SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1078 

CA 16-00075 

PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, AND TROUTMAN, JJ. 

 

 

RAYMOND T. WEBBER AND DUANE WEBBER, 

PLAINTIFFS-APPELLANTS, 

V MEMORANDUM AND ORDER

LEE WEBBER AND GERALD T. FILIPIAK, 

DEFENDANTS-RESPONDENTS. 

HARTER SECREST & EMERY LLP, BUFFALO (JOHN G. HORN OF COUNSEL), FOR

PLAINTIFFS-APPELLANTS. 

LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (JENNIFER C. PERSICO OF

COUNSEL), FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from an order and judgment (one paper) of the Supreme

Court, Erie County (Timothy J. Walker, A.J.), entered August 18, 2015. 

The order and judgment awarded money damages to plaintiff Raymond T.

Webber upon a nonjury verdict. 

It is hereby ORDERED that said appeal insofar as it concerns that

part of the order and judgment awarding $50,442 as a principal amount

is unanimously dismissed, and the order and judgment is modified on

the law by awarding plaintiff Raymond T. Webber interest on that

principal amount at a rate of 3.25% from June 3, 2013 to August 18,

2015, and awarding $23,295 to plaintiffs on the conversion cause of

action, and as modified the order and judgment is affirmed without

costs. 

Memorandum: Raymond T. Webber (plaintiff) and defendants, Lee

Webber and Gerald T. Filipiak, formed Eagle Crest Manufactured Homes

Park, Inc. (Eagle Crest) in order to purchase land and to develop a

manufactured home park. Each of them owned one-third of the

corporation. When Eagle Crest sold the original manufactured home

park in 2001, the three shareholders decided to reinvest the proceeds

in other commercial real estate projects. To manage the properties

they acquired, they created four separate limited liability companies

(LLCs), each of which was wholly owned by Eagle Crest, but managed by

the individual shareholders for their own benefit. In 2002, plaintiff

and defendants entered into a shareholder agreement which provided,

inter alia, that each of the properties would be managed by the

shareholder who selected it. Plaintiff and defendants executed an

amendment to that agreement in 2004, which was intended to address and

rebalance certain tax consequences among the shareholders. In 2007,

plaintiff and defendants entered into a new agreement, thereby
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CA 16-00075 

cancelling the 2002 agreement with its 2004 amendment. The 2007

agreement provided, inter alia, that Eagle Crest, through its four

subsidiary LLCs, would hold title to each of the properties as a

nominee for the three Eagle Crest shareholders. It further provided

that Eagle Crest’s accountant would provide a yearly schedule of the

shareholders’ income tax liability, and that the shareholders would

pay their obligations under that schedule within 10 days of receipt. 

If a shareholder did not pay his obligation in a timely fashion, Eagle

Crest was permitted to pay it out of his distributions. In addition,

any shareholder owed an obligation by another shareholder could also

commence legal action for the amount of the obligation, plus 12%

yearly interest and “costs of collection including reasonable

attorney’s fees.” On June 3, 2013, defendants resigned as officers

and directors of Eagle Crest, leaving plaintiff as its sole owner. 

Plaintiff and Duane Webber, an assignee of plaintiff’s rights and

interests in the various agreements, commenced this action. The

second amended complaint alleges four causes of action: breach of the

2002 agreement, as amended in 2004; breach of the 2007 agreement; an

accounting; and conversion. A nonjury trial was held and, at the

close of plaintiffs’ proof, defendants moved for a directed verdict on

the issues of attorney’s fees, interest, and capital expenses, arguing

that plaintiffs had failed to meet their burden of proof. Supreme

Court reserved decision. Five days after the trial ended, the court

granted defendants’ motion for a directed verdict. Plaintiffs

thereafter filed a motion for leave to reargue the directed verdict

determination. Before the court issued the order embodying its

decision on the motion for a directed verdict, the court informed the

parties by way of an email that it had sua sponte reconsidered its

decision in the course of preparing the final written decision and

order, and that plaintiffs’ motion for leave to reargue the directed

verdict determination would be moot as a result. The court

subsequently issued a decision and order awarding plaintiff $994,390,

which is comprised of the stipulated $943,948 amount due under the

2007 agreement plus $50,442 that the court determined to be owed under

the 2002 agreement, as amended in 2004. The court also awarded

statutory interest of 9% on the 2007 portion of the award and

determined that plaintiffs “shall have no recovery on their remaining

claims.” Plaintiffs filed the judgment and, after defendants paid the

judgment amount, filed the satisfaction of judgment, and they

thereafter appealed. 

We note at the outset that part of plaintiffs’ appeal is barred

by plaintiffs’ acceptance of payment of the judgment and their

issuance of a satisfaction of judgment. “As a general rule, a

plaintiff may not appeal after accepting payment of a judgment”

(Kriesel v May Dept. Stores Co., 261 AD2d 837, 837). “Where . . . ,

however, the outcome of the appeal could have no effect on the

appellant’s right to the benefit he or she accepted, its acceptance

should not preclude the appeal” (id. at 837-838 [internal quotation

marks omitted]). “ ‘This exception appears to be limited to those

instances where the appellant’s right to the amount awarded by the

original judgment is absolute, making it possible to obtain a more

favorable judgment without the risk of a less favorable result upon
-3- 1078 

CA 16-00075 

retrial’ ” (id. at 838). Here, plaintiffs seek an increase in the

judgment amount in several areas where they were denied relief

completely, i.e., capital expenditure costs, attorney’s fees,

consequential damages, contractual interest, and damages associated

with defendants’ alleged conversion. In our view, however,

plaintiffs’ contention on appeal that the award of $50,442 as a

principal amount pursuant to the 2002 agreement, as amended in 2004,

was inadequate is barred by the general rule prohibiting an appeal

from a satisfied judgment. Although the other areas of appeal are

discrete, severable, and incapable of reduction, plaintiffs’

contentions concerning the $50,442 award as a principal amount rely on

an assessment of competing expert evidence that lies within the

discretion of the factfinder, and could theoretically, based on the

evidence in the record, result in a less favorable judgment (see

Williams v Hearburg, 245 AD2d 794, 794-795, lv denied 91 NY2d 810;

Roffey v Roffey, 217 AD2d 864, 865-866). We therefore dismiss that

part of the appeal involving the $50,442 as a principal amount.

Moving to the merits, we note that it is well established that,

“[o]n appeal from a judgment entered after a nonjury trial, this Court

has the power to set aside the trial court’s findings if they are

contrary to the weight of the evidence and to render the judgment we

deem warranted by the facts . . . That power may be appropriately

exercised, however, only after giving due deference to the court’s

evaluation of the credibility of witnesses and quality of the proof .

. . Moreover, [o]n a bench trial, the decision of the fact-finding

court should not be disturbed upon appeal unless it is obvious that

the court’s conclusions could not be reached under any fair

interpretation of the evidence” (Black v State of New York [appeal No.

2], 125 AD3d 1523, 1524-1525 [internal quotation marks omitted]). 

Contrary to plaintiffs’ contention, we conclude that a fair

interpretation of the evidence supports the court’s determination that

plaintiffs were not entitled to capital expenditure costs under the

2007 agreement. “ ‘[C]ourts should be extremely reluctant to

interpret an agreement as impliedly stating something which the

parties have neglected to specifically include’ ” (Vermont Teddy Bear

Co. v 538 Madison Realty Co., 1 NY3d 470, 475). Here, there is no

reference to capital expenditure costs in the 2007 agreement, and any

interpretation of the 2007 agreement that is dependent on language

from the 2002 agreement cannot be, as plaintiffs claim, an unambiguous

interpretation (see Kass v Kass, 91 NY2d 554, 566-567; W.W.W. Assoc. v

Giancontieri, 77 NY2d 157, 162-163). 

We agree with plaintiffs that the court’s initial decision to

grant defendants’ motion for a directed verdict was effectively

reversed by the court’s later decision to deem that application moot

and to award, inter alia, statutory interest on the portion of the

award concerning the 2007 agreement. We further agree with plaintiffs

that the court erred in failing to add interest to the principal of

the award made pursuant to the 2002 agreement, as amended in 2004. 

Although the 2002 agreement did not include any language addressing

interest, the 2004 amendment provided that, when Eagle Crest

dissolved, the shareholders would be responsible to “settle up the tax
-4- 1078 

CA 16-00075 

cost or benefit at a rate of 50% of the tax differentials on a

cumulative basis from inception,” and the funds would be treated as

shareholder distributions, paid within five years, and subject to

interest “at the prevailing prime rate.” Based on that plain

language, the court erred in failing to grant interest on the $50,442

principal of the award for breach of the 2002 agreement, as amended in

2004. We therefore modify the order and judgment by adding 3.25%

interest on that portion of the award, from the date of Eagle Crest’s

dissolution, June 3, 2013, until the entry of judgment on August 18,

2015. We reject plaintiffs’ related contention, however, that they

are entitled to contractual interest of 12% under the 2007 agreement

along with attorney’s fees. The court’s conclusion that the parties,

through their actions, either modified or waived the provisions

concerning interest and attorney’s fees in the 2007 agreement is

supported by a fair interpretation of the evidence (see generally

Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7

NY3d 96, 104; Estate of Kingston v Kingston Farms Partnership, 130

AD3d 1464, 1465). Although “waiver ‘should not be lightly presumed’

and must be based on ‘a clear manifestation of intent’ to relinquish a

contractual protection” (Fundamental Portfolio Advisors, Inc., 7 NY3d

at 104), there was little dispute at trial that plaintiff was fully

aware that the relevant provisions of the 2007 agreement were not

being followed.

We agree with plaintiffs that there is no fair interpretation of

the evidence that would permit the court to deny all relief on their

conversion cause of action. Upon our review of the record, we

conclude that defendants provided no explanation for an Eagle Crest

check drafted by defendant Filipiak, and deposited on October 21,

2013, four months after the resignation of defendants from Eagle

Crest. The check was made out to “Hunter Creek Plaza LLC,” the LLC

jointly controlled by defendants, in the amount of $23,295. We

therefore further modify the order and judgment by awarding $23,295 to

plaintiffs. We reject plaintiffs’ remaining contentions with respect

to their claims of conversion inasmuch as the court’s determination

not to award damages on those claims is supported by a fair

interpretation of the evidence (see Black, 125 AD3d at 1524-1525). 

We reject plaintiffs’ further contention that the court abused

its discretion in denying their motion to amend the complaint. 

Plaintiffs sought to amend their complaint for a third time just two

months prior to trial and failed to offer any reason why they did not

seek to add a new plaintiff when they amended the complaint for the

second time just four months earlier (see generally Jablonski v County

of Erie, 286 AD2d 927, 928). Contrary to plaintiffs’ contention, the

court did not err in failing to award consequential damages inasmuch

as any demand for such damages was absent from the operative pleading

at the time of trial and, in any event, plaintiffs offered no proof at

trial and made no request in their proposed findings of fact regarding

such damages.

Finally, defendants’ various requests to this Court for relief

are not properly before us inasmuch as they failed to take a cross

appeal (see Baker v Levitin, 211 AD2d 507, 508; Monte v DiMarco, 192
-5- 1078 

CA 16-00075 

AD2d 1111, 1113, lv denied 82 NY2d 653; see generally Parochial Bus.

Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546). 

Entered: December 23, 2016 Frances E. Cafarell

Clerk of the Court