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-1249
SCOTT BONARRIGO & another1
vs.
JOSEPH LEKACH & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants appeal from a Superior Court corrected
judgment awarding the plaintiffs $800,000 in damages, plus
interest, on claims related to an agreement to form a cannabis
business and the subsequent freeze-out of the plaintiffs from
that business. The damages amount included $400,000 pursuant to
a jury verdict on plaintiffs' claim for breach of the implied
covenant of good faith and fair dealing, and $400,000 awarded by
the judge on plaintiffs' equitable claim for breach of fiduciary
duty.
1 Mark Thomas.
2 Daniel Karten; Artcan, LLC; and AC Mass, LLC. On appeal, the defendants argue that the amounts awarded on
the two claims were impermissibly duplicative, i.e., represented
compensation for the same harm, the freeze-out of the
plaintiffs. The defendants argue that the harm could rationally
be valued at $400,000 or slightly more, but certainly not double
that amount. We agree with the plaintiffs that the issue is
waived, and we therefore affirm the judgment.
Background. At trial the parties agreed that the jury and
the judge would resolve separate aspects of the plaintiffs'
claims. The jury would resolve questions of both liability and
damages (if any) on the contract and implied covenant claims and
only the question of liability on the fiduciary duty claim.3 The
judge reserved for herself the question of damages or other
relief4 on the fiduciary duty claim; the jury verdict on that
issue would be advisory only.
The special verdict form, as completed by the jury, raised
what the judge characterized as an unanticipated question. On
the implied covenant claim, the jury found the defendants liable
3 The jury ultimately found no breach of the parties' contract, so we do not discuss that claim further.
4 Although the fiduciary duty claim is equitable in nature, Brodie v. Jordan, 447 Mass. 866, 871 (2006), the parties have referred to certain relief available on that claim as "damages." While a term such as restitution might be more appropriate, we adopt the parties' usage for purposes of this decision.
2 and awarded damages of $400,000. On the fiduciary duty claim,
the jury found the defendants liable and awarded damages of
$400,000. Outside of the presence of the jury, but before they
were dismissed, the judge raised with the parties the question
whether the two amounts were duplicative. The defendants argued
briefly that they were; the plaintiffs argued that they were
not. The judge then announced her intention to ask the jury a
supplemental question: whether the damages awarded on the two
claims were "the same damages." Defense counsel responded,
"[t]hat's acceptable," and the plaintiffs' counsel agreed, after
which the judge remarked, "[t]hat will clear it up for appellate
review."
The jury were then asked that supplemental question and
quickly returned with the answer: "No they are not the same[.]
$800,000 total for the plaintiffs." Defense counsel then asked
whether judgment would be entered on the verdict, to which the
judge replied that it would. Defense counsel responded,
"[t]hank you." Plaintiffs' counsel, noting that the $400,000
fiduciary duty verdict was to be advisory, asked if the judge
intended to adopt that verdict; the judge replied that she did.
She then asked whether there was any objection; two of the
defendants' counsel replied that there was not. The judge
asked, "[y]ou want to think about it?" The defendants' counsel
reiterated, "[w]e have no objection." The judge pressed
3 further, asking whether the defendants wanted her to decide the
issue, and noting that she could choose to award something other
than $400,000, such as an interest in one of the defendant LLCs.
The defendants' counsel again said, "[n]ope . . . [w]e're
satisfied with the verdict." Judgment then entered, followed by
a corrected judgment adjusting the prejudgment interest
calculation. The defendants appealed.
Discussion. "An issue not raised or argued below may not
be argued for the first time on appeal" (citation omitted).
Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
Here, the defendants' response to the initial verdict was to
argue that the damages were impermissibly duplicative. See
Szalla v. Locke, 421 Mass. 448, 453 (1995). But when the judge
proposed to resolve that question by putting it to the jury, the
defendants agreed that doing so was "acceptable."
When the jury then answered the supplemental question by
making clear that the damages were not duplicative, and the
judge announced her intention to adopt their verdict rather than
deciding independently what relief to award on the fiduciary
duty claim, the defendants repeatedly and expressly agreed. At
no time did the defendants renew their argument that the damages
amounts were duplicative, or voice any objection to the jury's
verdict as clarified by their answer to the supplemental
question, or ask the judge to do anything other than enter
4 judgment in accordance with the verdict. It is too late to do
so now. See Carey, 446 Mass. at 285.
This waiver rule is no empty formality. At least in the
circumstances of this case -- which involved complex claims and
a five-week trial -- the question whether the damages are
duplicative is far better resolved by the trial judge in the
first instance than by an appellate court working from a cold
record. We would be most reluctant to hazard a judgment on the
question without first knowing the judge's view of it.5
More particularly, the defendants argue that the evidence
could rationally support damages of $400,000 or slightly more
for the freeze-out, but not twice that amount; the plaintiffs
argue that the evidence could well support damages of $800,000
or more for the freeze-out; and the defendants attack the
plaintiffs' calculations as reverse-engineered and implausible.
Yet the defendants never asked the judge to rule on that
complicated question. Although the judge stated during trial
(outside of the presence of the jury) that she believed the
5 "Questions concerning inadequate or excessive damages are initially within the discretion of the trial judge and should ordinarily be raised by bringing a motion for a new trial." Pridgen v. Boston Hous. Auth., 364 Mass. 696, 715 (1974).
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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-1249
SCOTT BONARRIGO & another1
vs.
JOSEPH LEKACH & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants appeal from a Superior Court corrected
judgment awarding the plaintiffs $800,000 in damages, plus
interest, on claims related to an agreement to form a cannabis
business and the subsequent freeze-out of the plaintiffs from
that business. The damages amount included $400,000 pursuant to
a jury verdict on plaintiffs' claim for breach of the implied
covenant of good faith and fair dealing, and $400,000 awarded by
the judge on plaintiffs' equitable claim for breach of fiduciary
duty.
1 Mark Thomas.
2 Daniel Karten; Artcan, LLC; and AC Mass, LLC. On appeal, the defendants argue that the amounts awarded on
the two claims were impermissibly duplicative, i.e., represented
compensation for the same harm, the freeze-out of the
plaintiffs. The defendants argue that the harm could rationally
be valued at $400,000 or slightly more, but certainly not double
that amount. We agree with the plaintiffs that the issue is
waived, and we therefore affirm the judgment.
Background. At trial the parties agreed that the jury and
the judge would resolve separate aspects of the plaintiffs'
claims. The jury would resolve questions of both liability and
damages (if any) on the contract and implied covenant claims and
only the question of liability on the fiduciary duty claim.3 The
judge reserved for herself the question of damages or other
relief4 on the fiduciary duty claim; the jury verdict on that
issue would be advisory only.
The special verdict form, as completed by the jury, raised
what the judge characterized as an unanticipated question. On
the implied covenant claim, the jury found the defendants liable
3 The jury ultimately found no breach of the parties' contract, so we do not discuss that claim further.
4 Although the fiduciary duty claim is equitable in nature, Brodie v. Jordan, 447 Mass. 866, 871 (2006), the parties have referred to certain relief available on that claim as "damages." While a term such as restitution might be more appropriate, we adopt the parties' usage for purposes of this decision.
2 and awarded damages of $400,000. On the fiduciary duty claim,
the jury found the defendants liable and awarded damages of
$400,000. Outside of the presence of the jury, but before they
were dismissed, the judge raised with the parties the question
whether the two amounts were duplicative. The defendants argued
briefly that they were; the plaintiffs argued that they were
not. The judge then announced her intention to ask the jury a
supplemental question: whether the damages awarded on the two
claims were "the same damages." Defense counsel responded,
"[t]hat's acceptable," and the plaintiffs' counsel agreed, after
which the judge remarked, "[t]hat will clear it up for appellate
review."
The jury were then asked that supplemental question and
quickly returned with the answer: "No they are not the same[.]
$800,000 total for the plaintiffs." Defense counsel then asked
whether judgment would be entered on the verdict, to which the
judge replied that it would. Defense counsel responded,
"[t]hank you." Plaintiffs' counsel, noting that the $400,000
fiduciary duty verdict was to be advisory, asked if the judge
intended to adopt that verdict; the judge replied that she did.
She then asked whether there was any objection; two of the
defendants' counsel replied that there was not. The judge
asked, "[y]ou want to think about it?" The defendants' counsel
reiterated, "[w]e have no objection." The judge pressed
3 further, asking whether the defendants wanted her to decide the
issue, and noting that she could choose to award something other
than $400,000, such as an interest in one of the defendant LLCs.
The defendants' counsel again said, "[n]ope . . . [w]e're
satisfied with the verdict." Judgment then entered, followed by
a corrected judgment adjusting the prejudgment interest
calculation. The defendants appealed.
Discussion. "An issue not raised or argued below may not
be argued for the first time on appeal" (citation omitted).
Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
Here, the defendants' response to the initial verdict was to
argue that the damages were impermissibly duplicative. See
Szalla v. Locke, 421 Mass. 448, 453 (1995). But when the judge
proposed to resolve that question by putting it to the jury, the
defendants agreed that doing so was "acceptable."
When the jury then answered the supplemental question by
making clear that the damages were not duplicative, and the
judge announced her intention to adopt their verdict rather than
deciding independently what relief to award on the fiduciary
duty claim, the defendants repeatedly and expressly agreed. At
no time did the defendants renew their argument that the damages
amounts were duplicative, or voice any objection to the jury's
verdict as clarified by their answer to the supplemental
question, or ask the judge to do anything other than enter
4 judgment in accordance with the verdict. It is too late to do
so now. See Carey, 446 Mass. at 285.
This waiver rule is no empty formality. At least in the
circumstances of this case -- which involved complex claims and
a five-week trial -- the question whether the damages are
duplicative is far better resolved by the trial judge in the
first instance than by an appellate court working from a cold
record. We would be most reluctant to hazard a judgment on the
question without first knowing the judge's view of it.5
More particularly, the defendants argue that the evidence
could rationally support damages of $400,000 or slightly more
for the freeze-out, but not twice that amount; the plaintiffs
argue that the evidence could well support damages of $800,000
or more for the freeze-out; and the defendants attack the
plaintiffs' calculations as reverse-engineered and implausible.
Yet the defendants never asked the judge to rule on that
complicated question. Although the judge stated during trial
(outside of the presence of the jury) that she believed the
5 "Questions concerning inadequate or excessive damages are initially within the discretion of the trial judge and should ordinarily be raised by bringing a motion for a new trial." Pridgen v. Boston Hous. Auth., 364 Mass. 696, 715 (1974). Absent a motion raising the issue in the trial court, an appellate court is not required to consider it. Id. Much the same could be said of the duplicative damages question the defendants now ask us to decide.
5 plaintiffs "should walk away with a million each," and although
her decision to adopt the jury's verdict on fiduciary duty
damages embodies an implicit conclusion that the amounts
specified by the jury were not duplicative, we do not have her
view on the detailed, evidence-based arguments the defendants
now ask us to resolve.6
We conclude that the judge was not "fairly put on notice as
to the substance of the issue" the defendants now press.
Chelsea Hous. Auth. v. McLaughlin, 482 Mass. 579, 584 (2019),
quoting Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000).
The defendants "did not sufficiently raise the issue below and
[are] therefore barred from raising it on appeal." Boss v.
Leverett, 484 Mass. 553, 562 (2020).
6 To whatever extent the judge may have adopted the jury's verdict without exercising independent judgment, we would be required to "[i]ndulg[e] . . . every reasonable intendment in favor of the verdict[]" (quotation and citation omitted). Charles River Constr. Co. v. Kirksey, 20 Mass. App. Ct. 333, 343 (1985). See Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 413 (2013). To the extent the judge made an independent decision that the amount chosen by the jury was supported by the evidence, and that it was preferable to adopt it rather than calculate her own, perhaps higher, figure that might create an issue for appeal, we would not overturn that decision absent a showing of abuse of discretion. Because, however, the defendants did not press any duplicative damages claim after the jury answered the supplemental question, we do not have the judge's evaluation of the damages evidence to assist us in resolving either of the issues just mentioned.
6 We address two further points raised by the defendants on
the waiver issue. First, we do not view the judge's comment
that asking the supplemental question would "clear it up for
appellate review" as an assurance that any duplicative damages
argument made by the defendants was preserved for appeal. The
judge had not yet made any ruling on the issue, which would be
the usual occasion for commenting that a party's objection to a
ruling was preserved. Rather, we understand the judge to have
been remarking that the jury's answer to the supplemental
question would be useful in the event either party chose to
appeal the damages award, once it was resolved at trial. The
defendants then accepted the jury's and judge's resolution of
that question.
Second, the defendants argue that "[a]n appeal may be taken
of a judgment on the basis that it constitutes duplicative
damages without needing to have first objected to the lack of a
duplicative damages jury instruction." For this they cite
Szalla, 421 Mass. at 453-454. In that case, however, "[a]fter
the verdicts, but before the jury were discharged, the defendant
requested clarification on whether the verdicts were cumulative.
The judge denied the defendant's request, stating that the
verdicts spoke for themselves." Id. at 453. On appeal, the
court held that the verdicts were indeed impermissibly
duplicative. Id. at 454. Here, in contrast, the jury were
7 asked to and did clarify whether the damages they had awarded
were duplicative, after which the defendants made no further
request for action by the judge, agreeing instead that judgment
should enter in accordance with the verdicts. Nothing in Szalla
allows the defendants to reverse course now.7
Corrected judgment affirmed.
By the Court (Sacks, Smyth & Wood, JJ.8),
Clerk
Entered: October 2, 2025.
7 The plaintiffs' request for appellate attorney's fees and double costs is denied; costs shall be taxed pursuant to Mass. R. A. P. 26 (a), as appearing in 481 Mass. 1655 (2019).
8 The panelists are listed in order of seniority.