Three consolidated cases arose from disputes among members and former members of a closely held corporation, with four parties sharing family ties. Frank Abrano sought summary judgment on a counterclaim against his son Bryan Abrano and daughter Bridget Rodrigue for alleged unpaid amounts on a promissory note totaling $4,410,500, executed as part of Frank’s agreement to sell shares in the family business.
The court denied Frank’s motion, finding material disputes of fact precluded summary judgment. Bryan provided evidence that he confirmed the final payment amount with the company’s accountant and made it accordingly. Conversations between Bryan and Frank appeared to confirm no further amounts were owed. Frank filed tax returns reporting he had received full payment and all interest due. In his litigation answer, Frank himself stated he had received final payment from Bryan and Bridget in 2013. Additionally, Bryan and Bridget retained an expert prepared to testify that the payments actually exceeded what was owed under the note.
The court found it striking that Frank contended no material disputes existed given this evidence, particularly since as the counterclaim plaintiff he bore the burden of proof at trial.
The full text of the opinion follows below. Slip opinions are subject to formal revision; the official version is published in the official reports.
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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.
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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.
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For these reasons and for other reasons articulated in the memoranda filed in opposition, Frank Abrano’s Motion for Summary Judgment as to his Counterclaim is DENIED.
______________________________________
Janet L. Sanders
‘ Justice of the Superior Court
Dated: October 2, 2017