Abrano, et al. v. Abrano, et al. (Lawyers Weekly No. 02-029-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2014-3509 BRYAN ABRANO, BRIDGET RODRIGUE, and DENNON RODRIGUE Plaintiffs vs. FRANK ABRANO, KIM ABRANO, EDWARD HOLZEK and GARY TRAINOR Defendants CONSOLIDATED WITH SUCV2015-1339 LYMOL MEDICAL CORPRATION, Plaintiff, vs. BRYAN ABRANO, BRIDGET RODRIGUE and DENNON RODRIGUE, Defendants CONSOLIDATED WITH SUCV2015-1367 BRYAN ABRANO, and BRIDGET RODRIGUE , on behalf of LYMOL MEDICAL CORPORATION, Plaintiffs and Counterclaim-Defendants vs. FRANK ABRANO, KIM ABRANO, EDWARD HOLZEK, GARY TRAINOR, and LYMOLD MEDICAL CORPORATION, Defendants and Counterclaim-Plaintiffs MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF-IN-COUNTERCLAIM FRANK ABRANO’S MOTION FOR SUMMARY JUDGMENT These three consolidated cases arise out of disputes among members and former members of a closely held corporation. Four of the parties are also members of the same family. 2 With trial of this matter only weeks away, Frank Abrano (Frank) asks this Court to enter summary judgment in his favor on his counterclaim against Frank’s son Bryan Abrano (Bryan) and Frank’s daughter Bridget Rodrigue, both of whom executed a promissory note agreeing to pay $ 4,410,500 to Frank over a period of five years. The note was executed in connection with Frank’s agreement to sell a portion of his shares in Bryan Corporation, the family business, to Frank and Bridget. This Court concludes that there are clear disputes of fact that make summary judgment in this matter wholly inappropriate. In opposing the motion, Frank and Bridget point to the following evidence in the summary judgment record. In the spring of 2013 when the last installment was scheduled to be made on the note, Bryan emailed Michael Hall, Bryan Corporation’s accountant, to confirm the amount of the final payment. Bryan then made the payment in line with Hall’s calculations. Around that same time, he had conversations with Frank that appeared to confirm that nothing further was owed to Frank on the note. Thereafter, Frank filed tax returns reflecting that he had received full payment for his shares and had been paid all interest due under the note. And in an Answer filed in this litigation, Frank stated that he had received from Bridget and Bryan “final payment” for his shares in Bryan Corporation in 2013. Finally, Bryan and Bridget have retained an expert who is prepared to testify at trial that, based on his review of a history of all payments received by Frank, Bridget and Bryan have actually paid Frank more than he was due. This Court finds it astonishing that, in the face of this evidence, Frank contends that there are no material disputes of fact, particularly since as a plaintiff on the counterclaim, he bears the burden of proof at trial. 3 For these reasons and for other reasons articulated in the memoranda filed in opposition, […]
Abrano, et al. v. Abrano, et al. (Lawyers Weekly No. 12-104-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2014-3509 BRYAN ABRANO, BRIDGET RODRIGUE, and DENNON RODRIGUE Plaintiffs vs. FRANK ABRANO, KIM ABRANO, EDWARD HOLZEK and GARY TRAINOR Defendants CONSOLIDATED WITH SUCV2015-1339 LYMOL MEDICAL CORPRATION, Plaintiff, vs. BRYAN ABRANO, BRIDGET RODRIGUE and DENNON RODRIGUE, Defendants CONSOLIDATED WITH SUCV2015-1367 BRYAN ABRANO, and BRIDGET RODRIGUE , on behalf of LYMOL MEDICAL CORPORATION, Plaintiffs and Counterclaim-Defendants FRANK ABRANO, KIM ABRANO, EDWARD HOLZEK, GARY TRAINOR, and LYMOLD MEDICAL CORPORATION, Defendants and Counterclaim-Plaintiffs MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF BRYAN ABRANO’S MOTION TO COMPEL PRODUCTION OF DOCMENTS These three consolidated cases arise out of disputes among members and former members of a closely held corporation. The matter is now before the Court on a Motion by plaintiff Bryan Abrano (Bryan) to Compel production of certain classes of documents from Lymol Medical Corporation (the Company ) as well as Kim Abrano (Kim) and Frank Abrano (Frank) (collectively, the defendants). After hearing this Court rules as follows: State and Federal Tax returns for Frank and Kim for the Years 2008-2014: This Court recognizes that tax returns are subject to a more stringent test for assessing discoverability. In this Court’s view, however, the plaintiff has satisfied this higher standard. Specifically, the tax returns may yield information regarding certain payments that were made to Frank which are at issue in his counterclaim. They may also shed light on how Kim treated payments that she received from Bryan, such payments being relevant to Bryan’s wage claim. Accordingly, the Motion is ALLLOWED as to these returns. The Company’s General Ledger: Defendants have produced the Company’s general ledger for dates before June 2014. Plaintiff seeks to have that updated to the current date, all in native format. Plaintiff seeks that information to support Bryan’s and plaintiff Bridge Rrodrigue’s freeze out claims as well as the derivative claim that Bryan asserts on behalf of the Company – specifically, the damages and equitable relief sought in connection with those claims. This Court concludes that this request is not unduly burdensome and is reasonably calculated to lead to admissible evidence. Accordingly, the Motion is ALLOWED as to the current general ledger, which shall be produced in native format. Defendants’ Communications with Parexel Regarding an FDA Investigation: After this litigation began, the Company hired Parexel to respond to a letter from the FDA citing the Company for certain regulatory deficiencies. Defendants contend that these alleged deficiencies occurred as a result of Bryan’s actions when he was with the Company. Defendants have already produced all of Parexel’s and the Company’s communications with the FDA but […]
Abrano, et al. v. Abrano, et al. (Lawyers Weekly No. 12-163-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-1367-BLS2 BRYAN ABRANO and BRIDGET RODRIGUE, derivatively and on behalf of BRYAN CORPORATION Plaintiffs vs. FRANK ABRANO, KIM ABRANO, EDWARD HOLZEK and GARY TRAINOR Defendants vs. BRYAN CORPORATION, Nominal Defendant MEMORANDUM OF DECISION AND ORDER ON BRYAN CORPORATION’S MOTION TO DISMISS PRUSUANT TO G.L.c 156D §7.44 This is one of three lawsuits involving members of a closely held corporation, the Bryan Corporation (the Company). The instant case is a derivative action brought on behalf of the Company by two minority shareholders, Bryan Abrano (Bryan) and his sister Bridget Rodrigue (Bridget). The Company now moves to dismiss the action on the grounds that a committee of two independent directors has determined, in “good faith” and after “reasonable inquiry,” that pursuing the action would not be in the “best interest” of the corporation. G.L.c. 156D §7.44 (a). After careful review of the parties’ submissions, this Court concludes that the Motion must be DENIED. 2 BACKGROUND The Company is a distributor of pharmaceuticals and medical devices. The defendant Frank Abrano (Frank) is its founder. In 2007, criminal charges were filed against him and the Company that resulted in his conviction and incarceration. Civil proceedings against him and the Company were resolved by way of a settlement agreement with the Food and Drug Admin-istration (FDA). As part of the settlement, Frank agreed not to have any affiliation with the Company or exercise any control over it. To satisfy that condition, Frank transferred his interest in the Company to his two children Bryan and Bridget and his estranged wife Kim, who holds a controlling interest. The Verified Complaint alleges that Frank, in violation of that agreement and with the assistance of Kim, has continued to meddle in the Company’s operations and has enriched himself at the Company’s expense. In support of its motion to dismiss, the Company has submitted three affidavits together with attachments. That material, together with certain other material attached to plaintiffs’ Oppo-sition, reveals the following. Before filing the derivative action, the plaintiffs made a Demand on the Company’s Board of Directors, as required by G.L.c. 156D §7.42. The date of the Demand was July 21, 2014. Pursuant to a resolution dated September 6, 2014, the Company’s Board of Directors ap-pointed a committee consisting of two directors, Edward A. Hlozek and Gary E. Trainor, to in-vestigate the Demand’s allegations. In addition to being named defendants in this action, Hlozek and Trainor are also personal friends of Frank. Both were nominated to the Board by Kim and elected immediately after the ouster of the plaintiffs and just one week before the De-mand was made. Before joining the Board, Hlozek was the CEO of QuantumCor, Inc., which […]
Bryan Corporation v. Abrano (Lawyers Weekly No. 10-080-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12003 BRYAN CORPORATION vs. BRYAN ABRANO. Suffolk. March 8, 2016. – June 14, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Attorney at Law, Disqualification, Conflict of interest. Civil actions commenced in the Superior Court Department on November 7, 2014, and March 13, 2015. After transfer to the business litigation session and consolidation, a motion to disqualify counsel was heard by Janet L. Sanders, J. The Supreme Judicial Court granted an application for direct appellate review. Richard J. Yurko (Douglas W. Salvesen with him) for the defendant. Euripides D. Dalmanieras (Caroline Stoker Donovan with him) for the plaintiff. CORDY, J. The defendant, Bryan Abrano (Bryan), appeals from a Superior Court judge’s order disqualifying his attorneys, members of the firm of Yurko, Salvesen & Remz, P.C. (YSR), from representing him in a dispute against the plaintiff, Bryan Corporation (company), of which Bryan is a shareholder. The Superior Court judge granted the plaintiff’s motion to disqualify on the ground that YSR’s representation of Bryan violated Mass. R. Prof. C. 1.7, as appearing in 471 Mass. 1335 (2015), or in the alternative, Mass. R. Prof. C. 1.9, as appearing in 471 Mass. 1359 (2015), governing the concurrent and successive representation of clients, respectively. Because we conclude that YSR’s conduct violated rule 1.7′s prohibition against the simultaneous representation of adverse parties, we affirm the order of disqualification.[1] 1. Background. We summarize the facts relevant to the posture of this controversy, which arises from a dispute between family members who are shareholders in a close corporation.[2] The company, which is headquartered in Woburn, was incorporated in 1985 as a close corporation and supplies pharmaceuticals and medical devices. Since October, 2008, the company has had three shareholders: Bryan; his sister, Bridget Rodrigue (Bridget); and their mother, Kim Abrano (Kim). Kim holds fifty-one per cent of the company, Bryan holds thirty-three per cent, and Bridget holds sixteen per cent. Bryan, Bridget, and Kim all obtained their shares from Frank Abrano (Frank), who founded the company, and who is Kim’s estranged husband and Bryan and Bridget’s father. Bryan and Bridget were directors of the company until July, 2014.[3] Bryan was the company’s president and chief executive officer until 2013, when he was replaced by Libor Krupica. Bridget was the […]