Opinion
21-P-681
04-13-2022
Jennifer BRINING v. John J. DONOVAN & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Jennifer Brining, brought the underlying action to reach and apply the assets of Trust One–JJD (trust) to satisfy a judgment against defendant John J. Donovan, the trust's sole beneficiary. A Superior Court judge allowed Brining's ex parte motion for a temporary restraining order to prevent Donovan and defendant William T. Hurley, Jr. (trustee), from removing any assets from the trust beyond those necessary to pay reasonable support for Donovan and reasonable expenses for operating and maintaining the trust. After a hearing, the judge continued the temporary restraining order in the form of a preliminary injunction over the trustee's opposition. The trustee filed a notice of appeal under G. L. c. 231, § 118, second par., from the order allowing Brining's motion for a preliminary injunction. The trustee also appeals from a subsequent order denying his motion for reconsideration. We affirm.
A panel of this court affirmed Brining's judgment against Donovan while this appeal was pending. See Brining vs. Donovan, 100 Mass. App. Ct. 1122 (2022).
In addition to filing the notice of appeal under the second paragraph of G. L. c. 231, § 118, the trustee filed a petition under the first paragraph for review of the preliminary injunction by a single justice of this court. The single justice modified the injunction to cover only trust assets equal to the value of Brining's estimated judgment ($4,612,193) rather than all trust assets.
Discussion. 1. Jurisdiction. We reject Brining's contention that we lack jurisdiction to hear this interlocutory appeal.
"The appeal has proceeded under G. L. c. 231, § 118, second par., which authorizes appeals from the grant or denial of preliminary injunctive relief, even though such orders are interlocutory. To some degree, the preliminary injunction has the color of an attachment, a category of interlocutory order not ordinarily appealable to a full panel. When the form of freezing assets takes the form of an injunctive order directed against virtually all the assets of a person or involves a large sum of money ($1,000,000, we think, makes the grade), the order is subject to review according to the standards generally applicable to preliminary injunctions."
R.G. v. Hall, 37 Mass. App. Ct. 410, 411 n.3 (1994).
2. Preliminary injunction. An order granting a preliminary injunction is reviewed for an abuse of discretion or error of law. See King v. Town Clerk of Townsend, 480 Mass. 7, 9 (2018) ; R.G., 37 Mass. App. Ct. at 411 n.3 (preliminary injunctions and attachments subject to same standard of review). "[I]f the moving party can demonstrate both that the requested relief is necessary to prevent irreparable harm to it and that granting the injunction poses no substantial risk of such harm to the opposing party, a substantial possibility of success on the merits warrants issuing the injunction." Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 n.12 (1980).
The trustee originally opposed the motion for a preliminary injunction exclusively on the grounds that Brining was unlikely to succeed on the merits of her reach and apply claims because the irrevocable trust was subject to a spendthrift provision and not self-settled. See G. L. c. 203E, § 505 (a ) (2). In a thorough and well-reasoned memorandum, the motion judge rejected that argument, concluding that because Donovan signed the documents creating the trust and provided consideration for its creation, the trust was self-settled and Brining was, therefore, likely to succeed on the merits. The judge further concluded that Brining risked being unable to recover on her judgment against Donovan in the absence of an injunction and that Donovan and the trustee were unlikely to suffer irreparable harm from an injunction that merely preserved the status quo.
In moving for reconsideration, the trustee did not challenge either the judge's conclusion that the trust was self-settled or that only Brining faced the possibility of irreparable harm. Instead, he developed a new legal theory, positing that G. L. c. 203E, § 505 (a ) (2), may limit Brining's success on the merits by preventing her from collecting the full value of her judgment against Donovan from the trust. The judge, however, was not required to consider this theory, which the trustee had previously relegated to a one-sentence footnote in his original opposition to Brining's motion for a preliminary injunction. See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 312 (2009). Cf. Boston Edison Co. v. Massachusetts Water Resources Auth., 459 Mass. 724, 726 n.3 (2011) (arguments raised only in footnotes are considered waived).
On appeal, the trustee merely reasserts the argument from his motion for reconsideration, which the judge appropriately treated as waived. Because he provided us no other reason to question the judge's conclusions that Brining was likely to succeed on the merits, that an injunction was necessary to prevent irreparable harm to Brining, and that it posed no substantial harm to him, we discern no error or abuse of discretion in granting the injunction. See Packaging Indus. Group, Inc., 380 Mass. at 617 n.12.
Although the argument is waived for the purposes of challenging the preliminary injunction, the trustee is free to raise it anew when the Superior Court considers final judgment in the underlying action.
Order granting preliminary injunction affirmed.
Order denying reconsideration affirmed.