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March 26, 2026 Get Citation Alerts Download PDF Add Note

AGUSTIN M. FLORIAN v. BORIS BERGUS & Another.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0371

• Precedential Status: Non-Precedential

• Opinion

• Authorities (13)

• Cited By (0)

• Summaries (0)

• Similar Cases (963)

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Combined Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-371

AGUSTIN M. FLORIAN

vs.

BORIS BERGUS & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial pursuant to Superior Court Rule

20(2)(h), the judge entered a verdict on a breach of contract

claim in favor of the plaintiff, Agustin M. Florian, M.D.

(Florian).2 See Rule 20(2)(h) of the Rules of the Superior Court

(2018). Thereafter, the judge ordered the defendants, Boris

Bergus, M.D. (Bergus), and Encompass Care Company, Inc.

(Encompass), to pay Florian a total of $1,108,141.60, which

included damages and prejudgment interest. The defendants

appeal from the entry of final judgment, and we affirm.

1 Encompass Care Company, Inc.

2The plaintiff sued for breach of contract and violation of
the Wage Act, G. L. c. 149, § 150. The judge found in favor of
the defendants on the Wage Act claim.
1. Standing. First, the defendants claim that Florian

lacked standing to sue under this contract, specifically

alleging that he was an incidental, not an intended, beneficiary

of the contract.3 We disagree.4

Neither party has argued that the contract is ambiguous,

and as a result, we may determine whether Florian was an

intended beneficiary as a matter of law. See James Family

Charitable Found. v. State St. Bank & Trust Co., 80 Mass. App.

Ct. 720, 725 (2011). To conclude that a beneficiary was to be

intended, not incidental, we must determine that

"recognition of a right to performance in the beneficiary
is appropriate to effectuate the intention of the parties
and either (a) the performance of the promise will satisfy
an obligation of the promisee to pay money to the
beneficiary; or (b) the circumstances indicate that the
promisee intends to give the beneficiary the benefit of the
promised performance" (quotation and citation omitted).

Rae v. Air-Speed, Inc., 386 Mass. 187, 194 (1982). We will also

look at the circumstances of the contract for indicia of

intention. See Anderson v. Fox Hill Village Homeowners Corp.,

424 Mass. 365, 366 (1997). Furthermore, "there is no

3 The defendants also allege that the principle of equitable
estoppel supports finding that Florian does not have standing.
Because this claim was not raised at trial in defense of the
breach of contract claim, it is waived. See Boss v. Leverett,
484 Mass. 553, 563 (2020).

4 Given our resolution of this issue on alternative grounds,
we need not address Florian's argument as to an oral contract
existing between the parties.

2
requirement that the intended beneficiary be identified by name

in the contract." James Family Charitable Found., 80 Mass. App.

Ct. at 725. Here, for the reasons stated below, Florian was an

intended beneficiary of the contract, evidenced by the language

of the contract and the surrounding circumstances.

At trial, there was testimony that the first draft of the

contract named Florian individually, not as a professional

corporation. Florian testified that one of the main reasons he

wanted to alter the draft to instead name his professional

corporation was for income tax deductions. In addition, there

was testimony that, prior to working for Encompass, Florian's

professional corporation had employees other than him. The

other employees included his son, his wife, and his daughter-in-

law. It is evident from the circumstances that, while the

professional corporation was named in the contract, Encompass

and Bergus were not intending to contract with these other

members of the corporation, but rather for the personal surgical

and medical skills of Florian specifically, further supporting

an intention to give Florian rights under the contract.

Also, the language of the contract stated that there would

be compensation for "the professional services personally

rendered by [the c]ontractor" (emphasis added), as well as

evidence that compensation for these services was very often

3
made to Florian personally, not to Florian, M.D., P.C. The

defendants also initiated their own breach of contract claim

against Florian, and named Florian personally, not as a

professional corporation. From these facts, it follows that the

performance of Florian, personally, was necessary to effectuate

the intention of the parties, and that Florian was intended to

receive the benefit after performance was satisfactory to the

defendants.5 See generally Browning-Ferris Indus., Inc. v.

Casella Waste Mgmt. of Mass., Inc., 79 Mass. App. Ct. 300, 309

(2011) ("There is no surer way to find out what parties meant,

than to see what they have done" [citation omitted]).

1. Damages award. The defendants also claim the evidence

at trial was insufficient to support the award of damages in the

amount of $657,799.6 We disagree.

In trials proceeding under Superior Court Rule 20(2)(h),

"we review the judgment according to the standard of review
that would apply to a verdict by a jury in a case tried to
a jury and to the judgment entered thereon. That is,
construing the evidence in the light most favorable to the

5 As part of his argument, Bergus relies on Choate, Hall &
Stewart v. SCA Services, Inc., 378 Mass. 535 (1979). Choate
focused on specifically on creditor beneficiaries and therefore
is inapposite. Id. at 543-548.

6 As part of their challenge to the damages award, the
defendants argue that the evidence at trial did not comport with
the best evidence rule. This argument is raised for the first
time on appeal, and therefore it is waived. See Boss, 484 Mass.
at 563.

4
judgment, the question is whether anywhere in the evidence,
from whatever source derived, any combination of
circumstances could be found from which a reasonable
inference could be drawn in favor of the" plaintiff here.
(Quotations and citations omitted).

Nicosia v. Burn, LLC, 496 Mass. 792, 800 (2025).

"The amount of damages awarded is a factual issue reviewed

on appeal under an abuse of discretion standard." Twin Fires

Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411,

424 (2005). In determining "damages in an action for breach of

contract," the rule "is that the plaintiff is entitled in

general to damages sufficient in amount to compensate him for

the loss actually sustained by him, and to put him in as good

position financially as he would have been if there had been no

breach" (citation omitted). Pierce v. Clark, 66 Mass. App. Ct.

912, 914 (2006). The plaintiff has the burden of proving

damages with reasonable certainty, and while damages cannot be

based on pure speculation, mathematical precision is not

required. See Don v. Soo Hoo, 75 Mass. App. Ct. 80, 85 (2009).

"The fact that there is an element of uncertainty in their

assessment is not a bar to recovery" (alteration and citation

omitted). Carlo Bianchi & Co. v. Builders' Equip. & Supplies

Co., 347 Mass. 636, 646 (1964). In fact, a damages award can

even suffice on meager evidence. Id. "To overturn such an

award, we would have to determine that it was clearly excessive

5
in relation to what the plaintiff's evidence had demonstrated

damages to be" (quotation, alteration, and citation omitted).

Spinosa v. Tufts, 98 Mass. App. Ct. 1, 10 (2020).

Viewing the evidence through the deferential lens

applicable here, we conclude there was a sufficient factual

basis to support the award of breach of contract damages in the

amount of $657,799. There was detailed testimony regarding the

specifics of Florian's work. Florian testified that he

conducted endovascular laser treatments and cosmetic surgeries

at Encompass. He testified that he saw between three and

fifteen patients a day at Encompass, and that he worked two to

three days at first, gradually increasing his schedule to about

four days of work a week. There was testimony that Florian

generated between $800,000 to $890,000 in revenue in 2012, over

$1 million in revenue in 2013, and also testimony that stated

that these revenue totals did not include the revenue from the

cosmetic work that Florian did for Encompass. There was also

evidence that Florian's patient load increased over the years he

worked for Encompass, and that every year that Florian worked

there, Encompass's business increased twenty to twenty-five

percent.

The above evidence supports a finding, conservatively, that

Florian earned at least $4 million in net cash receipts over his

6
almost five years working for Encompass, considering his

approximate yearly revenue from vein treatment. The contract

agreement states that the "[c]linic shall pay [c]ontractor

thirty percent (30%) of the net cash receipts, with a minimum

guaranteed payment of [o]ne [t]housand ($1,000.00) [d]ollars per

service day." Crediting the plaintiff's evidence over the

defendants' contradictory evidence, as was within the judge's

discretion, see Calderone v. Wright, 360 Mass. 174, 176 (1971),

Florian ought to have been paid $1.2 million, or thirty percent

of $4 million. The parties agreed at trial that Florian

received at least $433,052 from Encompass during his time

working there. Therefore, the judge was within his discretion

to find that the evidence supports damages of up to $766,948.

Much of the defendants' arguments on appeal amount to

credibility disputes, which we do not disturb under the

deferential standard applicable here, as "the judge, who has a

firsthand view of the presentation of evidence, is in the best

position to judge the weight and credibility of the evidence"

(quotation and citation omitted). Demoulas v. Demoulas Super

Mkts., Inc., 424 Mass. 501, 509-510 (1997).7

7 The defendants also claim that the court erred in relaxing
the burden of proof that Florian needed to establish damages.
They state that the "meager state" of Florian's evidence is
proof that the judge held Florian to a relaxed burden of proof.

7
3. Prejudgment interest. Finally, the defendants claim

that the judge erred by awarding Florian prejudgment interest

from October 13, 2015, rather than from the date of commencement

of the action, which was April 21, 2016. This argument is

waived and therefore we do not consider it.

Prejudgment interest on damages in cases based on

contractual obligations shall be calculated "from the date of

the breach or demand . . . [and] [i]f the date of the breach or

demand is not established, [prejudgment] interest shall be added

by the clerk of the court from the date of the commencement of

the action." G. L. c. 231, § 6C. The defendants claim that

Florian never established the date of the breach or demand, and

therefore, the prejudgment interest should have been calculated

from the date of the commencement of the action.

Rule 20(8)(b) of the Rules of the Superior Court states

that in Rule 20(2)(h) trials, "parties waive all arguments in

the trial court or on appeal that require or depend upon the

existence of detailed written findings of fact." Rule 20(8)(b)

of the Rules of the Superior Court (2018). "The date of an

alleged breach is a question of fact for the trier of fact."

Karen Constr. Co. v. Lizotte, 396 Mass. 143, 149 (1985). It

But this claim ignores the deferential standard we must apply
here.

8
follows that where there was no finding as to the date of

breach, and the defendants did not request a finding,8 but in

fact waived all detailed findings pursuant to Rule 20(2)(h), the

defendants cannot now complain that the date of breach was not

established.9 Cf. Karen Constr. Co., 396 Mass. at 148-149 (where

judge did not instruct jury to find date of breach for

prejudgment interest purposes, and parties did not object to

judge's failure, argument as to date of breach cannot be raised

on appeal).

Judgment affirmed.

By the Court (Blake, C.J.,
Meade & Tan, JJ.10),

Clerk

Entered: March 26, 2026.

8 The record before us demonstrates that the defendants did
submit special questions to the judge, which the judge denied
including on the verdict slip. However, the actual content of
those questions is not in the record before us.

9 Given our resolution of this matter on alternative
grounds, we decline to address the defendants' argument as to
the date of demand.

10 The panelists are listed in order of seniority.

9