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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).