JACKI SUE KATZMAN v. MITRA GHOBADI (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff's decedent, Christopher St. Louis, whom for convenience we refer to herein as the plaintiff,³ brought claims in the Superior Court against defendants Mitra Ghobadi and Richard Fitzgerald, among others,⁴ arising from the 2015 “short sale” of the plaintiff's home. After a jury trial in 2024, Ghobadi was found liable in the amount of $1 million for fraud, breach of fiduciary duty, breach of contract, and civil conspiracy. Fitzgerald was found liable in the amount of $500,000 for fraud and civil conspiracy. The defendants moved to alter or amend the judgment, for a new trial or remittitur, and for judgment notwithstanding the verdict. The trial judge allowed the motion to amend the judgment to the extent that it sought to change the date from which interest began to accrue, and separated it into individual judgments against Ghobadi and Fitzgerald, but otherwise denied the motions. Amended judgments entered, and the defendants appealed. For the reasons set forth below, we conclude that there was insufficient evidence on the claims against Fitzgerald and the civil conspiracy claim against Ghobadi. We also conclude that the motion for a new trial or remittitur requires reconsideration. We otherwise see no reversible error.

Background. We recite the essential facts the jury could have found, reserving certain details for later discussion. St. Louis, an experienced mason and construction contractor with limited formal education, owned a home in Dorchester which, in 2014, was at risk of foreclosure. Ghobadi, a real estate agent experienced in purchasing distressed properties, approached him and offered to purchase the home in a short sale. As part of this offer, she orally promised St. Louis that he could remain as a tenant at the property, he could continue to renovate the house and do contracting work for Ghobadi's other properties, a tax lien on the property would be paid, and St. Louis might someday repurchase the property from her. None of these representations was ever reduced to writing. Trusting Ghobadi's representations and experience, St. Louis sold the property in March 2015 to an LLC managed by Ghobadi's husband, Fitzgerald, who had obtained the financing for the purchase by the LLC.

The parties’ relationship deteriorated rapidly thereafter. In June 2015, St. Louis stopped his improvements to the house. That same month, the defendants sold the property to a third party. After a summary process action, St. Louis was evicted from the house in 2016 with multiple personal items lost or destroyed in the process. The tax lien remained unpaid.

Katzman, a close friend to St. Louis, heard about his situation and expressed her skepticism about the short sale and subsequent events. St. Louis filed suit in 2017 alleging, inter alia, that Ghobadi and Fitzgerald conspired to fraudulently deprive him of his home, Ghobadi breached her contractual promises to St. Louis, and Ghobadi established and then violated a fiduciary duty to St. Louis. The case went to trial in 2024, and the jury found Ghobadi and Fitzgerald liable on these claims.⁵

Discussion. 1. Late-disclosed documents and rebuttal witness. The defendants first argue that the judge abused his discretion, resulting in a trial by ambush, in allowing the plaintiff to produce thousands of documents on the first day of jury empanelment and to disclose a rebuttal witness on the first day of evidence. For the most part, the defendants “did not sufficiently raise the[se] issues below,” and so they are waived on appeal. Boss v. Leverett, 484 Mass. 553, 562 (2020). To the extent that either issue is preserved, we see no abuse of discretion. See Luppold v. Hanlon, 495 Mass. 148, 154-155 (2025) (evidentiary ruling reviewed for abuse of discretion).

a. Late-disclosed documents. First, the defendants argue that the plaintiff's late document disclosure left them unable to prepare a responsive defense or to use the documents at trial. Nothing in the record shows that they raised this argument at trial. To the contrary, the transcript reflects that defense counsel had “gone through those pages over the weekend and pulled out some of them which [he] may be able to use at trial,” and that he did offer several of the documents in evidence over the plaintiff's objection.

Furthermore, after repeated objections by the plaintiff on the first day of evidence that the defendants were seeking to admit documents not on their exhibit list,⁶ the judge offered the parties the use of the court room to discuss any remaining issues relating to the late disclosure and to create updated exhibit lists. The next morning, only the plaintiff had any remaining objections; the defendants neither objected to the plaintiff's use of any late-disclosed documents nor argued that they had not had sufficient time to review those documents.

Similarly, although the defendants now argue that they were prejudiced because they would have moved to reopen discovery had the documents been provided sooner, they have not argued that they were prevented from making such a motion when the documents were disclosed. Nor did they seek a continuance to allow them to review the documents and revise their strategy accordingly. Rather, the defendants chose to “go[ ] through those pages” and “us[e] a lot of that material” in support of their theory of the case.

It is a longstanding principle that “[t]he consequence of the failure to object is to waive the objection” (citation omitted). Freyermuth v. Lufty, 376 Mass. 612, 616 (1978). That is the case here. In the one instance where the defendants did object to the plaintiff's use of a single document, we see no abuse of discretion in the judge's decision to accept plaintiff's counsel's representation that she had previously sent the document to the defendants by e-mail.

b. Rebuttal witness. The defendants failed to timely object to the testimony of the rebuttal witness, and their untimely objections were not on the same basis as they now argue. The plaintiff first mentioned at the pretrial conference that he might call one Darryl Creese as a rebuttal witness, although Creese was not listed on the joint pretrial conference memorandum. The defendants did not object at that time. Creese was next discussed as a potential witness near the end of the first day of trial, when the defendants brought to the judge's attention that Creese had signed a confidentiality and non-disparagement agreement, at which point the judge determined that such an agreement would not prevent Creese from testifying truthfully. It was not until the end of the third day of trial that the defendants objected to Creese's testifying on the basis that he had not been listed as a witness at the pretrial conference. The judge overruled the objection as untimely, noting that the witness had been disclosed early in the trial. The defendants later moved for a voir dire of Creese, which the judge implicitly denied after discussing with both counsel the nature of and limits on Creese's expected testimony. The defendants raised no objection. And the defendants never argued at trial that Creese was not a proper rebuttal witness or that he should have been called, if at all, during the plaintiff's case-in-chief. We will not entertain those arguments now. In any event, there was no abuse of what has been recognized as a judge's broad discretion to permit rebuttal testimony. See Commonwealth v. Roberts, 433 Mass. 45, 51 (2000).

To the extent that the defendants’ motion for a new trial was premised on these same purported errors regarding late-disclosed documents and the rebuttal witness, the judge did not abuse his discretion in denying the motion. See Gath v. M/A-Com, Inc., 440 Mass. 482, 492 (2003). He could reasonably conclude that the substantial rights of the parties had not been “injuriously affected” by the admission of that evidence, see Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 274 (1990), and that a new trial was not necessary to prevent a miscarriage of justice. See Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc., 487 Mass. 507, 514 (2021).

2. Statute of Frauds. Before the judge's final charge, the defendants asked “if it was appropriate” to include a Statute of Frauds instruction, in light of the plaintiff's allegation that Ghobadi promised him he would be able to repurchase the property. The judge declined, concluding that the nature of the contract claim did not trigger the Statute of Frauds requirement that certain real estate contracts be in writing. See G. L. c. 259, § 1. The defendants’ claim of error is neither preserved nor meritorious.

It is unpreserved because the defendants did not object to the omission after the judge instructed the jury. See Main v. R.J. Reynolds Tobacco Co., 100 Mass. App. Ct. 827, 832 (2022). Nor did the defendants ever argue to the judge that the plaintiff's claim to ownership of the property was barred outright by the Statute of Frauds. Their attempt to raise the argument now comes too late.⁷ See Boss, 484 Mass. at 562 (issues not sufficiently raised below are barred on appeal).

Even if any Statute of Frauds argument were properly before us, we would reject it. The plaintiff's allegations of a promise that he would be able to repurchase the property pertained only to his fraudulent inducement and civil conspiracy claims. Because these claims sounded in tort, the Statute of Frauds was no barrier, and no instruction was required. See Schleifer v. Worcester North Sav. Inst., 306 Mass 226, 229 (1940) (Statute of Frauds not a defense to tort claims).⁸

3. Directed verdict and judgment notwithstanding the verdict. At the close of the plaintiff's evidence, the defendants moved for a directed verdict on all counts, which the judge allowed with respect to the counts for forgery and fraud based on undue influence but otherwise denied. The defendants then renewed the motion at the close of all the evidence and the judge reserved ruling pending the jury verdict. The defendants also moved posttrial for judgment notwithstanding the verdict, which the judge denied.

On appeal, our review of a ruling on a motion for directed verdict is the same as for a judgment n.o.v. ruling. See Abraham v. Woburn, 383 Mass. 724, 727 (1981). We view the evidence in the light most favorable to the nonmoving party, “to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the [nonmoving party]” (quotation and citations omitted). Phelan v. May Dep't Stores Co., 443 Mass. 52, 55 (2004). We address the claims against each defendant in turn.

a. Claims against Fitzgerald. Fitzgerald argues that there was no proof he engaged in fraud or civil conspiracy (the two claims on which the jury found him liable), because there was no evidence that he ever made a false representation of material fact to the plaintiff or that he knew of the purported misrepresentations or fraud by Ghobadi. We agree.

The elements of fraud are “[1] a false representation [2] of a matter of material fact [3] with knowledge of its falsity [4] for the purpose of inducing [action] thereon, and [5] that the plaintiff relied upon the representation as true and acted upon it to his [or her] damage” [citation omitted]. Balles v. Babcock Power, Inc., 476 Mass. 565, 573 (2017). The plaintiff offered no evidence that Fitzgerald made any false representation to him. To the contrary, St. Louis testified that he did not have any direct communications with Fitzgerald. Fitzgerald testified to two instances in which St. Louis said something to him, but he did not testify that he communicated anything to St. Louis beyond introducing himself, and there was no evidence that he did so falsely. No reasonable jury could conclude that Fitzgerald made any false or fraudulent statement.⁹ Thus, judgment n.o.v. should have entered in Fitzgerald's favor.¹⁰

Turning to the plaintiff's claim for civil conspiracy by Fitzgerald, “Massachusetts law recognizes two distinct theories of liability under the umbrella term of ‘civil conspiracy’: ‘concerted action’ conspiracy; and ‘true conspiracy’ based on coconspirators exerting ‘some “peculiar power of coercion” ’ ” (citations omitted). Greene v. Phillip Morris USA, Inc., 491 Mass. 866, 871 (2023). Here, the plaintiff alleged the first theory, concerted action, which “applies to a common plan to commit a tortious act where the participants know of the plan and its purpose and take affirmative steps to encourage the achievement of the result” (citations omitted). Id. Knowledge can be proven inferentially by circumstantial evidence, see Henry W. Savage, Inc. v. Wheelock, 230 Mass. 111, 116 (1918), but inferences “must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture,” McNamara v. Honeyman, 406 Mass. 43, 46 (1989).

The plaintiff's evidence was insufficient to allow a reasonable jury to find that Fitzgerald knew of Ghobadi's purported plan to commit a tortious act. The plaintiff's theory is that in light of Fitzgerald's status as Ghobadi's husband and business partner, and Fitzgerald's participation in the sale, Fitzgerald could not plausibly disclaim knowledge of Ghobadi's false promises. However, Fitzgerald's role in securing financing for the sale does not itself create a basis to infer his knowledge of any promises beyond a promise to purchase the property in the first instance.

Inferences of further knowledge are speculative, based solely on Fitzgerald's and Ghobadi's relationship. Fitzgerald testified that he was not aware whether Ghobadi ever made any false representations when she was seeking to purchase homes, but even disbelief of that testimony would not be evidence that the opposite was true. The plaintiff's assertion at oral argument that Ghobadi's acting as the realtor shows she was a “mouthpiece” for Fitzgerald is similarly unsupported by any evidence. Because the evidence did not support a finding that Fitzgerald knew of any of Ghobadi's tortious acts, judgment n.o.v should have entered on the claim of civil conspiracy against him.

b. Claims against Ghobadi. Ghobadi argues that the plaintiff failed to meet his burden of proof as to each of his four claims against her, so that a directed verdict or judgment n.o.v. should have entered in her favor. We address each claim in turn.

i. Fraud. Ghobadi argues that, even if the jury found she made false representations of material fact to the plaintiff, the plaintiff's reliance on them was unreasonable as a matter of law, and so she cannot be held liable. We are not persuaded. Although a plaintiff's reliance on a defendant's misrepresentations must be reasonable, reasonableness is most often a question of fact for the jury. See Cataldo Ambulance Serv., Inc. v. City of Chelsea, 426 Mass. 383, 387 (1988). In an “appropriate case ․ when the parties involved are of relatively equal knowledge and sophistication” reasonableness may present an issue of law, id., but that is not the case here. Ghobadi testified to having completed a secondary education, working as a licensed real estate agent, and having experience purchasing pre-foreclosure homes, while the plaintiff testified to having left school at age twelve and worked in construction. It was, therefore, appropriate to allow the jury to determine the reasonableness of the plaintiff's reliance as a question of fact. See id.

The evidence of Ghobadi's fraud included her representation that St. Louis would have the opportunity to later repurchase the home, St. Louis's reliance thereon, and the defendants’ quick resale of the house three months after purchasing it. This supported the jury's finding that Ghobadi made a material misrepresentation on which St. Louis reasonably relied to his detriment. The judge properly denied Ghobadi's motions for a directed verdict and for judgment n.o.v. on this claim.

ii. Breach of fiduciary duty. Ghobadi argues that the plaintiff failed to meet his burden of proving she agreed to be a fiduciary. She relies on the requirement that a person consent before becoming an agent for another. See Theos Sons Inc. v. Mack Trucks, Inc., 431 Mass. 736, 742 (2000). But an agency relationship is not the only way to establish a fiduciary relationship. “[O]utside one of the well-defined relationships where the duty arises as a matter of law, ‘a fiduciary duty exists when one reposes faith, confidence, and trust in another's judgment and advice.’ ” Baker v. Wilmer Cutler Pickering Hale & Dorr LLP, 91 Mass. App. Ct. 835, 845 (2017), quoting Doe v. Harbor Schs., Inc., 446 Mass. 245, 252 (2006).¹¹

The plaintiff testified that he was “dealing on trust” when signing documents and that Ghobadi would answer “trust me, trust me, trust me” every time he asked whether he could have someone else look at a document. Viewing the evidence in the light most favorable to the plaintiff, the jury could find that Ghobadi owed a fiduciary duty because her relationship with the plaintiff was such that “confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other” (citation omitted). Cann v. Barry, 293 Mass. 313, 317 (1936). See Baker, 91 Mass. App. Ct. at 845 (existence of fiduciary relationship largely question of fact). The jury could then find that Ghobadi violated her fiduciary duty by taking advantage of the plaintiff's trust to secure her purchase of the property. The judge properly denied Ghobadi's motions for direct verdict and judgment n.o.v. on this claim.

iii. Breach of contract. Ghobadi argues that the plaintiff failed to prove the parties had a binding oral agreement, because not all terms were agreed upon and further negotiations were anticipated. We are not persuaded. “It is not required that all terms of the agreement be precisely specified, and the presence of undefined or unspecified terms will not necessarily preclude the formation of a binding contract” so long as the parties have “progressed beyond the stage of ‘imperfect negotiation’ ” (citation omitted). Situation Mgt. Sys. v. Malouf, Inc., 430 Mass. 875, 878 (2000). Where the terms of an oral agreement are in dispute, “the finder of fact determines the terms of any agreement from the conversation of the parties and their conduct” (quotation and citations omitted). Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420 (2005) (Twin Fires).

Viewing the evidence in the light most favorable to the plaintiff, the jury could find the parties to have agreed that (1) Ghobadi would pay the tax lien on the property, (2) Ghobadi would pay the plaintiff to complete the renovation work that he had started, and (3) he could continue to live in the house as a tenant at will in exchange for monthly rent. It is a longstanding principle that, as here, a lack of established price or timeline for certain terms does not prevent formation of a binding contract. See Hennessey v. Deland, 110 Mass. 145, 146-147 (1872) (absent agreement on price, law implies agreement to pay what services are “fairly worth”); Atwood v. Cobb, 16 Pick. 227, 231 (1834) (absence of time limit to perform not a barrier; performance to be done within a reasonable time). Therefore, the jury could reasonably find that Ghobadi and St. Louis had entered a binding oral contract, and that Ghobadi committed a breach when, at a minimum, she failed to pay the tax lien, which was still outstanding at the time of the trial. Therefore, the judge properly denied Ghobadi's motion for directed verdict or judgment n.o.v. on the breach of contract claim.

iv. Civil conspiracy. One element of civil conspiracy is that “two or more persons acted in concert.” Bartle v. Berry, 80 Mass. App. Ct. 372, 383-384 (2011). As discussed supra, there was insufficient evidence that Fitzgerald knew of Ghobadi's misrepresentations to St. Louis. Absent evidence that anyone planned tortious action in concert with Ghobadi, the conspiracy claim against Ghobadi herself necessarily fails, and judgment n.o.v. should have entered in her favor on that claim.

4. Excessive damages. The defendants argue that the jury's damages award was excessive as a matter of law, so that the judge erred in denying their motion for a new trial or remittitur. “A new trial shall not be granted solely on the ground that the damages are excessive until the prevailing party has first been given an opportunity to remit so much thereof as the court adjudges is excessive.” Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974). “An award of damages must stand unless to make it or to permit it to stand was an abuse of discretion on the part of the court below, amounting to an error of law. It is an error of law if the damages awarded were greatly disproportionate to the injury proven or represented a miscarriage of justice.” (Quotations and citations omitted.) Labonte v. Hutchins & Wheeler, 424 Mass. 813, 824 (1997).

In denying the defendants’ motion, the judge concluded that the damage award was not excessive because there was evidence that the value of the home, at the time of trial, was approximately $1 million. While there was testimony to this effect, it was nonetheless legally erroneous to evaluate the damage award in comparison to the 2024 value of the house, because none of the proven injuries would permit the defendants to be held liable for this value.¹²

In light of our rulings above, the only claims on which the plaintiff was entitled to damages were the claims against Ghobadi for fraud in the inducement, breach of fiduciary duty, and breach of contract. First, and most straightforwardly, the plaintiff's breach of contract claim related only to the tax lien and his future rental payments; the claim did not seek damages for his loss of ownership of the house, so the value of the house is at best only tangentially related to that claim.

Second, Ghobadi's breach of fiduciary duty provided no basis to hold her liable for the 2024 value of the house, because the defendants sold the property in 2015. See Barshak v. Buccheri, 406 Mass. 187, 192 (1989) (“no authority for holding [a defendant] liable for appreciation in the value of land” after defendant's sale to bona fide purchaser for value). The plaintiff argues that the defendants’ benefit was “the entire value realized from converting [his] home into cash for themselves,” but he does not explain how the defendants realized any value -- beyond the proceeds of their June 2015 sale -- from a property that they no longer owned in the nine years between the sale and the time of trial. Therefore, the plaintiff's damages on this claim could not have been based on the present value of the home.

Finally, as damages on his fraudulent inducement claim, the plaintiff argues that, under Rice v. Price, 340 Mass. 502 (1960), he was entitled to the benefit of his bargain -- the value of the home that, had Ghobadi's representations been true, he could have repurchased. However, “[o]ur courts have consistently limited the award of benefit of the bargain damages to cases of intentional misrepresentation where the person who was the target of the misrepresentation has actually acquired something in a transaction that is of less value than he was led to believe it was worth when he bargained for it.” Twin Fires, 445 Mass. at 425. In other cases where a person is fraudulently induced to act, “the basic rule is that liability ․ is for the ‘pecuniary loss caused by [the] justifiable reliance upon th[at] representation.’ ” Ward v. Pena, 69 Mass. App. Ct. 532, 540 (2007), quoting Restatement (Second) of Torts § 525 (1977). These pecuniary losses must be “legally attributable to the fraud” as the “direct, natural and intended result of the false representation” (quotations and citations omitted). Reisman v. KPMG Peat Marwick LLP, 57 Mass. App. Ct. 100, 113 (2003). The evidence here could support a finding that the direct and intended result of Ghobadi's fraud was to deprive the plaintiff of the fair market value of his home in 2015, but not of its 2024 value -- an appreciation that was unknowable to any of the parties at the time of the fraud.

Because none of the plaintiff's three valid claims against Ghobadi permitted a damage award based on the present value of the home, it was an abuse of discretion to rely on evidence of that value in denying the defendants’ motion for a new trial or remittitur. On remand, the judge should assess the extent to which the $1 million verdict was “greatly disproportionate” to the proven injuries and, if so, determine the amount to be remitted or order a new trial on damages.¹³ See Labonte, 424 Mass. at 826; Mass. R. Civ. P. 59 (a).

5. Other grounds for new trial. The defendants finally argue that the amended judgments must be vacated because the verdict was “against the weight of the credible evidence, or tantamount to a miscarriage of justice” (citation and quotation omitted). Burnett v. Ocean Properties, Ltd., 987 F.3d 57, 72 (1st Cir. 2021). We take the defendants to be arguing that, even if the damages were not excessive, the judge should have allowed their motion for a new trial, on the grounds of a variety of other asserted evidentiary errors and claimed improper actions by the plaintiff's trial counsel. On such a motion, a trial judge must consider “whether the verdict is so markedly against the weight of the evidence as to suggest that the jurors allowed themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion.” W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993). “We grant considerable deference to a judge's disposition of a motion for a new trial, especially where he was the trial judge, and we will reverse the ruling only for an abuse of discretion.” Gath, 440 Mass. at 492.

No extended discussion of the defendants’ additional grounds for a new trial is necessary. Although we have determined that judgment should have entered for the defendants on the claims against Fitzgerald and the civil conspiracy claim against Ghobadi, and that the damages on the three valid claims against Ghobadi were potentially so excessive so as to warrant a remittitur or new trial, we see no other errors or defects that would require a new trial. For substantially the reasons already discussed, the judge did not abuse his discretion in denying the defendants’ motion for a new trial insofar as based on such grounds.

Conclusion. The amended judgment against Fitzgerald is vacated and a new judgment shall enter in his favor. So much of the amended judgment against Ghobadi as pertains to the claim for civil conspiracy is vacated and a new judgment shall enter in her favor on that claim. In all other respects, the amended judgment against Ghobadi is vacated and the matter is remanded for reconsideration of the motion for a new trial or remittitur. On remand, if the judge determines that the motion should be denied, the amended judgment against Ghobadi on the claims for fraud, breach of fiduciary duty, and breach of contract may be reentered. Otherwise, additional proceedings shall be held consistent with this memorandum and order.

So ordered.

FOOTNOTES

3.   St. Louis died shortly after the defendants docketed this appeal. Katzman, as the executor of St. Louis's estate, was then substituted as the appellee.

4.   None of the other defendants named in the operative complaint was found liable, and none of them is involved in this appeal. References to “the defendants” are therefore to Fitzgerald and Ghobadi.

5.   The plaintiff's claims for fraud based on undue influence and forgery also proceeded to trial, but the judge directed a verdict on them at the close of the plaintiff's evidence.

6.   The judge overruled one such objection on the basis that the documents would not be on the defendant's exhibit list if they were disclosed only recently.

7.   The only specific application of the Statute of Frauds that the defendants argued to the judge was in their motion for judgment notwithstanding the verdict, arguing that the agreement to pay the tax lien was not included in any writing.

8.   The plaintiff's contract claim, as the judge described it to the jury, was to enforce Ghobadi's alleged promises that rent of $2,000 from two units would be sufficient for the plaintiff and his family to remain in the property, and that his tax lien would be paid out of the proceeds of the short sale. On appeal, the defendants do not argue that either alleged promise fell within the Statute of Frauds.

9.   The plaintiff also argues that Fitzgerald could be held liable for fraud on the basis that he participated in the sale with knowledge or “conscious ignorance” of its fraudulent nature. But the only authority he cites in support of this theory addresses a different issue. See Covich v. Chambers, 8 Mass. App. Ct. 740, 751 (1979) (purchaser cannot rescind contract based on mistake, when mistake resulted from purchaser's own “conscious ignorance or deliberate risk-taking” [citation omitted]).

10.   A directed verdict also could have entered. See Thorson v. Mandell, 402 Mass. 744, 747 n.2 (1988) (directed verdict appropriate where “deficiency in a plaintiff's proof is unquestionably manifest”). Although our discussion of other claims infra focuses on why judgment n.o.v. should have been entered on several of them, a directed verdict would similarly have been appropriate. Cf. Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 502 (2010) (concluding that defendant's “motions for a directed verdict or for judgment n.o.v. should have been allowed”).

11.   Although the amended complaint expressly invoked an agency relationship theory of fiduciary duty, “[w]e consider the legal theories fairly raised in the complaint, without limiting our consideration to those expressly invoked in the plaintiff's prayer for relief” (citation omitted). Gutierrez v. Board of Managers of Flagship Wharf Condominium, 100 Mass. App. Ct. 678, 683 n.10 (2022). Here, the plaintiff fairly raised the theory that Ghobadi owed him a fiduciary duty because she agreed to “guide him through the short sale process” and “instructed [him] to trust her regarding the contents of documents,” and he reposed trust in her advice and instructions.

12.   Of course, the judge was not bound to adopt, as a benchmark for supportable damages, either (1) the itemization of damages in the plaintiff's closing argument or (2) the calculations set forth in the defendants’ memorandum in support of their motion for a new trial.

13.   We recognize that, on the defendants’ motion to alter or amend the judgment, the judge reduced the total judgment by denying prejudgment interest (to which the plaintiff would ordinarily be entitled) for the 2,528 days between the date of filing and the date of the verdict. He did so because he concluded that such interest would be duplicative, inasmuch as the verdict already reflected the home's appreciation in value during that time period. We have considered whether the $1 million verdict could be viewed as the sum of (1) a hypothetical verdict of some lesser damages amount based on the home's value at the time of filing, plus (2) twelve percent annual interest (or .000329 percent daily interest) on that hypothetical damages amount between the dates of the filing and the verdict. A damages amount of $548,967.94, plus .000329 percent interest for 2,528 days, would yield $1 million. We leave to the judge in the first instance whether a remittitur that would reduce the damages to $548,967.94 (after which prejudgment interest from the date of the verdict would be added) would be sufficient to avoid the damages being greatly disproportionate to the proven injuries.