August 18, 2014
AA& D Masonry, LLC
Crowsnest Corporation et al No. 128020
MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, PLAINTIFF'S MOTION TO STRIKE THE AFFIDAVIT OF DAVID FRANCHI, AND PLAINTIFF'S MOTION TO COMPEL
DENNIS J. CURRAN, Associate Justice.
This action, at its core, is AA& D Masonry LLC's attempt to collect on an approximately half-million-dollar judgment it obtained against the defendant corporation, Crowsnest Corporation. The individual defendant, David Franchi, was Crowsnest Corporation's sole shareholder and sole corporate officer until the corporation was dissolved in 2009. Before the Court is the defendants' motion for summary judgment, the plaintiff's motion to strike an affidavit presented in support of that motion, and the plaintiff's own motion to compel production of documents.
For the reasons that follow, the defendants' motion for summary judgment must be DENIED, the plaintiff's motion to strike will be DENIED as moot, and the plaintiff's motion to compel will be ALLOWED.
I. The Defendants' Motion for Summary Judgment
The defendants advance two reasons for summary judgment. First, they contend that the plaintiff's contempt claim cannot survive because it is not the proper avenue for enforcing a judgment. The defendants point to Mass.R.Civ.P. 69, which provides judgment creditors with the ability to conduct postjudgment discovery on the debtor's ability to pay. While this was certainly an option for the plaintiff, it was not a requirement. By statute, the plaintiff creditor " may obtain a new execution by motion to the court in which such unsatisfied judgment was rendered, or he may at any time after the judgment . . . bring a civil action thereon." G.L.c. 235, § 19. Here, the plaintiff was confronted with two options and opted for the latter. Nothing in the case law cited by the defendants mandates that a judgment creditor exhaust all options under Mass.R.Civ.P. 69 before filing a new civil action. See FDIC v. First Trident Constr. Corp ., 16, 2006 WL 1745903 (Mass.Super.Ct. Apr. 24, 2006) (allowing judgment creditor to obtain new execution under G.L.c. 235, § 19 several years after initial judgment).
Second, the defendants argue that they have demonstrated as a matter of law that Crowsnest Corporation cannot pay the judgment against it because it has no assets. The Court is unpersuaded by this argument. To date, the defendants have not produced the company's corporate ledgers, which the defendant Franchi himself has admitted is the best evidence of the company's financial status. Given the fact that the defendants have stated that money and loans flowed back and forth between several corporate entities owned by the defendant Franchi, there appears to be a genuine issue of material fact as to Crowsnest Corporation's financial status, and therefore its ability to pay.
Viewing the facts, as we must, in the light most favorable to the plaintiff as the non-moving party, it presents a colorable argument that the defendant corporation may not have been properly wound-down, or money intended for one entity was diverted elsewhere with no documentation whatsoever. The defendant Franchi's self-serving affidavit fails to resolve this factual dispute as compared, for instance, to an affidavit of an impartial forensic accounting firm. Therefore, the defendants' motion must be DENIED.
Because this Court finds that several material facts are still in dispute, the plaintiff's motion to strike David Franchi's affidavit is DENIED as moot.
II. The Plaintiff's Motion to Compel
This Court denied the defendants' motion to quash the subpoena directed to South Street Business Park, LLC on February 27, 2014. Likewise, this Court denied the defendants' motion for a protective order on March 3, 2014. The plaintiff contends that the discovery documents and answers at the heart of those disputes were never produced.
Because the central issue of this case is the defendant corporation's ability to pay the judgment, the Court orders that they produce any financial documents in their possession, custody or control that reflect the corporation's accounts payable and accounts receivable during the years 2008, 2009 and 2010, including, but not limited to, any bank records, corporate ledgers, or corporate records. Notwithstanding the claim that the company's financial records are in the control of the company's former accounting firm and that the corporate records are in the control of the company's former attorney, production shall occur forthwith. The plaintiff has waited far too long to obtain that to which they are entitled.
For these reasons, the defendants' motion for summary judgment is DENIED. The plaintiff's motion to strike the affidavit of David Franchi is DENIED as moot. The plaintiff's motion to compel discovery is ALLOWED, and production of the sought-after documents shall occur forthwith.