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Via Restaurants, LLC v. Occupancy Corp.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

December 3, 2015

Via Restaurants, LLC, et al. [1]
v.
Occupancy Corporation, et al. [2] Opinion No. 132502

MEMORANDUM OF DECISION AND ORDER ON (1) DEFENDANTS' MOTION FOR ENTRY OF SATISFACTION OF FINAL JUDGMENT, (2) PLAINTIFFS' CROSS MOTION FOR DETERMINATION AND ENFORCEMENT OF ATTORNEY'S LIEN, AND (3) MOTION BY COMMONWEALTH OF MASSACHUSETTS FOR ACKNOWLEDGMENT AND ENFORCEMENT OF TAX LIENS

Edward P. Leibensperger, Justice

Following a jury trial in May 2012, the entry of judgment in July 2012, and remand by the Appeals Court on plaintiffs' Chapter 93A claims, defendants Anthony Gordon and Occupancy Corporation filed a " Motion for Entry of Satisfaction of Final Judgment." (Paper Number 104.) In response, plaintiffs Gregory Den Herder, Via Restaurants, LLC, and Helvetica Group Investments, LLC filed an opposition and Cross Motion for Determination and Enforcement of Attorney's Lien. (Paper Number 106.) The Commonwealth of Massachusetts Department of Revenue, as intervening defendant, [3] filed a Motion for Acknowledgment and Enforcement of Tax Liens. (Paper Number 118.) The parties filed various memoranda, with attached exhibits, in support of and in opposition to the three motions. At issue is whether Gordon and Occupancy are entitled to a set-off regarding the judgment in this case or whether various liens should take priority. On October 6, 2015, the court held a hearing on the motions. For the following reasons, the motions are ALLOWED in part and DENIED in part, as more fully set forth in the Order below.

BACKGROUND

The facts as revealed by the materials submitted by the parties are as follows.

For various tax periods between January 1, 2008 and June 30, 2010, the Massachusetts Department of Revenue (department) assessed plaintiff Helvetica for withholding tax and sales tax on meals. Pursuant to G.L.c. 62C, § 31A, the department assessed Den Herder for the taxes as a responsible person of Helvetica. According to the department, the balance of the taxes that Helvetica/Den Herder owed, including interest and penalties as of October 8, 2015, is $149, 645.29. On November 27, 2009, April 23, 2010, January 7, 2011, August 26, 2011, and December 16, 2011, the department recorded notices of tax liens against Den Herder with the Office of the Massachusetts Secretary of State. See G.L.c. 62C, § 50 (addressing liens upon property for nonpayment of taxes).

On February 23, 2011, the plaintiffs filed this action against the defendants. As a result of a jury trial in May 2012, the jury awarded damages to the plaintiffs for various common in claims. The trial judge allowed defendants' motion for a directed verdict on plaintiffs' Chapter 93A claims in Counts XI and XII of the plaintiffs' complaint.

On June 1, 2012, Carolyn Pease, a tax examiner for the department, served Attorney Michael S. Marino, counsel for defendants, with a Notice of Levy for the taxes via first class mail. Den Herder is listed as the taxpayer on the Notice of Levy.

On July 12, 2012, judgment entered in this case. The judgment provided in relevant part that:

It is Ordered and Adjudged,
A. That the Plaintiff, Via Restaurants, LLC on Count IV and Count V recover of the Defendants Occupancy Corporation and Anthony Gordon, jointly and severally, the sum of $80, 000.00 less the sum of $19, 180.00 already paid to Plaintiff's creditor, Internal Revenue Service, in mitigation, with interest thereon at the rate of 12% per annum from the date of filing this action and costs of this action;
B. That the Plaintiff, Helvetica Group Investments on Count X recover of the Defendant Anthony Gordon the sum of $10, 000.00 with interest thereon at the rate of 12% per annum from the date of filing this action and costs of this action;
C. That the Plaintiff, Gregory Den Herder on Count VI recover of the Defendant Occupancy Corporation the sum of $135, 000.00 with interest thereon at the rate of 12% per annum from the date of filing this action and costs of this action;
D That the Plaintiff, Gregory Den Herder on Count IX recover of the Defendant Ricardo Ramos the sum of $135, 000.00 with interest thereon at the rate of 12% per annum from the date ...

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