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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-227
HELMUT FLOESSER
vs.
BELMONT INSTRUMENT CORP. & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Helmut Floesser, brought this action against
Belmont Instrument Corporation, Belmont Instrument, LLC, BIC
Holding Corporation, and Regina Herzlinger (collectively,
Belmont). A jury found in favor of Floesser on claims of breach
of contract and breach of fiduciary duty. On appeal, Belmont
argues that (1) the trial judge erred in allowing a former
Belmont employee to testify as a rebuttal witness because the
witness was disclosed late, (2) the trial judge failed to
provide adequate curative instructions to the jury, and (3) the
1Belmont Instrument, LLC; BIC Holding Corp.; and Regina Herzlinger. Defendants George Herzlinger, Patricia Randall, and Brian Ellacott did not participate in this appeal. cumulative effect of these errors requires reversal of the
entire judgment. We affirm.
Background. We recite the facts in the light most
favorable to Floesser, the party for whom the jury found,
reserving some details for later discussion. See Laramie v.
Philip Morris USA Inc., 488 Mass. 399, 401 (2021). Floesser was
an employee of Belmont from approximately 2007 to 2015, then
performed services for the company in a consulting role until
approximately October 2016. Between 2007 and 2015, Floesser
purchased 22,000 shares of stock through Belmont's equity
incentive plan. In November 2017, though Belmont issued a
dividend of $3.84 per share, Floesser did not receive any
dividend for his shares. Then, in December 2017, Belmont
entered into a merger agreement with a private equity firm.
Floesser had the option of getting shares or being paid in cash.
He requested cash for all 22,000 of his shares, but was only
paid for 18,000 shares. In 2018, Floesser brought this action
alleging a number of claims, including breach of contract and
breach of fiduciary duty. On November 16, 2023, a jury returned
a verdict for Floesser on the breach of contract and breach of
fiduciary duty claims.
Discussion. 1. Rebuttal witness. Belmont argues that the
judgment on the breach of contract claim must be reversed
because the trial judge erroneously allowed the testimony of a
2 late-disclosed witness, Karen Clark. We review a trial judge's
decision to allow the testimony of a late-disclosed witness for
abuse of discretion. See Commonwealth v. Trapp, 423 Mass. 356,
363-364, cert. denied, 519 U.S. 1045 (1996) ("The trial judge
has significant discretion in deciding whether late-discovered
or late-disclosed witnesses should be excluded from testifying,
or whether a continuance is appropriate"). A trial judge does
not abuse their discretion by allowing a witness disclosed
"shortly before and during trial, where defendant long had
notice of the substance of the testimony expected, where
defendant had an opportunity to . . . depose [the] witness
before testimony was presented, and where no bad faith was shown
on the part of the plaintiff." Eagan v. Marr Scaffolding Co.,
14 Mass. App. Ct. 1036, 1036 (1982).
On October 14, 2023, about two weeks before trial, Floesser
filed a motion in which he requested leave to amend his witness
list and present Karen Clark, a former Belmont employee, as a
rebuttal witness to Belmont chief financial officer Jeff
Forward. Trial began on November 1, 2023. On November 10, a
Superior Court clerk informed the attorneys that the trial
judge, after initially indicating that Clark would not be
allowed to testify, was inclined to allow Clark as a rebuttal
witness. Forward testified on November 13 and Clark testified
3 as a rebuttal witness the next day. Belmont's counsel did not
ask to depose Clark before she testified.
The trial judge did not abuse her discretion in allowing
Clark to testify. First, Belmont would have already had at
least some knowledge as to what Clark -- a former employee
offered as a rebuttal witness to Forward -- would testify to
when Belmont was put on notice roughly two weeks before trial
that Floesser would seek to call Clark should Forward be allowed
to testify. Belmont brought Forward to the stand to testify to
the alleged errors and deficiencies with Floesser's work, lack
of documentation, and disorganization. Given the nature of her
work as a bookkeeper, Clark's rebuttal testimony to the contrary
of Forward's assertions could have easily been anticipated by
Belmont. Moreover, Belmont knew that the trial judge was
considering allowing Clark's testimony four days before she
testified. Thus, Belmont had the opportunity to seek to depose,
and otherwise prepare to cross-examine, Clark.
As such, Belmont had sufficient notice of the expected
content of Clark's testimony and time to depose her, or
otherwise prepare for her testimony. See Eagan, 14 Mass. App.
Ct. at 1036. See also Trapp, 423 Mass. at 364 (six days, three
of which were long weekend, sufficient time to prepare to cross-
examine two rebuttal witnesses disclosed on first day of jury
empanelment). Additionally, Belmont has offered no evidence
4 that Floesser's allegedly late disclosure of Clark as a rebuttal
witness was done in bad faith. See Trapp, 423 Mass. at 364;
Eagan, 14 Mass. App. Ct. at 1036. We discern no abuse of
discretion.
To the extent that Belmont contends that it was prejudiced
by the admission of Clark's testimony, this argument is
unavailing. "The relevant inquiry is whether the defendant has
sufficient time to investigate the proposed testimony. In that
regard, it is the consequences of the delay that matter, not the
likely impact of the nondisclosed evidence" (citation and
quotation omitted). Commonwealth v. Carter, 475 Mass. 512, 519
(2016).
2. Curative instructions. Belmont argues that the
judgment on the breach of fiduciary duty claim must be reversed
because the trial judge failed to provide adequate instructions
to cure an alleged misstatement of the law in Floesser's closing
argument. Because Belmont objected to the statement at trial,
"[w]e examine whether the challenged statement[ was] improper
and, if so, whether [it was] prejudicial." Laramie, 488 Mass.
at 417-418. "We review the challenged remark[] in the context
of the entire argument, the evidence presented at trial, and the
judge's instructions." Id. at 418.
During closing arguments, Floesser's counsel stated that
defendants George and Regina Herzlinger breached their fiduciary
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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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-227
HELMUT FLOESSER
vs.
BELMONT INSTRUMENT CORP. & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Helmut Floesser, brought this action against
Belmont Instrument Corporation, Belmont Instrument, LLC, BIC
Holding Corporation, and Regina Herzlinger (collectively,
Belmont). A jury found in favor of Floesser on claims of breach
of contract and breach of fiduciary duty. On appeal, Belmont
argues that (1) the trial judge erred in allowing a former
Belmont employee to testify as a rebuttal witness because the
witness was disclosed late, (2) the trial judge failed to
provide adequate curative instructions to the jury, and (3) the
1Belmont Instrument, LLC; BIC Holding Corp.; and Regina Herzlinger. Defendants George Herzlinger, Patricia Randall, and Brian Ellacott did not participate in this appeal. cumulative effect of these errors requires reversal of the
entire judgment. We affirm.
Background. We recite the facts in the light most
favorable to Floesser, the party for whom the jury found,
reserving some details for later discussion. See Laramie v.
Philip Morris USA Inc., 488 Mass. 399, 401 (2021). Floesser was
an employee of Belmont from approximately 2007 to 2015, then
performed services for the company in a consulting role until
approximately October 2016. Between 2007 and 2015, Floesser
purchased 22,000 shares of stock through Belmont's equity
incentive plan. In November 2017, though Belmont issued a
dividend of $3.84 per share, Floesser did not receive any
dividend for his shares. Then, in December 2017, Belmont
entered into a merger agreement with a private equity firm.
Floesser had the option of getting shares or being paid in cash.
He requested cash for all 22,000 of his shares, but was only
paid for 18,000 shares. In 2018, Floesser brought this action
alleging a number of claims, including breach of contract and
breach of fiduciary duty. On November 16, 2023, a jury returned
a verdict for Floesser on the breach of contract and breach of
fiduciary duty claims.
Discussion. 1. Rebuttal witness. Belmont argues that the
judgment on the breach of contract claim must be reversed
because the trial judge erroneously allowed the testimony of a
2 late-disclosed witness, Karen Clark. We review a trial judge's
decision to allow the testimony of a late-disclosed witness for
abuse of discretion. See Commonwealth v. Trapp, 423 Mass. 356,
363-364, cert. denied, 519 U.S. 1045 (1996) ("The trial judge
has significant discretion in deciding whether late-discovered
or late-disclosed witnesses should be excluded from testifying,
or whether a continuance is appropriate"). A trial judge does
not abuse their discretion by allowing a witness disclosed
"shortly before and during trial, where defendant long had
notice of the substance of the testimony expected, where
defendant had an opportunity to . . . depose [the] witness
before testimony was presented, and where no bad faith was shown
on the part of the plaintiff." Eagan v. Marr Scaffolding Co.,
14 Mass. App. Ct. 1036, 1036 (1982).
On October 14, 2023, about two weeks before trial, Floesser
filed a motion in which he requested leave to amend his witness
list and present Karen Clark, a former Belmont employee, as a
rebuttal witness to Belmont chief financial officer Jeff
Forward. Trial began on November 1, 2023. On November 10, a
Superior Court clerk informed the attorneys that the trial
judge, after initially indicating that Clark would not be
allowed to testify, was inclined to allow Clark as a rebuttal
witness. Forward testified on November 13 and Clark testified
3 as a rebuttal witness the next day. Belmont's counsel did not
ask to depose Clark before she testified.
The trial judge did not abuse her discretion in allowing
Clark to testify. First, Belmont would have already had at
least some knowledge as to what Clark -- a former employee
offered as a rebuttal witness to Forward -- would testify to
when Belmont was put on notice roughly two weeks before trial
that Floesser would seek to call Clark should Forward be allowed
to testify. Belmont brought Forward to the stand to testify to
the alleged errors and deficiencies with Floesser's work, lack
of documentation, and disorganization. Given the nature of her
work as a bookkeeper, Clark's rebuttal testimony to the contrary
of Forward's assertions could have easily been anticipated by
Belmont. Moreover, Belmont knew that the trial judge was
considering allowing Clark's testimony four days before she
testified. Thus, Belmont had the opportunity to seek to depose,
and otherwise prepare to cross-examine, Clark.
As such, Belmont had sufficient notice of the expected
content of Clark's testimony and time to depose her, or
otherwise prepare for her testimony. See Eagan, 14 Mass. App.
Ct. at 1036. See also Trapp, 423 Mass. at 364 (six days, three
of which were long weekend, sufficient time to prepare to cross-
examine two rebuttal witnesses disclosed on first day of jury
empanelment). Additionally, Belmont has offered no evidence
4 that Floesser's allegedly late disclosure of Clark as a rebuttal
witness was done in bad faith. See Trapp, 423 Mass. at 364;
Eagan, 14 Mass. App. Ct. at 1036. We discern no abuse of
discretion.
To the extent that Belmont contends that it was prejudiced
by the admission of Clark's testimony, this argument is
unavailing. "The relevant inquiry is whether the defendant has
sufficient time to investigate the proposed testimony. In that
regard, it is the consequences of the delay that matter, not the
likely impact of the nondisclosed evidence" (citation and
quotation omitted). Commonwealth v. Carter, 475 Mass. 512, 519
(2016).
2. Curative instructions. Belmont argues that the
judgment on the breach of fiduciary duty claim must be reversed
because the trial judge failed to provide adequate instructions
to cure an alleged misstatement of the law in Floesser's closing
argument. Because Belmont objected to the statement at trial,
"[w]e examine whether the challenged statement[ was] improper
and, if so, whether [it was] prejudicial." Laramie, 488 Mass.
at 417-418. "We review the challenged remark[] in the context
of the entire argument, the evidence presented at trial, and the
judge's instructions." Id. at 418.
During closing arguments, Floesser's counsel stated that
defendants George and Regina Herzlinger breached their fiduciary
5 duty to Floesser when they "failed to pay" him. After Belmont
objected to this statement, the trial judge gave the jury an
instruction that they were to take the law from her, not the
attorneys. Then, after the jury sent out a note requesting
clarification on the fiduciary duty claim, the judge again
instructed the jury that they were to apply the law as explained
by her and in the instructions.
Viewing the challenged statement in its broader context, we
conclude that Floesser's counsel did not misstate the law. See
Laramie, 488 Mass. at 418. Floesser's counsel did not say, as
Belmont suggests, that "mere failure to pay under an agreement"
is a breach of fiduciary duty. Rather, Floesser's counsel said
that Belmont breached their fiduciary duty "when [Belmont]
failed to pay" Floesser. Just prior, Floesser's counsel said
that Belmont breached the covenant of good faith and fair
dealing, indicating that Belmont had acted in bad faith when it
failed to pay Floesser. Bad faith failure to pay in accordance
with an agreement can be a breach of fiduciary duty. See
Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 727
(2013); Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407-408
(1995). As such, Floesser's counsel did not misstate the law
and therefore there was no error.
Even if Floesser's counsel did misstate the law, Belmont
was not prejudiced. In determining whether an error by trial
6 counsel was prejudicial, "[w]e consider '(1) whether the
defendant seasonably objected; (2) whether the error was limited
to collateral issues or went to the heart of the case; (3) what
specific or general instructions the judge gave to the jury
which may have mitigated the mistake; and (4) whether the error,
in the circumstances, possibly made a difference in the jury's
conclusion.'" Fyffe v. Massachusetts Bay Transp. Auth., 86
Mass. App. Ct. 457, 472 (2014), quoting Commonwealth v. Lewis,
465 Mass. 119, 130-131 (2013).
Belmont did seasonably object to the statement and the
statement related to a central issue in the case, the breach of
fiduciary duty claim. However, the judge gave two
instructions -- both after Floesser's closing argument and after
the jury sent out a note asking for clarification on the breach
of fiduciary duty claim -- to the jury that they were to take
the law from her, not the attorneys. We may presume that the
jury followed the judge's instructions and did not take the
isolated statement -- that failure to pay constitutes breach of
fiduciary duty -- into account in making its decision. See
Commonwealth v. Ridley, 491 Mass. 321, 330 (2023) (jury presumed
to have followed judge's instructions where alleged misstatement
of law in closing argument was isolated).
Additionally, after the jury sent out their question,
Floesser's counsel suggested a specific instruction that would
7 have clarified that while mere failure to pay is not a breach of
fiduciary duty, failure to pay in bad faith may be. Belmont
rejected this specific instruction because it was "already in
[the judge's] instructions." It cannot take a different
position on appeal. See Muzzy v. Cahillane Motors, Inc., 434
Mass. 409, 416 (2001) ("It is axiomatic that [a] party may not
state one ground when objecting to an instruction to the jury
and attempt to rely on a different ground for the objection on
appeal" [quotation omitted]). Compare Mass. R. Civ. P. 51 (b),
365 Mass. 816 (1974) ("No party may assign as error the giving
or the failure to give an instruction unless he objects thereto
before the jury retires to consider its verdict, stating
distinctly the matter to which he objects and the grounds of his
objection"). Moreover, the fact that the jury awarded different
damages for the breach of contract claim, for which the failure
to pay was the basis, and the breach of fiduciary duty claim,
indicates a lack of prejudice.
3. Cumulative effects of error. Because we discern no
error in the trial judge's allowance of Clark's testimony and
instructions regarding the alleged misstatements of the law, we
8 need not address Belmont's argument that the cumulative effect
of the alleged errors requires reversal of the entire judgment.2
Judgment affirmed.
By the Court (Henry, Smyth & Toone, JJ.3),
Clerk
Entered: July 14, 2025.
2 Floesser's request for attorney's fees and double costs is denied.
3 The panelists are listed in order of seniority.