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Berkowitz v. Berkowitz

United States Court of Appeals, First Circuit

March 25, 2016

SAMUEL BERKOWITZ, Plaintiff-Appellee/Cross-Appellant,
v.
BONNIE BERKOWITZ, Defendant-Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]

Albert P. Zabin, with whom Duane Morris LLP was on brief, for appellant/cross-appellee.

Gerald A. Phelps, for appellee/cross-appellant.

Before Kayatta, Stahl, and Barron, Circuit Judges.

BARRON, CIRCUIT JUDGE

These cross-appeals are brought by a father and his daughter. They follow a jury verdict in a lawsuit for breach of fiduciary duty that the father brought against the daughter. A key issue at trial concerned whether the daughter forged the father's signature to effectuate the transfer of certain of the father's assets. The daughter contends on appeal that the District Court erred in denying her motion for judgment as a matter of law, in part due to problems with the father's testimony concerning the daughter's alleged forgery. The father argues in his cross-appeal that the District Court erred in awarding him prejudgment interest from the date that he filed this lawsuit rather than from the date the daughter breached her fiduciary duty. We affirm the District Court in all respects.

I.

The father in this intra-family dispute is Samuel Berkowitz.[1] The daughter is Bonnie Berkowitz.[2] The assets at issue are properties and securities that Samuel held that were transferred to Bonnie and to Samuel's then-wife, Barbara.

In 1999, Samuel -- who was sick at the time -- transferred his interests in three Chelsea, Massachusetts properties to Bonnie and Barbara. He claims that he had put the properties into trust -- with Bonnie as the trustee -- so that, in the case of Samuel's death, the properties could benefit Barbara and, after her death, Bonnie and Samuel's son. But, Samuel contends, Bonnie and Barbara sold the properties prior to his death and kept the proceeds from the sales.

In addition, Samuel contends that, around the time that he transferred his interests in the Chelsea properties, Bonnie transferred about $1 million worth of securities owned by Samuel and Barbara into an account controlled by Bonnie and Barbara. Samuel claims that Bonnie forged his signature to effect the transfer.

On the basis of these allegations, Samuel, who is a Florida resident, filed this diversity suit against his daughter, a Massachusetts resident, in the District of Massachusetts in March of 2011. He contended that Bonnie -- to whom he had given a power of attorney in 1998 -- breached her fiduciary duty to him by improperly disposing of the Chelsea properties prior to his death and by effectuating the transfer of the securities through the forging of his signature. His suit sought damages for the losses resulting from the fiduciary breach.

Bonnie moved to dismiss, but the District Court denied the motion. After discovery, Bonnie moved for summary judgment. The District Court denied that motion, too. And then, at the close of Samuel's case, Bonnie moved for judgment as a matter of law. The District Court denied that motion as well.

The jury ultimately returned a verdict in Samuel's favor and awarded him $540, 770.50 in damages. Bonnie then made a renewed motion for judgment as a matter of law and also moved for a new trial.

In her motions, Bonnie argued, among other things, that no reasonable juror could have found for Samuel because his testimony regarding Bonnie's forgery of the disputed signature was "plainly false." She also argued that the doctrine of judicial estoppel barred Samuel's claim with respect to the securities because he had not listed them in the ...


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