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Abrano v. Abrano

Superior Court of Massachusetts, Suffolk

July 19, 2018

Bryan ABRANO, et al.
v.
Frank ABRANO, et al. Lymol Medical Corporation
v.
Bryan Abrano et al.; Bryan Abrano et al. On Behalf of Lymol Medical Corporation
v.
Frank Abrano et al.

          File Date: July 20, 2018

          MEMORANDUM OF DECISION AND ORDER ON BRYAN ABRANO’S POSTJUDGMENT DISCOVERY MOTION AND KIM ABRANO’S CROSS MOTION FOR PROTECTIVE ORDER

          Janet L. Sanders, Justice of the Superior Court

          These three consolidated actions arise out of disputes among members and former members of a closely held corporation. The claims were tried to a jury which returned a verdict on December 14, 2017. On April 25, 2018, this Court entered judgment awarding plaintiffs.[1] Bryan Abrano (Bryan), Bridget Rodrigue (Bridget) and Dennon Rodrigue (Dennon) damages that collectively exceed $6.7 million, plus attorneys fees. Now before the Court are two motions. The first, brought by Bryan, seeks to compel defendant Kim Abrano to produce documents and to answer interrogatories concerning her assets and income. The motion also seeks to permit trustee process discovery from two entities, Merrill Lynch and Salem Five, where Kim maintains accounts that are now subject to trustee process attachments. The second motion is asserted by Kim. She asks this Court to enter a protective order that would prevent plaintiffs from seeking any postjudgment discovery until after a writ of execution has been returned unsatisfied. A hearing on these two motions was held on July 19, 2018. Issuing a ruling from the bench, this Court ALLOWED Bryan’s motion and DENIED Kim’s cross motion. This memorandum sets forth this Court’s reasoning, which is as follows.

         1. Bryan’s motion seeking postjudgment discovery from Kim is made pursuant to Rule 69, Mass.R.Civ.P. That rule gives the court broad discretion to permit a prevailing plaintiff to "sniff for assets" of the defendant from which judgment could be realized even as an appeal from that judgment is pending. See Evans v. Multicon Construction Corp., 30 Mass.App.Ct. 728, 732 (1991). This Court has similar discretion with regard to discovery sought from the trustee: by statute, a party is entitled to pose interrogatories to trustees and if answers are not filed, "the court may make such order as the case may require." G.L.c. 246, § 12.

         2. In the instant case, the plaintiffs obtained a judgment against Kim Abrano that, together with attorneys fees, exceeds $7 million. Interest is running on that judgment at the rate of $67, 000 a month. This case has been heavily litigated and this Court would expect that to continue during the appellate process, which would likely take a year or more. Thus, if plaintiffs are successful on appeal, Kim’s liability will almost certainly approach $10 million.[2]

         3. The Security Order that this Court has already entered in this case is not sufficient to satisfy a judgment of this magnitude. Although real property valued at $11 million has been attached, this property is held as a tenancy by the entirety between Kim and her husband Frank Abrano, making Kim’s share of that property of questionable value to the plaintiffs. Kim’s shares in Lymol Corporation are also of questionable value, particularly given the testimony at trial that the company lost key business in recent years and that, as a party to these lawsuits, it has incurred and will continue to incur substantial litigation costs. Given the speculative nature of the assets that are the subject of the security order, plaintiffs are entitled to discover whether there are other assets available which would provide better security.

          4. Plaintiffs have some reason to be concerned that Kim has already taken or will take steps to place assets out of plaintiffs’ reach. Immediately after the December 2017 jury verdict against her, Kim transferred certain of her real property interests to Frank for one dollar. Thus, although plaintiffs need not demonstrate that fraudulent transfers have occurred in order to get the discovery they request, that it has in fact occurred (and that there is some reason to believe that Kim may have moved other joint assets into Frank’s name alone) make plaintiffs’ position all the more compelling.

         5. Many of the requests are on their face not unduly burdensome and are narrowly tailored both in terms of the time period covered and in terms of the sets of documents sought. In particular, this Court ORDERS the following:

a. Kim will produce documents responsive to Requests No. 9 of the Postjudgment Request for Production of Documents regarding all financial accounts in which she has had a legal interest covering the time period between June 1, 2014 and the present.[3]
b. Kim will produce all federal tax returns filed on her behalf in unredacted form from January 1, 2016 to present, as sought by Request No. 1 of the Postjudgment Request for Production of Documents.
c. Kim will produce documents concerning any real property in which she has held an interest since June 30, 2014 as detailed in Request No. 4 of the Postjudgment Request for Production of Documents.
d. The trustees Merrill Lynch and Salem Five will respond in full to the requests made to them, there being no argument at all that complying with these requests would be difficult to do.

         Although this Court did not discuss with the parties a time table for production of this material, I see no reason why this cannot happen within ten days unless the parties jointly agree to additional time.

         6. Two of the Requests (Request No. 24 of the Postjudgment Request for Production of Documents and Interrogatory No. 17) concerns legal fees paid by Lymol in defense of claims asserted against Kim in this lawsuit. This Court already issued an order requiring an accounting of these legal fees; the defendants have not complied with this order, claiming that this Court cannot issue a remedy that relates to a claim that is the subject of a pending appeal. Regardless of the merits of this position, however, this Court concludes that Kim should provide this information pursuant to these requests for postjudgment discovery since they relate to a possible liability that she may face if she is required to indemnify Lymol ...


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