DiStefano v. Stern ( 2000 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-2034
IN RE: JFD ENTERPRISES, INC.,
Debtor.
_____________________
JOSEPH F. DISTEFANO; PATRICIA A. DISTEFANO,
Appellants,
v.
PETER M. STERN; EUGENE B. BERMAN; ROGER A. DIALESSI,
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Stahl, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
G. Eric Brunstad, Jr., with whom Patrick J. Trostle and
Bingham Dana LLP were on brief, for appellants.
Kerry David Strayer, with whom Kamberg, Berman, P.C. was on
brief, for appellee Berman.
Kevin C. Giordano, with whom Keyes and Donnellan, P.C. was
on brief, for appellee Stern.
David J. Martel, with whom Doherty, Wallace, Pillsbury and
Murphy, P.C. was on brief, for appellee Dialessi.
MAY 1, 2000
STAHL, Circuit Judge. Plaintiffs-appellants
Joseph and Patricia DiStefano are shareholders and creditors of
JFD Enterprises, Inc. (“JFD”).1 They appeal a grant of summary
judgment in favor of defendants-appellees Peter Stern, Eugene
Berman and Roger Dialessi (the “appellees”). The DiStefanos
allege that during the course of JFD's reorganization under
Chapter 11 of the Bankruptcy Code, the appellees violated
various fiduciary duties owed to them. These breaches, the
DiStefanos contend, caused them to suffer financial losses on
advances they had extended to JFD and prevented their recovery
on other liens they held against the company's assets. We
affirm.
Background
Prior to the commencement of bankruptcy proceedings,
JFD operated a liquor store under the trade name Century Liquor
Mart (“Century”) in West Springfield, Massachusetts. Joseph
DiStefano managed the business. In February 1989, he personally
1Joseph DiStefano is an unsecured creditor, while Patricia
DiStefano is an undersecured creditor.
-2-
guaranteed about $300,000 of indebtedness owed by JFD to the
Park West Bank and Trust Company (the “Bank”).
Century was a successful operation until about 1990.
After that, its business declined, probably due in large part to
the closure of a nearby bridge and a consequent reduction in
traffic to the shopping center of which the store was a part.
On June 10, 1993, JFD filed a Chapter 11 bankruptcy petition in
the United States Bankruptcy Court for the District of
Massachusetts. As part of the Chapter 11 proceeding, an
Official Unsecured Creditors' Committee (“Committee”) was
appointed. With the bankruptcy court's permission, the
Committee hired Kamberg, Berman, P.C., and appellee Eugene
Berman in particular, as its counsel.
It appears from the record that when JFD filed for
bankruptcy, its indebtedness to the Bank totaled approximately
$275,000. On July 30, 1993, Berman and counsel for the Bank
negotiated a stipulation agreeing that the Bank held an
enforceable first security interest in all of JFD's personal
property and cash. The bankruptcy court approved this
stipulation on August 18, 1993. Subsequently, during the autumn
of 1993, Patricia DiStefano, JFD and the Committee also agreed
that Mrs. DiStefano possessed an enforceable claim against the
JFD estate in the amount of $40,000; that her claim was secured
-3-
by JFD's inventory, proceeds, and accounts receivable; and that
it was junior to the Bank's interests. 2 The bankruptcy court
approved this stipulation on November 17, 1993.
In the meantime, on September 24, 1993, the Committee
had filed a motion to convert the case to a Chapter 7
liquidation. The Committee alleged that JFD had lost $475,000
between August 1990 and May 1993, that it was poorly managed,
and that it faced continued financial losses. On October 12,
perhaps in response to the Committee's efforts, Joseph DiStefano
entered into a stipulation (the “October 12 Stipulation”)
pursuant to which he ceded management responsibility for Century
to Roger Dialessi and the Committee withdrew its conversion
motion. But immediately before this agreement was memorialized
and approved by the bankruptcy court, the Bank filed its own
motion to convert the case to a Chapter 7 action, charging that
the Committee unlawfully had installed new JFD management
without regard to the safeguarding of the Bank's interests. The
Bank also complained that JFD's inventory had declined
2
The stipulation also provided that if Mrs. DiStefano
received less than $25,000 on her claim, she would have a junior
security interest in JFD's liquor license for the difference
between the amount paid and $25,000.
-4-
substantially since the bankruptcy proceeding had commenced,
thus reducing the security of its lien.3
On October 29, 1993, the United States Trustee (“UST”)
objected to the October 12 Stipulation and filed a motion for
the appointment of a Chapter 11 Trustee, claiming that Dialessi
was unlawfully acting as a de facto trustee. On November 10,
1993, however, JFD, the Committee, the Bank, and the UST entered
into a stipulation (the “Appointment Stipulation”) providing
that Dialessi would be appointed as the Chapter 11 Trustee and
limiting his pay to $600 per week for “services rendered in the
operation of the business of the Debtor.” That same day, the
same parties except for the UST entered into another stipulation
that accorded the Bank a perfected, enforceable security
interest in JFD's liquor license. As part of this agreement,
the Bank agreed both to withdraw its motion to convert the
proceedings into a Chapter 7 action and not to seek such a
conversion in the future so long as certain stated conditions
were met. The bankruptcy court approved both stipulations.
3
At around the same time, the Bank froze JFD's account,
which contained about $40,000, and refused to grant Dialessi
check-signing authority on the account. JFD subsequently
brought an adversarial action seeking an order requiring the
Bank to allow access to its account. The Bank relented,
allowing Dialessi access.
-5-
The parties' stipulation notwithstanding, and for
reasons that are not clear, appellee Stern was appointed as
trustee instead of Dialessi.4 Dialessi continued to manage
Century.
On May 31, 1994, Stern, acting as Trustee, moved to
sell Century's personal property, including its liquor license,
for $275,000, including a $20,000 “carve-out” to be paid to the
bankruptcy estate. By this point, however, Century's liquor
license was on a Massachusetts Alcoholic Beverage Control
Commission ("ABCC") payment “delinquent list” pursuant to Mass.
Gen. Laws ch. 138, § 25. That provision states that delinquent
licensees may only make cash purchases from liquor wholesalers.
Moreover, the statute's requirements continue to apply even if
the license is transferred. Thus, the Committee objected to the
asset sale, arguing that the license could only be sold subject
to the bar against purchases made other than for cash. The
court ultimately rejected the proposed sale on the ground that
it would not substantially benefit the estate.
4Citing Berman's deposition testimony, the appellants
suggest that the UST opposed Dialessi's appointment. As noted
above, however, the UST was a party to the Appointment
Stipulation.
-6-
As Century's general manager, Dialessi engaged in
various activities relevant to this appeal. These were
described by the district court as follows:
Dialessi . . . discontinued the use of a
computerized cash register system capable of
monitoring inventory levels. He contends
that such action was prompted by Mr.
DiStefano's failure to record beer and wine
purchases in the system, which he claims
resulted in the system generating inaccurate
inventory reports. Additionally, Dialessi
sold some of Century['s] wine inventory to
another liquor store owner for approximately
$2,000. Although Mr. DiStefano originally
maintained at his deposition that the value
of the wine sold was $25,000, cross
examination revealed that this position was
based on what another employee had allegedly
told him. He later conceded that the value
of the wine sold was approximately $4,000,
which is more consistent with Dialessi's
affidavit, which stated that the liquor was
worth $3,200. Moreover, Dialessi failed to
pay Massachusetts withholding taxes, but
personally resolved all claims by the
government at no expense to JFD. Lastly,
Dialessi, due to JFD's cash shortage, paid
employees out of an account in which
proceeds from JFD's lottery ticket sales
were deposited.
DiStefano v. Stern, 236 B.R. 112, 115 (D. Mass. 1999).
On August 26, 1994, Stern moved to convert the case to
a Chapter 7 proceeding. The court allowed his motion and
appointed Stern as the Chapter 7 Trustee. On December 20, 1994,
Stern sold Century's liquor license for $100,000; he sold JFD's
personal property separately for about $31,000. In June 1995,
-7-
the court ordered the ABCC to approve the license's transfer
free and clear of its delinquent status. Due to the disparity
between the value of the Bank's loan, which, at that point,
exceeded $300,000, and the price for which the JFD assets were
sold, $131,000, Mr. DiStefano was required to pay $50,000 on his
guaranty (pursuant to a settlement with the Bank), and Mrs.
DiStefano failed to recover anything on her undersecured
interest in the JFD estate.
On February 14, 1997, the DiStefanos filed an action
in the Massachusetts Superior Court against Stern, Berman,
Dialessi, the Bank, and the Bank's attorney.5 The DiStefanos
alleged that the appellees behaved negligently in their
stewardship of JFD and breached fiduciary duties owed to them as
shareholders and creditors of JFD.6 On March 11, 1997, Berman
had the case removed to the bankruptcy court as a “core
proceeding” in JFD's bankruptcy case.
Eventually, the appellees moved for summary judgment.
They claimed, inter alia, that the DiStefanos lacked standing to
5The Bank and its counsel subsequently were dropped from the
case.
6
The DiStefanos contended that Stern and Dialessi owed them
fiduciary duties by virtue of their positions as bankruptcy
trustee and Century's manager, respectively, and that Berman
owed such a duty by virtue of his de facto control of JFD during
the Chapter 11 proceedings.
-8-
pursue their claims and that their own behavior did not result
in any harm to the DiStefanos. The bankruptcy court granted
summary judgment to all the appellees on all counts. The court
determined, in pertinent part, that the DiStefanos indeed lacked
standing to bring their claims and that, irrespective of
standing, the DiStefanos would be unable to prove that the
appellees' conduct caused them any damages.
The DiStefanos appealed the bankruptcy court's ruling
to the district court. That court affirmed the grant of summary
judgment, grounding its decision entirely on the DiStefanos'
inability to prove that their losses were caused by the
appellees' conduct. The DiStefanos again appeal.
Discussion
The question whether a genuine issue of material fact
exists, such that a grant of summary judgment must be reversed,
presents a legal issue subject to de novo review. See Desmond
v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir. 1994).
We view the facts in the light most favorable to the nonmoving
party, granting all reasonable inferences in that party's favor.
See Barreto-Rivero v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir.
1999). Even so, summary judgment is appropriate if the
nonmovant's evidence is "merely colorable, or is not
significantly probative." Anderson v. Liberty Lobby, Inc., 477
-9-
U.S. 242, 249-50 (1986) (citations omitted). "The mere
existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff." Id. at 252. We will not “accept the nonmovant's
subjective characterizations of events, unless the underlying
events themselves are revealed.” Simas v. First Citizens' Fed.
Credit Union, 170 F.3d 37 (1st Cir. 1999); see also Liberty
Lobby, 477 U.S. at 256; Santiago v. Canon U.S.A., Inc., 138 F.3d
1, 6 (1st Cir. 1998).
Given these standards, we believe summary judgment in
the appellees' favor was appropriate on the grounds identified
by the district court: an absence of harm attributable to the
appellees' conduct. We explain by discussing separately the two
classes of harm the DiStefanos have identified: (1) losses
relating to JFD's declining value and (2) the legal fees the
DiStefanos purportedly incurred defending an action brought by
the IRS because of Dialessi's failure to withhold employee
income taxes as manager of Century.
I. Losses Associated with the JFD Estate's Declining Value
The DiStefanos assert various arguments against
Dialessi, Berman and Stern, most of which boil down to the
following contentions: (1) the DiStefanos were creditors and
-10-
shareholders of JFD; (2) Dialessi and Stern, who held appointed
positions in JFD's bankruptcy proceedings, and Berman, who acted
as a “de facto” bankruptcy trustee, owed the DiStefanos
fiduciary duties in the latter's capacity as JFD's creditors and
shareholders; (3) each appellee breached his fiduciary duty to
the DiStefanos; (4) as a proximate consequence of these
breaches, JFD lost substantial value before the ultimate sale of
its assets, resulting in the DiStefanos' losses on Mrs.
DiStefano's lien as outlined in the November 17, 1993
stipulation and on Mr. DiStefano's guaranty of JFD's
indebtedness to the Bank. Although the DiStefanos may have
suffered other losses, such as those associated with their
equity interest in JFD -- which was ultimately worthless --
those losses are not here at issue, because the DiStefanos could
only have avoided those losses if the JFD estate had first
satisfied all claims of JFD's general creditors.
The DiStefanos' claims cannot survive summary judgment
because they have failed to adduce adequate evidence of
causation linking their losses to the appellees' conduct. That
is, even if we were to assume arguendo that the appellees each
owed a fiduciary duty to the DiStefanos, that they each breached
that duty, and that JFD's value declined precipitously during
the course of its bankruptcy proceedings, the DiStefanos have
-11-
not submitted enough evidence indicating a causal link between
the breaches and the losses to survive summary judgment.
Correlation alone, here as elsewhere, does not prove causation.
We explain with respect to each allegation made in support of
the DiStefanos' claims.
A. Timing of the Sale
The DiStefanos' principal allegation in support of
their claims relates to the timing of the sale of Century's
assets. As noted above, in May of 1994, Stern filed a motion
seeking approval to sell JFD's business to a third party in
exchange for $275,000. The DiStefanos contend that at the time
of that proposed sale, the Bank's claim was valued at $294,000.
If the sale had proceeded, they argue, the Bank would have
recovered all but $19,000 of its total claim from JFD in
liquidation. At the very least, Mr. DiStefano's exposure under
the loan guaranty would have been far less than the $50,000 for
which he ultimately was held responsible. 7 Berman, however,
7
The DiStefanos also theorize that there was a “likelihood
that other bidders would have offered more, leaving (at most) a
small deficiency for the Bank.” This price increase presumably
would have further reduced the DiStefanos' exposure and might
even have resulted in a surplus that would have inured to the
benefit of an undersecured creditor such as Mrs. DiStefano.
However, Stern's motion specified the $275,000 price and did not
on its face provide for any further bidding process. Even if it
had, we would be unwilling to rely upon speculation that a
higher price would have been reached. “[C]onclusory
allegations, improbable inferences, and unsupported speculation
-12-
objected to the sale. On July 13, 1994, the court held a
hearing on the motion and Berman's objection. The court
ultimately refused to allow the sale. The DiStefanos contend
that Berman's objection to the sale constituted a breach of
fiduciary duty to the estate8 and a proximate cause of their
subsequent losses.
The DiStefanos' argument regarding the aborted sale
falters, however, because the discretion and authority to allow
or disallow the sale lay, of course, not with any of the
appellees, but rather with the court. See, e.g., 28 U.S.C.
§ 157(b)(2)(N). It is true that the court might not have
intervened at all save for Berman's objection. See, e.g., 11
U.S.C. § 363(b)(1) (requiring “notice and a hearing” before sale
of estate property outside the ordinary course of business); id.§ 102(1)(B) (defining “notice and a hearing” in a manner
allowing a sale without any hearing where no party requests
one); In re Crowell, 225 B.R. 334, 335 (Bankr. E.D. Mich. 1997)
. . . are insufficient to establish a genuine dispute of fact.”
Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st
Cir. 1999) (internal quotation marks and citations omitted).
8
Berman, they contend, usurped the trustee's role and thus
owed the estate a fiduciary duty. In opposing the sale, they
argue, Berman breached that duty by elevating the interests of
one particular subset of JFD creditors -- a group of liquor
wholesalers who held claims for unpaid bills -- over the
interests of other creditors.
-13-
(“In the absence of objections to a proposed sale, so long as
there is compliance with the notice and a hearing mandate by the
trustee . . . judicial involvement is not required and approval
by the bankruptcy judge of the sale is unnecessary.”). But
Berman's intervention did not itself doom the asset transfer;
after all, the court could have permitted the sale if it
believed that that course of action was in the estate's best
interest. See Jeremiah v. Richardson, 148 F.3d 17, 24 (1st Cir.
1998). In this case, the court determined that that was not so.
In light of the court's intervening exercise of discretion, even
if Berman's objection constituted a breach of some duty to the
DiStefanos, that breach did not “cause” harm, for it was the
action of the court which doomed the sale.
Nor may the DiStefanos rest their case on the
allegation that the appellees should have effected an earlier
sale of JFD's assets to insure that those assets would cover the
Bank's secured loan and the interests of other creditors as
well. It is not our role to second-guess a trustee's
determination not to sell an estate's assets at a given point in
time so long as that determination reflects the trustee's
business judgment:
The Bankruptcy Code designates the trustee
as the representative of the estate. The
trustee has ample discretion to administer
the estate, including authority to conduct
-14-
public or private sales of estate property.
Courts have much discretion on whether to
approve proposed sales, but the trustee's
business judgment is subject to great
judicial deference.
In re WPRV-TV, Inc., 143 B.R. 315, 319 (D.P.R. 1991), vacated on
other grounds, 165 B.R. 1 (D.P.R. 1992); see also In re Bakalis,
220 B.R. 525, 531-32 (Bankr. E.D.N.Y. 1998) (noting discretion
accorded to trustee with regard to sale of assets); In re
Thinking Machs. Corp., 182 B.R. 365, 368 (D. Mass.) (emphasizing
“the high degree of deference usually afforded purely economic
decisions of trustees”), rev'd on other grounds, 67 F.3d 1021(1st Cir. 1995). As the district court pointed out, the
DiStefanos presented no evidence regarding the price JFD's
assets would have commanded at any earlier sale and no evidence
that JFD's demise was or should have been a foregone conclusion
from the opening months of JFD's bankruptcy.9 Absent such
evidence, there would have no basis upon which to doubt a
trustee's business judgment.
B. Causation of Harm
9
Indeed, any suggestion that JFD's assets should have been
sold earlier than May 1994 presupposes that the trustee should
have known that the value of those assets would necessarily
decline over time. That presupposition conflicts with the
DiStefanos' assertion that JFD's losses proximately were caused
by particular actions or inactions on the part of the appellees.
-15-
We turn, then, to whether, considering the respective
value of JFD and of the Bank's loan when the assets were
actually sold, the DiStefanos can demonstrate that their harms
were caused by the appellees' misdeeds. They cannot.
The DiStefanos suggest that the appellees'
mismanagement resulted in JFD's losses, and hence in their own.
But the record makes clear, and there is no dispute, that JFD
was hemorrhaging value long before its bankruptcy filing. In
the three years preceding JFD's bankruptcy, while Century was
under Mr. DiStefano's management, the business lost a total of
$403,874. When JFD initiated bankruptcy proceedings, the
bankruptcy schedules indicated assets of $549,331.37 and
liabilities of $1,100,662 -- a negative net equity of over
$500,000.
By the time JFD's liquor license and personal property
were sold, the value of its assets was about $131,000. The
amount of the Bank's loan, meanwhile, had increased to over
$300,000. As we have stated, the harms claimed by the
DiStefanos consist of Mr. DiStefano's $50,000 liability on his
guaranty of JFD's loan from the Bank and Mrs. DiStefano's
forfeited junior interest in JFD's assets. These losses could
have been “caused” by the appellees' actions only if JFD's
assets, but for those actions, would have exceeded $250,000 at
-16-
the time of the sale -- that is, if those actions caused at
least $119,000 in lost value. Otherwise, Mr. DiStefano would
have remained liable for the entire $50,000 he ultimately paid
on his guaranty, and the DiStefanos would have suffered the same
harms about which they now complain.10
The DiStefanos invite us to disregard JFD's prepetition
losses and to assume that any decline in JFD's value following
the initiation of bankruptcy proceedings must be attributed to
the appellees' purported malfeasance. This we cannot do. The
DiStefanos bear the burden of demonstrating that any particular
losses were attributable to the appellees. We thus review the
appellees' specific “misdeeds” to determine the most generous
loss figures that the DiStefanos might be able to prove at
trial.
The DiStefanos first contend that Century's business
declined precipitously during Dialessi's tenure as its manager.
10As noted, the Bank's loan in fact exceeded $300,000.
Although the loan's balance was appreciating as time passed, we
will use the $300,000 figure as the basis for our analysis.
Greater indebtedness to the Bank would only have required that
the appellee's acts caused even more damage in order for the
DiStefanos to merit relief because the total difference between
the Bank's claim and JFD's value would be correspondingly
greater. Thus, our assumption of a $300,000 secured interest
redounds in the DiStefanos' favor. Even assuming that the
Bank's loan amounted to “only” $300,000, the DiStefanos cannot
prove that their claimed losses resulted from the appellees'
behavior.
-17-
As the district court noted, however, given JFD's steep pre-
bankruptcy decline, the DiStefanos would be unable to link post-
bankruptcy losses to Dialessi's conduct, absent specific
allegations of mismanagement:
[T]he overwhelming and undisputed facts show
that Century Liquor was in severe financial
distress long before Dialessi became
manager . . . . Following the commencement
of the bankruptcy proceeding and the
appointment of Dialessi as manager, the
record does not reflect any significant
decline in business different from the
preexisting downward spiral that ended in
bankruptcy.
DiStefano, 236 B.R. at 117-18.
The DiStefanos next charge that Dialessi discontinued
the use of Century's computerized inventory monitoring system.
However, they offer no proof whatsoever linking this
discontinuance to any decline in JFD's value.
Mr. and Mrs. DiStefano also allege that Dialessi paid
himself $150 more per week than the Appointment Stipulation
authorized. As the bankruptcy and district courts noted, even
if this allegation were proven, the resulting loss would not
exceed $7000.
The DiStefanos further have asserted that Dialessi sold
a large quantity of premium wines for an unacceptably low price.
Mr. DiStefano first indicated that these wines were worth
$25,000, but later conceded they probably were worth only
-18-
approximately $4000. The evidence indicates that they were sold
for about $2000. Giving the DiStefanos the (generous) benefit
of the doubt, we will assume for present purposes (without
finding) that the DiStefanos could prove that the wines were,
indeed, worth $25,000. Thus, we will assume a net loss of
$23,000 arising from the sale of these wines.
Next, the DiStefanos accuse Dialessi of neglecting to
pay Massachusetts employee withholding taxes. Joseph DiStefano
has testified, however, that he never was held personally liable
for the taxes and that attachments to secure their payment were
lifted. Neither was the estate held liable. Rather, Dialessi
remedied the tax problem himself, with no direct financial
consequences inuring either to the DiStefanos or to JFD.11
Finally, the appellants note that Dialessi paid
employees from an account dedicated to the proceeds of Century's
lottery ticket sales. They fail, however, to specify how this
action -- even if improper -- might relate to the decline in
JFD's value.
It is evident that the DiStefanos cannot escape summary
judgment, because they have no meaningful evidence that the
appellees' misconduct resulted in a loss of $119,000 or more in
11The DiStefanos contend that this failure required them to
incur legal fees to defend an action brought by the Internal
Revenue Service. We address this argument below in Part II.
-19-
JFD's value. Even on summary judgment, we cannot credit
unsupported conjecture and speculation linking JFD's decline
under the appellees' stewardship to their actions, particularly
when JFD had endured similar deterioration in the period
preceding its bankruptcy. Even a generous accounting of the
appellees' specific misdeeds suggests that the DiStefanos could
prove, at most, a $30,000 loss resulting from those actions.12
This figure does not even approach the $119,000 loss the
DiStefanos would need to prove in order to establish causation.
Thus, the bankruptcy and district courts properly concluded that
the DiStefanos would be unable to prove that the appellees
caused them any harm.
II. Losses Associated with the IRS Suit for Taxes Not Withheld
The DiStefanos also argue that “after Dialessi failed
to pay certain payroll taxes,” Mr. DiStefano “was forced to
defend himself against” a government claim, and that this cost
would not have been incurred “but for Appellees' misconduct.”
This claim is distinct from their claim that the failure to
12
This figure comprises a $7000 loss arising from Dialessi's
excessive salary and a $23,000 loss stemming from Dialessi's
transfer of the premium wines. Of course, if we adopted the
more likely loss figure for the latter -- $4000 in value minus
the $2000 price, for a net $2000 loss -- the maximum loss figure
the DiStefanos could prove would be closer to $9000.
-20-
withhold taxes contributed to JFD's deteriorating value, see
Part I, supra, but it, too, fails.
First, irrespective of whether Stern could have
breached his fiduciary duties to the DiStefanos by forcing them
to incur legal fees, the DiStefanos have not submitted
sufficient evidence to conjure a “genuine issue” of fact with
respect to those fees. As noted above, "[t]he mere existence of
a scintilla of evidence in support of the plaintiff's position
will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff." Liberty Lobby, 477
U.S. at 252. Here, there is not. The record evidence the
DiStefanos cite regarding this issue consists entirely of two
off-hand remarks Mr. DiStefano made at his deposition. In one
instance, referring to Dialessi's failure to pay income tax
withholdings, opposing counsel asked DiStefano, “So, [that
failure] hasn't caused any damage to you?” He responded, “Yes,
it did. It caused me tremendous emotional distress, legal
fees.” Later, counsel sought to confirm that any attachments
filed on the DiStefanos' property as a result of Dialessi's
actions ultimately were removed. DiStefano responded, “To the
best of my knowledge, after a long period of time and numerous
legal fees.” These remarks constitute the entirety of the
evidence on this matter. There is no indication of the
-21-
magnitude of the fees referenced, nor of the precise context in
which they were incurred. Second, even if the DiStefanos
could point to sufficient evidence of harm to ground this claim,
they have failed to set forth any legal theory justifying an
award of damages. “We have steadfastly deemed waived issues
raised on appeal in a perfunctory manner, not accompanied by
developed argumentation.” United States v. Bongiorno, 106 F.3d
1027, 1034 (1st Cir. 1997); see also United States v. Rosario-
Perala, 199 F.3d 552, 563 n.4 (1st Cir. 1999) (quoting
Bongiorno); United States v. Salimonu, 182 F.3d 63, 74 n.10 (1st
Cir. 1999) (determining that appellant had waived an argument by
failing to develop it). Aside from the factual averment
described above and a single, unsupported assertion that Mr.
DiStefano “was forced to defend against [a government] claim,”
the DiStefanos' initial brief nowhere provides an argument that
the appellees owed them any duty relating to the legal fees at
issue. Their reply brief similarly mentions the harm, noting
that it would not have occurred but for the appellees' misdeeds,
but fails even to sketch a theory of liability upon which
recovery would be appropriate. At oral argument, the
DiStefanos' counsel cited the legal fees as an example of the
losses for which they were seeking relief, but again neglected
to link those losses to any duty on Dialessi's part. This
-22-
argument, then, has not been developed to a degree sufficient to
warrant our consideration.
AFFIRMED. Costs to appellees.
-23-