LEON WALKER, JR. v. GAMAL WALKER & Another.

• Court: Massachusetts Appeals Court
• Decided: September 6, 2024
• Docket: 23-P-1139
• Status: Unpublished

Opinion

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

23-P-1139

LEON WALKER, JR.

vs.

GAMAL WALKER & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Defendant Gamal Walker appeals from a judgment, following a

bench trial, finding him liable for damages to his father, the

plaintiff Leon Walker, Jr., and ordering an accounting and

dissolution of Fury III, LLC (Fury). On appeal, the defendant

claims that Fury's tax returns constituted overwhelming

documentary evidence that the defendant and the plaintiff had

formed a partnership in Fury, and that the trial judge erred by

not making such a finding of fact or conclusion of law. We

affirm.

Background. The plaintiff owned a parcel of land in

Dorchester in his name until 2002, when he transferred the title

1 Fury III, LLC. to Diversified Ventures LLC (Diversified). The plaintiff

created Diversified and was its resident agent; both he and the

defendant were managers. The defendant had gone to business

school and the plaintiff was hopeful that the defendant could

help develop the Dorchester property. Diversified was dissolved

by the Secretary of the Commonwealth in 2003 after the plaintiff

did not pay the annual fees, and the plaintiff later created

another LLC, Fury, in 2011. In Fury's certificate of

organization, the plaintiff listed himself as the resident agent

and both himself and the defendant as the managers. The

plaintiff transferred the title to the Dorchester property to

Fury. Fury had no operating agreement or similar document.

Fury's annual tax returns listed both the plaintiff and the

defendant as having an interest in that entity; the plaintiff

asserted that he never corrected this error because Fury never

had any income.

The Dorchester property was never developed. In 2020, the

defendant found a buyer for the property and the plaintiff

agreed to sell to that buyer. Both the plaintiff and defendant

signed the deed to the property as managers of Fury. The sale

proceeds of $289,765.99 were deposited in the Fury bank account.

About a month later, $100,000 was transferred from the Fury

account to the defendant, money the plaintiff intended for the

2 defendant to invest on the plaintiff's behalf so that the

plaintiff would continue to have income. The plaintiff asked

the defendant for statements and information about the

investments but received only the defendant's oral claims about

equities he said he had bought. In addition to the $100,000

transfer, $60,000 was also transferred from the Fury account to

the defendant shortly after the sale of the Dorchester property.

This money was meant to cover tax liabilities from the sale; the

defendant told the plaintiff that he would return any balance

after paying taxes. The defendant did return $29,000 but did

not provide confirmation of the sum paid for taxes.

The plaintiff brought this suit in the Superior Court and

the parties agreed to a jury-waived trial with answers to

special questions pursuant to Superior Court Rules 20 (2) (h)

and 20 (8). The judge returned answers finding that the

plaintiff met his burden for proving breach of fiduciary duty,

fraud, and conversion; that the plaintiff was the sole member

and owner of Fury; that the defendant must provide an accounting

of the funds expended for tax purposes and return the $100,000,

as well as any portion of the $31,000 that the defendant did not

pay in taxes related to the sale of the Dorchester property; and

that the parties shall cause a certificate of dissolution of

Fury to be filed as requested in the complaint.

3 Discussion. In a case tried in accordance with Superior

Court Rules 20 (2) (h) and 20 (8), "appellate review is

conducted according to the same standard as that applied to a

judgment entered following a jury verdict." K & K Development,

Inc. v. Andrews, 103 Mass. App. Ct. 338, 344 (2023). We review

to determine "whether anywhere in the evidence, from whatever

source derived, any combination of circumstances could be found

from which a reasonable inference could be drawn in favor of the

[prevailing party]" (quotations and citations omitted). Id.

The defendant primarily maintains that the judge erred by

not finding that the defendant had a partnership interest in

Fury. The defendant claims that the judge's finding that the

plaintiff had one hundred percent ownership in Fury was a

conclusion of law, but whether a partnership exists is a

question of fact. See Fenton v. Bryan, 33 Mass. App. Ct. 688,

691 (1992). "On appeal, we are bound by a judge's findings of

fact that are supported by the evidence, including all

inferences that may reasonably be drawn from the evidence"

(citation omitted). Twin Fires Inv., LLC v. Morgan Stanley Dean

Witter & Co., 445 Mass. 411, 420 (2005). "A finding is clearly

erroneous when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed"

4 (quotations and citation omitted). Marlow v. New Bedford, 369

Mass. 501, 508 (1976).

Here, in making this factual finding, the judge considered

several of Fury's tax returns that stated that the defendant had

an interest in Fury, as well as testimony from the plaintiff,

among other testimony and documentary evidence, that the

defendant was not a partner in Fury. The judge therefore could

have reasonably inferred that the defendant did not have a

partnership interest in Fury. See Twin Fires Inv., LLC, 445

Mass. at 420; K & K Development, Inc., 103 Mass. App. Ct. at

344. While the defendant may have preferred a different

conclusion, it was within the judge's authority as the fact

finder to decide which evidence to credit or discredit. See

Buster v. George W. Moore, Inc., 438 Mass. 635, 644 (2003).

"Where differing inferences can be drawn from the evidence, and

a reasonable view of the evidence supports [the judge's]

findings, we defer to the trial judge." Beninati v. Borghi, 90

Mass. App. Ct. 556, 563 (2016), citing Buster, supra, at 642-

643. Nothing in our review of the record leaves us "with the

5 definite and firm conviction that a mistake has been committed"

(citation omitted). Marlow, 369 Mass. at 508.

Judgment affirmed.

By the Court (Henry, Hershfang & Smyth, JJ.2),

Clerk

Entered: September 6, 2024.

2 The panelists are listed in order of seniority.