COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

No. 2003-P-1512.

Suffolk County Division.

Thomas B. Blackstone,

Plaintiff-Appellee,

v.

James M. Cashman,

Defendant-Appellant.

ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT DEPARTMENT.

Brief for the Plaintiff-Appellee, Thomas B. Blackstone.

i.

TABLE OF CONTENTS

Statement of the Issues Presented For Review.............................................................................1

Statement of the Case.....................................................................................................................2

Statement of the Facts...................................................................................................................13

Argument

1. The Lower Court Neither Erred As A Matter Of Law Nor Abused Its Discretion In Denying Jamie Cashman's Motions For A Directed Verdict, For Judgment Notwithstanding The Jury's Verdict And For A New Trial...........................24

A. The Trial Judge's Instructions to the Jury On Blackstone's Burden of Proof on His Claim That Jamie Cashman Unlawfully Interfered With His Reasonable Expectation of Further Employment with Cashman Co. Faithfully Reflected The Evidence And Was Correct In All Respects ........................................................................35

B. The Evidence Was Sufficient For the Jury To Find More Probably Than Not That Jamie Cashman Wrongfully Interfered With Blackstone's Reasonable Expectation of Further Employment With Cashman Co. ........................................................................................37

C. There Was No Reason In the Evidence Or in The Law For Judge Kane To Tell The Jury that Black-stone Must Prove That A “Constructive Discharge” Had Occurred In Order For Him To Recover .................................................................................................38

D. The Damage Award Adequately Reflects The Harm Caused Blackstone By Jamie ashman's Conduct ...............................................................................................................40

E. There Was No Abuse Of Discretion By The Trial Judge In Making the Rulings on Evidence Which He Did ...............................................................................................................41

ii.

2. This Appeal by Cashman Is Frivolous........................................................43

Conclusion......................................................................................................................................45

Statutory and Rule Addendum................................................................................................. post

iii.

TABLE OF AUTHORITIES

Cases

Adcom Prods., Inc. v. Konica Bus. Machs. USA, Inc., 41 Mass. App. Ct. 101, 104(1996).........................................................................................................27;28;32

Allen v. Batchelder ,17 Mass. App. Ct. 453, 458(1984)..........................................43

Avery v. Steele , 414 Mass. 450, 455(1993).............................................................43

Birbiglia v. Saint Vincent Hospital, Inc ., 427 Mass. 80(1998)............................24

Boothby v. Texon, Inc. , 414 Mass. 468, 487 (1993)..............................................37

Campbell v. Thornton , 368 Mass. 528, 535(1975)................................................25

Chemawa Country Golf, Inc. v. Wnuk , 9 Mass. App. Ct. 506(1980)...................28

Commonwealth v. Richardson , 423 Mass. 180, 187(1996)...................................41

Commonwealth v. Errington , 390 Mass. 875, 882(1984)......................................41

Corsetti v. Stone Co. , 396 Mass. 1, 21 (1985)........................................................25

D'Annolfo v. Stoneham Housing Authy. , 375 Mass. 650(1978).....................24;25

Delfino v. Torosian , 354 Mass. 395, 399(1968)....................................................25

Evans v. Multicon Construction Corp. , 6 Mass. App. Ct. 291, 295(1978)............26

Gram v. Liberty Mutual Ins. Co. , 384 Mass. 659(1981) .......................................37

Griffin v. General Motors, Inc. , 380 Mass. 362(1980) ...............................34-35;41

Katz v. Savitsky , 10 Mass. App. Ct. 792, 798(1980)...............................................44

Kurker v. Hill , 44 Mass. App. Ct. 184, 191(1998)........................................27;28;32

Lataille v. Ponte , 754 F.2d 33,37(1st Cir.1985).......................................................42

iv.

Magaw v. Massachusetts Bay Transp. Authy ., 21 Mass. App. Ct. 129, 132 (1985)....... 25

Mailhiot v. Liberty Bank & Trust Co. , 24 Mass. App. Ct. 525, 527(1987)............27

Maillet v. ATF-Davidson Co. , 407 Mass. 185, 188(1990)......................................41

McNamee v. Jenkins , 52 Mass. App. Ct. 503, 508(2001).......................................27

Melo-Tone Vending, Inc. v. Sherry, Inc. , 39 Mass. App. Ct. 315, 316(1995).....28;32;39

Nicholas v. Lewis Furniture Co. , 292 Mass. 500, 507(1937)................................26

O'Shaughnessey v. Besse , 7 Mass. App. Ct. 727, 728(1979)..................................25

Owen v. Williams , 322 Mass. 356, 362(1948)........................................................28

Pemberton v. Boas , 13 Mass. App. Ct. 1015, 1018-1019(1982).......................35;41

Poirier v. Plymouth , 374 Mass. 206, 212(1978)....................................................24

Polak v. Whitney , 21 Mass. App. Ct. 349, 351 (1985)..........................................25

Powers v. Leno , 24 Mass. App. Ct. 381, 384-385(1987).......................................28

Rombola v. Cosindas , 351 Mass. 382, 384(1966).................................................34

Roddy v. McNulty Ins. Agency, Inc. v. A.A. Proctor and Co. , 16 Mass. App. Ct. 525, 530(1983)..................................................................................................................25

Salter v. Leventhal , 337 Mass. 679, 697 (1958)....................................................26

Service Publications, Inc. v. Goverman , 396 Mass. 567(1986)...........................24

Simblest v. Maynard , 427 F.2d 1, 4(2nd Cir.1970)................................................25

Suffolk Construction Company, Inc. v. Lanco Scaffolding Co. Inc ., 47 Mass. App. Ct. 726, 731(1999)..................................................................................................................24

v.

Torre v. Harris-Seybold Co. , 9 Mass. App. Ct. 660(1980).....................................26

United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 815-817(1990).........28;32;39

Van Alstyne v. Whalen , 15 Mass. App. Ct. 340, 349-350(1983)............................25

VMS Realty Investments, Ltd. v. Keezer , 34 Mass. App. Ct. 119, 130(1993)........43

Weber v. Community Teamwork, Inc. , 434 Mass. 761(2001)................................37

Statutes and Other Authorities .

Mass. R. Civ. P. 50.............................................................................................................. passim

Mass. R. Civ. P. 59.............................................................................................................. passim

Mass. R. App. P. 25...................................................................................................44

G.L.c. 231B, Section 4.................................................................................................9

Restatement (Second) of Torts , Section 766(1977)..................................................27

Restatement (Second) of Torts , Section 766B(1977)...............................................29

Restatement (Second) of Torts , Section 767(1977).......................................32-33;39

Liacos, Handbook of Massachusetts Evidence , Section 4.4.6 at p. 164(7th ed. 1999)......41

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW .

1. Did the trial judge's instructions to the Jury on Blackstone's burden of proof on his claim that Jamie Cashman had unlawfully interfered with his reasonable expectation of further employment with J.M. Cashman Inc. faithfully reflect the evidence and the applicable law?

2. Was the evidence sufficient for the jury to find more probably than not that Jamie Cashman had wrongfully interfered with Blackstone's reasonable expectation of further employment with J.M. Cashman Inc.?

3. Was there any reason in the evidence or in the law for Judge Kane to tell the jury that Blackstone must prove that a “constructive discharge” had occurred in order for him to recover?

4. Does the ultimate damage award to Blackstone provide any reason in the law to reverse this judgment?

5. Were the trial judge's rulings on evidence an abuse of discretion?

6. Is this appeal by Jamie Cashman frivolous?

STATEMENT OF THE CASE .

On June 2, 1998, the plaintiff-appellee Thomas B. Blackstone (“Blackstone”) brought this civil action against the defendant-appellant James M. Cashman(“Cash-man”)seeking damages for the economic losses he sustained in the wake of Cashman's threat to beat Blackstone's head in with a baseball bat or shoot him between the eyes(A.i-iv;1-6). As Blackstone alleged, on or about June 4, 1995, he was a seven-year employee of J.M. Cashman, Inc.(“the Company”), working as its Chief Financial Officer and Vice President in its main office in Quincy, Massachu-setts(A.1-2). Cashman was one of two brothers who owned but did not run the Company and he was also one of its officers and directors(A.1-2).

Blackstone alleged that on June 4, 1995, Cashman stated to the Company's General Manager that he was going to beat Blackstone's head in with a baseball bat or shoot him between the eyes(A.2). When he made this threat, Cashman was in close proximity to the Company's main office where Blackstone was working(A.2). The Company's General Manager, concerned for Blackstone's personal safety, immediately sent him home(A.2). The next day, Blackstone was informed of Cashman's threat and “did not return to work at the Company again...out of a rea-sonable fear for his personal safety at the hands of Cashman, and instead worked for the Company at home for a brief period....[and] stopped working for the Company altogether shortly after Cashman made the threat”(A.2).

Blackstone further claimed that when Cashman made the threat, he (Blackstone) had a contractual right to con-tinued employment with the Company as well as a reason-able expectation that his employment would continue well in excess of the period set forth in any contract with the Company(A. 2-3). Alleging that Cashman was aware of such contractual arrangements together with his expectations about future employment with the Company beyond the contracted-for time period, Blackstone claimed that Cashnman's threat was made with the intent to have Blackstone fear for his personal safety and thereby drive him out of the Company(A.2-3).

In view of Blackstone's position as Chief Financial Officer and the length of his tenure with the Company (seven years), the Company recognized him as an im-portant member of the management team; and the Company had expressed an intention to continue his employ for the foreseeable future, with substantial compensation and substantial bonuses(A.3). But for Cashman's threat which drove him out of the Company, Blackstone alleged that he “would still be doing work for the Company receiving significant compensation including substantial bonuses” (A.3). In fact, he alleged that since being driven out of the Company, he has suffered substantial economic loss as his compensation is substantially less than he would have received if he had stayed with the Company(A.3).

Upon these allegations, Blackstone claimed relief in two counts(A.4-5). In Count I, he alleged that Cashman knew about his contractual relations with the Company and made the threat with the intentional and unlawful purpose of driving him out of the Company thereby interfering with those contractual relations “by improper means and without justification”(A.4). In Count II, it was alleged that Cashman was also aware of Blackstone's advantageous economic relations with the Company and made the threat with the intentional and unlawful purpose of driving him out of the Company thereby interfering with those advantageous relations “by improper means and without justification”(A.5). He demanded a jury trial on all issues(A.6).

Cashman's answer denied all of the relevant allega-tions of Blackstone's complaint and he expressly denied having made the threat itself or that Blackstone was put in reasonable fear of his personal safety as a result of the threat(A.iv;7-11). In affirmative defenses, Cashman claimed inter alia that he committed any acts or omis-sions in good faith as an officer and director of the Company and that such conduct was privileged in any event (A.10-11).

With the pleadings in this posture and after some discovery had taken place, the matter came on for trial in the Superior Court Department before Kane, J., and a jury on June 6, 2001(A.v;12-103;Tr.I:1-28). Before a jury was empaneled, the trial judge took up Cashman's motion to file summary judgment papers late as well as motions in limine filed by both parties(A.v;22-103). In his motions in limine , Cashman sought to exclude from evi-dence any of his statements to the Company's General Manager (Mr. David Ferrari) as legally insufficient to constitute threats and because they could not legally amount to an act of interference with Blackstone's per-formance of his job(A.25-39). He also sought to exclude from the trial any reference to a separate lawsuit which he had brought against Blackstone (and which had been dismissed)(A.41-42); and he wanted the further exclusion of any proof of his alleged prior misconduct(A.64-69).

Finally, Cashman sought the exclusion of any evidence that Blackstone suffered a loss of employment compensa-tion as a result of his alleged threats(A.43-63). As he argued, Blackstone's amended employment contract with the Company expired on July 1, 1995, less than one month after the alleged threat was made(A.44;48-51). That agreement, as amended, provided Blackstone with a lump sum severance payment of six months salary plus bonuses in the event Blackstone's employment extended beyond June 30, 1995, and was then terminated(A.48-51).

Moreover, on August 4, 1995, just a week after he finally left the Company, Blackstone signed a so-called “Settlement Agreement” with the Company whereby he received a taxable amount of $40,000 in full settlement of his claims for salary and severance pay under the aforesaid amended employment agreement; and he received an additional $60,000 on a non-taxable basis for wrongful termination, emotional distress, defamation and other claims against the Company arising out of his termina-tion(A.44;55-56). Cashman thus argued that Blackstone had failed to show a loss of any employment benefits as a result of the his threats and Blackstone's proffer of employment loss damages should therefore be excluded (A.45-46).

Besides opposing all of these motions in limine by Cashman, Blackstone filed his own motion in limine (A.v;70-72;76-103). He sought the exclusion from evidence of all reference to the “Settlement Agreement” he reached with the Company after Cashman had made his threats against him because it was irrelevant to any issue in this lawsuit against Cashman and because it could confuse and mislead the jury(A.70-72). Specifically, Blackstone contended that the amount of money he received under the Settlement Agreement ($100,000) was about the same amount to which he would have been entitled in salary and bonuses under the amended employment contract upon term-ination if Cashman had never made the threats(A.71). Moreover, that Settlement Agreement expressly reserved Blackstone's right to bring this civil action against Cashman to collect damages for Cashman's ( not the Com-pany's) wrongful conduct(A.60;71). In these circum-stances, Blackstone argued that any reference to his Settlement Agreement with the Company would distract and confuse the jury in assessing the scope of Cashman's distinct, individual responsibility for the economic losses Blackstone sustained(A.71-72).

In his Opposition to Cashman's motion in limine on this issue of the proof of economic loss resulting from the threat, Blackstone expanded on his argument to keep the Settlement Agreement away from the jury(A.85-86). He suggested that the trial judge wait until the jury returns a verdict before deciding whether the money paid Blackstone by the Company under the Settlement Agreement should be deducted from the jury's damage award, if any, against Cashman since if the settlement amount given Blackstone by the Company exceeded what he was otherwise entitled to under his amended employment contract, it would be the kind of financial benefit which should be deducted from the jury's award as the contribution of a joint tortfeasor within G.L.c. 231B, Section 4(A.84-85).

Challenging Cashman's assertion that he suffered no economic loss as the result of Cashman's threats, Black-stone argued that he

expects to establish (for example, based on [Mr.] Ferrari's testimony) that, but for Cashman having forced Blackstone out of the Company, Ferrari would have continued to employ Blackstone there up to the present time, on a full-time basis for an extended period beyond the date when Blackstone actually left the Company, and then part-time--work that Blackstone could have performed while working elsewhere—-up to the present.

(A.85).

During colloquy with the trial judge on all of these competing motions, Blackstone's counsel indicated his willingness to waive any claims under Count I of his complaint (for the intentional interference with contract rights) in return for a ruling by the trial court which prevented Cashman from adducing any evidence of the Settlement Agreement between Blackstone and the Company (Tr.I:13-15). After further colloquy and in view of Blackstone's willingness to proceed only on Count II's claim that Cashman's threats had injured Blackstone's future economic interests and advantageous relations with the Company, the trial judge ruled that introducing the Settlement Agreement would only confuse and distract the jury(Tr.II:20-22;III:3-6;62-66). Instead, Judge Kane decided that he would take the $60,000 severance pay portion of that Settlement Agreement and subtract it from any award the jury may give Blackstone for his pro-spective economic harm flowing from Cashman's threats (Tr.III:4-5;64-65).

Judge Kane also denied Cashman's motion to file late his summary judgment papers which sought to exclude from evidence via motions in limine any of his statements to the Company's General Manager (Mr. David Ferrari) as legally insufficient to constitute threats and because they could not legally amount to an act of interference with Blackstone's performance of his job(Tr.I:17). However, he allowed Cashman's motion in limine to exclude from the trial any reference to a separate lawsuit which he had brought against Blackstone(Tr.I:23).

With these parameters for the introduction of evi-dence having been established, a five-day jury trial ensued on Count II of Blackstone's complaint seeking damages from Cashman for his wrongful interference with Blackstone's future economic interests and advantageous relations with the Company(A.104-123;Tr.II:54-VI:17).

The Jury returned with a verdict upon special ques-ions(A.v;124-128;Tr.VI:12-16). It found from all the evidence that Blackstone and the Company expected to continue their employment relationship after June 30, 1995, the date that Blackstone's contract formally ended; that Cashman knew about this expectation by the Company and by Blackstone; that Cashman intentionally and improperly interfered with Blackstone's prospective employment; and that such wrongful interference proximately caused Blackstone damages in the form of lost income in the amount of $150,000(A.124-125;Tr.VI:12-14).

The Jury also found that Blackstone had failed to mitigate his damages after leaving the Company on July 28, 1995, and that, if he had done so, he could have earned $63,000(A.126;Tr.VI:15). It also determined from all the evidence that Blackstone lost no money from not being employed by the Company on a part-time basis after July 28, 1995, and that, in any event, Cashman had not proven that there were opportunities for part-time employment available to Blackstone in locations as con-venient to him as the Company(A.127;Tr.VI:15-16).

The trial court then deducted from the jury's award of $150,000 the jury's further finding of mitigation damages of $63,000 and, consistent with his earlier ruling, he deducted another $60,000 from this award representing the $60,000 severance pay portion of the Settlement Agreement(A.v;Tr.VI:16-17). A judgment in the amount of $27,000 on the jury's verdict in favor of Blackstone accordingly entered on September 18, 2001 (A.v).

Following Judge Kane's denial of all of Cashman's post-trial motions, Cashman has now prosecuted this appeal(A.v-vi;129-167;168-172).

STATEMENT OF THE FACTS .

In support of his claim under Count II that Cashman had wrongfully interfered with Blackstone's future economic interests and advantageous relations with the Company, Blackstone first adduced the testimony of David Ferrari, the Company's Chief Executive Officer(Tr.II: 78-113;III:14-77). With particular relevance to the issues immediate to this appeal, Ferrari testified that he was hired by the Company to be its CEO in April or May of 1995 when the Cashman Brothers (Jamie Cashman and Jay Cashman) decided to wind down the Company after a dispute between them about how the company was to be run (Tr.II:80-84). He had total authority to hire, fire, promote, and change pay(Tr.II:86).

When Ferrari assumed his responsibilities, Blackstone was the Company's Chief Financial Officer(Tr.II:87). He interacted with Blackstone all the time at the Company's main office in Quincy and he had a very high opinion of Blackstone as an employee and of his value to the Company (Tr.II: 89-90;92-93). In fact, Ferrari thought so much of Blackstone's worth to the Company's operation that he was able to testify that when Blackstone's employment with the Company ended on July 28, 1995, Ferrari definitely would have sought his continued employment(Tr.II:93-94).

As he testified, I had no intention of terminating Mr. Blackstone. I would have kept him on for the entire wind-down period and then probably would have gone to some sort of a part-time basis. It would not have been a full time job for the entire time. It would have been part-time afterwards.

(Tr.II:94).

As far as his own duties as CEO for the Company were concerned, Ferrari described himself as a “caretaker” while its operations winded down consistent with a stipulation between the Cashman Brothers(Tr.II:91). The brothers were the only stockholders; Jay Cashman took a more active part in the Company's day-to-day operations and was “very helpful” to Ferrari in answering any questions he had while Jamie Cashman's involvement in the Company was “virtually none”(Tr.II:90-91;III:26). How-ever, Jamie Cashman expressed to Ferrari on numerous occasions that he thought Blackstone favored his brother Jay Cashman over him and that Blackstone as the Company's CFO “was not providing information or the same level of information to him, Jamie, as he had been to Jay and that he was putting things in a bad light on the books to the detriment of Jamie”(TR.II:94).

On the morning of Monday, June 5, 1995, Ferrari was traveling to a meeting at the State Street Bank in his car when he took a phone call from Jamie Cashman (Tr.II:94-95). He was “highly agitated” and speaking very fast and, according to Ferrari, in a state of high anxiety(Tr.II:96). Consistent with a prior agreement between the Cashman Brothers, each brother was to receive a check on the first of each month during the wind-down period and he had not received his check(Tr.II:96).

Jamie Cashman then told Ferrari that

he knew that Tom Blackstone was holding up the checks and that Tom Blackstone was responsible for his not getting the check and he was highly agitated. ....He said he was going to go bash Mr. Blackstone's head in with a bat or shoot him between the eyes or put a bullet between his eyes.

(Tr.II:96-97;III:28). According to Ferrari, Cashman made this threat “a number of times;” and when Ferrari asked him if he really meant to threaten Blackstone's life like this, Cashman replied that “absolutely he did”(Tr.II:97). Ferrari then asked him again if he really meant this threat, and Cashman “said yes, he did”(Tr.II:97).

Ferrari told Cashman that he would look into the matter as soon as he returned to the office because he didn't know for a fact that the checks had not been sent out(Tr.II:97). As he saw it, the checks could have been sent out on the preceding Thursday and were still in the mail by early Monday morning(TR.II:97). After his one-hour meeting at State Street Bank, Ferrari called the Company's attorney and relayed to him the substance of this phone conversation(Tr.II:98-99). Upon returning to the Company's office, he and the attorney mapped out a strategy about addressing this threat(Tr.II:98-99). The first thing they decided to do was to send Blackstone home(Tr.II:99). When Blackstone asked why he was being sent home, Ferrari told him he would explain later (Tr.II:99). Blackstone then left the office (Tr.I:99).

Later that same day, Ferrari called Blackstone at home and told him about Cashman's threats against his life(Tr.II:100). When Blackstone came into the office the next day, he and Ferrari discussed implementing some safeguards in order to protect Blackstone in the office, e.g., changing his location in the office, installing protective glass, electric locks, panic buttons etc. (Tr.II:100;103-104). However, it was eventually decided that Blackstone could not work safely at the Company's office and he returned home to work for the Company there, faxing and e-mailing his work from home until he eventually left the Company on July 28, 1995 (TR.II:100-101). He never again returned to the Company's offices (Tr.II:100;104).

With Blackstone gone, Ferrari had to hire another chief financial officer who worked full-time for the Company for the next year and then part-time thereafter (Tr.II:105-108). In this respect, Ferrari once again testified that but for Cashman's threats which forced Blackstone to leave the Company on July 28, 1995, he “absolutely” would have preferred to have kept Blackstone as the Company's CFO on a full-time basis for at least another year, paying him $150,000, and on a part-time basis thereafter(Tr.II:108-110;112;III:55;69). In fact, Ferrari stated that he would have continued to employ Blackstone on a part-time basis right up to the present time(2001)(Tr.II:111;III:22-23).

On cross-examination, Ferrari testified that he took Cashman's threats seriously because he did not know Jamie Cashman that well and did not know what “was going to happen”(Tr.III:38). As he explained, he knew that Cashman had a condo nearby in Boston and “any reasonable person could surmise that if someone threatens somebody in that manner that there's going to be something as a result of that”(Tr.III:39;42). Indeed, in the wake of his telephone call with Cashman, Ferrari “though that [Cashman attacking Blackstone] could happen, yes, and I wanted to prevent it....I wanted to err on the side of caution” (Tr.III:48;49;53).

Thomas B. Blackstone next testified in his own behalf that by the time he started working for the Company as Controller in 1988, he had over nine years of accounting experience(Tr.III:80). He was named the Company's Chief Financial Officer in April of 1995(Tr.III:83-84). During his tenure with the Company, he and Jamie Cashman had a number of disagreements: in 1992, for example, Cashman claimed that Blackstone was not sending him financial statements, a charge that was not true and one which resulted in Blackstone having to send Cashman the material through his [Cashman's] attorneys via certified mail(T.III:93-94). He saw Cashman in the Company's office at various times but did not generally interact with him (Tr.III:94-95).

As a general matter and as the Company's CFO, Blackstone aligned himself with Jay Cashman who seemed more interested in continuing the success of the Company (Tr.III:153;166). As he put it,

We had a number of obligations that had to be refinanced. And there was numerous opportunities to do it, but it required both brothers to act together to make it happen. And Jamie Cashman refused to do it.

(Tr.III:166).

At around 8:00 A.M. on the morning of June 5, 1995, Cashman called him at the Company's office in Quincy and he was “[a]bsolutely out of his mind, irate”(Tr.III:98).

Cashman was looking for five particular checks and Blackstone said he did not have them(Tr.III:98-99). Cashman swore at Blackstone and told him he was going to call Ferrari(Tr.III:99). Later that day, Ferrari told Blackstone to go home and when he asked for an explanation, Ferrari said he would call him later with the details(Tr.III:100). Blackstone took some work with him and went home(Tr.III:100).

The next day, Blackstone returned to the office and Ferrari told him of Cashman's threats to kill him(Tr.III: 101-102). Blackstone immediately left for his home and continued to work from there until he left the Company on July 28, 1995(Tr.III:102-103). He rejected any suggestion that he return to the Company's office because he “didn't feel safe there”(Tr.III:103-104). He testified that Cash-man's threats on his life caused him to leave the Company. As he stated,

I was very concerned at the time that he might come out and try to finish me off. He knew a lot of people. I didn't know whether he would do it or somebody else would do it or, I just couldn't tell and I'd seen him act and had heard things about how he had acted way out of line many times before, and I just wasn't sure what he was capable of. And my wife was seven months pregnant and I just was very, very concerned that there might be a problem...[and] I just wasn't going to take any chances.

(Tr.III:107)(emphasis supplied).

Blackstone testified that he had seen Cashman in a fistfight at a bar during a Company Christmas party Tr.III:107-108). He also knew from several sources about fistfights he had with his brother Jay Cashman (Tr.III: 109-111). This information colored his decision to leave the Company rather than work with the fear that Cashman might sometime attack him(Tr.III:107-111). As Blackstone stated, Cashman's “violence and the lack of self control...give rise to something like that,” despite any security measures which could be employed(Tr.III:111-113).

As for his continued employment with the Company but for Cashman's threats, Blackstone testified that he would have accepted Ferrari's offer of full-time employment after his contract expired on June 30, 1995, and he would have accepted the $150,000 compensation package iden-tified by Ferrari earlier in his own testimony(Tr.III: 120). He also would have accepted part-time employment with the Company at the hourly rate and for the time period identified by Ferrari(Tr.III:121).

Blackstone then called Jamie Cashman as a witness and he testified that on the morning of June 5, 1995, he called Blackstone to complain about not receiving his shareholder distribution check on time(TR.IV:40-41). He thought that Blackstone's failure to provide the check to him was a violation of his responsibilities as CFO(Tr.IV:41). During this conversation with Blackstone, Cashman admitted that he formed an opinion that he wanted Blackstone's employment contract (which would expire on June 30, 1995) “to be over”(Tr.IV:42-43). He and his lawyers thought “that Tom Blackstone shouldn't be in his, in the position he was in”(TR.IV:44).

Cashman remembers threatening Blackstone's life during his subsequent phone conversation with Ferrari that same morning(Tr.IV:50). However, after talking with his attorney later that day, he also remembered calling Ferrari and apologizing for his remarks, telling Ferrari that he really intended to do no harm to Blackstone (Tr.IV:53-54). On June 8, 1995, he signed a letter drafted by attorneys apologizing once again for his threats against Blackstone's life(TR.IV:55-60). After eliciting some testimony concerning a fistfight between Cashman and his brother Jay Cashman, Blackstone rested (Tr.IV:60-63;87).

Following the denial of Cashman's motion for a directed verdict, Cashman in his defense adduced the testimony of his attorney and then his own testimony(Tr. IV:104-143;V:14-55). His version of the phone conver-sation with Blackstone was that he said nothing and hung up on Blackstone when he supposedly refused to send him his checks(Tr,IV:139). As for his threats against Black-stone's life he made to Ferrari in their phone conversa-tion, Cashman now remembered telling Ferrari that he was “going to go down and shoot Tom Blackstone and it's going to be your fault”(Tr.IV:142). Yet on cross examination, he denied even this new version of the conversation, saying he really did not remember what he had said(Tr.V:24).

Finally, Cashman admitted that as early as 1990 and through to 1994, he came to the conclusion that Black-stone had been helping Jay Cashman misappropriate or steal monies from the Company for their own benefit(Tr.V:27-29). Accordingly, during this same time period of 1990-1994, long before he voiced to Ferrari his threats to kill Blackstone, he wanted Blackstone out of the Company (Tr.V:28-29;32).

ARGUMENT .

1. The Lower Court Neither Erred As A Matter Of Law Nor Abused Its Discretion In Denying Jamie Cashman's Motions For A Directed Verdict , For Judgment Notwithstanding The Jury's Verdict And For A New Trial .

In deciding Cashman's motion for a directed verdict and for a judgment in his favor notwithstanding the jury's verdict, this Court will apply the same standard. Birbiglia v. Saint Vincent Hospital, Inc ., 427 Mass. 80, 83(1998). D'Annolfo v. Stoneham Housing Authy. , 375 Mass. 650, 657(1978). The weight of the evidence is not implicated and Cashman's motions will be denied if “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of”

Blackstone. Service Publications, Inc. v. Goverman , 396 Mass. 567, 571(1986) quoting Poirier v. Plymouth , 374 Mass. 206, 212(1978). Suffolk Construction Company, Inc. v. Lanco Scaffolding Co. Inc ., 47 Mass. App. Ct. 726, 731(1999).

If any such combination of facts and circumstances favorable to Blackstone could be found from all of the evidence adduced before the jury, it is immaterial how many other combinations could have been found which would have led to a conclusion adverse to him. Campbell v. Thornton , 368 Mass. 528, 535(1975). Magaw v. Massachu-setts Bay Transp. Authy ., 21 Mass. App. Ct. 129, 132 (1985). Polak v. Whitney , 21 Mass. App. Ct. 349, 351 (1985).

Thus the motion should not be allowed simply because, as Cashman argues, a reasonable jury might have found in his favor. Instead, his motion should be allowed only when “there can be but one conclusion as to the verdict that reasonable men could have reached.” O'Shaughnessey v. Besse , 7 Mass. App. Ct. 727, 728(1979) quoting Sim-blest v. Maynard , 427 F.2d 1, 4(2nd Cir.1970).

Employing this analysis to the evidence, the credibility of witnesses which the jury heard is not material and this Court will not substitute its judgment about the operative facts for that of the jury. Corsetti v. Stone Co. , 396 Mass. 1, 21 (1985). D'Annolfo , 375 Mass. at 657. Roddy v. McNulty Ins. Agency, Inc. v. A.A. Proctor and Co. , 16 Mass. App. Ct. 525, 530(1983).

Whether a new trial will be allowed is a matter which lies in the sound discretion of the trial judge. Delfino v. Torosian , 354 Mass. 395, 399(1968). Van Alstyne v. Whalen , 15 Mass. App. Ct. 340, 349-350(1983) and cases cited. An abuse of discretion will be found only when this Court can say with substantial certainty that a reasonably conscientious judge faced with the same situ-ation would have concluded that prejudice had occurred, that it might have affected the verdict, or that upon a survey of th entire case a miscarriage of justice has resulted. Torre v. Harris-Seybold Co. , 9 Mass. App. Ct. 660, 663-664(1980). See Nicholas v. Lewis Furniture Co. , 292 Mass. 500, 507(1937). In this regard, the trial court is generally in the best position to determine the effect of the alleged impropriety on the minds of the jurors and whether it impugned the verdict in any way. Salter v. Leventhal , 337 Mass. 679, 697 (1958). Evans v. Multicon Construction Corp. , 6 Mass. App. Ct. 291, 295(1978).

Given this standard of review, Blackstone submits that Judge Kane neither erred as a matter of law nor abused his discretion in denying Cashman's motions for a directed verdict, for a judgment in his favor not-withstanding the jury's verdict and for a new trial. All of the evidence adduced by Blackstone in support of Count II of his complaint permitted the jury to find that (1) he had a business relationship with the Company for his economic benefit with the prospect of future economic benefit; (2) Cashman knew of this relationship; (3) Cashman interfered with this relationship by the im-proper means of making threats on Blackstone's life; and (4) Blackstone lost his economic benefits directly as a result of Cashman's conduct. Kurker v. Hill , 44 Mass. App. Ct. 184, 191(1998). Adcom Prods., Inc. v. Konica Bus. Machs. USA, Inc. , 41 Mass. App. Ct. 101, 104(1996). Because all of this unrebutted evidence provided a coherent factual foundation for the jury to find that Cashman's threats on Blackstone's life had interfered with his present and prospective advantageous economic relationship with the Company and had caused him economic loss as a result, the trial judge properly denied all of Cashman's post-trial motions. This Court should accord-ingly affirm the judgment below in all respects.

The law protects a party's expectations in an already existing contract by making actionable a person's inten-tional interference therewith. Mailhiot v. Liberty Bank & Trust Co. , 24 Mass. App. Ct. 525, 527(1987). Restate-ment (Second) of Torts , Section 766(1977). It also pro-tects in the same manner a person's reasonable expecta-tions in his present and future advantageous relations, ongoing business relations with others and even nego-tiations falling short of an enforceable contract. See McNamee v. Jenkins , 52 Mass. App. Ct. 503, 508(2001); Chemawa Country Golf, Inc. v. Wnuk , 9 Mass. App. Ct. 506, 509-510 & n. 3(1980).

In order to prevail on his claim under Count II that Cashman wrongfully interfered with his advantageous economic relations with the Company, Blackstone was bound to adduce sufficient evidence which would allow a jury to find more probably than not that (1) he had an advan-tageous employment relationship with the Company, one which provided him present economic benefit and promised him future economic benefit;(2) Cashman was aware of this relationship; (3) Cashman interfered with that advanta-geous employment relationship through improper motive or by improper means; and (4) Cashman's conduct directly caused Blackstone to lose his advantageous employment relationship and the economic benefits flowing therefrom. United Truck Leasing Corp. v. Geltman , 406 Mass. 811, 815-817(1990). Kurker v. Hill, supra . Adcom Prods., Inc. v. Konica Bus. Machs. USA, Inc. , supra. Melo-Tone Vending, Inc. v. Sherry, Inc. , 39 Mass. App. Ct. 315, 316(1995). See Powers v. Leno , 24 Mass. App. Ct. 381, 384-385(1987)quoting Owen v. Williams , 322 Mass. 356, 362(1948)(a “probable future business relationship from which there is a reasonable expectancy of financial benefit is enough”). See also Restatement (Second) of Torts, supra , Section 766B, comment c .

In the first place, there was ample evidence adduced by Blackstone of his advantageous employment relationship with the Company, one which provided him present economic benefit and promised him future economic benefit. The Company's CEO, David Ferrari, testified that he inter-acted with Blackstone all the time at the Company's main office in Quincy and he had a very high opinion of Blackstone as an employee and of his value to the Company (Tr.II: 89-90;92-93). In fact, Ferrari thought so much of Blackstone's worth to the Company's operation and as a member of the management team that when Blackstone's employment with the Company ended on July 28, 1995, he definitely would have sought his continued employment (Tr.II:93-94). As he testified,

I had no intention of terminating Mr. Blackstone. I would have kept him on for the entire wind-down period and then probably would have gone to some sort of a part-time basis. It would not have been a full time job for the entire time. It would have been part-time afterwards.

(Tr.II:94).

Ferrari also testified that but for Cashman's threats which forced Blackstone to leave the Company on July 28, 1995, he “absolutely” would have preferred to have kept Blackstone as the Company's CFO on a full-time basis for at least another year, paying him $150,000, and on a part-time basis thereafter(Tr.II:108-110;112;III: 55;69). In fact, Ferrari stated that he would have con-tinued to employ Blackstone on a part-time basis right up to the present time(2001)(Tr.II:111;III:22-23).

Blackstone further testified that he would have accepted Ferrari's offer of full-time employment after his contract expired on June 30, 1995, and he would have accepted the $150,000 compensation package identified by Ferrari in his testimony(Tr.III: 120). He also would have accepted part-time employment with the Company at the hourly rate and for the time period identified by Ferrari(Tr.III:121). All of this proof established the first prong of Blackstone's burden of proof.

In the second place, Blackstone's proof left no doubt for the jury that Cashman was aware of this economically beneficial relationship between Blackstone and the Company. Cashman admitted that he knew about Blackstone's ongoing relationship with the Company of over seven years and he admitted to forming the opinion when he made the threats that he wanted Blackstone's employment contract (which would expire soon)“to be over”(Tr.IV:42-43). He and his lawyers thought “that Tom Blackstone shouldn't be in his, in the position he was in”(Tr.IV:44).

Moreover, Cashman further admitted that as early as 1990 and through to 1994, he came to the conclusion that Blackstone had been helping Jay Cashman misappropriate or steal monies from the Company for their own benefit (Tr.V:27-29). Accordingly, during this time period of 1990-1994, long before he voiced to Ferrari his threats to kill Blackstone, he wanted Blackstone out of the Company(Tr.V:28-29;32). The jury therefore could have reasonably inferred from all this evidence that Cashman was well aware of Blackstone's continuing beneficial relationship with the Company and the fact that this relationship would probably continue to Blackstone's economic benefit after his formal employment contract expired on June 30, 1995.

In the third place, there was overwhelming proof that Cashman intentionally interfered with Blackstone's advantageous employment relationship with the Company by improper means when he repeatedly threatened Blackstone's life on the morning of June 5, 1995. This third prong of Blackstone's burden proof did not require him to show that Cashman had both an improper motive and used improper means. United Truck Leasing Corp. v. Geltman , 406 Mass. at 816-817. Kurker v. Hill , 44 Mass. App. Ct. at 191. Either one was sufficient. Id . Cashman's concession that he wanted Blackstone out of the Company as soon as possible, that he wanted his contract “to be over” and that he thought without foundation that Blackstone was stealing money from the Company with Jay Cashman was the foundation for his ill will and animus toward Blackstone. See Adcom Prods., Inc. v. Konica Bus. Machs. USA, Inc. , 41 Mass. App. Ct. at 105.

That Cashman expressed this malevolent intent to drive Blackstone from the Company in the form of threats to kill him meets every requirement under this third prong that the defendant accomplish the interference by

“improper means.” See Melo-Tone Vending, Inc. v. Sherry, Inc. , 39 Mass. App. Ct. at 319(abetting a breach of contract). Indeed, the Restatement (Second) of Torts, supra , Section 767, expressly adopted for guidance on the issue by this Court in United Truck Leasing Corp. v. Geltman , 406 Mass. at 817 n.10 and Melo-Tone Vending, Inc., supra, provides at comment c , in pertinent part:

Threats of physical violence were the means employed in the very early instances of liability for intentional interference with economic relations; and interference by physical violence is ordinarily improper. The clearest example of this is the case in which the violence exerted or threatened is violence exerted to the person sought to be induced and is actionable by him ....And the actor is subject to liability whether the violence is actually exerted or is threatened imminently or in the future.

Id . (emphasis supplied). Thus it makes no difference for purposes of liability under the decisional law of this Court or the Restatement whether Cashman made the threat to Blackstone directly or to Ferrari who then conveyed the threat to Blackstone who was forced to make decisions about his own personal safety. Id .

In the fourth place, Blackstone's proof established that he sustained damages as the result of Cashman's threats on his life. Ferrari testified that he “abso-lutely” would have preferred to have kept Blackstone as the Company's CFO on a full-time basis for at least another year, paying him $150,000, and on a part-time basis thereafter until 2001(Tr.II:108-110;112;III:55;69) . Blackstone also testified that he would have accepted Ferrari's offer of full-time employment after his contract expired on June 30, 1995, and he would have accepted the $150,000 compensation package identified by Ferrari in his testimony (Tr.III:120). He also would have accepted part-time employment with the Company at the hourly rate and for the time period identified by Ferrari(Tr.III:121). None of this economic benefit occur-red because he was forced to leave the Company as the result of Cashman's threats on his life.

All of this and other proof justified the Jury's answers to special questions which found that Cashman's wrongful interference proximately caused Blackstone damages in the form of lost income in the amount of $150,000 (but that Blackstone could have mitigated his damages in the amount $63,000)(A.124-126;Tr.VI:12-15). In calculating damages, the Jury was not obligated to reach mathematically precise results. Rombola v. Cosindas , 351 Mass. 382, 384(1966). All that was required was a reasonable approximation of the damages caused Blackstone by Cashman's conduct and if it comes within the range of the parties' proof, this Court will not interfere with what is primarily a jury question. Griffin v. General Motors, Inc. , 380 Mass. 362, 371 (1980). Pemberton v. Boas , 13 Mass. App. Ct. 1015, 1018-1019(1982). Since Blackstone's proof provided a solid foundation in the evidence for the jury's damage award, there is no reason to disturb the judgment below.

For all of these reasons, then, Blackstone's evidence met each one of the elements of his burden of proof in establishing Cashman's liability for the intentional interference with his advantageous economic relations under Count II of his complaint. The verdict was there-fore justified by all the evidence which the jury heard and was correct as a matter of law. Judge Kane accordingly did not err as a matter of law or otherwise abuse his discretion in denying all of Cashman's post-trial motions.

On appeal, Cashman makes various arguments which Blackstone addresses herewith:

A. The Trial Judge's Instructions to the Jury On Blackstone's Burden of Proof on His Claim That Jamie Cashman Unlawfully Interfered With His Reasonable Expectation of Further Employment with Cashman Co. Faithfully Reflected The Evidence And Was Correct In All Respects .

Cashman seeks to impose upon Blackstone the standard of proof of “actual malice” and “unprivileged” conduct applicable exclusively to employer-employee disputes in proving his claim that Cashman interfered with his advantageous economic relations with the Company (Appel-lant's Brief at 21-28). However, there was no evidence adduced that Cashman was Blackstone's “employer' or that Blackstone was Cashman's “employee” at any relevant time.

On the contrary, the evidence showed that Ferrari was hired by the Company to be its CEO in April or May of 1995 when the Cashman Brothers (Jamie Cashman and Jay Cashman) decided to wind down the Company after a dispute between them about how the company was to be run (Tr.II:80-84). Ferrari was CEO and had total authority to hire, fire, promote, and change pay(Tr.II:86). In addition, as Blackstone testified without contradiction, he did not even report to Jay Cashman after early 1994 (Tr.III:82). Rather, beginning in early April of 1994, he reported directly to Mr. Thomas Daley, Ferrari's predecessor, and then to Ferrari and only Ferrari in performing his day-to-day duties for the Company until he left the Company in July of 1995(Tr.III:83).

At no time did Blackstone consider Jamie Cashman his employer and at no time did he ever report to him for work purposes. In fact, while he saw Jamie Cashman in the Company's office at various times, Blackstone did not generally interact with him; and he thought that Cashman was not acting in the best interests of the Company in any event(Tr.III: 94-95;166). As Ferrari testified, Jamie Cashman's involvement in the Company was “virtually none” (Tr.II:90-91;III:26).

Accordingly, there was no basis in the evidence for the jury to infer that Cashman ever conducted himself as Blackstone's “employer” before or after he threatened his life and the trial judge was right to refuse to instruct the jury on the issues of “malice” or “privilege” as required by such employer-employee cases as Weber v. Community Teamwork, Inc. , 434 Mass. 761, 781-782(2001), Boothby v. Texon, Inc. , 414 Mass. 468, 487 (1993) or Gram v. Liberty Mutual Ins. Co. , 384 Mass. 659, 663 (1981).

B. The Evidence Was Sufficient For the Jury To Find More Probably Than Not That Jamie Cashman Wrongfully Interfered With Blackstone's Reasonable Expectation of Further Employment With Cashman Co.

For the reasons already adverted to, Blackstone's evidence did not need to show either “malice” or the lack of “privilege” in Cashman's conduct in order to recover.

(Appellant's Brief at 25-28). Instead, in the circum-stances of this case, Blackstone's evidence as presented was sufficient for the jury to find more probably than not that Cashman wrongfully interfered with Blackstone's reasonable expectation of further employment with the Company.

C. There Was No Reason In the Evidence Or in The Law For Judge Kane To Tell The Jury That Blackstone Must Prove That A “Constructive Discharge” Had Occurred In Order For Him To Recover .

As Judge Kane repeatedly ruled throughout this trial, this was not a “constructive discharge” case because Blackstone never alleged that he was “discharged” from the Company. Instead, he alleged that threats upon his life by Cashman—- not the Company–-drove him out of the Company and wrongfully interfered with his reasonable expectations of further employment there, a distinct tort implicating different standards of proof(A.2-4). None of the cases cited by Cashman in his Brief (at 29-34) changes Blackstone's allegations or the proof which he offered in support of them, evidence which the jury chose to believe.

Nor was Blackstone's proof of Cashman's threat on his life insufficient meet his burden of proof in this regard.(Appellant's Brief at 34-35) As adverted to above, the Restatement (Second) of Torts, supra , Section 767, expressly adopted for guidance on the issue by this Court in United Truck Leasing Corp. v. Geltman , 406 Mass. at 817 n.10 and Melo-Tone Vending, Inc., supra, provides at comment c , in pertinent part:

Threats of physical violence were the means employed in the very early instances of liability for intentional interference with economic relations; and interference by physical violence is ordinarily improper. The clearest example of this is the case in which the violence exerted or threatened is violence exerted to the person sought to be induced and is actionable by him ....And the actor is subject to liability whether the violence is actually exerted or is threatened imminently or in the future.

Id .(emphasis supplied). None of the cases cited by Cashman (at pages 34–35 of his Brief) is apposite.

Moreover, these same provisions of the Restatement are persuasive precedent that, contrary to Cashman's transparent contentions at pages 35-39 of his Brief, it makes no difference for purposes of liability under the decisional law of this Court or the Restatement whether Cashman made the death threat directly to Blackstone or to Ferrari who then conveyed Cashman's death threat to Blackstone who was forced to make decisions about his own personal safety instead of his economic benefit. Id .

D. The Damage Award Adequately Reflects The Harm Caused Blackstone By Jamie Cashman's Conduct.

The trial court deducted from the jury's award of $150,000 the jury's further finding of mitigation damages of $63,000 and, as promised, deducted another $60,000 from this award representing the $60,000 severance pay portion of the Settlement Agreement(A.v;Tr.VI:16-17). A judgment in the amount of $27,000 on the jury's verdict in favor of Blackstone accordingly entered on September 18, 2001(A.v).

For the reasons already identified herein, the jury's award should stand because all that was required was a reasonable approximation of the damages caused Blackstone by Cashman's conduct and if it comes within the range of the parties' proof, this Court will not interfere with what is primarily a jury question. Griffin v. General Motors, Inc. , supra . Pemberton v. Boas , supra . Since Blackstone's proof provided a solid foundation in the evidence for the jury's damage award, there is no reason to disturb the judgment below and Cashman's argument otherwise at pages 40-43 of his Brief has no merit.

E. There Was No Abuse Of Discretion By The Trial Judge In Making the Rulings on Evidence Which He Did.

While as a general matter proof of a person's prior bad acts may not be admitted to prove a person's char-acter or that he acted in a similar fashion in the present case, Maillet v. ATF-Davidson Co. , 407 Mass. 185, 188(1990), proof of Cashman's belligerent behavior at other times was admissible here only to show and explain Blackstone's state of mind in reacting to Cashman's threats and how it related to the reasonableness of his decision to leave the Company. Commonwealth v. Richard-son , 423 Mass. 180, 187(1996). Commonwealth v. Errington , 390 Mass. 875, 882(1984). Liacos, Handbook of Massa-chusetts Evidence , Section 4.4.6 at p. 164(7th ed. 1999) See also Lataille v. Ponte , 754 F.2d 33,37(1st Cir.1985).

Indeed, Judge Kane instructed the Jury on this precise issue before admitting this matter into evidence; and he specifically told the Jury not to draw any adverse inference from this testimony concerning Cashman and to limit such proof to how it affected Blackstone's decision to leave the Company(Tr.III:108-109). There was no abuse of discretion in these circumstances.

Finally, the trial judge did not abuse his discretion in keeping the Settlement Agreement from the Jury because introducing that Agreement would have only confused and distracted it in its deliberations(Tr.II:20-22;III:3-6;62-66). There was no prejudice to Cashman in any event since Judge Kane decided that he would take the $60,000 severance pay portion of that Settlement Agreement and subtract it from any award the jury eventually gave Blackstone for his prospective economic harm flowing from Cashman's threats(A.v;Tr.III:4-5;64-65).

2. This Appeal By Cashman Is Frivolous.

In the course of his appellate Brief of 49 pages, Cashman has ignored the applicable law, changed the facts to suit his own purposes and unsuccessfully attempted to sanitize his conduct, behavior which the jury justifiably found to be tortious. His studied indifference to the record and to the decisional law of this Court bespeaks an effort on his part to make Blackstone pay in appellate attorney's fees whatever he was awarded below by the Jury.

Where an appeal such as this raises no serious questions of fact or of law and where the Brief fails to address in any way the controlling facts which the Jury heard or the controlling law of this Court which ratifies the judgment, there can be reasonable expectation of reversal and it is frivolous. Avery v. Steele , 414 Mass. 450, 455(1993). VMS Realty Investments, Ltd. v. Keezer , 34 Mass. App. Ct. 119, 130(1993). Allen v. Batchelder ,17 Mass. App. Ct. 453, 458(1984).

Because of this frivolous appeal by Cashman, this Court should exercise its discretion under Appeals Court Rule 1:28 and affirm summarily the judgment rendered below. In addition, pursuant to Mass. R. App. P. 25, this Court should award Blackstone damages in the form of his appellate attorney's fees together with double costs. Katz v. Savitsky , 10 Mass. App. Ct. 792, 798(1980).

Conclusion .

For all of the reasons identified herein, this Court should affirm the judgment below in all respects or provide Blackstone with such other relief as is fair and just in the circumstances of this case, including the award of the appellate attorney's fees and costs which he has incurred in responding to this appeal.

Respectfully submitted,