NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1339
RENITA K. JOHNSON 1
vs.
GEORGE J. KERAMAS 2 & another. 3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Renita K. Johnson, brought this action
against her brother, George J. Keramas, and his wholly owned
company, Acriva Group, Inc. (Acriva), seeking a fifty percent
share of certain assets owned by their late father and also held
in a trust of which the father was the settlor. After
protracted litigation, a judge of the Superior Court entered
partial summary judgment in favor of Johnson and a different
judge later entered a default in favor of Johnson on all
1 Individually and as trustee of Keramas Realty Trust.
2 Individually and as former trustee of Keramas Realty Trust.
3Acriva Group, Inc. Acriva also filed notices of appeal but has not filed a brief in this appeal. remaining claims and counterclaims due to the defendants'
noncompliance with discovery orders. Judgment entered following
a damages assessment hearing. Keramas appeals from that
judgment as well as orders on certain postjudgment motions. 4
Keramas argues that Johnson was not entitled to summary judgment
or the default judgment, and challenges various other rulings.
We affirm.
Background. 1. Facts. a. Parties and trust. In 1980,
the parties' father, James G. Keramas (father), executed a
declaration of trust for the Keramas Realty Trust (trust) and
recorded it with the Middlesex County registry of deeds. The
trust later was amended on three occasions, in 1981, 1991, and
2006, through writings signed by all beneficiaries and recorded
with the registry of deeds, consistent with the terms of the
trust.
Under the provisions of the amended trust, Johnson and
Keramas were the sole beneficiaries; they were entitled to share
equally in the income while the trust was in existence and to
equally split the principal on termination of the trust. The
4 Keramas appeals from orders dated November 18, 2021, denying Johnson's motion to alter and amend the judgment and the defendants' motion to remove default and vacate the final judgment, as well as from orders dated February 15, 2022, denying the defendants' motion to enforce automatic stay and for sanctions and allowing Johnson's motion for an order compelling the defendants to comply with postjudgment discovery requests.
2 trust would terminate on execution and recording of a writing to
that effect by the father or by both beneficiaries after the
father's death, or, otherwise, on December 13, 2026. The father
was appointed trustee, with Keramas and then Johnson, in that
order, to serve as successor trustees. As trustee, the father
had the right to decide when and if to make income distributions
to the beneficiaries during his lifetime. Although not
expressly provided for in the trust, the father exercised
complete control over the trust and its assets during his
lifetime, including by transferring assets in and out of the
trust without the consent of the beneficiaries and without
objection.
In 2009, the father moved from Massachusetts to Florida.
In February 2015, the father was admitted to the hospital in
Florida. During the hospitalization, Keramas presented the
father with documents to sign that appointed Keramas as trustee
and as the father's attorney-in-fact; Keramas later gave the
father signature pages to sign and thereafter attached them to
other documents, including one that gave Keramas access to one
of the father's personal accounts. A few days later, Keramas
presented the father with a document to further amend the trust
(amendment). The amendment had the effect of appointing Keramas
as trustee and making Keramas the sole income beneficiary during
his lifetime (a change from sharing the income with Johnson).
3 On the termination of the trust and sale of its assets, Keramas
and Johnson remained entitled to equal shares. At the time, the
trust held title to rental properties, described more fully
below.
The father signed the amendment and Keramas then sought
Johnson's signature. In March 2015, Keramas and Johnson
exchanged e-mail messages about the amendment (March 2015 e-
mails). Keramas explained that he would become the trustee and
the sole income beneficiary, i.e., would receive income from the
rents collected after expenses. Keramas also explained that
Keramas and Johnson would remain the beneficiaries who share
proceeds on the sale of the properties. Johnson asked when she
would receive her share and how she would be aware of the sale
of the properties, and Keramas explained,
"The trust assets consist of the properties. . . . In the trust, it says that upon dad's death, the trust will be dissolved and the proceeds distributed among the beneficiaries. That would be you and me. . . . Practically speaking, after dad's death, the properties would have to be sold and the proceeds divided between us. You and I would have to sign for the sale of each property at the closing as the beneficiaries can only jointly sell properties at that time. At the closing, there would be 2 checks given to us, each for 50% of the proceeds from the sale, one in your name and one in my name."
After some further urging by Keramas, Keramas and Johnson
executed the amendment in the presence of a notary and Keramas
recorded the amendment.
4 The father passed away in April 2015. Johnson alleges that
the father died intestate and that all property owned by her
father in his individual name passed to Keramas and Johnson as
his only heirs. 5
b. Assets. At the time of the father's hospitalization,
the following assets were owned by the father, either
individually or jointly, or the trust.
i. Trust properties. The trust held title to five parcels
of real estate, including one residential property in
Massachusetts, and three residential rental properties and one
commercial shopping mall in Florida. The father, as trustee,
also held a bank account with a balance of $7,472, that served
as the primary operating account for the rental properties held
by the trust.
In November and December 2015, after the father's death,
Keramas, as trustee, sold three of the trust properties; the
combined proceeds from those sales was $553,873. Keramas, as
trustee, later received a $65,000 insurance settlement for
damage at one of those properties. Johnson did not participate
in any of the closings and did not receive any distributions
5 Prior to his death and while in the hospital, Johnson alleges that Keramas prepared a will for the father. The will named Keramas as executor. Keramas refused to produce the original will and the parties represented during a hearing that as of October 2021, the will had not been submitted to probate.
5 from the trust after the sales. In September 2016, Keramas
withdrew $350,000 from the trust account and deposited the funds
in an account in his own name. During the time that he was
trustee, Keramas also transferred $189,750 of trust funds to
himself and to his alter ego, Acriva, without Johnson's
knowledge. Keramas further used at least $147,700 in trust
funds to pay four law firms for legal work defending Keramas in
a different action not involving the trust, representing him in
a since-dismissed lawsuit wherein he sought a declaration that
the trust no longer existed, and "defend[ing] his actions in
refusing to disclose financial information regarding the Trust
to [Johnson]" while he was trustee.
As discussed below, during this litigation, Johnson
replaced Keramas as trustee. Thereafter, Johnson sold the two
remaining trust properties in May 2019 and February 2020, and
deposited the net proceeds from the sales, $1,028,474, into the
trust account. At the time judgment entered in fall 2021, the
balance of the trust account was $1,087,328.
ii. New England Realty Associates shares. The father
owned shares in New England Realty Associates, valued at
approximately $385,400 (NERA shares); some of the shares were in
"certificate form" and others were in "book entry form."
Shortly before the father's death, Keramas attempted to sell the
father's NERA shares using a form that Keramas forged with the
6 father's signature. The transfer agent for the shares accepted
the form and sold the book entry form NERA shares for $256,286.
A check in that amount was issued to the father, who,
unbeknownst to the transfer agent, was then deceased; Keramas
signed his father's name on the check and deposited it in an
account he controlled. Keramas was unable to sell the remaining
certificate form NERA shares; however, by impersonating his
father, Keramas was able to have the dividends from those
shares, totaling $20,249, directly deposited into an account in
his name.
iii. The father's bank accounts. The father had two
personal bank accounts, one with a balance of $4,313 and one
with an unknown balance (personal accounts). After the father's
death, Keramas took possession of the funds in the personal
accounts.
iv. Certificates of deposit. The father owned three
certificates of deposit, totaling $920,228, that were each
titled in the father's name in trust for Johnson as beneficiary
(CDs). While the father was in the hospital, he told Johnson
that she was the beneficiary of the CDs and asked her to contact
a specific bank officer to effectuate the transfer of the CDs to
her name. Johnson did so, and the father executed paperwork so
that the CDs were reissued in Johnson's name.
7 v. Bank accounts in Greece. The father and Johnson had
two joint accounts at Alpha Bank of Greece, one with a balance
of 120,000 euros and one with a balance of $457,206 (Alpha
accounts). The father informed Johnson about the accounts while
he was in the hospital and the accounts automatically passed to
Johnson on his death.
vi. Automobile. The father owned a Mercedes automobile
that he purchased for $15,000. Keramas sold the car following
the father's death and kept or used the proceeds for himself or
his girlfriend.
2. Procedural history. Because the procedural history of
this case is lengthy and complicated, we briefly discuss some
relevant rulings, somewhat out of order, and reserve others for
our later discussion.
a. Complaint. Johnson brought this action against Keramas
in August 2017. Johnson filed her second amended complaint
against Keramas and Acriva, with leave of the court, in June
2020. In that complaint, Johnson sought a declaration that she
is the owner of the funds held in the CDs (count 1) and the
Alpha accounts (count 2). She also alleged a breach of contract
based on the March 2015 e-mails (count 3). Johnson alleged
conversion of the personal bank accounts and the automobile
(count 4), and that Keramas improperly retained Johnson's one-
half portion of the proceeds from the sale of some NERA shares
8 and the dividends from the others (count 5). Johnson further
alleged that Keramas improperly transferred trust funds to
himself and his alter ego, Acriva (count 6), and sought orders
concerning the tax returns filed by Keramas as trustee (count
7). Keramas asserted counterclaims seeking a declaration that
the CDs and Alpha accounts were trust property and requesting
imposition of constructive trust and instructions.
b. Preliminary injunction, partial summary judgment, and
alternate security. Shortly after the filing of this suit, in
October 2017, Johnson successfully moved for a preliminary
injunction that froze the assets in the trust account until
further court order and directed that the proceeds of any future
sale of the two remaining trust properties be placed in that
account. 6
In August 2018, Johnson moved for partial summary judgment
and the motion was allowed, in part, only as to liability for
Johnson's breach of contract claim. The judge also "expand[ed]"
the preliminary injunction by requiring Keramas to establish an
escrow account in the amount of $309,437 (representing Johnson's
share of sale proceeds from the three trust properties Keramas
sold and the insurance settlement).
6Johnson filed this motion after learning that one of the remaining trust properties was under contract for sale. That sale ultimately fell through.
9 Thereafter, Keramas filed a motion for alternate security,
requesting that in lieu of establishing the escrow account, the
court order Johnson to replace Keramas as trustee and assign
Johnson security in Keramas's fifty percent share of the
expected trust distribution following the sale of the remaining
properties. A judge granted Keramas's request and additionally
ordered, among other things, that Johnson attempt to sell the
remaining properties and thereafter terminate the trust.
c. Default. The issue of discovery was heavily litigated
between the parties. The subject of such litigation included,
among other things, discovery as to the disposition of the
$350,000 that Keramas transferred from a trust account to a
personal account in September 2016 and the $256,285 that Keramas
directly received from the sale of some of the NERA shares in
May 2015. After Johnson filed motions to compel and for
sanctions, two judges entered discovery orders in January 2018,
March 2020, June 2020, July 2020, and October 2020, directing
Keramas to produce documents related to one or both of these
transactions and, in at least one instance, to produce
documentation of his efforts to obtain certain bank records
relevant to the transactions.
In March 2021, a third judge entered an order stating that
Johnson "is entitled to full and complete discovery from
[Keramas] regarding [Keramas's] $350,000 withdrawal from the
10 Trust bank account and the disposition of the $256,000 from the
sale of the [NERA] shares." In April 2021, the same judge
entered a discovery compliance order directing Keramas to
produce "a full, complete and accurate accounting" of the
disposition of both amounts that "begin[s] on the date that
the . . . funds were deposited in the initial recipient accounts
and shall include each and every withdrawal or transfer"
thereafter. The accounting was to be executed under penalties
of perjury and to show each transfer to present, accompanied by
monthly statements and cancelled checks.
In July 2021, Johnson moved for default based on
noncompliance with the April 2021 order. In August 2021, at a
hearing on the motion, a fourth judge made oral findings that
Keramas violated the April 2021 order and entered default
against Keramas and Acriva.
d. Damages. In October 2021, an assessment of damages
hearing was held before the same judge who entered the April
2021 order. Following that hearing, judgment entered declaring
Johnson as the owner of the funds in the CDs and the Alpha
accounts, and the owner of fifty percent of the funds in the
father's personal accounts as of February 15, 2015. Johnson was
awarded $309,436 on her breach of contract claim, $7,500 for the
automobile, $10,124 for the dividends from the NERA shares, and
$128,142 from the sale of the other NERA shares, plus interest.
11 The judge also treated the $337,450 that Keramas took from the
trust funds for himself, Acriva, or attorney's fees while he was
trustee as "advanced Trust funds." To partially satisfy the
judgment, Johnson was permitted to "immediately withdraw" and
distribute to herself the funds held in the trust account
($1,087,328), and Johnson was awarded ownership of the remaining
NERA shares ($155,760). 7 That judge later denied the parties'
postjudgment motions, described more fully below, and this
appeal followed.
Discussion. 1. Motion to dismiss. Keramas contends that
the judge should have allowed his motion to dismiss counts 4 and
5 of the second amended complaint that pertain to the father's
personal bank accounts, automobile, and the NERA shares.
Keramas first argues that to claim a right to property from the
father's estate, Johnson was required to adjudicate the issue of
their father's heirs and testacy in the probate court or in
Florida (where the father was domiciled at the time of his
death). We disagree. Here, Johnson alleges that the father
died intestate and that she and Keramas are the father's only
heirs. 8 She alleges that Keramas, a Massachusetts resident,
7 With Johnson's consent, the judge dismissed count 7, related the trust's tax returns.
8 The father was married at the time of his death, but his spouse had relinquished her rights to any property owned by the parties individually at the time of marriage or acquired
12 converted property from the father's estate, used the assets for
his own personal benefit, and refused to account for the money.
Such equitable claims may be adjudicated in the Superior Court.
See Consedine v. Consedine, 39 Mass. App. Ct. 65, 68-69 (1995)
(Superior Court had equitable jurisdiction over claim by heir
who resided in Massachusetts that assets of foreign estate were
converted by another Massachusetts resident). These claims may
proceed "without impinging upon the ultimate authority of the
domiciliary court to adjudicate the rights of the parties in the
estate property." Id. at 68. See Kaltsas v. Kaltsas, 22 Mass.
App. Ct. 689, 692 (1986). However, the fact that the parties
could have, but did not, first seek probate of the father's
estate in Florida is not dispositive on the issue of subject
matter jurisdiction, particularly where the estate's assets are
allegedly held exclusively by the parties, who are both
Massachusetts residents. 9 Cf. McCarron v. New York Cent. R.R.
Co., 239 Mass. 64, 69 (1921) (where primary administration of
estate should be granted to State of domicile, courts of another
thereafter individually. Although some evidence was presented of the existence of a will, neither party sought probate of that document and, therefore, they cannot rely on it to establish title. See G. L. c. 190B, § 3-102.
9 Although it was represented during the proceedings that Keramas "seems to go back and forth" between Massachusetts and Florida, the second amended complaint alleges that he resides in Massachusetts.
13 State with jurisdiction need not wait for proceedings to be
brought in domiciliary state). We similarly reject Keramas's
argument that these claims must be brought by a personal
representative of the father's estate. See G. L. c. 230, § 5
(if "executor or administrator" is unable to bring action in
favor of estate "by reasons of his interest or otherwise," heir
may bring action). 10
2. Summary judgment. Keramas next argues that Johnson was
not entitled to summary judgment on her breach of contract
claim. "An enforceable agreement requires (1) terms
sufficiently complete and definite, and (2) a present intent of
the parties at the time of formation to be bound by those terms"
(citation omitted). Duff v. McKay, 89 Mass. App. Ct. 538, 543
(2016).
Here, the parties' March 2015 e-mails leading to the
execution of the trust amendment contain an unambiguous
statement of the essential terms of a contract. Keramas sought
approval from Johnson to become the sole income beneficiary of
10Because Johnson added counts 4 and 5 through an amendment to her complaint and those equitable claims arise out of conduct previously alleged, that amendment relates back to the date of the filing of the original complaint in August 2017 and her claims are timely. See G. L. c. 231, § 51; Mass. R. Civ. P. 15 (c), 365 Mass. 761 (1974). The statute of repose that applies to an "informal probate or appointment proceeding or formal testacy or appointment proceeding" is inapplicable here. G. L. c. 190B, § 3-108.
14 the trust. Keramas explained that the provision making them
equal beneficiaries of the trust principal would remain
unchanged, and further that the properties would be sold on the
father's death, they would both sign for each sale, and the
proceeds would be equally divided between them at the closing. 11
Keramas also stated that he "expect[ed] all of the properties
will be sold within 12 months of dad's death." 12 See Duff, 89
Mass. App. Ct. at 544 (whether parties agreed to all material
terms is question of law where negotiations were memorialized in
trail of uncontested e-mail messages).
This agreement did not constitute an improper modification
of the trust because it was not contrary to the terms of the
trust. After their father's death, Keramas and Johnson had the
right to terminate the trust by agreement for any reason (or no
reason at all). Although the trust required that certain
formalities be met, including that a writing be signed by all
beneficiaries and recorded, those formalities could not be
11Even if, as Keramas argues, the Statute of Frauds was applicable, the March 2015 e-mails satisfy the requirement that the agreement be reduced to a "writing and signed by the party to be charged therewith." G. L. c. 259, § 1. See K & K Dev., Inc. v. Andrews, 103 Mass. App. Ct. 338, 349 (2023) (e-mail messages satisfied Statute of Frauds).
12To the extent Keramas argues that he could not alienate his beneficial interest under the terms of the trust, he did not do so by this agreement. He simply agreed to exercise his express right terminate the trust with Johnson's consent on the father's death.
15 followed until the father's death. See Targus Group Int'l, Inc.
v. Sherman, 76 Mass. App. Ct. 421, 431 (2010) ("If [the parties]
identify present unknowns or subsequent contingencies and
provide mechanisms or norms for their accommodation, their
agreement will be binding"). The parties were free to agree to
terminate the trust on the father's death, as they did here.
See Lafayette Place Assocs. v. Boston Redev. Auth., 427 Mass.
509, 518 (1998), cert. denied, 525 U.S. 1177 (1999) (parties may
be bound by agreement contingent on future events).
The parties also objectively manifested their present
intent to be bound by the agreement. See, e.g., Nortek, Inc. v.
Liberty Mut. Ins. Co., 65 Mass. App. Ct. 764, 772 (2006).
Johnson accepted Keramas's offer, they both executed the trust
amendment, and Keramas recorded it. Finally, the agreement was
supported by mutual consideration. Johnson relinquished her
right to an equal share of the trust's income during the
remainder of the father's life and in the period before the sale
of the properties. In exchange, both parties promised to
terminate the trust on the father's death. The agreement was
enforceable.
3. Alternate security. Keramas next argues that the judge
exceeded his authority in entering the alternate security order
because the judge effectively terminated the trust and defeated
the trust's purpose. "The decision [to terminate a trust
16 depends upon] whether the purposes of the trust have been
achieved[. It] is a judicial matter. The courts alone can make
that decision" (citation omitted). Steele v. Kelley, 46 Mass.
App. Ct. 712, 729 n.19 (1999).
Keramas requested that the court appoint Johnson as trustee
and assign her a security interest in his expected trust
distributions following the sale of the remaining properties,
because he did not have the funds necessary to establish the
previously-ordered escrow account. The judge additionally
ordered that Keramas agree to sell the remaining properties and
Johnson take steps to terminate the trust. That order did not
defeat the trust's purpose. Although Keramas now argues that
the purpose was "to buy, sell, hold, invest, manage and rent
commercial and residential real estate and personal property for
income and appreciation," Keramas and Johnson were explicitly
permitted to terminate the trust by consent after the father's
death. Where, as here, Keramas and Johnson agreed to terminate
the trust on the father's death and Keramas sold three of the
five trust properties, Johnson can compel termination of the
trust. Cf. Restatement (Second) of Trusts § 337 comment c
(1959) ("If a beneficiary of the trust consents to its
termination but withdraws his consent before the trust is
terminated, the other beneficiaries cannot compel the
termination of the trust, unless he has entered into a contract
17 with the other beneficiaries to consent to the termination of
the trust" [emphasis added]). 13
4. Default. Keramas next argues that the judge abused his
discretion in entering default based on noncompliance with the
April 2021 order. "[A] judgment of default may enter against a
party who disobeys a discovery order." Short v. Marinas USA
Ltd. Partnership, 78 Mass. App. Ct. 848, 852 (2011), citing
Mass. R. Civ. P. 37 (b) (2) (C), as amended, 390 Mass. 1208
(1984). "Entry or, conversely, removal of default judgments has
to do with the management of the case and, as such, is committed
to the sound discretion of the trial judge." Greenleaf v.
Massachusetts Bay Transp. Auth., 22 Mass. App. Ct. 426, 429
(1986).
Keramas was ordered to produce documents concerning the
disposition of either or both the $350,000 withdrawal of trust
funds and the $256,285 of proceeds from the sale of the NERA
shares in the January 2018, 14 March 2020, June 2020, July 2020,
13The judge could have terminated the trust without Keramas's consent as long as it was satisfied that "continuance of the trust is not necessary to achieve any material purpose of the trust" and Keramas's interests "will be adequately protected." G. L. c. 203E, § 411 (b), (c).
14The January 2018 order required Keramas to produce documents related to the sale of three trust properties in 2015, including "[a]ny and all documents which relate to the present whereabouts of the proceeds" from those sales. The judge also ordered Keramas to produce "[a]ny and all documents which related to the transfer, conveyance, sale or removal of any
18 and October 2020 orders. 15 In March 2021, a judge ordered that
[Keramas] regarding [Keramas's] $350,000 withdrawal from the
Trust bank account and the disposition of the $256,000 from the
sale of the [NERA] shares." Johnson's counsel argued at a
hearing that if the defendant did not fully comply with the
order, then judgment should enter on all Johnson's claims and
the counterclaims should be dismissed. Her counsel stated that
"given the three years that [Keramas] has basically stonewalled,
I think that's the appropriate action for the court to take at
this time." In April 2021, the judge entered a discovery
compliance order directing Keramas to produce "a full, complete
and accurate accounting" of both amounts that showed each
transfer to present with accompanying monthly statements and
cancelled checks. Keramas was to sign the accounting under
penalties of perjury.
money, property, depositary shares or anything of value standing in [the father's name]," including, among other things, the NERA shares.
15The March 2020, June 2020, and July 2020 preliminary discovery orders required Keramas to produce, among other things, an unredacted bank statement from the trust account from September 2016 and documents relating to the destination of withdrawals from that account. In October 2020, the same judge entered another order requiring Keramas to file all communications with respect to his efforts to obtain bank records responsive to the January 2018, March 2020, June 2020, and July 2020 orders.
19 Despite being on notice that Johnson sought to default him,
Keramas did not comply with the April 2021 order. Keramas did
not produce an accounting as to the $350,000 withdrawal;
instead, he stated that he did not have the relevant bank
records and was unable to obtain them from the bank. Johnson's
counsel countered that he was able to obtain the records at
issue, showing the initial transfers of the $350,000, within a
month for a $50 fee. Those records, submitted by Johnson,
reflect that checks were written from the account directly to
Keramas or to his wholly-owned companies, including Acriva;
however, Keramas produced no information about any subsequent
transfers of those funds, as required by the April 2021 order.
As to the $256,285 from the NERA shares, Keramas asserted
that he fully complied with the order. In support, Keramas
provided a roughly eighty page, single-spaced "accounting" in
narrative form concerning the transfer of the $256,285, not
signed under penalties of perjury. That document was supported
by some, but not all, redacted bank statements.
At the hearing on Johnson's motion to default Keramas for
noncompliance with the April 2021 order, the judge made explicit
findings regarding Keramas's noncompliance with the order.
Specifically, the judge found that Keramas did not provide
proper accounting for the funds, did not sign the accounting for
the NERA shares under penalties of perjury, did not produce all
20 supporting monthly statements and cancelled checks, and redacted
information for certain accounts. Those findings supported the
judge's determination that Keramas "willfully and intentionally
declined to produce the required documents after a long history
of discovery related orders and litigation in this case." We
also discern no error or abuse of discretion in the judge's
finding that a default, "the most serious sanction," was
appropriate because "[t]here is no defense to [Keramas's]
failure to comply" and "[t]here is no sanction . . . that would
suffice here, other than default. 16, 17
5. Damages. Keramas also asserts several errors with the
assessment of damages. Given the default, the "well-pleaded
facts are deemed to be admitted, but a plaintiff may recover
only to the extent the complaint states a claim for relief."
16We have reviewed Keramas's claimed errors pertaining to his various representations as to why he could not comply with the discovery orders and conclude that they do not provide a basis to set aside the default or otherwise excuse Keramas's noncompliance with the clear discovery orders.
17We discern no abuse of discretion in the decision of the judge to deny Keramas's motions to compel Johnson's answers to interrogatories and to compel production of documents as untimely. Keramas makes no argument as to how he was prejudiced by these rulings. See Central Ceilings, Inc. v. Suffolk Constr. Co., Inc., 91 Mass. App. Ct. 231, 241 (2017) ("In general, discovery matters are committed to the sound discretion of the trial judge [and will be upheld] unless the appellant can demonstrate an abuse of discretion that resulted in prejudicial error" [citation omitted]).
21 Nancy P. v. D'Amato, 401 Mass. 516, 519 (1988). "[T]he judge
has an obligation fairly to determine that the amount of damages
has a reasonable basis in fact." Jones v. Boykan, 464 Mass.
285, 294 (2013).
The judge properly declared Johnson as the owner of the CDs
and Alpha accounts based on the allegations that the father
owned them jointly with or in trust for Johnson and ownership
was transferred to her. 18 The judge's finding that Johnson was
entitled to $309,437 -- representing her share of the proceeds
from the first three trust property sales and the insurance
settlement -- for breach of contract also was not error.
The judge's decision to award Johnson $7,500 for the
automobile 19 and to declare her the owner of fifty percent of the
funds in the father's personal accounts also was supported by
the findings. We disagree with Keramas's argument that the
18Keramas's argument that these assets were trust property is foreclosed by these allegations in the second amended complaint that are deemed admitted. Keramas's counterclaim asserting that the father violated the trust terms by transferring trust funds to the CDs during his lifetime was dismissed. Moreover, at most, Johnson's allegations demonstrate that the father transferred funds back and forth between the CDs and the trust account and that he used "significant amounts" from the CDs to purchase two properties held by the trust.
19Keramas argues that Johnson presented no support for the $15,000 value of the automobile. However, the parties agreed at the damages assessment hearing that the father bought the car used for that amount. To the extent the value depreciated, Keramas did not present any evidence of that fact.
22 second amended complaint failed to state a claim as to those
assets because the allegations are conclusive and speculative.
Johnson alleged the following. Keramas had his father sign
several signature pages (without attachments) on February 26,
2015. He later attached the signatures to documents granting
Keramas access to the father's accounts and appointing Keramas
as the father's attorney-in-fact. Keramas took possession of
the funds in the father's personal accounts (referenced by
account number) through "impersonation, misrepresentation,
forgery or improper use of power of attorney." Keramas also
"forged his father's name to the title for the Mercedes, or
improperly used the power of attorney for that purpose," then
sold the vehicle and used the funds. These allegations meet the
heightened standard to plead claims related to fraud "with
particularity," Mass. R. Civ. P. 9 (b), 365 Mass. 751 (1974),
and are sufficient in the circumstances. Cf. 5A C.A. Wright,
A.R. Miller, & A.B. Spencer, Federal Practice and Procedure
§ 1298 (2018) (Federal "[r]ule 9[b]'s fraud pleading requirement
should not be understood to require absolute particularity as to
matters peculiarly within the opposing party's knowledge that
the pleader is not privy to at the time of the pleading and that
can only be developed through discovery").
The judge also made sufficient findings to support his
decision to award Johnson one-half of the sale proceeds
23 ($128,142) and dividends ($10,124) from the NERA shares.
Although Keramas also argues that Johnson failed to state a
claim as to these assets, the allegations in the second amended
complaint, including those that describe in detail when and how
Keramas sold some shares and diverted the dividends from the
remaining shares, are clearly sufficient to meet the pleading
requirement.
Finally, the judge's finding that Keramas took $337,450 as
"advanced Trust funds" was not erroneous. That amount was based
on Keramas's accounting showing that while he was trustee, he
transferred $189,750 from the trust to himself or Acriva for
"management and other types of fees" and he paid $147,700 in
legal fees to four law firms. The judge was within his
discretion to deny Keramas's request for trustee fees. See
Wasserman v. Locatelli, 343 Mass. 82, 87 (1961) (judge may
allow, deny, or reduce trustee's compensation in event of breach
of trust). The trust did not have a provision concerning fees.
Keramas sold three trust properties and transferred $350,000
funds to himself, later asserting he was owed over $1 million in
trustee fees. As to the remaining two properties, Keramas
failed to respond to tenants' complaints, did not make necessary
repairs, and instead distributed the rent income from these
properties to himself and Acriva. In the circumstances, the
judge did not err in determining that Keramas (or Keramas's
24 alter ego, Acriva) "should not be paid for improper service."
Walsh v. Atlantic Research Assocs., 321 Mass. 57, 66 (1947).
See McIntire v. Mower, 204 Mass. 233, 235 (1910) ("the court may
refuse to allow any compensation to a trustee who has been
guilty of misconduct"). Johnson also demonstrated that Keramas
used trust funds to pay attorney's fees for work unrelated to
the trust and the judge did not abuse his discretion in
declining to award any of the remaining fees where Keramas, as
trustee, was at fault. See Lattuca v. Robsham, 442 Mass. 205,
210 (2004).
6. Postjudgment motions. Keramas argues that the judge
should have allowed his motion to enforce an automatic stay and
for sanctions and his motion to enjoin Johnson from conducting
postjudgment discovery during the automatic stay period.
Although the judgment permitted Johnson to "immediately"
withdraw certain funds from the trust account, Keramas argues
that Johnson was not permitted to do so while this appeal was
pending. Under Mass. R. Civ. P. 69, 365 Mass. 836 (1974), the
trial court seemingly has some discretion to determine whether
payment should be made prior to the entry of execution on
judgment at the conclusion of appellate review. See Mass. R.
Civ. P. 69 ("Process to enforce a judgment for the payment of
money shall be a writ of execution, unless the court directs
otherwise" [emphasis added]). See also G. L. c. 235, § 16
25 (execution on judgment issues after appellate review is
exhausted). In any event, as the trustee, Johnson had "the
power to take any action [she] deems beneficial to the trust."
See Ferri v. Powell-Ferri, 476 Mass. 651, 661 (2017) ("the
trustee of a terminated trust retains ongoing duties to control
and protect the trust assets, and may continue to act pursuant
to the powers provided under the trust instrument"). She could
take possession of the trust funds here to preserve them;
however, she remains under an ongoing obligation, as trustee, to
produce the funds to the appropriate party after appellate
review is exhausted.
As to postjudgment discovery under Mass. R. Civ. P. 69,
Johnson was permitted to engage in postjudgment discovery while
an appeal is pending "to sniff for assets . . . from which the
judgment could be realized." Evans v. Multicon Constr. Corp.,
30 Mass. App. Ct. 728, 732 (1991). Cf. Melo-Tone Vending, Inc.
v. Sherry, Inc., 39 Mass. App. Ct. 315, 320-321 (1995) (imposing
sanctions for noncompliance with postjudgment discovery order
while appeal was pending); Sommer v. Monga, 35 Mass. App. Ct.
761, 764 (1994), cert. denied, 513 U.S. 1169 (1995) (same). 20
20In some instances, Keramas advances the same arguments for different rulings, i.e., that his motion to dismiss should have been allowed for the same reasons that Johnson should not have been granted leave to amend her complaint. Where we do not separately address these rulings, we have considered Keramas's arguments on each motion. To the extent Keramas argues that the
26 Conclusion. The judgment is affirmed. The orders dated
November 18, 2021, and February 15, 2022, are affirmed. 21
So ordered.
By the Court (Blake, C.J., Meade & Tan, JJ. 22),
Clerk
Entered: May 6, 2026.
judges displayed bias toward him, we disagree based on our review of the record. "Other points, relied on by [Keramas] but not discussed in this [decision], have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
21Keramas's request for attorney's fees related to this appeal is denied.
22 The panelists are listed in order of seniority.