metro. L i f e I n s . Co., 531 F.3d 84, 88 (1st Cir. 2008). The district court, however, did not have occasion to determine whether a partnership between the Town and the Trust existed because it found that any such partnersh i p w a s entitled to summary judgment for the same reasons that the Trust was entitled to summary judgment. Kunelius, 2008 WL 4372752 at *1 n.1, *5. A s w e , like the district court, conclude that the Trust was entitled to summary judgment on this count, we need not decide whether any such partnership existed bec a u se it too would be entitled to summary judgment. -38- commerce, based on it s s t a t u s as a nonprofit corporation. We 16 agree. In Massachusetts, a defendant's nonpro f i t status is not dispositive of whether it can be liable under Chapter 93A. Compare Linkage Corp. v. Trs. of Boston U n i v . , 6 7 9 N.E.2d 191, 207 n.34 (Mass. 1997) (noting that Massachusetts courts have held nonprofit corporations liable under Chapter 93A) (citing Miller v. Risk Mgmt. Found. of the Harvard Med. Insts., Inc., 630 N.E.2d 304 (Mass. App. Ct. 199 4 ) ) ) , w i th Poznik v. Mass. Med. Prof'l Ins. Ass'n., 628 N.E.2d 1, 3-4 (Mass. 1994) (holding that MMPIA was not engaged in trade or commerce because o f its character as a "statutorily mandated, nonprofit association" that was "motivated by legislative mandate not business or personal reasons" (citing Barrett v. Mass. Insurers Insolvency Fund, 592 N.E.2d 1317, 1319 (Mass. 1992))), and All Seasons Servs., Inc. v. Comm'r of Health and Hosps. of Boston, 620 N.E.2d 778,779-80 (Mass. 1993) (finding that hospital operated by Boston Board of Health and Hospitals, a municipal entity, was-39-

not engaged in trade or commerce when it sought bids for operation of vending machines and canteen facility, as t h i s operation was inci d e n t a l t o i t s c h a r i t a b l e m i s s i o n o f p r o v i d i n gm e d i c al services). Determining whether a nonprofit defendant is beyond the reach of Chapter 93A is a "fact-specific . . . inquiry," but a nonprofit defendant will not be considered engaged in trade or commerce when it "undertakes activities in furtherance of its core mission." Linkage Corp., 679 N.E.2d at 209. Nevertheless, when "an institution's business motivations, in combination wi th the

n a t ure of the transaction and the activities of the parties, establish a 'business context' as conte mp l ated in [Begelfer v. Najarian, 409 N.E.2d 167 (Mass. 1980)], G.L. c. 93A will apply because the institution has inserted itself into the marketplace in

a way that m a k e s i t o n l yp r o p e r t h a t i t b e s u b j e c t t o r u l e s of ethical behavior and fair play." Id.

In view of its conclusion that Kunelius was not engaged in trade or commerce, the district court did not evaluate whether the Trust was s o e n g aged. In our view, the record viewed in the light most favorable to Kunelius, nonetheless requires the conclusion that TPL, undisputably a not for profit organi z a t ion, was acting in pursuit of its core nonprofit charitable mission of preserving and conserving land. The fact that it planned to purchase Kunelius's property, renovate both houses, and resell one-40-

or possibly both of them on the open market was merely a means to an end, and not intended to turn a profit -- like a hospital providing limited commissary services -- and therefore not actionable under Chapter 93A. See All Seasons Servs., Inc., 620 N.E.2d at 780. In that vein, we note that even in its commercial transactions, the Trust planned to promote its core chari t a b le missi o n of land conservation by including conservation covenants that ran with the parcels it sold on the open market. Thus, while it may be true that the record supports an inference that the Trust acted sharply in its dealings with Kunelius, the SJC has nonetheless made clear that where a nonprofit defendant is acting in furtherance of its core mission, Chapter 93A is not designed to reach such conduct. Accordingly, summary judgment as to this count was properly granted to the Trust, the Town, and a partnership between the Town and Trust, if any such partnership existed.

D. Covenant of Good Faith and Fair Dealing The district court found that the plaintiff did not plead a violation of the covenant of good faith and fair dealing in her complaint, but instead raised it for the first time in connection with cross motions for summary judgment. Kunelius, 2008 WL 4372752 at *1 n.2. The appellant argues that her c o mp laint sets forth sufficient fact s t o state a claim for breach of the covenant and that t he summary judgment record permits the inference that the
covenant was breached; therefore, she should be permitted to pursue-41-

this claim. In support of this argument, Kunelius cites a number of Massachusetts cases explaining Massachusetts state pleading standards, but as we are in federal court, federal pleading standards apply. Jerry Smith and Jeffrey Parness, 2 Moore's Fed. Practice § 8.04[1][A] at 8-23 (3d ed. 2007); see also In re Tower Air, Inc., 416 F.3d 229, 236-38 (3d Cir. 2005) (noting that district court mistakenly applied heightened requirements for state notice pleading standard in federal case).

In federal court, when a plaintiff raises a claim for the first time in response to a summary judgment motion, it is possible to treat the claim as a motion to amend the complaint under Rule 15(a) of the Federal Rules of Civil Procedure. Sover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008). The plaintiff, however, made no such argument to the district court and has not advanced one here. Therefore, we need not linger over this question. See Cook v. Gates, 528 F.3d 42, 62 n.13 (1st Cir. 2008); Nieves-Vega v. Ortiz-Quiño n e s , 443 F.3d 134, 137 n.1 (1st Cir. 2006) (finding that claim raised for the first tim e a t oral argument is, at best, forfeit). In any event, it was not likely an abu s e o f d i s c r e t i o n - - a n d c e r t a i n l y n o t p l a i n e r r o r - - for the district court to deny such a circuitous request for an amendment after summary judgment motions had been docketed. See Brooks v. AIG SunAmerica Life Assur. Co., 480 F.3d 579, 590 (1st Cir. 2007)(noting that party u r ging amendment of complaint at the-42-

eleventh hour to fend of summary judgment must demonstrate that the proposed amendments are supported by the record) (citing Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 & n.3 (1st Cir. 2006))); but see González-Pérez v. Hosp. Interamericano de Medicina Avanzada, 355 F.3d 1, 5-6 (1st Cir. 2004) (declining to find that district court abused discretion in permitting def e n dant to interpose timeliness defense supported by the record for the first time at summary judgment). C o n s equently, we affirm the district court's refusal to consider the appellant's claim for relief under the covenant of good faith and fair dealing. We express no opinion whether this claim would have been meritorious if adequately pled, but we note that the covenant of good faith and fair dealing is impli e d in every contract, including those involving rights of first refusal. Uno Rests., Inc., 805 N.E.2d at 964. E. Remaining Claims In addition to these claims, the appellant has advanced a number of others, accusing the Town and the Trust of fraud and misrepresentation, intentional interference with her contractual relations with Cohousing, and through 42 U.S.C. § 1983, a violation of the Contracts Clause of the U.S. Constitution. We have reviewed these claims and find them to be without merit. 1. Fraud and Misrepresentation As to the fraud and misrepresentation claim, the district court correctly noted that Kunelius had produced enough evidence to-43-

p e r m i t an inference that TPL misrepresented both its ability and intent to purchase the property. Kunelius, 2008 WL 4372752 at *6. The court, however, also correctly concluded that Kunelius did not prove her reliance on any material misrepresentations made by the
Tr u s t . The appellant's brief on appeal identifies no legally cognizable reliance. Accordingly, summary judgment was appropriate as to that count. 2. Intentional Interference with Contractual Relations Kunelius's argument on appeal regarding the intentional interference claim is that it was "erroneous for the [district
court ] to apply the more traditional intentional interference requirements, as the [district court] did in t he instant case." The appel l a n t has cited no case law or other indication that the SJC would modify these causes of action in her favor to account for the wrinkle of the statutory ROFR. Accordingly, we, like the district court, are powerless to modify them. We discern no error in the district court's applicati o n of the traditional standards for i ntentional interference with contractual relations in this case, see Kunelius, 2008 WL 4372752 at *5 (citing Draghetti v. Chmielewski, 626 N.E.2d 826, 868 (Mass. 1994)), and therefore that decision is affirmed. 3. Contracts Clause Claim In perhaps her most ambitious and overreaching claim, Kunelius claims that Mass. Gen. Laws ch. 61, § 8 impermissibly-44-

impairs a contractual obligation and there f o re violates the Contracts Clause of the U.S. Constitution. U.S. Const. art. I, § 10 cl. 1. ("No state shall
. . . pass any . . . Law impairing the Obligation of Contracts."). We need not grapple with the question of whether a violation of the Contracts Clause is actionable under § 1983, or as the district court did, with whether the Tr u s t 's actio n s constituted state action, because we conclude that under the circumstances of this case the exercise of the ROFR, even with the Trust's subsequent default, was n o t a violation of the Contracts Clause.

It has long been understood that the seemingly absolute prohibition in the Contracts clause "must be accomm o d a t e d to the inherent police power of the State 'to safeguard the vital interest of its people.'" Energy Reserves Group v. Kan. Power & Light Co., 459 U.S. 400, 410 ( 1983) (quoting Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 434 (1934)). Therefore, as the Supreme Court has made clear, the Contracts Clause is not implicated unless a change in state law impairs a contractual obligation, and such impairment is s u b s tantial. Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 42 (1st Cir. 2005). In the present case, there was no change in state law, and further the ROFR a t i ssue here, which allows a municipality -- or its chosen nonprofit -- to purchase land o n t h e same terms as those in a bona fide offer, is not an impermissibly substantial impairment of a contractual right, if it-45-

is an impairment at all. Id. (citing McGrath v. R.I. Ret. Bd., 88 F.3d 12 , 1 6 (1st Cir. 1996) (noting that even an impairment of contract that is substantial will be upheld if it is reasonable and

nec e s s ary to fulfill an important public purpose). Accordingly, the grant of summary judgment as to the Contracts Clause claim was
proper. III. Conclusion

T h e district court's grant of summary judgment is affirmed.