Superior Court of Massachusetts, Suffolk, Business Litigation Session
David Tkhilaishvili et al.
Vahagn Victor Torosyan et al No. 134123
ORDER ON THE PLAINTIFFS' MOTION FOR A PRELIMINARY
Mitchell H. Kaplan, Justice
case arises out of a dispute between the plaintiffs, David
and Jambulat Tkhilaishvili (hereafter David and James,
respectively), who are brothers, and the defendant, Vahagn
Victor Torosyan, all of whom hold (or held) interests in the
defendant, Allied Health Clinic, LLC (Allied), a limited
liability company formed to operate a suboxone clinic in
Quincy. Torosyan, acting pursuant to what he maintains are
rights afforded him under Allied's Operating Agreement,
asserts that he has properly removed David as his co-manager
of Allied and forfeited both Davids' and James'
ownership interest in Allied. The case came before the court
this day on David's and James' motion for a
preliminary injunction restoring them to their prior
positions, salaries, benefits, and ownership interests in
Allied, as they existed prior to Torosyan's unilateral
had previously run a suboxone clinic at the same Quincy
location, which failed in the summer of 2014 and is the
subject of litigation in pending in the Norfolk Superior
Court. He came to Torosyan for financial assistance. The
parties entered into preliminary agreements in late 2014
pursuant to which Torosyan would loan funds to restore the
clinic under new ownership; the current Allied Operating
Agreement was executed in September 2015. In October 2015,
Allied received a license to operate from the Department of
Public Health and first began treating patients in November.
It did not generate any revenue until late January 2016. It
is presently still operating at a loss.
in late 2014, Torosyan has provided all of the financing
required to prepare Allied to begin business and is presently
funding its operating losses. He has invested more than $900,
000 of his own money in Allied since that time. David and
James have not contributed any funds to Allied during that
period (although they maintain that Allied is using equipment
and furnishings they purchased for the clinic that failed in
2014). The Allied Operating Agreement essentially provides
Torosyan with a unilateral right to direct the affairs of
Allied, until all the money that he has advanced to Allied is
parties have filed conflicting affidavits concerning the
disputes that arose between them beginning in approximately
November 2015. David and James maintain that Torosyan, who
was not supposed to be actively involved in the operations of
Allied, has wrongfully taken on the role of manager, poorly
run the enterprise, and then acted unilaterally to oust them
from Allied and deprive them of, not only salary and
benefits, but also their ownership interests. They also
assert that Torosyan has acted aggressively toward them.
Torosyan, on the other hand, maintains that he discovered
that both brothers paid for personal expenses using
Allied's funds and that David misappropriated $11, 000
from the business. He also asserts that beginning in
November, David and James demanded that he give some of his
ownership interests in Allied to friends of theirs and
renounce his right to direct Allied's affairs until his
investment is repaid.
to Torosyan, David and James threatened him and his family
with physical harm if he did not comply with their demands.
James also threatened to burn down the clinic. They professed
to have relationships with members of the Russian mafia. (The
specific language that Torosyan attests David and James
directed at him is disturbing, but need not be repeated
response to these alleged threats, Torosyan sought advice
from counsel, who recommended the course of action that has
led to this litigation.
case is before the court on the plaintiffs' motion for a
preliminary injunction. To succeed on their motion,
plaintiffs therefore bear the burden of showing: (1) a
likelihood of success on the merits of their claims; (2) that
they will suffer irreparable harm if injunctive relief is not
granted; and (3) that their harm, if injunctive relief is
denied, outweighs any harm that would be suffered by the
defendants if the relief were granted. See Boston Police
Patrolmen's Ass'n, Inc. v. Police Dept. of
Boston, 446 Mass. 46, 49-50, 841 N.E.2d 1229 (2006);
Packaging Indus. Group, Inc. v. Cheney, 380 Mass.
609, 616-17, 405 N.E.2d 106 (1980). In this case, the court
need not go further than noting that, on the record before
it, it does not find that the plaintiffs have established a
likelihood of success on the merits. The plaintiffs'
motion is premised entirely on the averments set out in their
affidavits. There is no corroborating evidence. The court
need not decide whether it finds the plaintiffs'
assertions more credible than the defendants', even
equipoise is insufficient to support the motion for a
preliminary injunction, and the court does not find their
averments more credible than Torosyan's.
on the question of which parties are the more likely to
suffer irreparable harm if relief is granted or denied,
Torosyan has now contributed more than $900, 000 to this
enterprise. He is still funding operating losses. If the
clinic fails, his loss will far exceed any monetary loss that
the plaintiffs might suffer. Torosyan also has an obvious and
significant interest in seeing Allied succeed. That appears
to be the only way in which he can recover his investment.
Although his principal business is operating an auto repair
shop, he is working regularly at the clinic without pay and
has retained professional consultants to assist.
court does have some uncertainty concerning the provisions of
the Operating Agreement that purportedly authorize Torosyan
to cause James and David to forfeit their entire ownership
interests in Allied based on Torosyan's unilateral
determination that they breached a fiduciary duty due him. In
consequence, the court will enter relief that precludes any
transfer or encumbrance of the units in Allied previously
held by James or David pending the outcome of this case. Such
a transfer could make it difficult to " unscramble the
eggs, " if David and James ultimately prevail in this
litigation, or at least so much of it as asserts a right to
units in Allied.
foregoing reasons, the plaintiffs' motion for a
preliminary injunction is DENIED, except that the defendants
are preliminarily enjoined from transferring, encumbering, or
alienating the ownership interests in Allied ...