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Milton C. WEILER, Jr. vs. PORTFOLIOSCOPE, INC., & others.
Milton C. WEILER, Jr. vs. PORTFOLIOSCOPE, INC., & others. [FN1] No. 12-P-261. Suffolk. Oct. 10, 2012. - Feb. 1, 2013. Secured Transactions. Uniform Commercial Code, Secured creditor, Secured transaction, Good faith. Corporation, Stock. Contract, Performance and breach, Implied covenant of good faith and fair dealing, Interference with contractual relations. Conversion. Consumer Protection Act, Unfair or deceptive act. Uniform Fraudulent Transfer Act. CIVIL ACTION commenced in the Superior Court Department on February 17, 2009. The case was heard by Margaret R. Hinkle, J. Keith P. Carroll for the defendants. Curtis Clark Pfunder for the plaintiff. Present: Grasso, Fecteau, & Agnes, JJ. FECTEAU, J. This is an appeal by the defendants, PortfolioScope, Inc. (PortfolioScope), Kevin B. Kimberlin, and Joseph T. Whelihan, from a judgment in favor of Milton C. Weiler, Jr., after a jury-waived trial in the Superior Court. [FN2] The principal question in this case arises from the application of a stock option purchase and sale agreement between PortfolioScope and Weiler. The defendants do not challenge the judge's decision that PortfolioScope breached the agreement with the plaintiff to pay five percent of the proceeds from a settlement related to a pending lawsuit between PortfolioScope and iFlex Solutions Limited (the iFlex litigation). The total damages, as found by the judge, were $471,000. [FN3] The judge determined that the agreement gave Weiler priority of payment over a secured creditor of PortfolioScope, Kevin Kimberlin Partners, L.P. (KKP), an investment company directed by the defendant Kimberlin. The defendants contend that a misinterpretation of the agreement coupled with a misapplication of secured transactions principles resulted in the judge's erroneous conclusions that: (1) PortfolioScope breached the covenant of good faith and fair dealing with Weiler; (2) Kimberlin knowingly and intentionally interfered with PortfolioScope's performance under Weiler's contracts; (3) all defendants converted funds properly belonging to Weiler; (4) all defendants violated G.L. c. 93A,

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Massachusetts Law