Opinion
16-P-656
05-31-2017
Cory LIPTAK & another v. Donald J. BELISLE & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial before a judge in the Superior Court, judgment entered in favor of the plaintiffs, Cory Liptak and Liptak Carpet Cleaning and Restoration, Inc. (collectively, Liptak), on Liptak's claims for tort, breach of contract, and violations of G. L. c. 93A. Liptak's claims arose from the provision of tax, accounting, and investment services by the defendants, Donald J. Belisle and Donald J. Belisle C.P.A., P.C. (collectively, Belisle). We conclude that none of the several issues raised on appeal by Belisle warrant the relief sought and, consequently, we affirm.
Background. We summarize the relevant facts, as found by the judge in his comprehensive written decision. In 2000, Liptak hired Belisle to provide retirement investment services. On Belisle's advice, Liptak authorized Belisle to establish Roth and SIMPLE individual retirement accounts (IRAs) for Liptak, with contributions to the SIMPLE IRA to come from Liptak's paychecks.
Over the course of the next few years, Liptak noticed that the SIMPLE IRA was growing at a slower pace than the Roth IRA. In 2005, Liptak expressed his concern over the lack of growth. Belisle blamed the economy and promised to make some adjustments. From 2006 to 2010, Liptak continued to express concern about the SIMPLE IRA's lackluster performance, and Belisle continued to blame the economy. Finally, in April of 2010, Liptak retained his cousin John Liptak to take over the responsibilities previously performed by Belisle. John reviewed Liptak's "books and accounts" and concluded that over $50,000 should have been deposited into Liptak's SIMPLE IRA over the previous five years.
To avoid confusion, we will refer to John Liptak by his first name.
After crediting Liptak's and John's testimony and discrediting that of Belisle, the judge found that Belisle "assumed the duty to see that the deposits into both IRAs were made, and that Liptak reasonably relied upon Belisle's express representations" that he would do so. The judge found that Belisle ignored numerous opportunities to investigate what had happened to the deposits, and that Belisle "blindly assure[d Liptak] that the problem lay with the economy and would right itself." The judge ruled in favor of Liptak on all three of his claims. Thereafter, pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), Belisle filed a motion to amend the judgment or for a new trial on the ground that Liptak's claims were barred by applicable statutes of limitation. The motion was denied, and Belisle appeals from the judgment and from the order denying his rule 59(e) motion.
Discussion. 1. Sufficiency of the evidence. Belisle claims error in the judge's finding that Belisle owed Liptak a duty of care. Belisle argues that there was no evidence of the standard of care to be applied in these circumstances. However, John testified as to the applicable standard of care. The judge credited John's testimony, and his "assessment of the quality of the testimony is entitled to our considerable respect." Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203 (1986). Because "the judge's account is plausible in light of the entire record," we "decline to reverse it." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997).
For the same reasons, we reject Belisle's alternative arguments that (1) there was no evidence of damage to Liptak from Belisle's breach of the duty of care, and (2) Liptak failed to mitigate his damages.
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2. Rule 59(e) motion. Next, Belisle claims error in the denial of his rule 59(e) motion. Belisle argues that all of Liptak's claims are barred by applicable statutes of limitation, and that the contract claim is barred by the Statute of Frauds. Belisle raised these defenses in his answer. However, he did not move to dismiss or for summary judgment on these bases, he did not raise them while arguing for a directed verdict, and he did not raise them in his closing argument. Nor did Belisle raise the Statute of Frauds in his rule 59(e) motion.
"Where a party intends to rely upon" the expiration of a limitations period or the Statute of Frauds "to avoid liability, fairness to the other litigants and to the court dictates that it seek to resolve the matter expeditiously, insofar as is feasible." American Intl. Ins. Co. v. Robert Seuffer GMBH & Co., 468 Mass. 109, 117 (2014), cert. denied, 135 S. Ct. 871 (2014). Here, Belisle engaged in litigation on the merits for approximately three years and then participated in a three-day bench trial before pursuing any dispositive affirmative defenses. In these circumstances, Belisle's defenses were forfeited. See id. at 119-120 (identifying factors to consider in deciding whether defense is forfeited). There being no error in the underlying judgment, Belisle's rule 59(e) motion properly was denied. See Pentucket Manor Chronic Hosp., Inc. v. RateSetting Commn., 394 Mass. 233, 237 (1985) (" rule 59 [e] is designed to correct judgments which are erroneous because they lack legal or factual justification").
3. Appellate attorney's fees and costs. We allow Liptak's request for appellate attorney's fees and costs. Liptak may submit a petition for fees and costs, with supporting materials, within fourteen days of issuance of the rescript. Thereafter, Belisle shall have fourteen days to respond. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
Judgment affirmed.
Order denying rule 59(e) motion affirmed.