United States Court of Appeals For the First Circuit
Nos. 21-1002, 22-1154
BOSTON EXECUTIVE HELICOPTERS, LLC,
Plaintiff, Appellant,
v.
FRANCIS T. MAGUIRE, individually and in his capacity as manager of the Norwood Memorial Airport; MARK P. RYAN, individually and in his capacity as a clerk of the Norwood Airport Commission; MARTIN E. ODSTRCHEL, individually and in his capacity as a member of the Norwood Airport Commission; KEVIN J. SHAUGHNESSY, individually and in his capacity as a clerk of the Norwood Airport Commission; MICHAEL SHEEHAN, individually and in his capacity as a member of the Norwood Airport Commission; LESLIE W. LEBLANC, in his capacity as a member of the Norwood Airport Commission; PAUL V. SHAUGHNESSY, in his capacity as a member of the Norwood Airport Commission; HYLIE HUTCHENS, in his capacity as a member of the Norwood Airport Commission; NORWOOD AIRPORT COMMISSION; THOMAS J. WYNNE, individually and in his capacity as former chairman of the Norwood Airport Commission; NORWOOD MEMORIAL AIRPORT; TOWN OF NORWOOD,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta, Circuit Judges.
Eric H. Loeffler, with whom Davids & Cohen, P.C. was on brief, for appellant. David S. Mackey, with whom Mina S. Makarious, Jonathan T. Elder, and Anderson & Kreiger LLP were on brief, for appellees.
August 15, 2022 KAYATTA, Circuit Judge. This appeal represents the
latest bout in an acrimonious quarrel between Boston Executive
Helicopters (BEH) and the Town of Norwood, which runs the Norwood
Memorial Airport (collectively, "Norwood"). BEH sued Norwood in
2015, contending that Norwood and one of BEH's competitors,
FlightLevel, conspired to prevent BEH from becoming a Fixed Base
Operator at the airport. The parties resolved their dispute --
albeit temporarily -- by entering into a written settlement
agreement in July 2019. Dissatisfied with Norwood's performance
under the settlement agreement, BEH moved the district court to
enforce the agreement as construed by BEH. The district court
denied the motion, and BEH appealed. While the appeal was pending,
BEH moved the district court to rescind the settlement agreement,
or, in the alternative, to reconsider its rejection of BEH's motion
to enforce the agreement. The district court denied those requests
as well, and BEH appealed once again. Concluding that Norwood did
breach one provision of the settlement agreement, we reverse the
district court on that one score. We otherwise affirm the denial
of both motions. Our reasoning follows.
I.
A.
BEH is a helicopter business that operates out of the
Norwood Memorial Airport in Norwood, Massachusetts. Since its
founding in 2010, BEH has attempted to lease ramp space from the
- 3 - airport in order to operate as a Fixed Based Operator (FBO).1 In
late 2012, the Norwood Airport Commission (NAC) -- a government
agency that controls the airport -- approved BEH's fuel facility
and hangar; a month later the Norwood Fire Department approved its
fuel system; and the Board of Selectmen -- which oversees the NAC
-- approved its fuel permit. The Federal Aviation Administration
(FAA) then approved BEH's fuel system and operations. At that
point, BEH was ready to operate as an FBO as soon as it leased
ramp space from Norwood and completed construction of a hangar.
After BEH and Norwood failed to come to an agreement to
lease the necessary ramp space, BEH sued in 2015. The gravamen of
BEH's complaint was that Norwood conspired with BEH's competitor
-- FlightLevel -- to "restrain competition and protect the
incumbent FBO at the Airport." According to BEH, Norwood had been
stringing it along, inducing it to build a new hangar and obtain
permits, just to pull the rug out from under BEH when it came to
acquiring the necessary lease, all so FlightLevel would remain the
only FBO at the Norwood airport.
On Norwood's motion, the district court dismissed all
BEH's claims save one. The court held that BEH adequately alleged
1 An FBO is a private business granted the right by an airport to operate at the airport and provide aviation services, like fueling, parking, and maintenance.
- 4 - that, in refusing to issue an FBO permit, Norwood had retaliated
against BEH for exercising its First Amendment rights.
B.
After several years of litigation, the court set a trial
date for December 10, 2018. In the weeks leading up to the trial,
the parties engaged in settlement negotiations. Eventually, they
orally agreed upon an eight-page, unsigned term sheet, which
sketched out the skeleton of a settlement agreement. The agreed-
upon terms required Norwood to approve BEH as an FBO and to provide
BEH a five-year lease of designated property at the airport,
including a ramp known as the West Apron that BEH needs to operate
as an FBO. The term sheet did not mention any easement for
FlightLevel on the to-be-leased ramp. Nevertheless, when
Norwood's attorney sent BEH a fleshed-out draft of the settlement
agreement, it contained the following language:
The West Apron Lease shall be subject to an easement allowing [FlightLevel] to access the fueling facility located on Lot G.
BEH objected. That same day, it returned a redline of the proposed
agreement with the easement language crossed out. In brackets,
BEH explained to Norwood that an easement was not consistent with
its proposed hangar construction -- which Norwood elsewhere in the
draft agreed to assist in approving -- and insisted that the
easement be terminated (or that the rights be assigned to BEH, who
could then "deal with FlightLevel"). BEH worried that an easement
- 5 - would interfere with its use of the West Apron by, for example,
requiring it to move parked aircraft (if even possible, given space
constraints) to accommodate FlightLevel's passage.
Norwood balked at deleting the language stating that the
lease would be subject to an easement for FlightLevel. Several
other disputes concerning the wording of the settlement agreement
also arose. At that point, BEH returned to the district court
asking that it require Norwood to enter into an agreement in accord
with the term sheet. The parties engaged in further motion
practice regarding the terms of the settlement, after which the
court held a two-day settlement conference to address the remaining
items of contention, including whether the West Apron lease would
be subject to an easement. The impasse regarding an easement
resolved when Norwood's lawyer announced in open court:
The Board of Selectmen met in executive session yesterday and have basically approved all of those three items in favor of Boston Executive Helicopter. So I have revised the Settlement Agreement and Release so that there no longer is an easement on the West Ramp.
(Emphasis added.) Based on that representation, the parties signed
a final settlement agreement. As relevant to this appeal, Norwood
promised:
(1) to enter into a "standard form, non-exclusive
lease" with BEH for the West Apron, which would
enable BEH to operate as an FBO;
- 6 - (2) to support BEH's application to the FAA for the
removal of "TOFA" (i.e., taxiway object free area)
markings from BEH's leased areas;2
(3) to contemporaneously provide all emails and
correspondence between Norwood and FlightLevel;
(4) to allow BEH to participate in all meetings
regarding negotiations with the FAA over a Joint
Corrective Action Plan (JCAP) based on the FAA's
finding that Norwood had violated BEH's rights;
and
(5) a payment to BEH.
After a brief skirmish over Norwood producing an
executed copy of the agreement and paying the settlement proceeds,
the parties filed a stipulation of dismissal on September 12, 2019.
The court "retain[ed] jurisdiction" to "resolve any disputes that
may arise from the implementation of the settlement agreement's
terms."
C.
Just over a year later, BEH was back in court moving to
enforce the settlement agreement. According to BEH, it still did
not have a lease for ramp space that could be used as planned for
2 TOFA markings delineate the area that must be kept free of parked aircraft and other objects (including vehicles) not needed for air navigation or ground maneuvering, and any vehicle must give right of way to oncoming aircraft.
- 7 - FBO operations because Norwood only offered a lease for the West
Apron that it said would be subject to an easement held by
FlightLevel. BEH also alleged that Norwood undermined its petition
with the FAA to remove TOFA markings from its taxiway (which
Norwood had promised to support) by affirmatively advocating for
the markings to expand into the areas containing BEH's hangar.
BEH complained that Norwood purposefully withheld communications
with FlightLevel that it had agreed to provide to BEH. And BEH
faulted Norwood for failing to invite it to negotiations with the
FAA over the JCAP. Finally, BEH accused Norwood of both fraud in
the inducement concerning the settlement agreement and continuing
to retaliate against it.
The district court denied BEH's motion to enforce the
settlement agreement. As for the easement to FlightLevel, the
court focused on the fact that the written settlement agreement
did not actually say that Norwood had to provide a lease free of
an easement for FlightLevel. Rather, it only required Norwood to
provide a "standard form, non-exclusive lease agreement." The
district court reasoned that "non-exclusive" unambiguously means
that the lease need not be free of encumbrances, regardless of the
express statement to the contrary by Norwood's counsel during the
settlement hearing. According to the district court, it mattered
not what had been said before the agreement was signed. For the
TOFA markings, the court held that Norwood satisfied its
- 8 - responsibility by submitting a letter to the FAA supporting BEH's
application for their removal. The court found that the settlement
agreement did not restrain Norwood from taking any other actions
with respect to TOFA markings at the airport. The court rejected
the remaining claimed violations of the settlement agreement
because BEH did not "identify any documents specifically or
generically" that it thought Norwood should have provided and
because Norwood was not required to invite BEH to attend "meetings
at which the FAA is in attendance." Finally, the court declined
to consider any argument that Norwood committed fraud in the
inducement or that Norwood was continuing to retaliate against BEH
because those claims went beyond simply enforcing the settlement
agreement, which is all the court retained jurisdiction to do.3
BEH timely appealed.
D.
While BEH's appeal was pending, a few things happened on
the ground that affected the record on appeal.
First, BEH and Norwood actually signed a five-year lease
for the West Apron. That lease, as BEH points out, says nothing
about encumbrances; nevertheless, Norwood continues to maintain
3 The district court also denied two other aspects of the motion not raised in BEH's appeal of its original motion to enforce. First, the district court found that Norwood did not breach a provision of the agreement regarding the makeup of its Board of Selectmen. Second, the district court declined to sanction Norwood.
- 9 - that FlightLevel still has an easement to use the West Apron. The
lease also includes a so-called integration clause, which Norwood
contends moots any dispute concerning the nature of the lease
called for by the settlement agreement. Norwood sought to
supplement the appellate record with the newly executed lease. In
the absence of any opposition, and because a claim of mootness
bears on our jurisdiction, we granted Norwood permission to do so.
Cf. Redfern v. Napolitano, 727 F.3d 77, 83 (1st Cir. 2013).
Then, in July 2021, BEH received a response to a public-
records request, which included (according to BEH) documents that
should have been provided under the settlement agreement and which
were proof that Norwood committed fraud to induce the settlement.
So BEH, like Norwood before it, sought to supplement the appellate
record. Norwood opposed the motion, and we ultimately denied it.
In the weeks following oral argument before this court,
BEH filed with the district court an omnibus motion for rescission
of the settlement agreement or, in the alternative,
reconsideration by the district court. BEH mostly just repeated
the arguments it made before and had made on appeal, but it also
raised the new evidence received through its public-records
request. The district court correctly rebuffed BEH's motion
because the court no longer had jurisdiction given BEH's pending
appeal. See United States v. Brooks, 145 F.3d 446, 455–56 (1st
Cir. 1998) ("[T]he filing of a notice of appeal 'divests a district
- 10 - court of authority to proceed with respect to any matter touching
upon, or involved in, the appeal.'" (quoting United States v. Mala,
7 F.3d 1058, 1061 (1st Cir. 1993))).
BEH timely appealed that ruling. We dismissed that
appeal without prejudice and (while retaining jurisdiction)
ordered the case itself remanded in part for the sole purpose of
having the district court consider the new motion. The district
court promptly denied both the motion for rescission, as outside
its retained jurisdiction to enforce the settlement, and the
alternative motion for reconsideration, as not made within a
reasonable time and because "BEH merely recycle[d] arguments
already rejected." See Fed. R. Civ. P. 60(b)(6), (c)(1).
BEH, for the third time, timely appealed. We
consolidated the first and third appeals (the second having been
dismissed).
II.
We begin with BEH's motion for rescission of the
settlement agreement or, in the alternative, for reconsideration.
The district court held that it did not have jurisdiction
to hear BEH's motion to rescind the settlement agreement because
the district court only retained jurisdiction to enforce it. We
agree. See Vikas WSP, Ltd. v. Econ. Mud Prods. Co., 23 F.4th 442,
453 (5th Cir. 2022) (concluding that hearing a fraud claim through
a district court's ancillary power to "enforce the settlement"
- 11 - would "stretch retained jurisdiction too far"). BEH's arguments
based on fraud in the inducement should have been raised in a
separate suit, likely in state court. Indeed, BEH appears to have
already done so. See Answer to Second Am. Verified Compl. & Am.
Countercl. at 39–41, FlightLevel Norwood, LLC v. Bos. Exec.
Helicopters, LLC, No. 1982CV01099, Dkt. No. 35 (Norfolk Super. Ct.
filed Mar. 22, 2021).4
As for BEH's appeal of the denial of its motion to
reconsider the order denying BEH's motion to enforce, we find the
dispute, for the most part, moot on appeal. We are, in this
opinion, considering BEH's appeal of the district court's
rejection of its original motion to enforce, and BEH's motion to
reconsider that order raises substantially the same points. So
our decision on the merits of the original motion resolves the
latter.
4 BEH's continued attempt to enforce the settlement agreement seems, at least at first blush, misplaced given its pending state court action seeking to rescind that very agreement. Norwood, though, claims no material inconsistency between the two requests. Nor do we see any such inconsistency. In essence, BEH is arguing in the alternative: rescind the settlement agreement or, if not, enforce it. This alternative argument seems odd only because its two components are being pressed in different courts for jurisdictional reasons. In theory, this runs the risk that the two courts could issue contradictory decisions to enforce and to rescind. But neither party suggests that such an inconsistent grant of mutually conflicting alternatives is possible as matters now stand.
- 12 - There are two exceptions, however. First, the motion to
reconsider included newly acquired evidence that, BEH contends,
shows that Norwood breached its obligation to provide all
communications with FlightLevel. We address that evidence below.
Second, BEH's motion to reconsider (and appeal of its denial)
revives one argument that it did not raise in its direct appeal of
the district court's order denying its motion to enforce, namely
that Norwood breached a provision of the settlement agreement
related to the makeup of the Board of Selectmen. But BEH's one-
paragraph argument in its reconsideration appeal fails to explain
how Norwood breached this provision, nor does it cite any authority
supporting its contention. So we find it waived. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
III.
We turn next to BEH's appeal of the district court's
denial of its motion to enforce the settlement agreement. Given
that the district court denied the motion based on its reading of
the agreement's text, without relying on any fact finding, we
"review the district court's interpretation of a settlement
agreement de novo," applying state contract law. In re Volkswagen
and Audi Warranty Extension Litig., 692 F.3d 4, 13, 15 (1st Cir.
2012). Here, Massachusetts law plainly governs. See id. at 17–
21 (applying choice-of-law principles).
- 13 - BEH maintains that Norwood has breached provisions of
the settlement agreement regarding (1) leasing the West Ramp,
(2) removing TOFA markings, (3) receiving communications between
Norwood and FlightLevel, and (4) attending meetings regarding
negotiations with the FAA. We conclude, as BEH argues, that
Norwood agreed in the settlement agreement to provide a lease for
the West Ramp without an easement in favor of FlightLevel,
reversing the district court on that score, but we otherwise affirm
the district court's rejection of the motion to enforce.
Under the settlement agreement, Norwood was obligated to
grant BEH "standard form, non-exclusive lease agreements" for two
ramps, including the West Apron on which Norwood now claims there
is an easement. BEH contends that this obligation, construed in
light of the parties' negotiations, requires Norwood to provide a
lease for the West Apron free of any encumbrance in favor of
FlightLevel. Norwood offers two rejoinders: (1) How to interpret
the obligation to grant leases under the settlement agreement is
now "moot" because the parties have actually entered into a lease
for the West Apron, which is fully integrated and accordingly
supersedes any prior agreements "with respect to the matter
covered" in the new lease; and (2) in any event, the district court
correctly held that the settlement agreement did not obligate
Norwood to provide a lease free of any easements. For the
- 14 - following reasons, we think that BEH has the better position on
each of these arguments.
1.
Norwood's "mootness" argument hinges on the application
of the integration clause in the new lease to bar any recourse to
the prior settlement agreement in construing the parties' rights
and obligations regarding the leased premises. The lease's
integration clause states: "This Lease represents the entire
agreement between the parties hereto with respect to the matter
covered herein. No other agreement, representations, warranties,
proposals, oral or written, shall be deemed to bind the parties."
Norwood would have us read "the matter covered herein"
as including whatever obligations Norwood has under the settlement
agreement to lease the West Apron. But the lease does not so
state. Rather, the cited clause is limited to the matters covered
by the lease, and the lease does not address the subject of
easements at all.5 Indeed, the lease (unlike the settlement
agreement) does not even contain the word "non-exclusive" deemed
so crucial by Norwood and the district court in construing the
settlement agreement itself. And neither party points to any
5 The lease disavows any representation by Norwood that the leased premises is "fit for the uses to which [it is] placed by the lessee." In context, we do not read this reservation as bearing on legal title or title impairments, such as an encumbrance.
- 15 - default rule allocating to one party or the other the risk that a
leasehold may be subject to an easement that defeats a principal
and mutually understood purpose of the lease.
We, therefore, see no reason why the lease must be viewed
as inconsistent with a prior obligation to provide a West Apron
lease without an easement. See 11 Williston on Contracts § 33:31
(4th ed. Nov. 2021 Update) ("[A] written agreement [is not
superseded or invalidated] by a subsequent integration relating to
the same subject-matter, if the agreement is not inconsistent with
the integrated contract, and [] is made for separate
consideration."); see also De Blois v. Boylston & Tremont Corp.,
183 N.E. 823, 827 (Mass. 1933) (explaining that a prior agreement
is still applicable as long as it is not so inconsistent with the
new contract that they cannot stand together). Rather, if we were
to find that Norwood had agreed in the settlement agreement to
lease the West Apron to BEH with any easement in favor of
FlightLevel removed, the executed lease would stand at most as an
incomplete performance of such an agreement. Accordingly, nothing
in the lease's integration clause renders moot the issue of whether
the parties, before signing the new lease, agreed that there was
to be no such encumbrance.
2.
That, then, brings us back to whether the parties ever
so agreed. That is, should the settlement agreement be read as
- 16 - calling for a lease of property unburdened by an encumbrance of
the West Apron in favor of FlightLevel that rendered BEH's intended
use unavailable?
The parties' prolonged negotiations prior to signing the
settlement agreement make it crystal clear that there was to be no
encumbrance in favor of FlightLevel. The parties stood at an
impasse over precisely this issue, with BEH steadfastly insisting
that no encumbrance should exist. That impasse only broke when
Norwood dramatically announced in open court that "there no longer
is an easement on the West Ramp" and agreed to strike the language
reserving an easement "allowing [FlightLevel] to access the
fueling facility" on the to-be-leased property.
Of course, even crystal-clear parol evidence that the
parties negotiated an agreement on a point can be rendered
essentially irrelevant by a clear contrary statement in a
subsequent written memorialization of the parties' final
understanding. See Gen. Convention of New Jerusalem in the U.S.,
Inc. v. MacKenzie, 874 N.E.2d 1084, 1087–89 (Mass. 2007). And,
here, there was another such written agreement executed after
Norwood gave the foregoing assurance: the settlement agreement
itself. The district court accepted Norwood's argument that the
settlement agreement's requirement that Norwood provide a
"standard form, non-exclusive lease" was unambiguous and
accordingly precluded any reliance on the evidence of the parties'
- 17 - negotiations. For precisely this reason, the district court put
entirely to one side the foregoing crystal-clear parol evidence.
With the benefit of more time and the focus provided by
appellate briefing, we disagree. The settlement agreement, like
the new lease, makes no mention either way of encumbrances. It
does contain the word "non-exclusive," but it is hardly self-
evident that the word as used here was intended to allow Norwood
to turn around and encumber the property so as to fundamentally
interfere with its intended use. Certainly that word cannot mean,
for example, that Norwood could simultaneously lease to multiple
FBOs property that could only support one FBO.
Our reluctance to construe "non-exclusive" as "not
excluding easements that would fundamentally interfere with the
property as an FBO" finds support in the fact that, in context,
the notion of exclusivity has an entirely different meaning and
purpose. Lessees of a commercial property often would prefer that
the lessor not lease other portions of its property to a
competitor. For example, a supermarket leasing space in a mall
might well want the owner of the mall to give the lessee an
"exclusive" deal, barring the leasing of other lots in the mall to
a competing supermarket. So, too, here, might an FBO at an airport
prefer to construe its lease as barring the airport from leasing
airport property to a competitor.
- 18 - But federal law prohibits exclusivity of precisely that
type. See 49 U.S.C. §§ 40103(e);6 47107(a)(4).7 And Norwood has
previously found itself in hot water for granting such exclusivity
to a tenant (notably, FlightLevel). See Final Decision and Order,
Bos. Air Charter v. Norwood Airport Comm'n, FAA Docket No. 16-07-
03, Final Decision and Order, 2008 WL 4186034 (Aug. 14, 2008).
The FAA found Norwood violated, among others, the "Exclusive
Rights" grant assurance, which "implements the provisions of 49
U.S.C. §§ 40103(e) and 47107(a)(4)." Id. at *15, *24–26.
To construe contract language precipitated by federal
regulation, courts should look at "the regulation and the federal
6 "No Exclusive Rights at Certain Facilities. A person does not have an exclusive right to use an air navigation facility on which Government money has been expended. However, providing services at an airport by only one fixed-based operator is not an exclusive right if [] it is unreasonably costly, burdensome, or impractical for more than one fixed-based operator to provide the services." 49 U.S.C. § 40103(e)(1). 7 "General Written Assurances. The Secretary of Transportation may approve a project grant application under this subchapter for an airport development project only if the Secretary receives written assurances, satisfactory to the Secretary, that [inter alia] a person providing, or intending to provide, aeronautical services to the public will not be given an exclusive right to use the airport, with a right given to only one fixed- base operator to provide services at an airport deemed not to be an exclusive right if-- (A) the right would be unreasonably costly, burdensome, or impractical for more than one fixed-base operator to provide the services; and (B) allowing more than one fixed-base operator to provide the services would require reducing the space leased under an existing agreement between the one fixed-base operator and the airport owner or operator." 49 U.S.C. § 47017(a)(4).
- 19 - policy underlying the regulatory scheme." Kolbe v. BAC Home Loans
Servicing, LP, 738 F.3d 432, 436 (1st Cir. 2013) (en banc) (lead
opinion of equally divided court); see also Feaz v. Wells Fargo
Bank, N.A., 745 F.3d 1098, 1105 (11th Cir. 2014) (adopting the
position of Kolbe's lead opinion). Here, the regulatory context
provides strong evidence that "non-exclusive" means that the
airport can allow competing FBOs, not that it can grant
incompatible rights in the same land to others. This conclusion
finds further support in the fact that the only discussion of
exclusivity in Norwood's standard-form lease is in relation to the
FAA requirements: "It is understood and agreed that . . . nothing
herein contained shall be construed as granting or authorizing the
granting of an exclusive right within the meaning of Section 308
of the Federal Aviation Act of 1958."8
It therefore seems quite likely that the term "non-
exclusive" was intended by the parties simply to make clear that,
in accord with federal non-exclusivity rules, Norwood was not
obligated to bar other FBOs from the airport. So read, it would
say nothing about whether there could be an easement over the
8 Norwood's standard-form lease is referenced in the settlement agreement and is therefore appropriately considered to aid our interpretation. See 11 Williston on Contracts § 30:26 (4th ed. Nov. 2021 Update) ("[A] contemporaneous writing known to the parties may shed light on the meaning of a contract without being part of the contract.").
- 20 - leased property. But we need not make that determination
definitively. At the very least, the settlement agreement is
ambiguous as to whether the language "standard form, non-exclusive
lease" allows Norwood to let another FBO use the very same real
estate leased to BEH, much less to do so in a manner that
significantly constrained BEH's own use of the West Apron. See
PaineWebber Inc. v. Elahi, 87 F.3d 589, 600 (1st Cir. 1996) ("A
contract term is ambiguous if it is 'capable of more than one
meaning when viewed objectively by a reasonably intelligent person
who has examined the context of the entire integrated agreement
and who is cognizant of the customs, practices, usages, and
terminology as generally understood in the particular trade or
business.'" (quoting Walk-In Med. Ctrs., Inc. v. Breuer Cap. Corp.,
818 F.2d 260, 263 (2d Cir. 1987) (applying New York law))).
To "ascertain[] the intent of the parties as imperfectly
expressed in ambiguous contract language," Massachusetts courts
look to extrinsic evidence, with "the parties' negotiations" being
the most important. Den Norske Bank AS v. First Nat'l Bank of
Bos., 75 F.3d 49, 52 (1st Cir. 1996). Nevertheless, Norwood
contends that the court still cannot consider representations made
in the negotiation process because the settlement agreement also
contains an integration clause, which states that the agreement
"supersedes all prior written and oral agreements and all
contemporaneous oral negotiations, commitments and understandings
- 21 - between the parties" and that they "have not relied upon any other
representations or statements made by any person or entity." But,
"whether or not [a writing] is integrated," "negotiations prior to
or contemporaneous with the adoption of [that] writing are . . .
admissible to establish . . . the meaning of the writing."
11 Williston on Contracts § 33:26 (citing Restatement (Second)
Contracts § 214(c)); see also Bettencourt v. Bettencourt, 284
N.E.2d 238, 243 (Mass. 1972) (holding that while parol evidence
"cannot be employed to vary an integrated written agreement," it
is "properly considered" to "assist in determining what the parties
intended"). Thus, the settlement agreement's integration clause
does not bar our consideration of the negotiations "to interpret
and apply language used in" that agreement. Simon v. Simon, 625
N.E.2d 564, 568 (Mass. App. Ct. 1994) (citing Tzitzon Realty Co.
v. Mustonen, 227 N.E.2d 493, 496 (Mass. 1967)).
Luckily, the negotiations over this provision clearly
indicate the parties' intentions on this precise issue. A quick
recap: Norwood wanted to allow for an easement, BEH objected, an
impasse arose. Norwood then publicly announced that its Board of
Selectmen had decided the item in favor of BEH, and the language
providing for an easement was stricken. This lead-up to the
signing of the settlement agreement resolves any relevant
ambiguity about the meaning of the term "standard form, non-
exclusive lease" as intended by the parties. We, therefore,
- 22 - conclude that a "standard form, non-exclusive lease," as used in
this agreement, means a lease unencumbered by an easement in favor
of FlightLevel to the extent it materially impedes BEH's intended
use of the to-be-leased ramp.
In summary, the parties' negotiation of the settlement
agreement made it eminently clear that the West Apron to be leased
to BEH was not to contain an easement in favor of FlightLevel.
And nothing in the subsequently signed agreement or the executed
lease spoke to this subject in a manner that precludes reference
to the negotiation in construing the language of the settlement
agreement or in determining whether Norwood has fully complied
with that agreement by leasing the West Apron subject to an
easement it had promised to remove. Accordingly, on remand, the
district court need fashion an appropriate remedy to the extent
that Norwood has yet to provide a lease for the West Apron free of
any easement in favor of FlightLevel.9
The settlement agreement contains the following
provision concerning so-called TOFA markings, which limit the
space within the leased area that BEH can actively use:
9 In passing, BEH contends that the court "also erred in failing to address [its] claim that [Norwood] failed to provide a lease to BEH for the amount of space promised under the Settlement Agreement which, in and of itself, warrants reversal." We treat this undeveloped argument as waived on appeal. See Zannino, 895 F.2d at 17.
- 23 - BEH shall prepare a petition to the FAA, with appropriate plans or drawings, seeking approval for the removal of all TOFA and/or OFA markings in Taxiway 3. The NAC shall submit a letter to the FAA in support of BEH's petition for TOFA and/or OFA relief within thirty (30) days after the receipt of BEH's submission to the FAA. If approved by the FAA, the TOFA/OFA markings on Taxiway 3 shall be removed by the NAC within sixty (60) days.
BEH contends that Norwood violated this TOFA provision by
attempting to undermine BEH's petition to the FAA for approval to
remove the TOFA markings. As proof, BEH points to two actions by
Norwood.
BEH claims, first, that Norwood breached this agreement
because its letter was late. Assuming that to be so, the record
is nevertheless bereft of evidence that the delay caused any harm.
Moreover, on its face, the letter otherwise complies with the
agreement. We therefore agree with the district court that BEH's
request to "enforce" this provision of the settlement agreement
makes no sense.
BEH claims, second, that Norwood has breached the
agreement by seeking, months after submitting its letter
supporting the removal of TOFA in Taxiway 3, to increase TOFA
markings in other areas around BEH's hangar. BEH, though, points
to no language in the various agreements or even the parties'
negotiations suggesting any obligation by Norwood not to seek
additional TOFA markings. The settlement agreement only requires
- 24 - Norwood to "submit a letter in support of BEH's petition" for the
removal of existing TOFA and, if the petition is approved, to
remove those markings. Norwood has complied with the first
requirement (albeit late), and there is no indication in the record
that BEH's petition has been granted to trigger the second. Nor
does BEH point us to any evidence in the record that Norwood's
proposed markings duplicate or overlap with the markings BEH seeks
to remove.
On appeal, BEH tries a different tack, contending that
Norwood could be found to have breached the implied covenant of
good faith, which Massachusetts recognizes in some circumstances,
see Fortune v. Nat'l Cash Reg. Co., 364 N.E.2d 1251, 1255–56 (Mass.
1977), but not in others, see Uno Rests., Inc. v. Bos. Kenmore
Realty Corp., 805 N.E.2d 957, 964 (Mass. 2004). BEH only obliquely
referred to the implied covenant of good faith in its motion to
enforce filed in the district court: In one line of its memorandum
of law, it alleged that Norwood breached "the letter and spirit"
of the agreement. But, as to the latter, it said nothing more.
It cited no pertinent cases. Nor did it try to explain how these
facts would qualify under Massachusetts law. And its supporting
affidavit offered no explanation for how the requested new TOFA
markings by themselves frustrated the purpose of the agreement.
Indeed, we cannot even tell from the appellate briefs where the
proposed markings would be in relation to the existing markings.
- 25 - This argument, "not seasonably advanced below[,] cannot be raised
for the first time on appeal." Johnson v. Johnson, 23 F.4th 136,
143 (1st Cir. 2022).10
In a handwritten and initialed provision of the
settlement agreement, the parties agreed:
For a period of eighteen (18) months following execution of this Agreement, and subject to any applicable exemptions under the Massachusetts Public Records Law, the Town and the NAC agree to copy, or distribute copies, to both BEH and FlightLevel Norwood, LLC . . . any and all email and correspondence, by and between the NAC and BEH or [FlightLevel], contemporaneously with any such communications.
BEH contends that Norwood has "continually failed to
comply" with this provision and has "continued to conceal
communications." Thus, BEH believes the district court erred by
failing to order Norwood to produce communications falling under
the provision or to order Norwood to certify that all such
communications have been provided. We disagree. As the district
10BEH did more or less advance this argument in its motion for reconsideration before the district court, but the court found that motion untimely under Rule 60(c). "District courts enjoy considerable discretion" in deciding Rule 60 motions, Cotto v. United States, 993 F.2d 274, 277 (1st Cir. 1993), and BEH offers no argument establishing that the district court abused that discretion regarding the TOFA provision.
- 26 - court held, BEH failed at that time to identify any communications
subject to the provision that had not been produced.
In its motion for reconsideration, BEH pointed to newly
discovered emails it received through a public-records request
that it claims Norwood should have produced earlier.11 But in its
appeal from the district court's denial of its motion for
reconsideration, it did not raise this argument in its opening
brief. Although BEH described the new evidence in its statement
of the case, it failed to make any argument that Norwood thus
breached the provision of the settlement agreement requiring
Norwood to share certain communications with BEH; BEH instead
focused exclusively on how the new evidence supported its fraud
claims. BEH thus waived any such argument. See Clarendon Nat'l
Ins. Co. v. Phila. Indem. Ins. Co., 954 F.3d 397, 407–08 (1st Cir.
2020) (deeming waived an argument only "mention[ed] in
[appellant's] opening brief's statement of the case" and "not
discuss[ed] elsewhere in its briefs"); see also Britto v. Prospect
Chartercare SJHSRI, LLC, 909 F.3d 506, 514 (1st Cir. 2018) (deeming
waived an argument that appellant only included in the
11 We assume without deciding that this portion of BEH's motion to reconsider was timely under Rule 60(c).
- 27 - "jurisdictional section" and "statement-of-the-case section" of
his brief, but did not discuss "in the brief's argument section").12
Finally, we turn to BEH's allegation that Norwood
breached the settlement agreement by excluding it from meetings
with the FAA. Norwood agreed that
BEH shall be allowed to participate in any meetings, and be copied on all correspondence, regarding the negotiation with the FAA regarding negotiation of required remedial measures in connection with [an FAA determination], with the intention and goal of crafting a "Joint Corrective Action Plan."
The district court interpreted this provision to only
require BEH's participation in meetings "regarding the
negotiation" with the FAA, but not any meetings with the FAA
itself. But the provision broadly states that BEH "shall" be
permitted to participate in "any" meetings -- and copied on "all"
correspondence -- regarding the negotiation with the FAA. And it
is hard to say that a meeting with the FAA "regarding negotiation"
of a JCAP does not "regard[] the negotiation with the FAA."
12 To the extent BEH is harmed by a later-discovered withholding by Norwood or some new evidence suggests that Norwood is not telling the truth, the district court has retained jurisdiction to continue to enforce this settlement agreement. At this juncture, however, we are left to affirm the district court's dismissal of BEH's motion as it pertains to communications.
- 28 - It is unclear, however, what relief BEH is now seeking
under this provision. BEH points to no ongoing or future
negotiations with the FAA to which it could be invited, nor does
BEH explain what, if anything, Norwood must now do. Accordingly,
we affirm the district court's denial of BEH's motion to enforce
this provision of the settlement agreement because there currently
is no basis to think that it will be breached in the future.
IV.
For the foregoing reasons, we reverse the denial of BEH's
motion to enforce the settlement agreement as it pertains to
Norwood's failure to provide a lease of the West Apron free of an
easement in favor of FlightLevel and remand for consideration of
this claim consistent with this opinion. We otherwise affirm the
denial of the motion to enforce, the denial of the motion to
rescind, and the denial of the motion to reconsider. Each party
will bear its own costs.
- 29 -