USCA1 Opinion

January 31, 1995

[NOT FOR PUBLICATION]
UNITED STATE COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1844
EDWARD J. MULLIGAN,
Appellant,
v.
BOSTON HARBOR MARINA COMPANY,
Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
____________________
Edward J. Mulligan on brief for appellant.
__________________
Robert M. Gargill, Howard J. Levitan, Diana K. Lloyd and

Choa

_________________ _________________
Hall & Stewart, on brief for appellee.
______________

______________

____

____________________
____________________

Per Curiam.
___________
bankruptcy

Appellant

Edward Mulligan

court's denial of

his claim for

appeals

the

return of money

deposited with appellee, Boston Harbor Marina Company [BHMC],

and retained

as liquidated

damages when Mulligan

close on a condominium unit in January 1988.

The

option of a seller

liquidated damages
conveyancing.
481

is the

Lynch v.
_____

N.E.2d 1383,

to retain a
common practice

We affirm.

buyer's deposit as
in Massachusetts

Andrew, 20 Mass. App. Ct.

______

1386, review
______

failed to

denied, 396 Mass.

______

623, 627,
1102, 484

N.E.2d 102 (1985).

tamper

with

Massachusetts courts "are disinclined to

[such]

well

established

solution

to

the

problems of expense and uncertainty in litigating the precise

damages
when, as

in cases of this kind."

here, nothing

provision was

negotiated other than at

points

This is especially so

suggests that the

sophisticated parties.
Two

Id.
__

liquidated damage

arm's length between

See id.
___ __

must

be

considered

in

assessing

enforceability of a liquidated damages clause.

"Where actual

damages are difficult to

ascertain and where the

upon by

the time

contract

the

represents

damages, such
the

actual

stipulated sum
to the

parties at

real

are

easily

is unreasonably and
damages

from a

sum agreed

execution of

reasonable estimate

a contract will be
damages

of the

the

of

the

enforced. . . .
ascertainable

the

actual

But where
and

the

grossly disproportionate

breach,

or

is

unconsciously

excessive, the court will

than his
App.

award the aggrieved party

actual damages."

Ct. 596, 603, 541

Shapiro v.
_______

no more

Grinspoon, 27
_________

N.E.2d 359, 365

Mass.

(1989) (quoting A-Z

___

Servicenter, Inc. v. Segall, 334 Mass. 672, 675, 138 N.E. 2d

_________________
______
266, 268 (1956) (citations omitted)).
In the

instant case,

the bankruptcy

found that Mulligan defaulted

court supportably

at a time when the

local real

estate market was in a state of considerable flux.

nothing

in the

opportunity

record

indicates

after Mulligan's

until it was compelled to do

and

at

a much

seller's
precision,"

breach

damages

Lynch,
_____

BHMC

to sell

ever
the

had

an

property

so at auction three years later

lower price.

actual

that

Moreover,

Such circumstances
"difficult

to

20 Mass. App. Ct. at 682,

1386 (finding damages difficult

make the

calculate

with

481 N.E.2d at

to ascertain in part because

"house was not sold within days of the first buyer's default,
at about the same
and

price, and without complicating factors"),

"[w]hen losses

are difficult to

deference is due to

the parties' reasonable agreement

liquidated damages,"
not

claim

that

quantify, considerable

the

Id (citing cases).
__
liquidated

as to

Since Mulligan does

damages

clause

was

an

unreasonable estimate of damages at the time the contract was

executed, we find no error

in the bankruptcy court's finding

the liquidated damages clause enforceable in this case.

-3-

In addition,
district court

essentially for

in its

the reasons given

memorandum and order

by the

dated July

1994, we find Mulligan's other claims to be without merit.

Affirmed.
________

19,

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