Crellin Technologies, Inc. v. Equipmentlease Corp.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1615

CRELLIN TECHNOLOGIES, INC.,

Plaintiff, Appellant,

v.

EQUIPMENTLEASE CORP,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

Jeffrey C. Schreck, with whom Neal J. McNamara and Flanders

& Medeiros, Inc. were on brief, for appellant.

Netti C. Vogel, with whom Vogel, Souls & Woodbine was on

brief, for appellee.

March 8, 1994

SELYA, Circuit Judge. This appeal teaches that, just
SELYA, Circuit Judge.

as "negotiations and love songs are often mistaken for one and

the same," Paul Simon, Train in the Distance, on Negotiations and

Love Songs (Warner Bros. Records 1981), so, too, negotiations and

binding contracts readily can be confused. The lyrics follow.

I. BACKGROUND

Plaintiff-appellant Crellin Technologies, Inc.

(Cretco), a Rhode Island corporation, sells, rents, services, and

provides parts for lift trucks and other materials handling

equipment. In 1990, Crellin suffered from a serious cash flow

malady. In order to stanch the financial hemorrhaging caused by

steep monthly payments to institutional lenders, Richard Crellin,

Cretco's chief executive officer and part owner, began exploring

various options. Crellin knew that, on occasion, defendant-

appellee Equipmentlease Corporation (ELC), a Massachusetts firm,

had provided financing for certain of Cretco's customers.

Consequently, Crellin sought to interest an ELC representative,

Mark Patterson, in structuring a sale and leaseback.1 Cretco

proposed to sell its fleet of lift trucks to ELC and then lease

back the fleet, keeping the equipment available for use in the

ordinary course of Cretco's business. Cretco planned to apply

some or all of the sale proceeds to pay down its institutional

debt, thereby easing the cash flow crunch and enhancing the

prospect that its principal lender, Old Stone Bank (Old Stone),

1Patterson, who worked out of ELC's Rhode Island office, was
a friend of Richard Crellin's brother, Douglas Crellin, and
previously had done business with Cretco.

2

would provide long-term financing on less onerous terms.

After reviewing what it thought were Cretco's complete

financial statements,2 ELC agreed that a sale/leaseback

transaction might prove feasible. In November of 1990, ELC

prepared the paperwork that it needed to start a formal

commitment process. But ELC's overtures went unrequited, for Old

Stone had not agreed to release its security interest in the

fleet. Thus, Cretco refused to sign ELC's documents.

During the period from November 1990 to February 1991,

Cretco and ELC maintained an ongoing dialogue. Although Cretco

now portrays these communications as reassurances that ELC was

committed to a sale and leaseback, the trial court supportably

found them to be mere expressions of a continuing mutual interest

directed toward finding agreeable terms on which to do a deal of

some undetermined magnitude.

In February of 1991, Cretco made its peace with Old

Stone and received the long-awaited agreement for release of the

bank's security interest. Cretco relayed the good news to ELC on

or about March 1, and requested a meeting. On March 11, 1991,

Richard Crellin travelled to ELC's Worcester (Massachusetts)

office and signed papers prepared by ELC. At the same time, ELC

2When Cretco submitted financial data to ELC in the fall of
1990, it omitted certain relevant segments of its financial
history and projections. The omitted material would have
revealed both a lower net worth and a decreased likelihood of
future profitability. At trial, the district judge found that
this omission came about through inadvertence, not through
intentional misrepresentation. Nevertheless, the financial
statements, as presented, were both misleading and incomplete.

3

executed subordination and option agreements prepared by

Cretco.3

The parties dispute the legal significance of these

events. In one corner, Cretco contends that, in the March 1

call, Richard Crellin gave the green light to consummating the

sale/leaseback contract negotiated between the parties in

November 1990 and that he reinforced this clearance by

executing the documents proffered to him on March 11. In the

opposing corner, ELC contends that neither the March 1 telephone

conversation nor the March 11 signing carried any legal weight;

the call was purely informational and the documents were designed

merely to restart the formal commitment process for a new, albeit

resurrected, sale and leaseback. ELC points out that the

proffered papers were in different dollar amounts and on

different terms than the documents prepared in late 1990, and

that, at any rate, it never signed them.

The record is at sixes and sevens regarding the reasons

why ELC applied the brakes. Richard Crellin testified that ELC

led him to believe that the documents would be signed soon after

March 11, and Cretco viewed ELC's failure to do so as a breach of

contract. ELC's witnesses told a much different story. They

said ELC informed Richard Crellin that, in pursuance of its

customary practice, the document package had to be submitted to

ELC's funding source, BayBank, for approval before ELC would

3Unless and until a sale and leaseback transpired, these two
documents were meaningless; neither of them had any independent
force.

4

enter a firm agreement. According to these witnesses, a final

set of contract documents ultimately would have been generated

if, having been assured that funds were available, management

made a binding decision to do the deal.

It is undisputed that ELC approached BayBank to supply

the needed funds, and that BayBank turned thumbs down.

Thereafter, ELC requested additional information from Cretco and

submitted a revised request. BayBank again refused to open the

purse strings, reportedly due to Cretco's anemic financial

status. It was for this reason, then, that ELC decided not to go

forward with a sale and leaseback.

To make a tedious tale tolerably terse, Cretco

eventually invited ELC to honor what it perceived as a binding

contract. ELC declined the invitation, saying that no contract

ever existed. Invoking diversity jurisdiction, 28 U.S.C. 1332

(1988), Cretco sued ELC in the United States District Court for

the District of Rhode Island. It charged, inter alia, that ELC

ignored a binding obligation,4 dishonored the implied covenant

of good faith and fair dealing that formed part of the

contractual relationship, and violated a Massachusetts unfair

trade practices statute by deceptive dealing.

4At various times, Cretco has argued either that a bilateral
contract underpinned the breach of contract count ELC made a
firm offer in November of 1990 and Cretco accepted the offer at
that time, subject to a condition (the procuring of Old Stone's
consent) that was fulfilled the following March or,
alternately, that ELC extended a unilateral offer, subject to
Cretco's later acceptance. Whichever way the scenario is viewed,
the upshot of the litigation remains unaffected.

5

After a bench trial, the district judge found that

appellant had not proven any of its three claims. On the breach

of contract count, the judge determined that there had been no

mutuality of obligation and, therefore, no binding contract. In

this vein, he noted, inter alia, that Cretco had not purported to

make a timely acceptance of ELC's proposal; that, throughout the

negotiations, Cretco endeavored to keep any agreement contingent

upon its ability to secure new (and more manageable) bank

financing; that Cretco could not have sold the fleet without

first obtaining Old Stone's consent to the release of its

security interest a consent that did not materialize in 1990;

that, before litigation became an option of choice, Cretco had

not viewed the November 1990 documents as binding; and that

Cretco had shopped around in the ensuing months for a better

interest rate. The judge found that ELC, too, had kept its

powder dry, for it intended all along though it had not

informed Cretco about this contingency in the fall of 1990 to

condition any sale and leaseback upon approval by its own funding

source. Hence, since both parties believed the transaction to be

contingent upon other occurrences, controllable by them Cretco,

for example, did not have to accede to Old Stone's terms, and,

similarly, ELC did not have to accede to the terms demanded by

its funding source mutuality of obligation did not exist.

In a commendable effort to cover the waterfront, the

judge identified an alternative ground for dismissing the

contract claim. Even if one assumed, for argument's sake, that a

6

contract had been formed and that ELC had broken it, Cretco's

first count sought only compensatory damages, not specific

performance, and Cretco had not proven that it suffered or

sustained any recoverable damages.

Cretco's other two counts fared no better. In regard

to good faith and fair dealing, the judge reasoned that, because

no enforceable contract existed, there could be no breach of an

implied covenant arising out of that non-contract. As to chapter

93A, the judge found that the deceptive practices of which Cretco

complained, if they occurred at all, did not occur in the course

of trade or commerce, and, therefore, did not transgress the

cited statute.

Cretco appeals. We affirm.

II. THE BREACH OF CONTRACT CLAIM

We divide our discussion of this issue into segments,

first addressing choice of law and then confronting the merits of

appellant's claim.

A. Choice of Law.

It is, of course, a black-letter rule that state

substantive law must be applied by a federal court sitting in

diversity jurisdiction. See Erie R.R. Co. v. Tompkins, 304 U.S.

64, 78 (1938). In determining what state law pertains, the court

must employ the choice-of-law framework of the forum state, here,

Rhode Island. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.

487, 491 (1941); Putnam Resources v. Pateman, 958 F.2d 448, 464

(1st Cir. 1992). Choice-of-law judgments are legal in nature,

7

and courts of appeals exercise plenary oversight in respect

thereto. See Soo Line R.R. Co. v. Overton, 992 F.2d 640, 643

(7th Cir. 1993); Waggoner v. Snow, Becker, Kroll, Klaris, &

Krauss, 991 F.2d 1501, 1505 (9th Cir. 1993); Putnam Resources,

958 F.2d at 466. Consequently, a de novo standard of review

obtains.5

1. The Local Landscape. Rhode Island law anent
1. The Local Landscape.

contract conflict-of-law principles is sparse and leaves the

proper choice-of-law test for contract cases shrouded in

uncertainty. In 1969, Rhode Island's highest court made use of

the lex loci contractus doctrine in such a context. See Union

Sav. Bank v. DeMarco, 254 A.2d 81, 83 (R.I. 1969) (holding a loan

granted in Massachusetts to be a Massachusetts contract governed

by Massachusetts law). Three years later the court, when asked

to endorse the neoteric interest-weighing approach to contract

conflict issues as enunciated in the Restatement (Second) of the

Conflict of Laws 188 (1971) (hereinafter "Restatement"),

expressly declined to choose between the new and the old choice-

of-law rules. See A.C. Beals Co. v. Rhode Island Hosp., 292 A.2d

865, 871 n.5 (R.I. 1972). Two subsequent Rhode Island cases that

touch upon the question transmit mixed signals. In Matarese v.

Calise, 305 A.2d 112 (R.I. 1973), a case calling for a choice

between local law and the law of a foreign sovereign, the court

cited with approval a statement favoring resort to the law of the

5In this case the district court, while leaving spoor for
the cognoscenti, made no explicit choice of law. We, therefore,
write on a pristine page.

8

place of contracting. See id. at 118 n.4 (dictum; citing

Annotation, 72 A.L.R. 250 (1931)). Two decades later, the court

indicated a preference for an interest-weighing analysis.6 See

Gordon v. Clifford Metal Sales Co., 602 A.2d 535, 539 (R.I. 1992)

(dictum; implying approval of rule enunciated in Restatement 6

for choice of law involving "a simple contracts issue governed by

general contract principles").

Federal district courts sitting in Rhode Island have

spoken to the issue in differing tones. Some have invoked the

law of the place of contracting, see, e.g., Everett/Charles

Contact Prods., Inc. v. Gentec, S.A.R.L., 692 F. Supp. 83, 89

(D.R.I. 1988); SW Indus., Inc. v. Aetna Cas. & Sur. Co., 653 F.

Supp. 631, 639 (D.R.I. 1987), and some have invoked the interest-

weighing test, see, e.g., Marshall Contractors, Inc. v. Peerless

Ins. Co., 827 F. Supp. 91, 94 (D.R.I. 1993); Albany Ins. Co. v.

Wisniewski, 579 F. Supp. 1004, 1013 (D.R.I. 1984).

2. Discussion. We need not attempt to resolve this
2. Discussion.

impasse by venturing an informed prophecy as to which test will

emerge triumphant in the Rhode Island courts. Here,

providentially, Rhode Island law must prevail under either

choice-of-law format.

For purposes of the older "place of contracting" test,

the Rhode Island Supreme Court has held that the place of

6Courts and commentators use a variety of compound
adjectives, such as "interest-weighing" and "locus-of-interests,"
to describe the more modern approach. For ease in reference, we
employ the term "interest-weighing."

9

contracting is the place in which the last act that forms the

contract is performed. See Tim Hennigan Co. v. Anthony A. Nunes,

Inc., 437 A.2d 1355, 1357 (R.I. 1981); A.C. Beals, 292 A.2d at

870-71. Counsel for Cretco maintained at oral argument in this

court that the contract solidified on or about March 1, 1991,

when Richard Crellin telephoned ELC to relay the news of Old

Stone's agreement to release its security interest. This

telephone call originated in Rhode Island. Thus, even though ELC

received the call in Massachusetts, the final act of contract

formation took place in Rhode Island. The rule is that, when a

contract is cinched in the course of an interstate telephone

call, the contract will be deemed to have been made in the state

where the decisive words were spoken. See, e.g., Perry v. Mount

Hope Iron Co., 5 A. 632, 633 (R.I. 1886) (holding that an offer

accepted by telegraph will be deemed accepted where telegram is

sent, not where it is received); see also John E. Murray, Jr.,

Murray on Contracts 47G, at 152 (3d ed. 1990) (explaining

proper rule for acceptance of offer by telephone; where parties

are at a distance, "acceptance will have occurred where and when

the acceptance was spoken or sent"). Hence, under the place of

contracting rule, Rhode Island law applies to the breach of

contract count.

The functional interest-weighing approach to conflict

analysis for contract issues yields the same result. This

approach requires a court to take cognizance of overall policy

goals even as it evaluates the significance of the parties'

10

contacts with various jurisdictions and their conduct as a

contract is negotiated, consummated, and performed. See

Restatement 6, 188. On the policy side, the Restatement

suggests that a court inquiring into choice of law consider (1)

the needs of the interstate system; (2) relevant policies of the

forum; (3) policies of other affected states and their interest

in the outcome of the litigation; (4) protection of the parties'

justified expectations; (5) uniformity and predictability of

results; and (6) ease in determining and applying different

bodies of law, see id. 6. This panoply of policy

considerations is to be assessed against a more traditional, more

concrete backdrop comprised of (1) the place of contracting; (2)

the situs of negotiations; (3) the place of performance; (4) the

location, if any, of the contract's subject matter; and (5) the

business locations and states of incorporation of corporate

parties, see id. 188.7

Under an interest-weighing analysis, appellant's

7Choice of law in a contract case requires a court to make a
threshold determination as to the efficacy of any choice-of-law
provision that the parties may have included in the contract
documents. Here, the draft lease submitted by ELC to Cretco in
November 1990 contained a provision for construction and
enforcement according to Massachusetts law. We disregard this
provision for three reasons. First, Cretco never signed the
document in question, and the provision did not reappear in later
documents. Second, neither party mentioned the provision in
appellate briefs nor argued that it should be given effect.
Third, while section 187 of the Restatement indicates that an
effective choice-of-law provision in a contract document
generally should be respected, that rule "is applicable only in
situations where it is established to the satisfaction of the
forum that the parties have chosen the state [to be the source]
of the applicable law." Restatement 187, cmt. a. This is not
such a case.

11

contract claim is governed by Rhode Island law. Cretco is a

Rhode Island corporation. ELC, albeit headquartered in

Massachusetts, maintains an office in Providence, Rhode Island.

Cretco initiated and continued negotiations with ELC's

representative, Mark Patterson, in Providence.8 Although

performance of the sought-after contract would have overspread a

wide geographic area, the cash infusion generated by the sale and

leaseback was to have taken place in Rhode Island and was to have

been used in large part to retire debt owed to a Rhode Island

lender. The fleet would continue to be based in Rhode Island and

to be monitored by Cretco's Rhode Island headquarters.

In addition, an application of Rhode Island law

furthers the general principles and policy goals limned in the

Restatement. Rhode Island is the forum state. It has a

legitimate stake in the outcome of the suit: Cretco is domiciled

in Rhode Island and its economic viability is at risk. This

interest clearly outweighs Massachusetts' interest in the suit

(which is limited to the impact of one soured relationship

between an in-state defendant and one of its many out-of-state

clients). The combination of appellant's home base, ELC's

presence in Rhode Island, and the incidence of negotiations

involving a Rhode Island representative of ELC should have led

thoughtful parties to expect that Rhode Island law would govern

their dealings. Last, the law of the forum, other things being

8After the initial discussions, negotiations continued in
Rhode Island, Massachusetts, and Connecticut.

12

equal, is ordinarily to be preferred; Rhode Island's is the most

natural, and, therefore, the easiest law for the district court

to apply. We think it follows that, under an interest-weighing

analysis, the substantive law of Rhode Island controls

appellant's contract claim.

To recapitulate, regardless whether lex loci contractus

or an interest-weighing approach prevails, a Rhode Island court

would apply Rhode Island substantive law to appellant's contract

claim. Thus, the federal district court, sitting in Rhode

Island, was obliged to do the same. In turn, this court must

also utilize Rhode Island law and we must do so without

deference to the district court's construction of that law. See

Salve Regina Coll. v. Russell, 111 S. Ct. 1217, 1221 (1991).

B. The Merits.

The district judge, sitting without a jury, found that

the end product of the negotiations between Cretco and ELC lacked

mutuality of obligation, and, consequently, did not achieve the

status of a contract. Appellant polemicizes the court's ruling

that no enforceable contract existed between the parties,

claiming that the court grossly undervalued the evidence showing

that ELC actively demonstrated its continuing interest in, and

commitment to, a sale and leaseback.

1. Standard of Review. When a case is tried to the
1. Standard of Review.

bench, we review the trial court's findings of fact with

considerable solicitude, disturbing those findings only for

mistake of law or clear error. See Cumpiano v. Banco Santander,

13

902 F.2d 148, 152 (1st Cir. 1990); Reliance Steel Prods. Co. v.

National Fire Ins. Co., 880 F.2d 575, 576 (1st Cir. 1989); see

also Fed. R. Civ. P. 52(a). To be sure, appellant strives to

blunt the force of this rule by pointing out that mistakes of

state law are subject to plenary review, see Salve Regina Coll.,

111 S. Ct. at 1221, and then dressing quintessentially factual

matters in the garb of "legal error." But factual issues are

demonstrably different than legal issues, and no amount of slick

costumery can transform the one into the other.

We have consistently held that, so long as the evidence

does not point unerringly in a single direction but is capable of

supporting conflicting inferences, the question of whether a

contract has been formed between two parties is a question of

fact to be determined by the factfinder. See, e.g., Bushkin

Assocs., Inc. v. Raytheon Co., 815 F.2d 142, 145, 151 (1st Cir.

1987); Chedd-Angier Prod. Co. v. Omni Pub'ns Int'l, Ltd., 756

F.2d 930, 935 (1st Cir. 1985). Here, appellant's argument

centers around the issue of contract formation and questions the

district court's findings anent mutuality of obligation. These

questions are appropriately classified as questions of fact,

subject to clear-error review. Within this paradigm, a finding

concerning a party's intent to contract is a finding of fact.

See Gel Systems, Inc. v. Hyundai Eng'g & Constr. Co., 902 F.2d

1024, 1027 (1st Cir. 1990); Reliance Steel, 880 F.2d at 576.

In reaching this conclusion, we expressly reject

appellant's asseveration that the issue of mutuality demands de

14

novo review simply because it involves a mixed question of law

and fact. While such an issue does present a "mixed" question,

mixed questions, to the extent that they are fact-dominated, are

subject to clear-error review, not de novo review. See In re

Howard, 996 F.2d 1320, 1328 (1st Cir. 1993); Roland M. v. Concord

Sch. Comm., 910 F.2d 983, 990 (1st Cir. 1990), cert. denied, 499

U.S. 912 (1991). Therefore, unless appellant can show that the

district court incorrectly applied a legal rule or standard

and, here, no such mistake of law looms the court's findings in

regard to mutuality must be upheld so long as they are not

clearly erroneous. See Roland M., 910 F.2d at 990; Thrifty Rent-

A-Car Sys., Inc. v. Thrift Cars, Inc., 831 F.2d 1177, 1181-82

(1st Cir. 1987); RCI Northeast Servs. Div. v. Boston Edison Co.,

822 F.2d 199, 202 (1st Cir. 1987).

2. Mutuality of Obligation. The law requires
2. Mutuality of Obligation.

mutuality of obligation as a prerequisite to a binding bilateral

contract. See B & D Appraisals v. Gaudette Mach. Movers, Inc.,

733 F. Supp. 505, 507 (D.R.I. 1990); Law v. Law Trucking Co., 488

A.2d 1225, 1228 (R.I. 1985); see generally 1 Richard A. Lord,

Williston on Contracts 1:17, at 44 (4th ed. 1990). This

mutuality can be evidenced by an exchange of promises. See B & D

Appraisals, 733 F. Supp. at 508; Judd Realty, Inc. v. Tedesco,

400 A.2d 952, 956 (R.I. 1979); see generally Murray on Contracts,

supra, 65, at 269 n.48.

Appellant argues that this benchmark has been achieved.

It seems to be saying that the documents submitted to it by ELC

15

in 1990 embodied an offer, duly accepted by a return promise at

the time, subject, however, to a contingency (Old Stone's consent

to releasing its security interest); and that removal of the

contingency took place on or about March 1, 1991, when appellant

informed ELC of Old Stone's acquiescence.9 But this scenario

overlooks or, at least, impermissibly discounts the district

court's factfinding.

To show mutuality of obligation, both parties must have

been legally bound through the making of reciprocal promises.

Here, the court thought that both ELC and Cretco intended any

agreement to be tentative, ergo, nonbinding, until other things

happened. As to ELC, the court found that it intended agreement

to await approval by one of its funding sources an approval

that never materialized. This finding is amply supported. After

all, ELC never signed the documents it proffered to Cretco in

1990. The next spring, ELC declined to sign the new set of lease

documents. At that time, ELC asked for, and Cretco supplied,

additional financial information for the sole purpose of

attempting to convince BayBank, an ELC funding source, to

underwrite the transaction. The record is barren of evidence

that ELC received a funding commitment at any time. The record

is similarly barren of evidence that ELC did major deals without

outside funding. These facts strongly support the district

9From time to time, appellant shifts gears. On those
occasions, it seems to be saying that ELC's offer was unilateral
and remained open until March 1, 1991, when appellant accepted
the arrangement. We cover this possibility in Part II(B)(3),
infra.

16

court's finding that ELC did not intend to bind itself through

the submission of preliminary transactional paperwork in 1990.

As to Cretco, the court concluded that it, too, lacked

the requisite intent to be bound. From its standpoint, entering

into a binding contract had to await two developments: the

extraction of a piece of paper from Old Stone and, in Judge

Torres's words, the obtaining of "satisfactory supplementary

financing." We believe that the court's subsidiary findings on

these points are sustainable; indeed, it was for these very

reasons that Cretco refused to execute the documents tendered to

it in 1990.

In an effort to undermine the court's determination

that it was not bound, appellant argues that its acceptance of

the November offer required it to do its utmost to gain the Old

Stone release. This argument will not wash. For one thing, it

glosses over the parallel, equally lethal finding that appellant

viewed any relationship with ELC as subject to the obtaining of

supplementary financing (in amounts, and on terms, satisfactory

to appellant). For another thing, both parties to a bilateral

contract must have made more than illusory promises for the

agreement to be binding. See John D. Calamari & Joseph M.

Perillo, Contracts 4-17, at 160 (2d ed. 1977). It is settled

law that, when the promised act is conditional on the occurrence

of a future event within the control of the promisor, the promise

is illusory. See Vickers Antone v. Vickers, 610 A.2d 120, 123

(R.I. 1992); see also Calamari & Perillo, Contracts 4-17, at

17

160. We see nothing in the 1990 "Equipment Lease Agreement" that

would indicate that appellant bound itself to have Old Stone

release its security interest in the fleet or to make any

particular efforts in this regard. Moreover, even if such an

obligation can somehow be implied out of thin air and we do not

think it can be the documents certainly impose no time limit on

when appellant would have to bring about this event, or what

concessions it would have to endure. Therefore, the procuring of

Old Stone's release, like the obtaining of supplementary

financing, was in appellant's unbridled discretion. At the most,

then, appellant gave ELC a mirage of a promise.

We add that appellant's actions belie its current

contention that the parties were bound in 1990 and thereafter.

During the critical period, appellant tried valiantly to forge

arrangements with other lending institutions arrangements that

would have left ELC out in the cold. Richard Crellin testified

that, as late as February of 1991, he approached Fleet Bank to

see if it would "offer a more attractive deal." He admitted on

cross-examination that he would have looked favorably upon Fleet

replacing both ELC and Old Stone in Cretco's plans had an offer

been forthcoming on comely terms.10 Thus, despite the fact

that appellant claims it was only scouting out supplemental

financing, the evidence is adequate to warrant the district

10Mark Patterson testified that in early 1991 he believed
Cretco was "shopping around" for better financing terms and
biding its time in anticipation of a lower prime rate. It is
obvious from this and other evidence that ELC knew of Cretco's
ongoing forays into the financial markets.

18

court's contrary finding that appellant continued to seek other

financing options as a surrogate for, rather than as a supplement

to, an alliance with ELC. When, as in this case, the proof

supports more than one plausible view of the relevant events, and

the district court chooses one such view over another, the

court's choice cannot be clearly erroneous. See Anderson v. City

of Bessemer City, 470 U.S. 564, 574 (1985); Dedham Water Co. v.

Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir. 1992).

This finding is significant. Although appellant may

have exercised good business sense when it shopped the financial

markets for better terms in the winter of 1990-91, it cannot

plausibly claim that ELC was bound although it had no

corresponding obligation. Given, especially, three things the

discretionary nature of appellant's "obligation" to procure the

Old Stone release and the needed supplementary financing, its

concession that, in and after November of 1990, it believed that

"if it had wanted to, it could have gone elsewhere" for

financing,11 and the evidence that it acted on this stated

belief we do not perceive clear error in the district court's

finding that no obligation inured on Cretco's part.

11Appellant's counsel made the quoted statement to the
district court in final argument. Appellant, therefore, cannot
disclaim the statement on appeal. See, e.g., United States v.

Dietz, 950 F.2d 50, 55 (1st Cir. 1991) (explaining that a party

who, in hindsight, finds dissatisfaction with the arguments he
advanced in the district court "cannot switch horses mid-stream
in hopes of locating a swifter steed"); see also Patriot Cinemas,

Inc. v. General Cinema Corp., 834 F.2d 208, 214 (1st Cir. 1987)

(stating that when a litigant "asserts inconsistent statements of
fact" at different junctures in litigation, the doctrine of
"judicial estoppel" prevents unfair advantage).

19

To sum up, the trial court found that neither ELC nor

Cretco undertook a binding obligation to the other. Either half

of this disjunctive finding is sufficient to warrant judgment for

the defendant on the breach of contract count. Both halves are

sustainable. Hence, the court's ultimate conclusion that no

enforceable contract existed because no mutuality of obligation

existed is unimpugnable.12

3. Unilateral Offer. Before leaving the breach of
3. Unilateral Offer.

contract claim, we close one last door. Were we to characterize

the initial document submission as a unilateral offer a

characterization that appellant, for the most part, has

assiduously resisted appellant's lot would not be improved. As

the district court observed, the documents that ELC delivered in

November 1990 did not specify a time within which appellant had

to accept any offer they might have contained. It, therefore,

would have had a reasonable time within which to do so, for an

offer that does not contain a deadline for acceptance will lapse

after a reasonable time if it is not accepted. See Mathewson

Corp. v. Allied Marine Indus., Inc., 827 F.2d 850, 853 (1st Cir.

1987) ("It is hornbook law that an offeree's power of acceptance

12Even if Massachusetts law supplies the rule of decision,
the result remains the same. Massachusetts also requires
mutuality of obligation as a prerequisite to the formation of a
binding contract. See, e.g., Graphic Arts Finishers, Inc. v.

Boston Redev. Auth., 255 N.E.2d 793, 796 (Mass. 1970); Gill v.

Richmond Co-op Ass'n, 34 N.E.2d 509, 513-14 (Mass. 1941); see

also Eliopoulos v. Makros, 77 N.E.2d 777, 779 (Mass. 1948)

(stating that mutuality of obligation is required for a binding
contract, although the parties' obligations need not be of equal
value).

20

vanishes at the time specified in the offer, and if no deadline

is prescribed, 'at the end of a reasonable time.'") (quoting

Restatement (Second) of Contracts 41(1) (1979)); see also

Minneapolis & St. Louis Ry. v. Columbus Rolling Mill, 119 U.S.

149, 151 (1886); Thermo Electron Corp. v. Schiavone Constr. Co.,

958 F.2d 1158, 1164 (1st Cir. 1992). What amount of time is

reasonable within the context of a particular case is "a classic

example of a decision that the law leaves to a district court,

not to this court, to decide." Thermo Electron, 958 F.2d at

1166; see also Murray on Contracts, supra, 41C, at 102.

Appellant concedes that, generally, four months is an

unreasonably long time for a financing offer to remain open. We

agree with the district court that, in a period of rapidly

fluctuating interest rates and with no extenuating circumstances,

this case falls comfortably within the sweep of that generality.

Because it would have been thoroughly unreasonable for appellant

to believe that a sale/leaseback proposal made in November and

not then accepted would linger on the table until the following

March, a "unilateral offer" theory leads down a blind alley.

And, moreover, we discern no clear error in the trial court's

rejection of appellant's claim that the "offer" was periodically

refreshed by what appellant but not the court viewed as

continuing reassurances.

III. THE IMPLIED COVENANT CLAIM

Appellant next claims that ELC breached an implied

covenant of good faith and fair dealing when it refused to

21

proceed with the alleged contract, and, adding insult to injury,

gave apocryphal reasons for its refusal to perform. When, as

now, a duty of good faith and fair dealing is alleged to arise

from a contractual relationship, a claim for breach of that duty

sounds in contract rather than in tort. See Bertrand v. Quincy

Market Cold Storage & Warehouse Co., 728 F.2d 568, 571 (1st Cir.

1984). This, in turn, dictates choice of law: the same

substantive law that governs the contract claim also governs the

implied covenant claim.

In this instance, then, Rhode Island law controls.

Rhode Island recognizes that virtually every contract contains an

implied covenant of good faith and fair dealing between the

parties. See A.A.A. Pool Serv. & Supply, Inc. v. Aetna Cas. &

Sur. Co., 395 A.2d 724, 725 (R.I. 1978); Ide Farm & Stable, Inc.

v. Cardi, 297 A.2d 643, 645 (R.I. 1972); see also Fleet Nat'l

Bank v. Liuzzo, 766 F. Supp. 61, 67 (D.R.I. 1991); Landry v.

Farmer, 564 F. Supp. 598, 611 (D.R.I. 1983). Because the implied

covenant exists "so that the contractual objectives may be

achieved," Ide Farm, 297 A.2d at 645, it necessarily follows that

where there is no contract, there is no duty. In such

circumstances, there is nothing from which the covenant can be

implied. Or, phrased differently, the law does not require

persons to act in particular ways in order to achieve illusory

contractual objectives.

On this basis, the covenant is left without visible

means of support, and no claim for a breach of it will lie. See

22

Jordan-Milton Mach., Inc v. F/V Teresa Marie, II, 978 F.2d 32, 36

(1st Cir. 1992); cf. Gleason v. Merchants Mut. Ins. Co., 589 F.

Supp. 1474, 1477 (D.R.I. 1984) (applying same principle in

insurance context).

IV. THE UNFAIR TRADE PRACTICES CLAIM

We come, finally, to appellant's unfair trade practices

claim. This claim invokes a Massachusetts statute that provides

in relevant part:

[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 use or employment by
another person who engages in any trade or
commerce of an unfair method of competition
or an unfair or deceptive act or practice . .
. may, as hereinafter provided, bring an
action . . . for damages . . . .

Mass. Gen. L. ch. 93A, 11 (1984). The district court, without

making an explicit choice-of-law determination, dismissed the

claim on the ground that the interdicted conduct did not occur in

trade or commerce.

Appellant's chapter 93A claim is really two separate

but related claims. We deal with them seriatim. The first

initiative fails to state a cause of action even if chapter 93A

applies, and we dispose of it on that basis.13 The second

initiative is a horse of a different hue; if chapter 93A applies,

it arguably states a claim. Consequently, we treat the choice-

of-law question that necessarily precedes substantive

13Thus, we make no choice-of-law determination as to whether
the substantive law of Massachusetts would apply to the conduct
underlying this first initiative.

23

consideration of this initiative.

A. The First Half of the Chapter 93A Claim.

Appellant's initial charge that ELC, by blaming the

collapse of the deal on Cretco's financial plight rather than on

its own empty coffers, misrepresented its reason for refusing to

proceed with the sale and leaseback need not detain us.

Although Judge Torres found that ELC had not informed appellant

that its participation in the deal would hinge upon the

availability of funding, there is no credible evidence that ELC

ever made express representations to the contrary. Thus, even if

we assume the truth of the charge, no reasonable factfinder could

conclude that ELC's conduct in this respect descended to the

level of rascality required for a successful chapter 93A suit.

See, e.g., Gooley v. Mobil Oil Corp., 851 F.2d 513, 515-16 (1st

Cir. 1988) (explaining that, "[i]n Massachusetts, the litmus test

for transgression of chapter 93A involves behavior which falls

within `the penumbra of some . . . established concept of

unfairness'") (quoting Massachusetts cases); Levings v. Forbes &

Wallace, Inc., 396 N.E.2d 149, 153 (Mass. App. Ct. 1979)

(explaining that "objectionable conduct must attain a level of

rascality that would raise an eyebrow of someone inured to the

rough and tumble of the world of commerce" in order to support a

chapter 93A action); see also Maruho Co. v. Miles, Inc., F.3d

, (1st Cir. 1993) [No. 93-1385, slip op. at 11]; Quaker

State Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1513

(1st Cir. 1989); Whitinsville Plaza, Inc. v. Kotseas, 390 N.E.2d

24

243, 251 (Mass. 1979); Rex Lumber Co. v. Acton Block Co., 562

N.E.2d 845, 850 (Mass. App. Ct. 1990). Whether or not full

disclosure during arm's-length business negotiations is more

likely the exception than the rule, a failure fully to disclose,

standing alone, while sometimes actionable in tort, ordinarily

will not transgress chapter 93A. So it is here.

B. The Second Half of the Chapter 93A Claim.

The second basis for the appellant's chapter 93A claim

arguably consists of sterner stuff. During pretrial discovery,

ELC produced a handwritten credit decision memorandum (CDM) dated

November 2, 1990. Attached to the CDM was a note purportedly

written to Mark Patterson, advising him that the handwritten memo

superseded a typed CDM of the same vintage. The difference

between the two memoranda is of import. The typed CDM stated

that the sale and leaseback had been approved.14 The

handwritten version, however, conditioned the approval on a

thoroughgoing review of appellant's financial status and a

favorable reaction by an ELC funding source. By the time the

case reached trial, appellant had integrated ELC's gamesmanship

during discovery with its other purported peccadilloes, and

charged that the handwritten CDM was a fake, manufactured after

the fact in order to lay the groundwork for ELC's defense.

Even if we assume, arguendo, that the described conduct

14Although ELC did not produce the typed version in pretrial
discovery, appellant knew of its existence through viewing an
informal file that Patterson kept at home. At trial, Patterson
testified that he had never seen either the handwritten CDM or
the accompanying note.

25

might infract chapter 93A, see generally Quaker State, 884 F.2d

at 1513-14 (discussing when tactics in, and related to, ongoing

litigation may prove actionable under chapter 93A), we

nevertheless must pause at the choice-of-law threshold.

Recognizing that a defendant in a contract case governed by one

state's law nonetheless may be subject to the provisions of

another state's unfair trade practices statute, see, e.g.,

Computer Sys. Eng'g, Inc. v. Qantel Corp., 740 F.2d 59, 64 nn.6,7

(1st Cir. 1984), that result will obtain only if the forum

state's choice-of-law rules so dictate, see id. at 70.

Considering this possibility brings into play the principle of

depecage, which we have described as "the framework under which

different issues in a single case . . . may be decided according

to the substantive law of different states." Putnam Resources,

958 F.2d at 465.

For choice-of-law purposes, we treat appellant's

chapter 93A initiative as a species of tort claim. At least one

federal court has made the across-the-board assessment that

chapter 93A claims "should be treated uniformly, rather than on a

case-by-case basis, in the same way as tort claims." Computer

Sys. Eng'g, Inc. v. Qantel Corp., 571 F. Supp. 1365, 1371 (D.

Mass. 1983), aff'd, 740 F.2d 59 (1st Cir. 1984). We need not go

so far. We hold that, at minimum, when a chapter 93A claim and

the requested remedy are highly analogous to a tort claim and

remedy, the chapter 93A claim should be considered as a tort for

choice-of-law purposes. See id. at 1370-71; see also Michael C.

26

Gilleran, The Law of Chapter 93A 12:8, at 413 (1989); cf.

Northeast Data Sys., Inc. v. McDonnell Douglas Computer Sys. Co.,

986 F.2d 607, 609 (1st Cir. 1993) (holding that a chapter 93A

claim may trigger a contractual conflicts analysis where it is

essentially an "embroidered" contract claim).

In applying these principles, we focus only on the

arguably actionable conduct, i.e., appellant's second chapter 93A

initiative.15 In that initiative, appellant claimed that ELC

manufactured evidence in an attempt to justify its

nonperformance. This charge resembles the tort of fraudulent

misrepresentation. Similarly, appellant asked for a tort-like

remedy (multiple damages and attorneys' fees). Thus, we consider

this species of chapter 93A claim as falling under the tort

rubric for purposes of our choice-of-law assessment.

In tort cases, Rhode Island uses a multipart analysis

to determine which of two states has the more significant

interest in the resolution of the issue presented in the case.

See Pardey v. Boulevard Billiard Club, Inc., 518 A.2d 1349, 1351

(R.I. 1986); accord Brown v. Church of the Holy Name of Jesus,

252 A.2d 176, 178 (R.I. 1969); Woodward v. Stewart, 243 A.2d 917,

923 (R.I.), cert. dism'd, 393 U.S. 957 (1968); see also Putnam

Resources, 958 F.2d at 464; Fashion House, Inc. v. K Mart Corp.,

892 F.2d 1076, 1092 (1st Cir. 1989); Montaup Elec. Co. v. Ohio

15We express no opinion as to what choice-of-law analysis
might have applied to appellant's first chapter 93A initiative,
or how the conflicts issue would have played out, for such
matters are beyond the scope of this opinion, see supra note 13.

27

Brass Corp., 561 F. Supp. 740, 744-45 (D.R.I. 1983).

General choice-of-law principles that should guide a

court in making such a determination include (1) predictability

of results; (2) maintenance of interstate order; (3)

simplification of the judicial task; (4) advancement of the

forum's governmental interests; and (5) application of the better

rule of law. See Putnam Resources, 958 F.2d at 464-65; Brown,

252 A.2d at 178; Woodward, 243 A.2d at 923; see also Restatement

6. In considering these general principles, tort conflict-of-

law analysis weighs more heavily the needs of the interstate

system, the policies of the interested states as well as the

forum, and the ease of determination and application of the law.

See Restatement 145, cmt. b. In the tort context, these

overarching tenets may take into account a number of other

factors, including (1) the place of injury; (2) the place where

the conduct which caused the injury occurred; (3) the place of

incorporation and place of business of each party; and (4) the

locus, or center of gravity, of the parties' relationship. See

Putnam Resources, 958 F.2d at 464; Fashion House, 892 F.2d at

1092; Brown, 252 A.2d at 179; see also Restatement 145(2).

An application of these factors reveals that Rhode

Island has a more significant interest than Massachusetts in the

resolution of this claim. Appellant initiated negotiations with

ELC in Rhode Island and interstate policy does not dictate

prosecution under the Massachusetts statute of every deceptive

trade allegation brought against a company headquartered in

28

Massachusetts but doing business in another state. Rhode Island

has a substantial interest in protecting its resident companies

from deceptive representations or unfair trade practices,

especially those that may occur within its borders. As it is the

forum state, an application of Rhode Island's tort law would be

more easily accomplished than an application of Massachusetts

law.

Then, too, in addition to the Rhode Island locus of the

claimed injury, the allegedly tortious conduct also possesses

substantial links to Rhode Island. Appellant's claim arose when

Douglas Crellin visited Mark Patterson at his Rhode Island home

and saw the typed version of the CDM. The coverup itself if

one took place must have been crafted in the course of pretrial

discovery in a Rhode Island forum. Even if we assume that the

handwritten version of the CDM was created in Massachusetts and

there is no proof of that fact such a contact, standing alone,

would not be enough to overcome Rhode Island's interest in

compensating a Rhode Island company whose financial well-being

was compromised through deceptive acts of a company doing

business within Rhode Island.16

We conclude, therefore, that to the extent appellant

presents a potentially viable unfair trade practices claim, the

claim is governed by the substantive law of Rhode Island.

16Although they do not bear repeating, many of the factors
that dictate using Rhode Island law vis-a-vis appellant's
contract claim, see supra pp. 11-12, also militate in favor of

using that law vis-a-vis its chapter 93A claim.

29

Because that is so, appellant's claim under chapter 93A is not

actionable.17 See, e.g., Eastland Bank v. Massbank for

Savings, 767 F. Supp. 29, 35 (D.R.I.), aff'd mem., 953 F.2d 633

(1st Cir. 1991); cf. Qantel, 740 F.2d at 70. Accordingly, we

affirm the district court's dismissal of this claim on different,

but equally dispositive, grounds, see generally Polyplastics,

Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir. 1987)

(explaining that an appellate court, in affirming a judgment, is

not limited to the trial court's rationale, but can affirm on any

independent ground made manifest in the record), without reaching

the question of whether the alleged coverup can be said to have

been aimed at influencing Cretco "in the conduct of any [ongoing]

trade or commerce." Mass. Gen. L. ch. 93A, 2.

V. CONCLUSION

We need go no further.18 Finding, as we do, that

appellant mistook mere negotiations for a binding contract, and

that it has no legal recourse against ELC, we uphold the district

court's disposition of its suit.

17Appellant has not pointed to a Rhode Island counterpart to
chapter 93A, nor has it identified any theory grounded in Rhode
Island law under which its unfair trade practices claim might
prosper. We, therefore, eschew the temptation to rummage through
Rhode Island's jurisprudence. In our estimation, litigants have
an independent responsibility to do their homework.

18Our conclusion that the end product of the parties'
negotiations lacked a necessary element of contract formation,
see supra Part II(B), obviates any need to consider the lower

court's alternative holding that the contract claim likewise
fails for want of actual damages. Similarly, our conclusion that
ELC is not liable in any way eliminates any necessity to
determine whether the lower court erred in excluding expert
testimony offered by appellant in an effort to prove damages.

30

Affirmed. Costs to appellee.

31