Hays v. Ellrich (Lawyers Weekly No. 10-092-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11743 MOLLY A. HAYS vs. DAVID J. ELLRICH & others.[1] Suffolk. February 3, 2015. – June 10, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Uniform Securities Act. Securities, Sale. Fraud. Fiduciary. Limitations, Statute of. Evidence, Fraud. Practice, Civil, Fraud, Statute of limitations. Civil action commenced in the Superior Court Department on September 11, 2006. The case was heard by Christine M. Roach, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David B. Mack (Stephanie R. Parker with him) for the defendants. Patrick J. Dolan for the plaintiff. GANTS, C.J. In January, 2001, in reliance on the advice of her investment advisor, the plaintiff, Molly A. Hays, invested approximately three-quarters of her retirement savingsin a hedge fund that became insolvent in 2003, resulting in the loss of her entire investment. In 2006, Hays filed suit in the Superior Court, alleging that her investment advisor, Morgan Financial Advisors, Inc. (MFA), and David J. Ellrich, the sole owner and officer of MFA, had, among other claims, violated the Massachusetts Uniform Securities Act (act), G. L. c. 110A, § 410 (a) (2), committed fraud, and committed a breach of their fiduciary duty to her. After a jury-waived trial, the judge ruled that Ellrich and MFA were liable under § 410 (a) (2), and entered judgment in Hays’s favor for $ 381,354.80 plus interest.[2],[3] MFA and Ellrich appealed, and we transferred the case to this court on our own motion. On appeal, Ellrich and MFA claim that they were not “sellers” of securities within the meaning of § 410 (a) (2), and therefore cannot be liable under the act. They also argue that the claims on which Hays prevailed are barred by the statute of limitations. In addition, they contend that the judgment must be vacated because it is contrary to the great weight of the evidence.[4] We affirm the judgment. Background. We summarize the findings of fact made by the judge, supplemented where necessary by uncontested evidence in the record that the judge implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). We reserve certain facts that directly relate to the legal issues we address. In approximately 1991, when Ellrich was employed by another investment advisory firm, […]