Opinion
No. 11–P–865.
2012-07-3
Mohamad A. MOHAMAD v. Sarkis KAVLAKIAN.
By the Court (RUBIN, BROWN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On March 16, 2004, a default judgment entered against the defendant Sarkis Kavlakian in favor of the plaintiff, Mohamad A. Mohamad. This appeal arises out of Mohamad's ongoing efforts to collect on the judgment; it appears in this court for the third time. Specifically, Mohamad appeals an amended order of the Superior Court denying intervention to Emanuel Landsman and releasing the sum of $235,000 held by the court pursuant to a previous order. Mohamad argues that the court's order is “barred by the doctrines of collateral estoppel, res judicata or issue or claim preclusion.” He also asserts that the motion judge erred in determining that Landsman personally had satisfied the underlying judgment. We affirm, essentially for the reasons explained in the judge's thoughtful and well-reasoned memorandum.
Mohamad was awarded $44,500 under his breach of contract claim; that amount was doubled based on Kavlakian's violation of c. 93A. Interest and attorney's fees brought the total award to $101,247.55.
See Mohamad v. Kavlakian, 69 Mass.App.Ct. 261 (2007); Mohamad v. Kavlakian, 76 Mass.App.Ct. 1119 (2010).
Background. The judge succinctly explained the history of the case as it came to her:
“The plaintiff, Mohamad A. Mohamad, brought an action against Sarkis Kavlakian ... in his individual capacity and in his capacity as trustee of the 671 Main Street Realty Trust. This court subsequently issued a default judgment in favor of the plaintiff and executions against Kavlakian to enforce that judgment. This court also issued an order to reach and apply mortgage payments due to Kavlakian in order to satisfy that judgment. Following this order, Kavlakian filed for bankruptcy. Sometime later, this court found Emanuel E. Landsman ... in contempt of the reach and apply order and ordered him to deposit $235,000 with the Clerk of the Superior Court for Worcester County, which was done. This court subsequently ruled that the plaintiff could recover $184,491.39 from Landsman, which included the $101,247.55 default judgment owed by Kavlakian, plus accrued interest and costs. Landsman paid the plaintiff $184,491.39 from his own funds.
“The matter is again before this court on Landsman's ... Motion to Intervene pursuant to Mass.R.Civ.P. 24(a). Landsman contends his application is timely and that he has an interest in the $235,000 he deposited with the court clerk. He is seeking that deposit released back to him in full. In opposing this motion, the plaintiff relies on a bankruptcy court decision in contending that he has a colorable secured claim to a portion of that deposit, with the remainder to be released to Kavlakian's bankruptcy estate.... The plaintiff further contends he has an outstanding judgment against Kavlakian that he seeks to enforce.”
On appeal, Mohamad concedes that Landsman paid him $184,491.39 from his own funds, and that Landsman also deposited $235,000 with the court. As the judge noted, the $184,491.39 figure included the $101,247.55 default judgment against Kavlakian, plus accrued interest and costs awarded as an “appropriate compensatory contempt fine” against Landsman. Mohamad v. Landsman, 76 Mass.App.Ct. 1119 (2010). Nevertheless, Mohamad now argues that Landsman has no interest in any part of the $235,000 being held in escrow, but rather, the entire amount should be released to Kavlakian's bankruptcy trustee from whom Mohamad shall be entitled to recover an additional $101,247.55 to satisfy the second execution, against 671 Main Street Realty Trust (trust), issued on June 8, 2004.
Mohamad argues two points primarily. First, there were two executions—one against Kavlakian personally and one in his capacity as trustee of the trust. Therefore, Mohamad reasons, he is entitled to collect twice. The judge properly responded that, on the contrary, the “court issued one judgment that was reflected in two executions, which allowed the plaintiff to recover under either execution.... Since there is no finding that the trust was acting independently from Kavlakian, it is not appropriate to assume several liability.”
Second, Mohamad characterizes the $184,491.39 payment that he received from Landsman as the “contempt judgment,” apparently reasoning that he was entitled to the full amount as compensation for the contempt, in addition to payment in full of the judgment. However, as noted, supra, the $184,491.39 figure included the $101,247.55 default judgment against Kavlakian, plus accrued interest and costs described by the judge as an “ appropriate compensatory contempt fine ” against Landsman.
In all, the record amply supports the judge's conclusion that she “expected Landsman to pay the portion of [the default] judgment that comprised the judgment against Kavlakian from the deposited sale proceeds rather than with his own funds.” Landsman therefore is entitled to be reimbursed from the deposited sale proceeds held by the court in escrow. In addition, the August 9, 2010, order of the United States Bankruptcy Court, on which Mohamad bases his argument that he had an interest in the money held in escrow, merely “granted the plaintiff relief from stay to permit him to proceed in [the Superior Court] ‘to enforce his rights in the funds held on deposit’ “ consisting of approximately $190,000. The judge correctly noted that the United States Bankruptcy Court decision “did not refer to the fact that Landsman had already paid the plaintiff $184,491.39 from his own funds.”
The Chapter 7 trustee of Kavlakian's bankruptcy estate agrees with the judge's decision as to distribution of the escrowed funds and filed a brief in this court supporting the judge's amended order.
Finally, the judge concluded that, as there was no longer a pending case, Landsman could not intervene. However, it was not an abuse of her discretion to issue a “further order” on the 2004 reach and apply order that would effect the release of the monies being held in escrow by the Superior Court. See Commonwealth v. Springfield Terminal Ry. Co., 77 Mass.App.Ct. 225, 231 (2010). From those monies, Landsman is entitled to reimbursement of his $101,247.55 direct payment to Mohamad, which had satisfied fully the judgment against Kavlakian. See Fields v. Paraskis, 318 Mass. 726, 728–729 (1945). To allow Mohamad to collect an additional $101,247.55 from the escrowed funds would be a windfall, unjustly exceeding the original award.
We have carefully considered the remaining issues raised in Mohamad's brief and find them to be without merit. As we noted in Mohamad v. Kavlakian, 76 Mass.App.Ct. 1119 (2010), we are persuaded “that the trial judge resolved all issues in commendable fashion.”
Mohamad's motion to strike the appearances of Kavlakian and the Chapter 7 trustee is denied; Mohamad's motion to strike the brief of Landsman is denied. The various requests for appellate fees and costs are denied.
Amended order entered on February 14, 2011, on motion to intervene affirmed.