Opinion
20-P-232
12-30-2020
JANET GOVOSTES v. ELENA GOVOSTES ANTON & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury found the defendants liable for unjust enrichment and breach of fiduciary duty and awarded the plaintiff $200,000 in damages, plus nominal damages of $1. The defendants appeal, arguing that the damages award was not supported by the evidence and that the trial judge erred in denying their postverdict motions to alter or amend the judgment and for a new trial. We affirm.
A separate judgment entered on each of the two counts.
Background. We briefly summarize the facts the jury could have found. The plaintiff and defendant Elena Govostes Anton (Elena) are sisters; defendant Peter Anton (Peter) is Elena's husband. For many years the plaintiff and Elena worked in the family business, Omega Distributors, Inc. (Omega), alongside their father, Diamondes James Govostes (Jim). Their mother, Stella Govostes (Stella), handled the bookkeeping for Omega until her death in 2007.
In 2009 Jim prepared an estate plan, which included the establishment of two trusts, the Govostes Family Realty Trust and the Govostes Family Trust. The plaintiff and Elena were equal beneficiaries of the trusts, and Elena was the successor trustee. Jim also executed a will, which provided for his assets to be divided equally between the plaintiff and Elena.
Over the course of several years beginning in or around 2008, Elena used Omega's corporate credit card and Jim's personal credit card to make hundreds of purchases on behalf of herself and her family. She also made numerous cash withdrawals from Jim's bank accounts. Eventually, Omega began having trouble paying its bills. The plaintiff became aware of this when, about a year or eighteen months after Stella's death, she tried to place an order with a supplier and learned that Omega's account was $60,000 in arrears. Later, Jim told the plaintiff that Omega's Shell gasoline card had an unpaid balance of $7,000 and had been cut off. Omega was never behind on its bills when Stella was doing the bookkeeping.
By 2012 or 2013, Omega was on "life support." In addition, Jim was having trouble paying his personal bills and was receiving notices from the Internal Revenue Service and calls from bill collectors. Around this time Jim told the plaintiff that Elena was "stealing" from him, noting that he had just received a $20,000 check from the Veterans Administration, and he noticed that money had been taken out of his account.
After Jim died in February 2015, the plaintiff discovered that his assets, other than his house, had been depleted. Jim's assets were intended to flow to the Govostes Family Trust upon his death, but the trust was never funded.
Discussion. 1. Proof of damages. On review of a denial of a motion for a directed verdict, we must determine "whether 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [nonmovant].'" A.C. Vaccaro, Inc. v. Vaccaro, 80 Mass. App. Ct. 635, 641 (2011), quoting Global Investors Agent Corp. v. National Fire Ins. Co. of Hartford, 76 Mass. App. Ct. 812, 827 (2010). A jury's award of damages must stand "unless it is clearly excessive in relation to what the plaintiff's evidence has demonstrated damages to be." Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 404, cert. denied sub nom., Globe Newspaper Co. v. Ayash, 546 U.S. 927 (2005). While a plaintiff is "obliged to introduce evidence proving [her] damages to a reasonable certainty," "mathematical precision" is not required. Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 609 (2007). Rather, "[a] reasonable approximation is sufficient, especially in circumstances in which the wrongdoer's conduct has caused the uncertainty of the measurement" (citation omitted). A.C. Vaccaro, Inc., supra at 643.
Although the defendants moved for a directed verdict, the motion did not challenge the sufficiency of the evidence on damages. It is also unclear from the record appendix, which does not include a full trial transcript, whether the defendants brought the motion at the close of all evidence, as was required. The plaintiff does not argue waiver, however, cf. Motsis v. Ming's Supermkt., Inc., 96 Mass. App. Ct. 371, 382 (2019), and agrees with the defendants that we should apply the standard governing review of decisions on motions for a directed verdict. We will thus consider the defendants' argument under that standard.
The defendants' sufficiency challenge fails under these standards. As an initial matter, we note that the defendants have failed to provide us with a full trial transcript, as was their obligation. "A party claiming an insufficiency of evidence . . . has the burden on appeal of furnishing the court with all the evidence." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 641 (1998). The defendants' failure to do so is reason alone to affirm the jury's verdict. See Covell v. Department of Social Servs., 439 Mass. 766, 782-783 (2003); Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995).
Nonetheless, having reviewed the portions of the transcript that the defendants did provide, we conclude that there is adequate evidentiary support for the damages award. We reject the defendants' contention that the plaintiff failed to prove her damages because she lacked direct knowledge of which transactions represented Elena's personal expenses, as opposed to legitimate business expenses. Again, the plaintiff was obliged only to provide a reasonable estimate of damages -- especially given that the defendants' "conduct . . . caused the uncertainty of the measurement," A.C. Vaccaro, Inc., 80 Mass. App. Ct. at 643 -- and she satisfied that burden. The plaintiff testified that she examined the bank and credit card statements and identified and excluded charges that reflected legitimate business expenses or purchases made on Jim's behalf. She then added up the remaining charges and arrived at a total of over $400,000. The bank and credit card statements, along with summaries prepared by the plaintiff, were all before the jury. Furthermore, Elena admitted at trial that she accessed Jim's bank accounts and used the credit cards to make hundreds of purchases on behalf of herself and her family. She also admitted that she maintained no contemporaneous records documenting which of the transactions were for legitimate business expenses. Given this evidence, the jury reasonably could have found that the plaintiff's damages amounted to $200,000 (half of $400,000).
We also reject the defendants' contention that the evidence required the jury to find that the defendants repaid most of the money. Pointing to summaries that they prepared for trial, the defendants claim that it was undisputed that they used in excess of $172,000 of their personal funds for the benefit of Jim or his estate. But the defendants point to nothing in the record showing that the expenditures identified in the summaries -- some postdating Jim's death -- were reimbursements for Elena's spending. In fact, Peter testified that some of the expenditures were not reimbursements, but loans that the defendants made to Jim. Moreover, both defendants admitted that they did not maintain records reconciling the money Elena spent and the money that they claim to have paid back. Without such records, the jury could reasonably have found that the defendants did not repay any substantial portion of the money. The uncontested fact that Jim's assets were mostly depleted by the time he died further supports such a finding. We therefore conclude that the verdict had a rational basis in the evidence and must stand. Cf. Ayash, 443 Mass. at 406-407.
At oral argument the defendants put particular emphasis on the money they allegedly spent to cover Jim's funeral expenses, arguing that, at a minimum, they should have received a credit for those expenses. But as was the case with the other items on the summaries, the defendants did not present evidence that would require the jury to find that the payment for funeral expenses was a reimbursement. Furthermore, the plaintiff testified that she used some of her own personal funds to help pay for the funeral.
2. Postverdict motions. A decision whether to grant a new trial or to amend a judgment rests in the sound discretion of the judge. See O'Brien v. Pearson, 449 Mass. 377, 384 (2007); R.W. Granger & Sons v. J & S Insulation, Inc., 435 Mass. 66, 79 (2001). We discern no abuse of the judge's discretion here.
The defendants argue that the judge should have set aside the verdict as markedly against the weight of the evidence or excessive. As discussed above, the verdict was grounded in the evidence, and the jury could reasonably have found that the defendants were not entitled to a credit for reimbursing the money that Elena spent. The judge was thus well within his discretion in determining that the jury "exercise[d] an honest and reasonable judgment in accordance with the controlling principles of law." O'Brien, 449 Mass. at 384, quoting Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, cert. denied, 493 U.S. 894 (1989).
The defendants also appear to challenge the judge's response to a jury question regarding how the proceeds of Jim's life insurance policy were to be split. Because the defendants have not included that portion of the transcript in the record appendix, however, we are unable to address their argument. See Cameron, 39 Mass. App. Ct. at 83-84. In any event the defendants fail to explain how the judge's response caused them prejudice, such that they are entitled to a new trial.
Judgments affirmed.
By the Court (Green, C.J., Shin & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 30, 2020.