Bass River Tennis Corp. v. Barros
| Decision Date | 01 June 2021 |
| Docket Number | 19-P-1657 |
| Citation | 99 Mass.App.Ct. 1127,170 N.E.3d 349 (Table) |
| Parties | BASS RIVER TENNIS CORPORATION & others v. Manuel C. BARROS. |
| Court | Appeals Court of Massachusetts |
This appeal arises from litigation brought by the Bass River Tennis Corporation (BRTC) and its current owners, Mark Greenberg and Michael LaPierre, against the company's founder and former owner, Manuel C. Barros,3 to satisfy a judgment the plaintiffs obtained against Barros in an underlying action. Barros appeals from a postjudgment order of a judge of the Superior Court appointing a special master to sell by auction a twenty percent membership interest owned by Barros in a related entity to satisfy the judgment. We affirm.
Background. We summarize the relevant facts, reserving certain details for our discussion of the issues. This case arises out of litigation that began in 2012 when BRTC and its owners, Greenberg and LaPierre, sued Barros to collect on a promissory note and for breach of a securities purchase agreement. The details and prior procedural history have been set forth in previous summary decisions of this court and need not be repeated at length here. We rely particularly on the most recent memorandum and order, Greenberg v. Barros, 97 Mass. App. Ct. 1109 (2020) (2020 decision).4
Our focus here is on another entity formed by Barros, 31 Tozer Road, LLC (Tozer), which is the owner of the property on which BRTC is situated. To satisfy outstanding debts owed by Barros, Greenberg and LaPierre had previously acquired an eighty percent controlling interest in Tozer pursuant to the securities purchase agreement (SPA) that Barros, Tozer, and BRTC entered into with Greenberg and LaPierre in 2010.5 A panel of this court affirmed that acquisition in the 2020 decision.
While the appeal of the 2020 decision was pending, a judge of the Superior Court allowed the plaintiffs’ motion for a postjudgment equitable reach and apply attachment pursuant to G. L. c. 223, § 86A, to acquire the remaining twenty percent ownership interest in Tozer still held by Barros, with the purpose of selling the interest once the judgment became final (attachment order).6 When the judgment became final the following year, the plaintiffs sought the appointment of a special master to auction off Barros's interest (motion to appoint a special master).7 After a hearing in March 2019, the motion was allowed, and an order issued on June 20, 2019, establishing sale procedures and appointing the special master to execute the sale (order).8
The special master conducted a sale by auction on August 15, 2019, in accordance with the procedures set forth in the order. Plaintiffs Greenberg and LaPierre submitted the only bid, purchasing the remaining twenty percent interest in Tozer for $75,000. The auction was held at the office of the special master in Foxborough, Massachusetts, approximately fifty-six miles from Tozer's property in Beverly, Massachusetts. The city of Beverly had assessed the value of Tozer for fiscal year 2019 at $2.78 million.9 The special master never asked the motion judge to confirm the auction as he was permitted to do under the order, if requested to do so by the successful bidder. The special master filed a final report and a request for approval of his fees, which was allowed by the judge shortly thereafter. Barros timely appeals from the order appointing the special master and setting forth the procedures for the auction.
Discussion. 1. Motion to appoint a special master. We review a grant of equitable relief for abuse of discretion. See Cahaly v. Benistar Prop. Exch. Trust Co., 68 Mass. App. Ct. 668, 678-679 (2007). A motion judge possesses broad equitable powers to facilitate a creditor's collection of its judgment. See Foster v. Evans, 384 Mass. 687, 689 (1981) ().
The plaintiffs argue that the motion judge acted within his discretion in exercising his broad equitable powers, subject to a reach and apply attachment after judgment entered, to appoint a special master to auction off Barros's remaining twenty percent interest in Tozer. The statutory authority relied on by the plaintiffs includes G. L. c. 223, § 86A, and G. L. c. 214, § 3 (6). See G. L. c. 223, § 86A (); G. L. c. 214, § 3 (6) (). See also Salvucci v. Sheehan, 349 Mass. 659, 661-664 (1965) ().
Barros challenges the plaintiffs’ argument primarily on two grounds. First, he contends that the auction was carried out in violation of the limited liability company statute, G. L. c. 156C (act). Specifically, Barros states that § 40 of the act supersedes and supplements the statutory authority relied on by the plaintiffs such that a charging order is the exclusive remedy available to the plaintiffs as judgment creditors of a member of a limited liability company. In the absence of a charging order, Barros claims that the motion judge should have unwound the auction and returned the twenty percent interest to Barros.
Questions of statutory interpretation require us to look first to the language of the act. See City Elec. Supply Co. v. Arch Ins. Co., 481 Mass. 784, 788 (2019). "It is well established that ‘[a] statute is not to be deemed to repeal or supersede a prior statute in whole or in part in the absence of express words to that effect or of clear implication.’ " Skawski v. Greenfield Investors Prop. Dev. LLC, 473 Mass. 580, 586 (2016), quoting Commonwealth v. Palmer, 464 Mass. 773, 777 (2013). Ultimately, the touchstone is the intent of the legislation. See id. at 586-587.
The parties agree, as do we, that there is no express language in § 40 stating that it preempts any preexisting remedies. We are thus required to consider whether preemption was clearly implied. In the absence of explicit language, the intention to abrogate prior law may be established only by implication that is "so clear that it overcomes our ‘strong presumption against implied repeal of a prior law.’ " Skawski, 473 Mass. at 586, quoting Dartmouth v. Greater New Bedford Reg'l Vocational Tech. High Sch. Dist., 461 Mass. 366, 374 (2012). See George v. National Water Main Cleaning Co., 477 Mass. 371, 378 (2017) (). "It may also be clear where the subsequent legislation comprehensively addresses a particular subject and impliedly supersedes related statutes and common law that might frustrate the legislative purpose" (citation omitted). Skawski, supra.
While we agree with Barros that the act, generally, created a comprehensive statutory scheme for the formation, operation, and dissolution of a limited liability company, we do not agree that § 40 was similarly intended to be as comprehensive in defining the remedies available to a judgment creditor. We are not persuaded that we should interpret the mere absence of any explicit reference to G. L. c. 223, § 86A, and G. L. c. 214, § 3 (6), in § 40 of the act as clearly implying that § 40 was intended to displace or limit such statutory authority. Nor has Barros offered any other evidence of such an intent. To the contrary, the language of § 40 is permissive, not mandatory, giving the judgment creditor the option of seeking a charging order. See G. L. c. 156C, § 40 ().
We are equally unpersuaded by Barros's additional argument that the later enactment of the act, and specifically § 40, is sufficient to manifest an intent to abrogate prior law given that it is presumed that "the Legislature is aware of existing statutes when it enacts subsequent ones." Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008). The date of enactment, standing alone, does not sufficiently establish the intent to supersede prior law, especially given that it is well established that "the implied repeal of a statute by a subsequent statute has never been favored by our law" (quotation and citation omitted). George, 477 Mass. at 378. "[W]e do not mechanically determine that the more recent or more specific statute ... trumps the other" (quotation and citation omitted). Id. There is nothing inconsistent between the various remedial statutes, and nothing which suggests they should be understood as mutually exclusive. Both charging orders and reach and apply attachments are nonexclusive remedies based on "remedial" statutes and should be given "broad interpretation." See Monell v. Boston Pads, LLC, 471 Mass. 566, 575 (2015) (). Accordingly, we will not disturb the shared legislative purpose of such statutory authority to enable creditors to collect debts.
In sum, we agree with the plaintiffs that § 40 contains no clear implication that the Legislature intended it to be the exclusive remedy available to a judgment creditor of a member of...
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