Sommer v. Monga

• Court: Appeals Court of Massachusetts
• Writing for the Court: FINE
• Citation: Sommer v. Monga, 626 N.E.2d 16, 35 Mass.App.Ct. 761 (Mass. App. 1994)
• Decision Date: 13 January 1994
• Docket Number: No. 92-P-749,92-P-749
• Parties: Paul F. SOMMER v. D. Dev MONGA & others. 1

Page 16

626 N.E.2d 16

35 Mass.App.Ct. 761

Paul F. SOMMER v. D. Dev MONGA & others. ¹

No. 92-P-749.

Appeals Court of Massachusetts.

Argued Oct. 19, 1993.

Decided Jan. 13, 1994.

Lawrence G. Green, Boston, for defendants.

Peter S. Brooks, Sherborn, for plaintiff.

Before ARMSTRONG, FINE and JACOBS, JJ.

FINE, Justice.

Until D. Dev Monga sought to end the relationship, he and Paul F. Sommer were business associates, with interests in two corporations controlled by Monga. Sommer brought suit in the Superior Court against Monga and the two corporations alleging that the termination of the business relationship was a breach of contract and a breach of Monga's fiduciary duty. Monga and the corporations filed counterclaims. A jury trial culminated in a judgment in Sommer's favor against all three defendants in the amount of $478,904.03. Monga and the corporations appealed on July 11, 1991. Based upon occurrences following the entry of judgment, Sommer moved to dismiss the appeal. A single justice of this court referred that motion to the panel assigned to hear the merits of the appeal. Because we agree with Sommer's contention that the appeal should not go forward at this time, we do not reach the merits of the appeal.

We summarize the facts, all matters of record, on which the motion to dismiss is based. Soon after entry of judgment, Sommer commenced postjudgment discovery in an effort to locate and attach assets available to pay the judgment, and he obtained an injunction prohibiting Monga and his two corporations from transferring assets other than in the regular course of business. Monga, a member of the Massachusetts Bar, repeatedly filed motions in opposition to Sommer's discovery requests. The motions were heard, and denied, by the same judge who had presided over the jury trial. At one point, a single justice of this court determined that a petition filed by Monga to review the trial judge's allowance of a discovery motion was frivolous and brought solely for the purpose of delay.

As a result of the postjudgment disputes, a number of steps were taken: contempt proceedings were initiated against Monga; a second injunction was issued which restrained Monga from harassing third parties who had relevant financial information sought by Sommer, and also from filing further motions, without leave of court, intended to prevent Sommer's attempts at discovery. Finally, a receiver was appointed. In appointing the receiver, the judge found that Monga had mingled corporate assets with his own and those of his wife, concealed assets, and fraudulently conveyed his real and personal property to third parties.

Monga failed to appear on June 15, 1992, for a scheduled hearing on Sommer's motion for contempt. The motion was allowed by default, and Monga was adjudged to be in contempt. There were two grounds: his failure to provide discovery; and his transfer of assets in violation of the first injunction. The judge issued a capias for Monga's arrest which, as of the date of oral argument in this court, remained outstanding. Represented by the same attorney who represents Monga in the instant appeal, but without appearing personally, Monga moved to vacate the finding of contempt. That motion was denied by a different Superior Court judge on June 23, 1993. As of the date of oral argument in this court, Monga had not purged himself of that contempt, and the receiver had filed a separate contempt action in the Superior Court against Monga and his wife. In that action, which is pending, the receiver alleged that a Florida bank had paid Monga and his wife money from an account in their names, but, in violation of a court order, they had failed to turn the money over to the receiver.

Apart from the issues relating to the motion to dismiss, the appeal raises questions at least worthy of consideration by an appellate court. The right of access to the appellate process on the part of a civil litigant is an important one, guaranteed by G.L. c. 231, § 113, and any deprivation of that right ought to be based upon extraordinary circumstances. It is well settled, however, that an appellant's actions in flagrant violation of orders of the trial court while an appeal is pending may constitute such extraordinary circumstances. ²

In three Massachusetts cases involving Probate Court child custody orders, the appellant's disappearance with the child while his or her appeal from a custody order was pending was held to be a sufficient basis for dismissal of the appeal. See Henderson v. Henderson, 329 Mass. 257, 258, 107 N.E.2d 773 (1952); Ellis v. Doherty 334 Mass. 466, 468, 136 N.E.2d 203 (1956); Trupiano v. Trupiano, 13 Mass.App.Ct. 1010, 1011, 433 N.E.2d 470 (1982). In reaching those decisions, there was concern not only with the ability of the appellee eventually to enforce the judgment, but also with the assault on the dignity of the court by one who persists in flouting its orders. It is true that the instant case differs from the three Massachusetts precedents in that it does not involve violations of the particular order from which the appeal was taken. We do not consider that distinction to be dispositive. Courts in other jurisdictions have viewed efforts by an appellant to frustrate the collection of a judgment awarding monetary damages as...