817 F.3d 809
1st Cir.2016Background
- Samuel Berkowitz (plaintiff) sued his daughter Bonnie for breach of fiduciary duty, alleging she forged his signature to transfer securities and improperly sold three Chelsea, MA properties placed in a trust (Bonnie = trustee).
- Samuel, a Florida resident, filed this diversity action in District of Massachusetts in March 2011; jury returned a $540,770.50 verdict for Samuel.
- Bonnie moved (multiple times) for dismissal, summary judgment, and judgment as a matter of law; the District Court denied each; she renewed JMOL and sought a new trial post-verdict (denied).
- Key contested evidentiary matters: Samuel’s trial testimony that he was familiar with Bonnie’s handwriting and his opinion that a signature was forged; Bonnie argued this contradicted deposition testimony and violated Fed. R. Evid. 901(b)(2).
- Bonnie also contended judicial estoppel barred Samuel’s securities claim because he did not list them in divorce financial disclosures; District Court rejected that defense based partly on counsel testimony that nondisclosure was inadvertent/advised.
- Samuel cross-appealed the prejudgment interest award, arguing Woodward required interest from the date of the fiduciary breach rather than from the complaint filing date under Mass. G.L. c.231 §6B.
Issues
| Issue | Plaintiff's Argument (Berkowitz) | Defendant's Argument (Bonnie) | Held |
|---|---|---|---|
| Sufficiency of evidence re: forgery (JMOL) | Samuel relied on his testimony identifying forged signature; jury could credit him | Bonnie: father’s testimony was implausible/contradicted deposition, so no reasonable juror could find forgery | Court: may not reweigh credibility on JMOL; denial of JMOL affirmed |
| Admissibility of handwriting opinion (Fed. R. Evid. 901(b)(2)) | Samuel: familiar with Bonnie’s handwriting from correspondence and prescriptions, admissible | Bonnie: familiarity was acquired for litigation, so Rule 901(b)(2) exclusion required | Court: testimony admissible; record showed pre‑litigation familiarity; no error |
| Judicial estoppel for undisclosed securities | Samuel: nondisclosure in divorce was inadvertent/relied on counsel advice; not estopped | Bonnie: Samuel’s prior inconsistent position in probate bars claim here | Court: District Court did not abuse discretion; relied on counsel’s testimony; judicial estoppel inapplicable |
| Prejudgment interest accrual date/rate | Samuel: Woodward entitles fiduciary‑breach plaintiff to interest from date of breach (here 2000), not filing date; seeks 12% from breach | Bonnie/District Court: §6B provides 12% from filing; Woodward does not mandate statutory rate from breach in all fiduciary cases | Court: Woodward does not require 12% from breach in every fiduciary case; Samuel didn’t seek make‑whole interest at trial; award under §6B from filing date affirmed |
Key Cases Cited
- Malone v. Lockheed Martin Corp., 610 F.3d 16 (1st Cir. 2010) (appellate review of JMOL cannot reweigh witness credibility)
- Weisgram v. Marley Co., 528 U.S. 440 (U.S. 2000) (judgment as a matter of law may be entered if erroneously admitted evidence excised leaves insufficient proof)
- Rockwood v. SKF USA Inc., 687 F.3d 1 (1st Cir. 2012) (limits on creating factual disputes by contradicting prior sworn testimony at summary judgment)
- Fine v. Ryan Int’l Airlines, 305 F.3d 746 (7th Cir. 2002) (party may contradict deposition testimony at trial; prior statements may be used for impeachment)
- New Hampshire v. Maine, 532 U.S. 742 (U.S. 2001) (judicial estoppel may be resisted when prior position was inadvertent or mistaken)
- The Woodward School for Girls, Inc. v. City of Quincy, 13 N.E.3d 579 (Mass. 2014) (in trust fiduciary breach, prejudgment interest may be part of make‑whole damages and accrue from date of breach)
- United States v. Scott, 270 F.3d 30 (1st Cir. 2001) (Rule 901(b)(2) applies to non‑expert handwriting familiarity testimony)