GAIL A. CAHALY & others [Note 1] vs. BENISTAR PROPERTY EXCHANGE TRUST CO., INC., & others. [Note 2]

GRAINGER, J. This matter, involving protracted multiparty litigation, is presented in part by an amended report pursuant to Mass.R.Civ.P. 64(a), as amended, 423 Mass. 1403 (1996), and in part by cross appeals from an amended final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974).

The following facts are uncontested: the plaintiffs were investors who each separately contracted with defendant Benistar Property Exchange Trust Company, Inc. (Benistar), for the purpose of deferring tax obligations on proceeds from the sale of their investment properties. They did so pursuant to 26 U.S.C. § 1031 of the Internal Revenue Code, whereby a property owner

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may avoid recognition of gains from the property's sale by engaging in a "like-kind" property exchange within 180 days. See 26 U.S.C. § 1031(a)(3) (2000). This tax advantage required the plaintiffs to transfer their sale proceeds to an escrow account, qualified trust, or qualified intermediary pending their purchase of replacement property. The plaintiffs here arranged for the proceeds from their respective property sales to be sent to Benistar, which advertised itself as a qualified intermediary under § 1031.

Benistar thus came to be in possession of the plaintiffs' funds, subject to written agreements titled, variously, "Exchange Agreement," "Exchange Fee Agreement," "Escrow Agreement," or "Account Selection Form" (the agreements). The agreements expressly provided that the plaintiffs' funds were to be invested in either a three-percent (per annum) "money market" account or in a six-percent (per annum) "investment" account. The agreements also required Benistar to deliver the escrowed funds to the sellers of the replacement properties, or to the plaintiffs themselves, upon the plaintiffs' instructions. While in possession of the plaintiffs' funds, Benistar engaged in high-risk options trading, eventually losing approximately nine million dollars of the plaintiffs' funds.

During the time of Benistar's trading, the funds were first held in brokerage accounts at Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch), and subsequently transferred to similar accounts at UBS PaineWebber, Inc. (PaineWebber). Additional facts are discussed below as they arise in the context of relevant claims.

Procedural history. Starting in January, 2001, the plaintiffs filed actions (later consolidated) against Benistar, various Benistar affiliates, [Note 3] Merrill Lynch, PaineWebber, Molly and Daniel Carpenter (officer and owner of Benistar, respectively), and Martin Paley (Benistar's president), asserting claims of breach of contract, conversion, breach of fiduciary duty, fraud, misrepresentation, and violation of G. L. c. 93A. In addition, the plaintiffs' claims against Merrill Lynch and PaineWebber

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included aiding and abetting the conversion and breach of fiduciary duty committed by Benistar, violation of the Connecticut Unfair Trade Practices Act, and violation of the New York Consumer Protection Act.

In March, 2002, the trial judge [Note 4] granted summary judgment to the plaintiffs on their claims of conversion and breach of contract against Benistar arising out of the misuse and eventual loss of their funds. She allowed the remaining common-law claims and consumer protection claims to proceed to trial. In July, 2002, the judge granted summary judgment for PaineWebber on the plaintiffs' aiding and abetting claims, arising out of PaineWebber's relatively brief (three-month) role as investment broker for Benistar's speculations after Merrill Lynch terminated the Benistar account. In December, 2002, a jury found Benistar, its principals, and Merrill Lynch liable on all of the plaintiffs' common-law and Connecticut and New York consumer protection claims.

In February, 2003, the judge allowed Merrill Lynch's motion for judgment notwithstanding the verdict (judgment n.o.v.). The judge found scant evidence that Merrill Lynch had actual knowledge that Benistar was using funds belonging to third parties, and no evidence that Merrill Lynch had actual knowledge that any restrictions attached to those funds. [Note 5]

The plaintiffs' claims under G. L. c. 93A were tried to the judge in March, 2003. On these claims, she found Benistar, Daniel Carpenter, and Paley liable and awarded double damages; the judge found Molly Carpenter not liable.

In February, 2004, and just within the one-year time period prescribed by Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), the plaintiffs moved for reinstatement of the jury verdict against Merrill Lynch on the basis of newly discovered evidence, discussed in detail below. Benistar, several corporate affiliates, and the Carpenters filed a motion for new trial in May of the same year. The judge held evidentiary hearings on those motions

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and, in August, 2004, denied the plaintiffs' motion to reinstate the verdict, instead granting the plaintiffs a new trial against Merrill Lynch based on the newly discovered evidence. See Mass.R.Civ.P. 60(b)(2). At the same time the judge denied the Benistar motion for a new trial.

An amended rule 64(a) report issued in November, 2004, asking this court to review the trial court's grant of judgment n.o.v. to Merrill Lynch as well as the grant of a new trial against Merrill Lynch to the plaintiffs. On the same day, an amended partial and final judgment under rule 54(b) was entered on the plaintiffs' claims against the Carpenters, Benistar, certain Benistar corporate affiliates, [Note 6] Paley, [Note 7] and U.S. Property Exchange. [Note 8] The judgment also dismissed all of the plaintiffs' claims against PaineWebber. The plaintiffs have appealed from the judgment, and the Carpenters, Benistar, and the corporate affiliates have cross-appealed.

Discussion. We agree that the posture of this case recommends a rule 64(a) report of the judge's decisions to grant judgment n.o.v. to Merrill Lynch and to grant the plaintiffs a new trial, so that these can be considered at the same time as the final judgment entered under rule 54(b), avoiding piecemeal appellate review. [Note 9] We turn first to the grant of a new trial against Merrill Lynch and then discuss, in turn, Benistar's appeal and

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that of the plaintiffs involving PaineWebber. We conclude by affirming in all respects.

The grant of a new trial with respect to claims against Merrill Lynch. We review a judge's decision on a motion for relief from judgment under rule 60(b) for a "clear abuse of discretion." Tai v. Boston, 45 Mass. App. Ct. 220, 224 (1998), quoting from Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 158 (1987). Here, the judge found that the material presented by the plaintiffs as newly discovered evidence under rule 60(b)(2) supported their claim that Merrill Lynch had possessed actual knowledge that Benistar was investing client funds subject to restrictions, and had provided substantial assistance to the Benistar defendants in their misconduct.

The judge based her rule 60(b)(2) analysis on two sources of evidence presented by the plaintiffs. One source, defendant Martin Paley, had asserted his privilege under the Fifth Amendment to the United States Constitution at trial, but waived that privilege in February, 2004, when he provided an affidavit to the plaintiffs. [Note 10] In that affidavit, Paley, president of Benistar, recounted a conversation with Gerald Levine, a broker at Merrill Lynch, in which Paley stated that the money in Benistar accounts was client funds held in escrow, and that those funds were required to be made available to clients upon request within forty-eight hours.

Merrill Lynch argues that the judge abused her discretion because posttrial affidavits of codefendants who exercised their Fifth Amendment privilege in a criminal trial are not considered newly discovered evidence in many circuits of the United States Court of Appeals. See cases cited in United States v. Montilla-Rivera, 115 F.3d 1060, 1065-1066 (1st Cir. 1997). Our courts

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have favored instead a case-by-case analysis. See, e.g., Commonwealth v. Wolinski, 431 Mass. 228, 237-238 (2000); Commonwealth v. Cintron, 435 Mass. 509, 516-518 (2001). This approach has also been taken by the First Circuit. See United States v. Montilla-Rivera, supra at 1066. [Note 11]

We reject Merrill Lynch's contention that because the trial judge strongly expressed her doubt about the credibility of the Paley evidence, it cannot support the allowance of a new trial. Case law in this Commonwealth acknowledges that posttrial evidence of a witness who did not testify is "the weakest sort of evidence," but the analysis does not end there. See Commonwealth v. Evans, 439 Mass. 184, 203-204, cert. denied, 540 U.S. 923 and 540 U.S. 973 (2003), citing Dirring v. United States, 353 F.2d 519, 520 (1st Cir. 1965). Although the trial judge opined that the Paley evidence has "substantial credibility issues," she also found that the evidence nevertheless supports a rule 60(b)(2) motion because it is material, likely to affect the outcome if believed, and admissible. The trial judge was well within her discretion in finding that a jury may consider the evidence, weigh its value, and determine the witness's credibility. We uphold the trial judge's determination that, as to the plaintiffs, Paley's testimony was newly discovered under the requirements of rule 60(b)(2).

The second source of evidence considered by the judge in her decision to grant a new trial was an affidavit from attorney David Patterson, who represented a Benistar client not party to the suit. Patterson's affidavit described oral and written communications with one of Benistar's primary brokers at Merrill Lynch during 1998 in which Patterson had explained the nature

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and limitations of the Benistar-client relationship. Patterson's affidavit specifically described a cover letter that he had mailed and faxed to the Merrill Lynch broker, to which Patterson had attached copies of Benistar-client agreements. Merrill Lynch argued that the Patterson evidence could not support the grant of a new trial because a copy of Patterson's cover letter, albeit without the enclosed agreements, had been produced to the plaintiffs during pretrial discovery. [Note 12] In considering the exercise of due diligence required by the language of rule 60(b)(2), the judge specifically noted that the plaintiffs sent pretrial document requests to the defendants -- including, notably, Merrill Lynch -- "that squarely covered this type of correspondence." See Kettenbach v. Demoulas, 901 F. Supp. 486, 495 (D. Mass. 1995) ("failure to pursue discovery to the utmost limit does not preclude a successful Rule 60(b)(2) motion"), citing Krock v. Electric Motor & Repair Co., 339 F.2d 73, 74-75 (1st Cir.) (failing to make full use of discovery does not require a finding of lack of due diligence), cert. denied, 377 U.S. 934 (1964).

We conclude that the pretrial failure of plaintiffs' counsel to follow the clear signposts provided by the Patterson letter materially detracts from what would otherwise be a textbook example of evidence -- found by the judge to be "specific," "credible," and corroborated by other contemporaneous evidence -- entitling the applicant to a new trial. Pretrial possession of the Patterson letter, simply stated, means that the evidence to which it leads could have been obtained under the "due diligence" strictures of rule 60(b)(2), and cannot therefore now be considered "newly discovered" within the meaning of the rule.

However, the judge properly exercised her discretion in concluding that the Paley evidence was sufficient, standing alone, to support the grant of a new trial. The Paley evidence is material to the issue of Merrill Lynch's actual contemporaneous knowledge of Benistar's wrongdoing. It very likely would have

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produced a different result, since the judge could not properly have granted a judgment n.o.v. if Paley had testified. [Note 13] See Wojcicki v. Caragher, 447 Mass. 200, 215 (2006) (new evidence must be material in sense that it would likely affect result). We therefore affirm the judge's order granting a new trial on the claims against Merrill Lynch.

Appeal of the Benistar defendants. [Note 14] 1. The challenge to personal jurisdiction. In general, personal jurisdiction is properly exercised over any defendant in connection with the transacting of any business in the Commonwealth (directly or through an agent) or over a defendant who causes "tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth." G. L. c. 223A, § 3(a), (d), as amended by St. 1969, c. 623.

It does not avail the individual defendants Molly and Daniel Carpenter to assert that "jurisdiction over a corporation does not automatically secure jurisdiction over its officers," Kleinerman v. Morse, 26 Mass. App. Ct. 819, 824 (1989), and that Massachusetts "adheres to the general rule that jurisdiction over an officer cannot be based solely on jurisdiction over the corporation, [and] it must be based on acts of the officer themselves, rather than simply the corporation, within the forum state." Nahigian v. Leonard, 233 F. Supp. 2d 151, 157 n.1 (D. Mass. 2002). The record supports the judge's findings of significant contacts and substantial activities in Massachusetts by both Carpenters, including activities related to the claims asserted by the plaintiffs, see G. L. c. 223A, § 3(a), (d), and the arguments to the contrary are without merit. The Carpenters' activities in Massachusetts were sufficient to establish minimum contacts such that "traditional notions of fair play and substantial justice" were not

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offended. See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945), quoting from Milliken v. Meyer, 311 U.S. 457, 463 (1940).

We likewise discern no error in the judge's thorough analysis of personal jurisdiction over the Benistar corporate defendants. The plaintiffs' theory of personal jurisdiction was necessarily intertwined with the merits of their claim that corporate disregard was appropriate in this case. The judge considered and discussed the factors relevant to determining whether corporate formalities may be set aside. See My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614 (1968); Evans v. Multicon Constr. Corp., 30 Mass. App. Ct. 728, 733 (1991). [Note 15] With ample evidence to support her decision, she rightly concluded that corporate disregard was proper.

Put simply, the actions of the corporations consisted of the actions of the Carpenters and of Benistar. Because piercing the corporate veil was appropriate in this case, [Note 16] and because the actors beneath the veil had ample minimum contacts with the forum State, we affirm the trial judge's findings that the plaintiffs proved the jurisdictional requirements were met as to all the Benistar corporate defendants.

2. Benistar motions for a new trial. The Benistar defendants complain that shortly after the jurors were discharged, two

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jurors invited plaintiffs' counsel out for "some beers." Counsel firmly, and appropriately, declined the invitations. Even if the jurors' actions were inappropriate, they did not amount to an indication that the verdict was the product of bias or prejudice. The judge rejected the request of the Benistar defendants for an evidentiary hearing or new trial based on the alleged misconduct. There was no error or abuse of discretion. No evidence was submitted that jury misconduct, as our case law explains that term, took place. See Commonwealth v. Royster, 15 Mass. App. Ct. 970, 970-971 (1983).

The Benistar defendants also argue that the judge erred in denying them a new trial based on the newly discovered Paley evidence. Again, we review a grant or denial of a motion for new trial under rule 60(b) for abuse of discretion. See Wojcicki v. Caragher, 447 Mass. at 209; Tai v. Boston, 45 Mass. App. Ct. at 224.

In contrast to the case against Merrill Lynch, the proffered newly discovered evidence does not satisfy the requirement that it will likely affect the outcome of a trial against the Benistar defendants. See Mass.R.Civ.P. 60(b)(2); DeLuca v. Boston Elev. Ry., 312 Mass. 495, 497 (1942); Wojcicki v. Caragher, supra at 215. The overwhelming evidence in favor of the plaintiffs leaves this element of rule 60(b)(2) unmet. We affirm the judge's order denying a new trial for the Benistar defendants.

3. Assignment of cause of action to plaintiffs. Benistar complains that the judge was without authority, after entering judgment for the plaintiffs, to reach and apply any cause of action Benistar has against PaineWebber to the plaintiffs. We disagree. General Laws c. 223, § 86A, as amended through St. 2000, c. 159, § 278, provides for precisely such relief "[u]pon motion of the plaintiff at any time after entry of a judgment in his favor in the . . . superior court . . . but before the expiration of the time to appeal therefrom or, if an appeal is claimed, during the pendency thereof." [Note 17] A cause of action is a "valuable interest vested in [the defendant] which can be reached reached and applied

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in a creditor's suit." Digney v. Blanchard, 229 Mass. 235, 239 (1918). Nor did the judge abuse her discretion by providing safeguards, such as giving the plaintiffs control over the prosecution of the cause of action, to protect the value of the claim. Authority relied upon by the Benistar defendants is not to the contrary, merely prohibiting execution on security prior to a final judgment. See Alper v. MacPherson, 318 Mass. 433, 435 (1945). See also G. L. c. 231, § 115. Where equitable relief is appropriate, its scope is left to the discretion of the trial judge. See Borne v. Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. 306, 323 (2003), citing Commonwealth v. Adams, 416 Mass. 558, 566 (1993).

4. Benistar defendants' remaining contentions. The Benistar defendants make a number of other arguments on appeal in support of vacating the judgment against them. Specifically, they argue that summary judgment was erroneously granted to the plaintiffs on their claims of conversion. In addition, the Benistar defendants argue that insufficient evidence existed to support a jury finding of a fiduciary relationship between Benistar and its clients, or to support a finding of fraud.

a. Conversion. Conversion consists of a wrongful exercise of dominion or control over the personal property of another. See Third Natl. Bank of Hampden County v. Continental Ins. Co., 388 Mass. 240, 244 (1983). See also Spooner v. Manchester, 133 Mass. 270, 274 (1882). On an appeal from a grant of summary judgment, we review the evidence in the light most favorable to the nonmoving party to determine whether all material facts have been established and whether the plaintiffs were entitled to a judgment as a matter of law. See Nelson v. Salem State College, 446 Mass. 525, 530 (2006). The record fully supports the judge's conclusions. The Benistar-client agreements transferred the plaintiffs' control over their sale proceeds to Benistar, with a time limit on that control and restrictions on the use of those funds during the time of Benistar's possession. Benistar not only exceeded its authorization but also seriously violated the right of

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the plaintiffs to control their property. The unauthorized use in this case was sufficiently serious to amount to conversion. See McGonigle v. Victor H. J. Belleisle Co., 186 Mass. 310, 312-313 (1904); Prosser & Keeton, Torts § 15, at 94 (5th ed. 1984). [Note 18] See also Restatement (Second) of Torts §§ 227, 228 (1965). In addition, Benistar's failure to remain within the restrictions that defined its authorized use resulted in its inability to comply with the plaintiffs' rightful demand for the return of their funds. See Abington Natl. Bank v. Ashwood Homes, Inc., 19 Mass. App. Ct. 503, 506-507 (1985), citing Atlantic Fin. Corp. v. Galvam, 311 Mass. 49, 50-51 (1949). The proffered evidence established all elements of the plaintiffs' conversion claims and removed any genuine dispute. The grant of summary judgment to the plaintiffs on their conversion claims was proper.

b. Breach of fiduciary duty. We will not disturb the jury finding of breach of fiduciary duty unless there was insufficient evidence presented to the jury to support the finding that a relation of trust and confidence existed. See Yousif v. Yousif, 61 Mass. App. Ct. 686, 696 (2004), citing Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass. App. Ct. 412, 444 (1980). Where a plaintiff reposes trust and confidence in the defendant, and the defendant knows of the plaintiff's reliance on him, a fiduciary duty may be created. See Broomfield v. Kosow, 349 Mass. 749, 754-758 (1965). Compare Patsos v. First Albany Corp., 433 Mass. 323, 334-336 (2001) (setting out factors relevant to determining whether a fiduciary duty exists in context of client and broker). The jury heard evidence that Benistar promised to hold client funds in escrow, to safeguard those funds, and to provide the expertise the clients themselves lacked to navigate the process that 26 U.S.C. § 1031 requires. The evidence was sufficient to support a finding of breach of fiduciary duty. [Note 19]

c. False representations. Finally, the Benistar defendants

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claim that Daniel Carpenter could not have made false representations to the plaintiffs because, as the plaintiffs testified, they had not met, spoken to, or communicated in writing with him. The jury's finding of misrepresentation is supported by ample evidence in the record that Daniel Carpenter was responsible for promotional material and was intimately involved in Benistar's communications with clients, including the agreements themselves, which represented that funds would be placed in three- and six-percent money market accounts and repaid upon request. His direct personal contact with the plaintiffs was not a requirement for a finding of misrepresentation in this case, and we decline to disturb the jury verdict. [Note 20]

The grant of summary judgment in favor of PaineWebber. The plaintiffs challenge the summary judgment on their claims against PaineWebber for aiding and abetting a breach of fiduciary duty and for aiding and abetting conversion. We apply New York law to our consideration of the issues. [Note 21] Again, we view the evidence in a light most favorable to the nonmoving party, here the plaintiffs. PaineWebber came upon the scene in late September, 2002, when Merrill Lynch refused to permit any further options trading by Carpenter. Gary Stern of Merrill Lynch contacted Mitchell Rock, a close friend and broker at PaineWebber, and arranged to transfer three of the Benistar accounts to PaineWebber. Rock was informed that these were corporate accounts and that the funds in the accounts were Benistar corporate funds. The accounts were nondiscretionary, so that Carpenter directed all trades, with Rock implementing them

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and also providing investment advice as Carpenter requested. Ninety days later, on December 20, 2002, and after heavy losses, PaineWebber discontinued the options trading and began closing out positions in the Benistar accounts. "A claim for aiding and abetting a breach of fiduciary duty requires: (1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach . . . ." Kaufman v. Cohen, 307 A.D.2d 113, 125 (N.Y. App. Div. 2003). To satisfy the second element of the claim, the plaintiffs must show that the defendant had actual knowledge of the breach of duty. Ibid. Here, the plaintiffs attempt to persuade us that proof of "recklessness or willful blindness" was sufficient to satisfy the requirement of actual knowledge. Under New York law, however, it is well established that recklessness does not satisfy the element of actual knowledge in the context of a claim for aiding and abetting a breach of fiduciary duty. See Cromer Fin. Ltd. v. Berger, 137 F. Supp. 2d 452, 494 & n.28 (S.D.N.Y. 2001). Proof that a defendant should have known of the prohibited conduct is insufficient; proof of actual knowledge is required. Kolbeck v. LIT America, Inc., 939 F. Supp. 240, 246 (S.D.N.Y. 1996), aff'd, 152 F.3d 918 (2d Cir. 1998).

The facts, viewed in the plaintiffs' favor, at best demonstrated that PaineWebber should have been alerted to the possibility that Carpenter was using client funds for options trading. [Note 22] But proof itself was lacking that PaineWebber had actual knowledge that the Benistar accounts consisted of client funds, and was entirely lacking that PaineWebber knew those funds were subject to restrictions which were being violated. Without any evidence of actual knowledge, the plaintiffs' claims against PaineWebber cannot survive. [Note 23] Accordingly, summary judgment was properly granted in PaineWebber's favor on the aiding and abetting claims.

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The plaintiffs' conversion claims fare no better as they, again, rely on the unsupported assertion that PaineWebber had actual knowledge that Carpenter was engaged in prohibited trading with restricted client funds. Thus summary judgment on the plaintiffs' conversion claims was properly granted as well.

Conclusion. The orders reported under rule 64(a) are affirmed. The amended judgment under rule 54(b), entered December 6, 2004, is affirmed. The orders pertaining to the assignment to the plaintiffs of Benistar's claims against PaineWebber are affirmed.

So ordered.