MICHAEL GERHARDT & Another v. ROBERT S. BURR & Others.

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

25-P-523

MICHAEL GERHARDT & another 1

vs.

ROBERT S. BURR & others. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Michael Gerhardt and Lauren Seaverns,

worked for a real estate development company called College

Street Partners LLC, which was owned and managed by the

defendant, Robert Burr. In 2009, Burr entered into written

"participation agreements" with Gerhardt and Seaverns that gave

them economic interests in a construction project referred to as

"140 Commonwealth Avenue-Danvers," which they helped to develop.

In 2011, Burr entered into participation agreements with

Gerhardt and Seaverns that gave them economic interests in

1 Lauren Seaverns.
2College Street Partners LLC; 140 Commonwealth Avenue-
Danvers, LLC; and Hawthorne Hill Development LLC.
another construction project, "Hawthorne Hill." Gerhardt and

Seaverns left their employment with College Street Partners in

2013, and Burr stopped making distributions to them under the

participation agreements shortly thereafter.

In 2021, the plaintiffs filed suit in Superior Court

against Burr, College Street Partners, and two other limited

liability companies associated with the two construction

projects. After the parties cross-moved for summary judgment, a

judge allowed the plaintiffs' motion for partial summary

judgment as to Burr's liability for breach of contract. 3 The

judge concluded that "it is undisputed that Burr stopped

distributing profits to Gerhardt and Seaverns once their

employment with College Street Partners ended in 2013, Burr's

contractual obligation did not end when Gerhardt and Seaverns

stopped working for College Street, and this claim is not barred

by waiver or estoppel." The matter proceeded to a bench trial

on damages. In his written findings and conclusions, the judge

ordered Burr to pay (1) Gerhardt $1,030,744 in damages plus

prejudgment interest, and (2) Seaverns $575,758 in damages plus

prejudgment interest. The judge denied Burr's "emergency

3 In the event that the judge awarded them partial summary
judgment on their claim for breach of contract, the plaintiffs
waived their claims for breach of a contract formed by
reasonable reliance, quantum meruit, or unjust enrichment. The
judge dismissed defendant College Street Partners' counterclaims
against Gerhardt.

2
motion" for reconsideration of the judge's summary judgment

ruling.

On appeal, Burr 4 contends that the plaintiffs' action should

have been dismissed as time-barred under the six-year statute of

limitations for contract claims. He contends that the judge

erred in granting partial summary judgment as to liability

because Burr's testimony established his estoppel and waiver

defenses and the judge purportedly "ignored" Burr's laches

defense. Burr also contends that, at the damages trial, the

judge misapplied the parol evidence rule, excluded key evidence

about reliance, and miscalculated the plaintiffs' damages and

prejudgment interest. Lastly, Burr claims that the judge erred

by declining to reconsider his summary judgment decision. We

affirm the judge's decisions in all respects.

Discussion. 1. Partial summary judgment. a. Standard of

review. "We review a decision on a motion for summary judgment

de novo." Conservation Comm'n of Norton v. Pesa, 488 Mass. 325,

330 (2021) (Pesa). "Summary judgment is appropriate where there

is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law." Barbetti v.

Stempniewicz, 490 Mass. 98, 107 (2022), quoting Pesa, supra.

See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

4 Because no recovery was awarded against the three
defendant companies, we refer to the appellants as "Burr."

3
b. Statute of limitations. Burr stopped making

distributions to Gerhardt and Seaverns for the two projects in

2013. The plaintiffs filed suit in 2021. General Laws c. 260,

§ 1, provides that the statute of limitations for "[a]ctions

upon contracts under seal" is twenty years. General Laws

c. 260, § 2, provides that the statute of limitations for most

contract actions not "limited by section one" is six years. In

his summary judgment decision, the judge concluded that, because

the participation agreements are sealed instruments, the twenty-

year limitations period in G. L. c. 260, § 1, applies, and the

plaintiffs' action is not time-barred.

Massachusetts is "one of the minority of American

jurisdictions that have carried over significant elements of the

sealed contract doctrine to the Twenty-first Century." Knott v.

Racicot, 442 Mass. 314, 320 (2004). Although some aspects of

the sealed contract doctrine have "eroded" in the Commonwealth,

id., quoting Nalbandian v. Hanson Restaurant & Lounge, Inc., 369

Mass. 150, 155 (1975), the twenty-year statute of limitations

continues to apply to "[a]ctions upon contracts under seal."

G. L. c. 260, § 1. See, e.g., Premier Capital, LLC v. KMZ,

Inc., 464 Mass. 467, 469, 474 (2013); JB Mtge. Co. v. Ring, 90

Mass. App. Ct. 93, 95 (2016).

Burr contends that the participation agreements are not

"contracts under seal" because they do not say so in the

4
"Recitals" section of the agreements. We disagree. Each of the

agreements states that it is "EXECUTED under seal," directly

above the parties' signatures. That statement gives each

agreement the legal effect of a sealed instrument under

G. L. c. 4, § 9A. See Nalbandian, 369 Mass. at 151 n.2;

Lawrence H. Oppenheim Co. v. Bloom, 325 Mass. 301, 302 (1950);

Glendale Coal Co. v. Nesson, 312 Mass. 293, 294 (1942). See

also Knott, 442 Mass. at 319-320, citing G. L. c. 4, § 9A ("Over

time, simply the words 'under seal' or a similar phrase

appearing in a mass-produced, form contract became sufficient to

invest that document with the privileged status of a sealed

instrument"). There is no requirement that the words "under

seal" appear in a section titled "Recitals." In Glendale Coal

Co., supra, the Supreme Judicial Court stated that the words

"Witness hand and seal" before the plaintiff's signature gave

his release "the legal effect of a sealed instrument." In

Boston v. Roxbury Action Program, Inc., 68 Mass. App. Ct. 468,

473 n.10 (2007), we held that the defendant company's statement,

just above its agent's signature, that it "caused this

instrument to be signed and sealed in its name" sufficed "to

create a sealed instrument."

Nor are we persuaded by Burr's argument that the

participation agreements are not sealed instruments because the

page marked "Schedule A" in each agreement does not also state

5
that the agreement is "under seal." As discussed, the governing

statute as construed by the case law requires only a single

statement that an instrument is sealed or executed under seal in

order to give it "the legal effect of a sealed instrument."

G. L. c. 4, § 9A. See Nalbandian, 369 Mass. at 155. This

phrase does not need to be repeated each time the parties

manifest their acceptance of the contract's terms through their

signatures or initials. Further, as the judge ruled, each

Schedule A is part of the participation agreement and has no

independent meaning or legal effect. Accordingly, the schedules

are not themselves "instruments" to be analyzed separately from

the rest of the participation agreements for the purpose of

determining whether the twenty-year statute of limitations under

G. L. c. 260, § 1, applies. See G. L. c. 4, § 9A.

c. Estoppel, waiver, and laches. The judge concluded

that, because the participation agreements are unambiguous when

considered as a whole, their meanings are a question of law that

he could decide at summary judgment. He ruled that, under the

agreements' plain language, the plaintiffs' rights to economic

interests in the construction projects continued after they

stopped working for College Street Partners. Burr therefore had

a continuing obligation to pay them a percentage of the cash

distributions that he paid himself from these projects, and each

6
of his failures to pay their shares of the distributions was a

breach of the agreements.

In opposing the plaintiffs' summary judgment motion, Burr

argued that the participation agreements are ambiguous and,

therefore, the judge should consider extrinsic evidence

purportedly showing that "the parties never intended the

Participation Agreements to continue beyond termination of

Plaintiffs' employment and the end of College Street." That

extrinsic evidence was primarily Burr's own testimony, that

(1) "at the inception of the Participation Agreements, he and

the Plaintiffs discussed the fact that the benefits under those

Agreements would not continue post-employment," and (2) "[t]he

parties' conversations in anticipation of College Street closing

down also confirm that they all understood that Plaintiffs would

not continue to be paid." Having concluded that the

participation agreements are unambiguous and fully integrated,

the judge ruled that this extrinsic evidence regarding the

parties' intentions could not be considered in determining the

meaning of the agreements. See General Convention of the New

Jerusalem in the U.S. of Am., Inc. v. MacKenzie, 449 Mass. 832,

835-836 (2007); Eastern Holding Corp. v. Congress Fin. Corp.

(New England), 74 Mass. App. Ct. 737, 741-742 (2009). Burr does

not directly challenge that ruling on appeal.

7
Instead, Burr argues that summary judgment in favor of the

plaintiffs was improper because there were disputed issues of

fact regarding his estoppel, waiver, and laches defenses. These

arguments rely primarily on the same testimony that Burr sought

to introduce as extrinsic evidence of the parties' intentions.

We consider each defense in turn.

The judge correctly ruled that summary judgment in the

plaintiffs' favor was not precluded by Burr's claim that the

plaintiffs are equitably estopped from enforcing their rights

under the participation agreements. The principle of equitable

estoppel functions "to prevent one from benefitting from his own

wrongdoing and to avoid injustice." Renovator's Supply, Inc. v.

Sovereign Bank, 72 Mass. App. Ct. 419, 426 (2008), quoting

Harrington v. Fall River Hous. Auth., 27 Mass. App. Ct. 301, 307

(1989). To establish estoppel as a defense, a party must show

"(1) '[a] representation or conduct amounting to a
representation intended to induce a course of conduct on
the part of the person to whom the representation is made';
(2) '[a]n act or omission resulting from the
representation, whether actual or by conduct, by the person
to whom the representation is made'; and (3) '[d]etriment
to [the reliant] person as a consequence of the act or
omission.'" (Emphasis omitted.)

Renovator's Supply, Inc., supra at 426-427, quoting Turnpike

Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 123 (1992).

Burr contends that his deposition testimony established that, at

a "wind down farewell luncheon" in 2013 as College Street

8
Partners was about to close, the plaintiffs confirmed their

"understanding that [their] end of employment also meant [the]

end of participation distributions." Asked how the plaintiffs

confirmed this understanding, Burr testified that "it would have

gone something like we're going to have to go find another job

because we're not going to get any more Participation Agreements

because College Street is no longer our employer." 5 Even viewed

in the light most favorable to Burr, this testimony fails to

create a genuine dispute that the plaintiffs made a

"misrepresentation of past or present facts" suggesting that

Burr's interpretation of the participation agreements was the

correct one, Boylston Dev. Group, Inc. v. 22 Boylston St. Corp.,

412 Mass. 531, 542 n.17 (1992), or that they did so with the

"inten[t] to induce a course of conduct" by Burr, Renovator's

Supply, Inc., supra at 426, quoting Turnpike Motors, Inc. 413

Mass. at 123. Nor would Burr's reliance on such a

representation have been reasonable, since he was a signatory to

the participation agreements and, as the judge found, the plain

5 The plaintiffs provided different accounts of this lunch
conversation in their deposition testimony. For example,
Gerhardt testified that Burr told him that "[Burr's]
interpretation of the agreements is that they required
[Gerhardt's] ongoing employment," and Gerhardt remembered
"objecting to this and saying that was not how the agreement was
written." Because the judge entered summary judgment in the
plaintiffs' favor, we consider the record in the light most
favorable to Burr. See, e.g., Gattineri v. Wynn MA, LLC, 493
Mass. 13, 15 (2023).

9
language of the agreements provided that the plaintiffs' rights

to interests in the construction projects continued after they

left College Street Partners. See Thibbitts v. Crowley, 405

Mass. 222, 229 (1989), quoting Schiller v. Metropolitan Life

Ins. Co., 295 Mass. 169, 175 (1936) ("A party who has knowledge

of the facts cannot rely upon estoppel because he has not been

misled to his harm"). It is immaterial whether Burr

misunderstood the contract's terms, since "[o]ne who signs a

writing that is designed to serve as a legal document . . . is

presumed to know its contents." Hull v. Attleboro Sav. Bank, 33

Mass. App. Ct. 18, 24 (1992). See Haufler v. Zotos, 446 Mass.

489, 501 (2006), quoting Wilkisius v. Sheehan, 258 Mass. 240,

243 (1927) ("The general rule is, that, in the absence of fraud,

one who signs a written agreement is bound by its terms whether

he reads and understands it or not").

The judge also correctly rejected Burr's waiver defense.

"Under the common law of contracts, waiver is the 'intentional

relinquishment of a known right.'" BourgeoisWhite, LLP v.

Sterling Lion, LLC, 91 Mass. App. Ct. 114, 119 (2017), quoting

Dynamic Mach. Works, Inc. v. Machine & Elec. Consultants, Inc.,

444 Mass. 768, 771 (2005). Waiver may be an "express and

affirmative act" or "inferred by a party's conduct," as long as

that conduct is "consistent with and indicative of an intent to

relinquish voluntarily a particular right" and "no other

10
reasonable explanation of [the] conduct is possible" (quotation

and citation omitted). KACT, Inc. v. Rubin, 62 Mass. App. Ct.

689, 695 (2004). Where waiver is not explicit, one must show

proof of "clear, decisive and unequivocal conduct" indicating an

intent to waive the terms of the parties' contract. Id.,

quoting Glynn v. Gloucester, 9 Mass. App. Ct. 454, 462 (1980).

Burr contends that he had a valid waiver defense based not only

on the plaintiffs' failure to promptly file suit after he

stopped making distributions to them in 2013, but also on his

testimony about what they said at the farewell luncheon. In

neither case, however, was the evidence sufficient to create a

disputed issue of material fact precluding summary judgment on

the plaintiffs' claim for breach of contract. As the judge

explained, a party's failure to immediately exercise its

contractual rights does not constitute a waiver of the

counterparty's breach of contract. Dana v. Wildey Sav. Bank,

294 Mass. 462, 467 (1936). Similarly, the plaintiffs' purported

statements at the luncheon are insufficient to allow a

reasonable fact finder to infer the "intentional relinquishment

of a known right." See Dynamic Mach. Works, Inc., supra,

quoting Doujotos v. Leventhal, 271 Mass. 280, 282 (1930).

As for laches, although Burr criticizes the judge for

"ignoring" this defense, Burr did not discuss laches at all in

his opposition to the plaintiffs' summary judgment motion and

11
mentioned the doctrine only briefly, with no citation to

authority, in a footnote in the memorandum supporting his cross

motion. "An issue not raised or argued below may not be argued

for the first time on appeal." Carey v. New England Organ Bank,

446 Mass. 270, 285 (2006), quoting Century Fire & Marine Ins.

Corp. v. Bank of New England-Bristol County, N.A., 405 Mass.

420, 421 n.2 (1989). For the same reason, we decline to address

Burr's contention, neither raised below nor developed in his

briefs here, that his deposition testimony showed an "agreement"

that the plaintiffs "were not entitled to further

distributions." See Kellogg v. Board of Registration in Med.,

461 Mass. 1001, 1003 (2011); Gaffney v. Contributory Retirement

Appeal Bd., 423 Mass. 1, 6 n.4 (1996); Mass. R. A. P.

16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

2. Evidentiary rulings at the damages trial. Burr

contends that the judge erred in excluding "key evidence of

[Burr's] affirmative defenses at trial." We review a trial

judge's evidentiary rulings for an abuse of discretion, see

Commonwealth v. Kozubal, 488 Mass. 575, 589 (2021), cert.

denied, 142 S. Ct. 2723 (2022), and, if we find error, we

reverse only if that "error has injuriously affected the

substantial rights of the parties." David v. Kelly, 100 Mass.

App. Ct. 443, 451 (2021), quoting Coady v. Wellfleet Marine

Corp., 62 Mass. App. Ct. 237, 244 (2004).

12
Our review is hampered by Burr's failure to identify

specific evidentiary rulings at trial to which he objected.

Instead, Burr points to the judge's ruling in his decision on

partial summary judgment, to exclude consideration of extrinsic

evidence of the parties' intentions because the participation

agreements are unambiguous and fully integrated. Burr argues

that the judge's "wrongful" exclusion of extrinsic evidence was

the basis for the judge's rejection of Burr's estoppel, waiver,

and laches defenses at summary judgment, and that "the court

carried that error into the damages trial." This argument fails

for several reasons. First, as discussed supra, the judge

rejected Burr's estoppel and waiver defenses because they were

insufficient to create a genuine issue of material fact, not

because of the parol evidence rule. Second, Burr did not raise

a laches defense in his opposition to the plaintiffs' summary

judgment motion. Third, Burr fails to cite any portion of the

trial record where the judge purportedly made such an

evidentiary error. A claim unsupported by citation to the

record does not rise to the level of appellate argument and is

waived. See Kellogg, 461 Mass. at 1003; Mass. R. A. P.

16 (a) (9). 6

6 To the extent Burr suggests that "he was not permitted to
offer live testimony," that assertion is belied by his extensive
testimony in the trial transcript. Burr does not identify where
in the record the judge purportedly erred in limiting the scope

13
Burr also objects to the judge's ruling allowing the

plaintiffs' motion to strike the second expert report of Burr's

expert, Michael Goldman. The judge excluded this report for two

reasons. First, it was served eleven months after the final

deadline for disclosure of rebuttal expert opinions, and "this

late disclosure unfairly prejudice[d] the Plaintiffs." Second,

the expert's new opinions "would not assist the Court in making

findings as to the amount that Burr must pay to compensate

Plaintiffs for breach of contract." In particular, the judge

found irrelevant the expert's opinion that, had Burr "realized

that the Participation Agreements remained in effect after Burr

terminated Plaintiffs' employment with College Street," he would

have exercised his rights to purchase their interests "for a low

price in early 2014." 7 We discern no abuse of discretion. A

of his testimony. In his reply brief, Burr identifies one
ruling that limited his testimony, but his challenge to that
ruling is waived. See Mass. R. A. P. 16 (c) ("No new issues
shall be raised in the reply brief"); Commonwealth v. Hampton,
64 Mass. App. Ct. 27, 33 n.8 (2005) ("arguments raised for the
first time in a reply brief are waived"). If we did consider
it, we would conclude that the judge did not abuse his
discretion in sustaining the plaintiffs' objection to Burr's
testimony regarding the accuracy of the calculations in the
plaintiffs' supplemental expert report, particularly where the
judge then allowed Burr to testify about the $2 million in
estimated construction costs that he believed were not reflected
in that report.

7 The participation agreements gave Burr the right to buy
out the plaintiffs within one year after their employment
terminated.

14
judge has "broad discretion to admit or exclude 'expert

testimony when the proponent has not given proper notice of

. . . the subject matter of the expert's anticipated

testimony.'" Kace v. Liang, 472 Mass. 630, 637 (2015), quoting

Elias v. Suran, 35 Mass. App. Ct. 7, 10 (1993). In addition, an

opinion based on Burr's subjective belief that the agreements

terminated automatically upon termination of the plaintiffs'

employment is irrelevant where, as the judge determined at

summary judgment, the agreements unambiguously provide to the

contrary. See Eigerman v. Putnam Invs., Inc., 450 Mass. 281,

288 & n.8 (2007) (party's subjective understanding of terms does

not create ambiguity in contract).

3. Calculation of damages and prejudgment interest. Burr

challenges the judge's award of damages on several grounds.

"The measure of damages is a question of law reviewed de novo on

appeal . . . but the amount of damages awarded is a factual

issue reviewed on appeal under an abuse of discretion standard."

Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445

Mass. 411, 424 (2005).

First, Burr contends that the judge erred by not capping

the damages at the buy-out price in 2014. This argument fails

for the same reason as Burr's estoppel and waiver defenses. In

short, as the judge explained, "the plain language of the

Participation Agreements required Burr to keep making such

15
payments after Gerhardt and Seaverns stopped working for Burr's

real estate development company," and it is "beside the point"

that Burr was surprised to learn this and did not exercise his

purchase rights in 2014.

Second, Burr contends that the judge erred by determining

the portion of the plaintiffs' damages for the 140 Commonwealth

Avenue-Danvers project based on gross proceeds, not net sale

proceeds as required by the participation agreements. In

calculating the damages for this project, however, the judge

distinguished between the "total sales price" for the relevant

units and the "net proceeds paid to Burr's entities." While

Burr further argues that the judge should have deferred to his

testimony regarding his calculation of net proceeds based on the

amount of capital he claimed to have contributed to this

project, nothing in the participation agreements required the

judge to accept Burr's testimony. The judge did not abuse his

discretion in determining the net proceeds based on his review

of the relevant financial records, taking into consideration the

analysis of Burr's capital contributions by the plaintiffs'

expert witness. Although Burr asserts that his calculation of

the net proceeds used "the universally accepted methodology for

determining real estate sales profits," he cites no authority

for this proposition and did not offer any expert testimony in

support of his position at trial. See Piemonte v. New Boston

16
Garden Corp., 377 Mass. 719, 733 (1979) (in determining net

asset value, "[t]he judge was not obliged to accept the

[party's] evidence at face value").

Third, Burr argues that the judge erred by failing to

reduce the owner distributions for the Hawthorne Hill project to

account for management fees that Burr could have paid to

himself, but did not. We agree with the judge that Burr's

argument lacks merit. The plain language of the participation

agreements requires Burr to pay the plaintiffs fixed

"participation percentages" of all owner distributions that

Burr, in his capacity as manager of Hawthorne Hill, decides to

pay himself. It is irrelevant whether Burr understood that this

contractual requirement continued after the plaintiffs stopped

working for College Street Partners or that, had he understood

it, he would have sought to reduce the amount he had to pay the

plaintiffs by reducing the amount of owner distributions he paid

to himself (by increasing the management fees charged to

Hawthorne Hill). As the judge noted, it is "elementary that an

unambiguous agreement must be enforced according to its terms,"

Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 706 (1992),

and here the agreements require the plaintiffs to be paid based

on the owner distributions that Burr actually pays himself.

Nor, as we have explained, does the evidence support Burr's

17
assertion that he relied on the plaintiffs' "agreement that they

were no longer participants" in the distributions.

Fourth, the judge did not abuse his discretion in reducing

from $475,000 to $200,000 the asset management fee that Burr

caused Hawthorne Hill to pay South Lake Development LLC (South

Lake), another company that he owned, several years after the

plaintiffs filed this action. The judge found that a payment of

$200,000 was reasonable compensation for the extra consulting

work Burr did in connection with the threatened default of

Hawthorne Hill's tenant, but that the additional $275,000 paid

to South Lake was "an undeclared Ownership Distribution." We

discern no clear error in this finding, given that Hawthorne

Hill paid its law firm $220,000 for what Burr described as

"extensive" legal work related to this same tenant dispute.

Fifth, there is no merit to Burr's claim that the

plaintiffs failed to meet their evidentiary burden with respect

to apportionment of the sale proceeds for the 140 Commonwealth

Avenue-Danvers project. The judge credited the opinion of the

plaintiffs' expert that, as of 2015, the six units owned by the

project represented 34.66 percent of the market value of all

units that Burr's companies owned in the building; and that,

therefore, 34.66 percent of the owner distributions made by the

two companies should be treated as having been made by Burr to

140 Commonwealth Avenue-Danvers. Even though Burr contends that

18
this valuation "should not have been credited" because the

plaintiffs' expert was not qualified in real estate valuation,

he did not offer any alternative valuation in rebuttal.

Lastly, the judge did not err in awarding prejudgment

interest based on the various dates on which Burr breached the

participation agreements. In relevant part, G. L. c. 231, § 6C,

provides that, in a claim for breach of contract, the award of

prejudgment interest runs "from the date of the breach or

demand," but if the date of the breach or demand is not

established, interest accrues "from the date of the commencement

of the action." Establishing the date of breach or demand is a

determination for the trier of fact. Aimtek, Inc. v. Norton

Co., 69 Mass. App. Ct. 660, 668 (2007), citing Deerskin Trading

Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 125 (1986).

Here, the judge determined the dates of each of Burr's breaches

of the participation agreements and ruled that "prejudgment

interest shall be calculated using the dates of breaches and

amounts of damages owed to each Plaintiff as of each breach

date," as shown in a summary table. Because the dates of the

breaches were established, the plaintiffs were entitled to

interest based on those dates, not, as Burr argues, on the date

they filed their complaint. See Berish v. Bornstein, 437 Mass.

252, 274-275 (2002); G. L. c. 231, § 6C.

19
4. Motion for reconsideration. In February 2025, eight

months after the judge allowed the plaintiffs' motion for

partial summary judgment and one week after the judge issued his

written findings on damages and order for entry of judgment, and

final judgment entered, Burr filed an "emergency motion" asking

the judge to "reevaluate" his decision on summary judgment. In

this motion, Burr asked the judge to consider a deposition

errata sheet that showed corrected and additional testimony for

Burr's wife, Kerri Burr, and contended that the "corrections

relate to material facts that could significantly influence the

foundation for the Court's decision on Mr. Burr's estoppel

claim." 8 The judge declined to reconsider his decision.

8 The errata sheet sets forth "corrections" that are, at
times, diametrically opposed to what Kerri Burr initially stated
at her deposition. For example, when asked, "Are there any
other discussions with [Gerhardt] that you recall over the years
about the financial arrangement with your husband," she
initially testified, "No." In her "corrected" testimony, she
states, "Yes. I recall a conversation with Mr. Gerhardt at
Acapulco's restaurant in 2013. Mr. Gerhardt expressed
disappointment that College Street Partners was closing. I
remember him saying that he was particularly disappointed that
he would not be getting a 'piece' of the profits from Hawthorne
Hill." For the reasons discussed herein, the errata sheet was
not part of the summary judgment record considered by the judge,
and we decline to consider Burr's arguments on appeal to the
extent they rely on this "corrected" testimony. See Fidelity
Mgt. & Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 200
(1996), quoting Cullen Enters., Inc. v. Massachusetts Prop. Ins.
Underwriting Ass'n, 399 Mass. 886, 889-890 n.9 (1987) ("In our
review of a motion for summary judgment we are 'confined to an
examination of the materials before the court at the time the
rulings were made'").

20
We review the denial of a motion for reconsideration for an

abuse of discretion. See Audubon Hill S. Condominium Ass'n v.

Community Ass'n Underwriters of Am., Inc., 82 Mass. App. Ct.

461, 470 (2012). The judge acted well within his discretion

here. As he explained, there was "no change of circumstances"

warranting reconsideration of the summary judgment ruling. See

Dartmouth v. Greater New Bedford Regional Vocational Tech. High

Sch. Dist., 461 Mass. 366, 368 n.4 (2012); Audubon Hill S.

Condominium Ass'n, supra. The errata sheet was dated November

2023, and Burr had it in his possession before he filed his

summary judgment motion in January 2024 and his opposition to

the plaintiffs' motion in February 2024. It was therefore not

"newly discovered evidence that could not be discovered through

the exercise of due diligence before the original motion was

filed," as required for a motion for reconsideration under rule

9D of the Rules of the Superior Court (2023). Rather, as the

judge found, Burr waived his right to present this evidence by

21
failing to produce it in his opposition to the plaintiffs'

summary judgment motion. See Commissioner of Revenue v. Comcast

Corp., 453 Mass. 293, 312-313 (2009); Liberty Sq. Dev. Trust v.

Worcester, 441 Mass. 605, 611 (2004).

Judgment affirmed.

Order denying motion for
reconsideration affirmed.

By the Court (Henry, Shin &
Toone, JJ. 9),

Clerk

Entered: April 8, 2026.

9 The panelists are listed in order of seniority.

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