Robert and Ardis James Foundation v. Meyers , 474 Mass. 181 ( 2016 )

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SJC-11898
ROBERT AND ARDIS JAMES FOUNDATION & another1 vs.
DANIEL MAXWELL MEYERS.
Suffolk. December 10, 2015. - April 21, 2016.
Present: Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ.
Contract, Implied covenant of good faith and fair dealing.
Damages, Breach of contract, Sale of stock. Corporation,
Stock.
Civil action commenced in the Superior Court Department on
November 16, 2006.
After transfer to the business litigation session, the case
was heard by Christine M. Roach, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Joseph L. Bierwirth, Jr. (Ryan P. McManus & Thomas J.
Carey, Jr., with him) for the plaintiffs.
Kevin P. Martin (Katherine C. Sadeck with him) for the
defendant.
LENK, J. This case considers whether there was a breach of
the implied covenant of good faith and fair dealing in a
1
Robert James.
2
contract dispute between two sophisticated investors. In 1998
and 1999, Robert James, acting on behalf of the Robert and Ardis
James Foundation charitable foundation (foundation), agreed to
advance over $650,000 to Daniel Meyers, the defendant, to
purchase shares of stock in what was then a young, privately
held company that Meyers had cofounded, in exchange for a
portion of the proceeds of an eventual sale of those shares.
The agreement was memorialized in two single-page, non-
integrated letters that set out formulas by which to calculate
the distribution of proceeds, but did not discuss the timing of
sale. In 2006, following nearly two years of unsuccessful
efforts to get Meyers to discuss bringing the agreements to a
close, the foundation filed a complaint against Meyers seeking
specific performance and damages.
After a six-day bench trial in the business litigation
session of the Superior Court in 2011, a judge found that Meyers
had committed a breach of the implied covenant of good faith and
fair dealing, and awarded damages based on a date of breach of
July 31, 2006.2 The Appeals Court reversed, see Robert & Ardis
James Found. v. Meyers, 87 Mass. App. Ct. 85, 86 (2015), and we
granted the foundation's application for further appellate
2
The judge ruled in Daniel Meyers's favor on the
foundation's remaining claims: division and distribution of the
stock; dissolution of a claimed partnership or joint venture;
declaration of an agency relationship; imposition of an implied
contract term; payment of dividends; and declaratory judgment.
3
review. Meyers argues that he did not commit a breach of the
implied covenant, and that the damages award should be vacated.
We conclude that the trial judge's decision was not erroneous,
and affirm the decision.
1. Background. We recite the facts found by the trial
judge, supported by relevant trial testimony and documentary
evidence, reserving certain details for later discussion.3
Meyers graduated from Brandeis University in 1984 with an
undergraduate economics degree, and spent the next seven years
working in the financial services industry. In 1991, Meyers and
Stephen Anbinder started a company that provided loan
origination and related services for higher education students.
The company was incorporated in 1995 as First Marblehead
Corporation (First Marblehead), a privately held Delaware
corporation with headquarters in Massachusetts. From its
incorporation through 2005, Meyers served as First Marblehead's
chief executive officer (CEO) and as the chair of its board of
directors. Upon request from First Marblehead's board of
directors, he returned to those positions in 2008.
3
At trial, the judge heard testimony from six witnesses and
admitted ninety-three exhibits in aid of interpreting the
agreements at issue. Neither party argues that the admission of
extrinsic evidence violated the parol evidence rule. See Uno
Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376,
379 n.2 (2004).
4
Robert James, who was eighty-six years old at the time of
trial, has been a professional investor for over forty years.
He received a master's degree in business administration with
honors from Harvard Business School and has had an extensive
career in both public service and private industry, including
time spent at the Central Intelligence Agency, in the United
States Navy, and in the oil industry. Robert James is a trustee
of the foundation, organized under the laws of New York as a
charitable section 501(c) foundation. The purpose of the
foundation is to "give [the James's accumulated] money away."
At all relevant times, his wife, Ardis James, and children,
Catherine James Paglia and Ralph James, were also trustees of
the foundation.4 Like their father, Catherine James Paglia and
Ralph James graduated from Harvard Business School.
During the 1990s, Catherine James Paglia was a principal of
a private equity firm that invested in First Marblehead, and
invested in First Marblehead personally. Ralph James served
variously as First Marblehead's executive vice president,
president and chief operating officer, and vice chairman. As a
result of his children's connections to First Marblehead, Robert
James developed a business friendship with Meyers, and they
began to meet socially. Robert James considered the First
Marblehead business plan "quite a brilliant thing." In
4
Ardis James passed away in July, 2011.
5
November, 1997, he bought ten thousand shares of Meyers's
privately held stock in First Marblehead for $360,000.
a. The 1998 and 1999 agreements. In 1998, First
Marblehead offered its shareholders the right to purchase
additional shares on a pro rata basis commensurate with each
shareholder's percentage of existing ownership of the company.
Because Meyers and Anbinder both lacked sufficient capital to
participate in the rights offering, they were concerned that the
offering would dilute their percentage of ownership of First
Marblehead. Meyers turned to Robert James for help. The deal
they eventually struck led to this litigation.
In exchange for the right to share in the proceeds of the
sales of such shares, Robert James agreed to provide Meyers and
Anbinder with the capital to purchase, in their own names, their
maximum allotment of shares under the rights offering. The
agreement was memorialized in a February 20, 1998, letter from
Meyers to Robert James (1998 agreement), which was drafted for
Meyers by First Marblehead's outside counsel. The letter read:
"Dear Bob:
"This letter will confirm our agreement regarding the
purchase of common stock of The First Marblehead
Corporation in the current rights offering by Steve
Anbinder and me.
"We have agreed that Steve and I will exercise our
rights to purchase 18,627 and 13,161 shares, respectively,
of stock @ $20.00 per share and that you will advance the
funds to each of us in return for the right to participate
6
in the proceeds of sales. The total of the advances will
be $635,760. The advances will be without recourse and
will be repaid solely out of proceeds when the stock is
sold.
"Steve and I will take title to the stock in our own
names. Each of us will deliver the newly-issued share
certificate[s] to you, and you will retain the certificates
in your possession until the stock is sold. You may also
vote the stock as you see fit.
"Upon the sale of the stock, you will be entitled to
the sale proceeds up to a sale price of $30 per share. The
balance of the sale proceeds, if any, will be divided 50%
to you and 50% to either Steve or me. Either Steve or I
may assign all or part of our interest to a third party.
"If this letter accurately reflects the terms of our
agreement, I ask that you sign the duplicate copy of the
letter and return it to me."
Robert James signed the letter in March, 1998, and eventually
wired the advances directly to First Marblehead using funds from
the foundation.5 Anbinder and Meyers also signed the letter.
In January 1999, First Marblehead engaged in another rights
offering. The parties executed a second letter agreement on
January 25, 1999 (1999 agreement). The language of the 1999
agreement was almost identical to the language of the 1998
agreement -- the only differences were the numbers of shares to
be purchased, and the formula for calculating the division of
the proceeds upon sale. Robert James directed the foundation to
advance the agreed-upon funds to First Marblehead. Between the
5
Although Robert James signed the letter in his own name,
he testified that he intended to sign it on behalf of the
foundation.
7
two agreements, Robert James advanced $1,114,965 of foundation
funds to First Marblehead, $653,340 of which was used to
purchase shares in Meyers's name.6
First Marblehead made its initial public offering on
October 31, 2003, and the value of the stock increased
dramatically over the next few years.7 Starting in 2005, after
Meyers stepped down from his positions as CEO and chair of the
board of directors, First Marblehead began issuing quarterly
dividends to shareholders. Meyers ultimately received almost
$2.5 million in dividends for the shares that were purchased
pursuant to the 1998 and 1999 agreements. He did not distribute
any of those dividends to Robert James or the foundation.
b. Efforts to conclude the agreements. The foundation
first sought to bring the 1998 and 1999 agreements to a close in
2004. Catherine James Paglia testified that she telephoned
Meyers multiple times that year for that purpose, and left him
several voicemail messages that he did not return. In October,
6
The remainder of the funds was used to purchase shares in
Anbinder's name.
7
As a result of a succession of stock splits, each of the
shares subject to the 1998 and 1999 agreements was approximately
sixty shares at the time of trial. Thus, the 31,107 shares
owned by Meyers that were originally subject to the agreements
were 1,866,420 shares in 2011. On October 31, 2003, the stock
price was approximately $14 per share. By July 31, 2006, the
price had increased to approximately $30 per share. By January
2007, several months into this litigation, the stock was trading
at around $56 per share. Stock values declined significantly,
however, after the stock market crashed in 2008.
8
2004, she also sent Meyers and Anbinder an electronic mail
message that sought to "negotiate an equitable distribution" of
the shares in order to bring the agreements to a close. While
Anbinder eventually agreed to a distribution of that sort,8
Meyers never responded to Catherine James Paglia's message.
Meyers also did not respond to repeated efforts during 2005 and
2006 by both Catherine James Paglia and Robert James to reach
him over the telephone in order to discuss concluding the
agreements.
Meyers knew from conversations with Anbinder that the
foundation wished to conclude the agreements. When Anbinder
asked him "why [he] wanted this aggravation [of the James
dispute] in his life," however, Meyers stated that he had no
interest in discussing the possibility of selling the shares
with Robert James or his daughter. Nonetheless, between 2003
and 2006, Meyers sold over three million shares of other First
Marblehead stock that he owned, for more than $86 million.
Meyers explained at trial that he made a conscious decision to
sell his personally held shares of First Marblehead as opposed
to agreeing to sell or divide the shares held with the
8
The foundation and Anbinder ultimately agreed that
Anbinder would receive half of the proceeds of the sale of the
stock that had been purchased in his name using the foundation's
funds.
9
foundation, because that way he could continue to collect
dividends from the shares purchased with the foundation's funds.
After receiving advice from the foundation's counsel that
the foundation needed to secure the proceeds of its investment,
Robert James sent Meyers a letter on July 10, 2006, asking to
meet in order to discuss the conclusion of the agreements.9
Meyers finally replied on August 21, 2006, via a letter from his
personal attorney. In the letter, Meyers stated that, "as the
owner of the stock, [he] retain[e]d full discretion as to when
it will be sold." He added that he "would welcome any specific
proposal by the foundation that would make him reasonably whole
in exchange for surrendering control of a portion of his stock
9
He wrote,
"Dear Dan:
"It has been a long time since you and I have spoken. I
have tried to call you a few times but I am not sure that I have
the correct number. I would really enjoy getting together to
see what you are up to in your new situation.
"Also, as you can see from the attached letter, I am
getting some pressure from the attorney for the Foundation to
address our mutual interests in the 1.24 million shares of First
Marblehead stock. As you probably know, in December 2005 I was
able to negotiate a resolution with Steve Anbinder relating to
the other portion of the First Marblehead stock, and I would
very much like to reach a comparable agreement with you. I
think it is in both of our interests to do that.
". . .
"Please give me a call so that we can get together for
breakfast or lunch."
10
and forgoing future dividends on it, taking into account [First
Marblehead's] apparently healthy prospects for continued
growth." On November 16, 2006, the foundation filed the instant
lawsuit.10
2. Discussion. "We accept the judge's findings of fact in
a bench trial unless they are clearly erroneous, . . . and the
credibility of the witnesses rests within the purview of the
trial judge" (citation omitted). See Weiler v. PortfolioScope,
Inc., 469 Mass. 75, 81 (2014) (Weiler). However, "[t]he judge's
legal conclusions are reviewed de novo." Anastos v. Sable, 443
Mass. 146, 149 (2004). Based on the trial judge's findings of
fact in this case, we discern no error in her determinations
that Meyers committed a breach of the implied covenant of good
faith and fair dealing and that July 31, 2006, was the date of
breach.
a. Nature of the agreements. The 1998 and 1999 letter
agreements were silent concerning the time at which the stock
would be sold. At trial, the parties had opposite views on how
to interpret that silence. The foundation asked the judge to
supply a contract term imposing on Meyers an obligation to sell
the shares if the foundation so demanded. Robert James
testified that it had been "essential" to him that he and Meyers
10
The complaint was later amended to add Robert James as a
plaintiff.
11
agree on when to sell the stock. He explained, "Otherwise I'm
in this forever," adding,
"Our agreement between Dan and me, it was [not] that
specific, but the idea was that we were protecting each
other. You get into something like this, in one page it's
so, who can forecast what's going to come up? We take care
of each other. That was our agreement."
Meyers, on the other hand, maintained that the absence of a
specific timing term in the written documents reflected a
bargained-for decision by the parties. He explained that an
early draft of what became the 1998 agreement had included
language that Robert James could retain the share certificates
in his possession "until such time as we agree that the stock
should be sold" (emphasis added). Because the final version of
the document removed the reference to mutual agreement and
included financial terms that were more profitable for the
foundation, he contended that he had bargained for and secured
complete discretion over when, or if, the shares would be sold.
In his view, there was no time limit on his holding of the
shares, he had no obligation ever to make the shares productive
of income or capital for the foundation, and, if he wished, he
even could leave them to his heirs.
The judge concluded that the parties had not reached a
mutual understanding about the time to sell the stock that was
reflected in the written documents. She declined either to
supply a term requiring Meyers to sell "on demand," or to
12
construe the agreements as giving Meyers "sole and unbridled
discretion" regarding the timing of sale. Nonetheless, she
credited Robert James's testimony regarding the nature of the
parties' "gentleman's" agreements, "whereby the two would share
the future risks and rewards of purchasing additional First
Marblehead stock." She also credited testimony that Meyers's
intent in executing the 1998 and 1999 agreements was to "foil"
efforts by other early shareholders in First Marblehead to
dilute Meyers's and Anbinder's percentage ownership of the
company, and that Robert James had agreed to assist Meyers on
the understanding that he would participate in the proceeds of
sale of the stock. The judge did not, however, credit Meyers's
interpretation of the agreements, describing them as "neither
rational nor fair." She explained,
"Meyers's interpretation would now effectively deprive
the Foundation forever of the benefit of its bargain
through a profitable sale of the stock. Meanwhile, Meyers
has experienced all of the benefit of the bargain of owning
additional stock he could not have owned but for James."
We defer to the judge's assessment of the nature of the
parties' contractual arrangement. "[A] contract should be
construed to give it effect as a rational business instrument
and in a manner which will carry out the intent of the parties"
(citation omitted). Starr v. Fordham, 420 Mass. 178, 192
(1995). The agreements here clearly contemplated sale at some
point, because they set out formulas for the distribution of the
13
eventual proceeds "[u]pon the sale of the stock." Yet as long
as Meyers continued to hold the shares, the foundation would
receive no return on its initial investment, and had no recourse
against Meyers or Anbinder personally if the stock decreased in
value. On the other hand, any time of sale would have resulted
in a profit for Meyers, because he risked none of his own money
in the purchase of the shares. Given the trial testimony and
documentary evidence, the judge did not err in concluding that
the foundation had a reasonable expectation that it would share
in the eventual profits from sale before the proverbial Twelfth
of Never.11 Compare Shayeb v. Holland, 321 Mass. 429, 430-431
(1947) (construing sale contract to require performance within
reasonable time).
b. Implied covenant of good faith and fair dealing.
Mindful of the fact that every contract in Massachusetts is
subject to an implied covenant of good faith and fair dealing,
see Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471
(1991) (Anthony's Pier Four), and that "[a] breach occurs when
one party violates the reasonable expectations of the other,"
Chokel v. Genzyme Corp., 449 Mass. 272, 276 (2007) (Chokel), and
cases cited, the judge ruled that Meyers had committed a breach
of the covenant in this case by ignoring and declining to honor
11
"And that's a long, long time." See The Twelfth of Never
(J. Livingston & P.F. Webster), on Johnny Mathis Gold: A 50th
Anniversary Celebration (Sony BMG Music Entertainment 2006).
14
Robert James's and Catherine James Paglia's "clear, rational,
and good faith efforts" on behalf of the foundation to resolve
the contractual relationship between the parties. Although the
judge acknowledged that the foundation had never formally
demanded that Meyers sell the shares, in her view, Meyers's
position was "unfaithful" to what she found to have been "the
intended and agreed upon expectations of the contract, including
the trust [Robert] James reasonably placed in Meyers regarding
sale of the stock." She concluded,
"I find and rule it was part of Meyers'[s] duty of
good faith and fair dealing implied in the Agreements with
James to, upon reasonable request, engage in reasonable
efforts to arrive at a reasonable time for sale and thus
resolve the contracts, rather than continuing to assert his
right to delay sale and collect dividends indefinitely."
Given the trial judge's findings regarding the nature of the
agreements, we agree with this conclusion.
"The covenant of good faith and fair dealing is implied in
every contract, . . . including contracts between sophisticated
business people" (citations omitted). See Weiler, supra at 82.
The covenant "exists so that the objectives of the contract may
be realized." Ayash v. Dana–Farber Cancer Inst., 443 Mass. 367,
385, cert. denied sub nom. Globe Newspaper Co. v. Ayash, 546
U.S. 927 (2005). It provides "that neither party shall do
anything that will have the effect of destroying or injuring the
right of the other party to receive the fruits of the contract."
15
Anthony's Pier Four, supra at 471-472, quoting Druker v. Roland
Wm. Jutras Assocs., Inc., 370 Mass. 383, 385 (1976). "In
determining whether a party violated the implied covenant of
good faith and fair dealing, we look to the party's manner of
performance. . . . There is no requirement that bad faith be
shown; instead, the plaintiff has the burden of proving a lack
of good faith. . . . The lack of good faith can be inferred
from the totality of the circumstances." Weiler, supra, quoting
T.W. Nickerson, Inc. v. Fleet Nat'l Bank, 456 Mass. 562, 570
(2010). However, "[t]he scope of the covenant is only as broad
as the contract that governs the particular relationship."
Ayash v. Dana–Farber Cancer Inst., supra.
The totality of the circumstances found by the trial judge
shows that Meyers failed to effectuate in good faith the sales
of stock that the agreements clearly contemplated. Although
Meyers knew from his conversations with Anbinder that the
foundation wished to bring the agreements to a close, he refused
to speak with Robert James and Catherine James Paglia for nearly
two years regarding effectuating the sale of the shares. During
the same time period, Meyers collected millions of dollars in
dividends on those shares that he kept for himself, but sold
millions of other shares of First Marblehead stock that he owned
for many times what he had initially paid for them. Taking an
unwarranted view of his contractual rights, he thus sought to
16
achieve for himself a better deal than the sharing of risks and
rewards for which the judge found he had originally bargained.
See Anthony's Pier Four, supra at 472 (attempt to thwart
conclusion of agreement as pretext to obtain more favorable
terms constitutes breach of implied covenant).
Unlike in Eigerman v. Putnam Invs., Inc., 450 Mass. 281,
288 (2007), and Chokel, supra at 277, where we determined that
decisions to buy and exchange shares only at particular times
did not result in a breach of the implied covenant because the
agreements at issue in those cases provided the defendants with
sole discretion regarding the timing of sale, the trial judge
here explicitly found that Meyers did not have such discretion.
His actions therefore violated the foundation's reasonable
expectations that he would "engage in reasonable efforts to
arrive at a reasonable time for sale." Otherwise put, by
turning a deaf ear to the foundation's repeated requests,
thwarting the effectuation of the agreements, he destroyed or
injured the foundation's right to receive the fruits of those
agreements.
Our decision here is more analogous to our recent decision
in Bay Colony R.R. Corp. v. Yarmouth, 470 Mass. 515, 524 (2015),
where we concluded that a defendant's inaction constituted a
breach of the implied covenant. There, the town of Yarmouth
terminated a waste transportation contract that it had made with
17
the plaintiff railroad company after the railroad company lost
its lease to a local rail line. See id. at 516. The railroad
company sought to continue to transport the waste by truck
rather than rail, as permitted by its contract, but the town did
not allow it to do so, purportedly on the basis that a waste
transportation permit that the Department of Environmental
Protection (DEP) had issued to the town did not allow for the
long-term trucking of waste. Id. at 516-517. Although the town
believed that the DEP would modify its permit upon request, id.
at 524 n.10, it made no effort to seek such a modification. Id.
at 524.
We held that the jury reasonably could have concluded that
the town's unwillingness to accommodate the railroad company's
efforts to perform on the contract resulted in a breach of the
implied covenant of good faith and fair dealing, because it
violated the railroad company's reasonable expectations under
the contract. Id. Likewise here, Meyers's unwillingness for an
extended period of time even to speak with Robert James or
Catherine James Paglia regarding the disposition of the stock
was contrary to their reasonable expectations on behalf of the
foundation. See 17A Am. Jur. 2d Contracts § 370, at 356 (2004)
("whenever the cooperation of the promisee is necessary for
performance of the promise, there is a condition implied that
the cooperation will be given").
18
Although the implied covenant "may not . . . be invoked to
create rights and duties not otherwise provided for in the
existing contractual relationship," Uno Restaurants, Inc. v.
Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004), no such
rights or duties were created in this case. We disagree with
Meyers's contention on appeal that the judge impermissibly
imposed on the parties a duty to negotiate a new deal, a
characterization that the judge squarely rejected in her ruling
posttrial that "[t]he court did not find a duty to negotiate."
To the contrary, while the parties remained free to strike a new
deal with a different formula for allocating proceeds -- as
happened with Anbinder -- they were under no obligation to do
so. Their duty was instead to cooperate in effectuating the
existing, agreed-upon deal on its own terms. The judge's
determination that Meyers had committed a breach of the implied
covenant was grounded in the fact that he had taken an extreme
and unwarranted view of his rights under the contract, and
accordingly had declined to engage with the foundation's efforts
to effectuate the sale and division of proceeds as to which it
had a reasonable expectation. As she made clear in her ruling
on posttrial motions, the judge determined only that "Meyers
breached his duty to resolve the Agreements in good faith
pursuant to their terms."
19
Meyers's other arguments that he did not commit a breach of
the implied covenant are similarly unavailing. While the judge
recognized that the foundation never explicitly demanded that
Meyers sell the shares, the absence of a demand is beside the
point because no such demand was required. Based on her
findings regarding the nature of the contractual relationship
between the parties, to which we defer, the judge determined
correctly that Meyers failed to effectuate the agreements in
good faith when he did not respond in a timely manner to the
foundation's repeated inquiries. See Weiler, supra at 82.
Furthermore, the response that Meyers finally gave on August 21,
2006, via a letter from his personal attorney, does not alter
our analysis. In her post-trial rulings, the judge explicitly
rejected Meyers's contention that the August 21, 2006, letter
established his good faith willingness to perform his
obligations under the agreements. The judge explained, "I did
not, I do not, and I cannot so find." Moreover, she "found
sufficient direct and circumstantial evidence throughout the
record -- including but by no means limited to the parties'
respective demeanors in testifying -- to find a breach by
Meyers."
c. Date of breach. The judge ultimately set the date of
breach at July 31, 2006, stating that July, 2006, "was the 'end
date' pursuant to what the record supports to have been nearly
20
two years of efforts by plaintiffs to achieve sale of the
stock." She awarded the foundation damages equal to the value
of its portion of the shares on that date pursuant to the
formulas set out in the 1998 and 1999 agreements. Meyers argues
that there was no evidentiary basis for this finding. The date
of breach and the reasonable time for performance of a contract,
however, are questions for the trier of fact. See Karen Constr.
Co. v. Lizotte, 396 Mass. 143, 149 (1985); Powers, Inc. v. The
Wayside, Inc., of Falmouth, 343 Mass. 686, 691 (1962).
Furthermore, "an element of uncertainty in the assessment of
damages is not a bar to their recovery . . . . [W]here, as here,
the difficulties in determining damages arise in large part from
[the defendant's conduct], . . . [a] reasonable approximation
will suffice" (quotations and citations omitted). National
Merchandising Corp. v. Leyden, 370 Mass. 425, 430 (1976).
Recognizing that there is often an element of uncertainty
in the assessment of damages, we defer to the trial judge's
finding. July 31, 2006, was three full weeks after Robert
James's final letter on behalf of the foundation prior to the
start of this litigation. Although Robert James's letter was
relatively informal, in keeping with the parties' course of
dealings, it followed nearly two years during which Meyers had
opted not to respond in any form to the foundation's repeated
requests to discuss concluding the agreements. That delay was
21
in sharp contrast to the foundation's experience in dealing with
Anbinder, who responded to Catherine James Paglia's initial
inquiries regarding the effectuation of sale. While the
resolution of the Anbinder agreement involved terms different
from the formulas contained within the 1998 and 1999 written
agreements, it was not clearly erroneous for the judge to apply
those formulas in order to calculate damages.12
Judgment affirmed.
12
Meyers additionally argues that "non-recourse" provisions
in the 1998 and 1999 agreements prevent recovery beyond the
current value of the stocks purchased using the foundation's
money. Because he did not raise this argument at trial,
however, it has been waived. See Central Transp. Inc. v.
Package Printing Co., 429 Mass. 189, 195 (1999), quoting Royal
Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977).