LESTER KALMANSON AGENCY, INC. & Another v. CHASE CARMEN HUNTER. ( 2024 )

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
23-P-1422
LESTER KALMANSON AGENCY, INC. & another1
vs.
CHASE CARMEN HUNTER.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The primary issue in this appeal is whether a Superior
Court judge abused his discretion in allowing a motion for a
preliminary injunction filed by the plaintiffs, Lester Kalmanson
Agency, Inc., and Mitchel Kalmanson. The defendant, Chase
Hunter, contends that the plaintiffs failed to meet their burden
of demonstrating irreparable harm, the Superior Court lacked
subject matter jurisdiction, and the claims before the Superior
Court were "not justiciable," and thus the judge's decision
cannot stand. We affirm.
1 Mitchel Kalmanson.
2Also known as Chase Hunter, individually and doing
business as Chase Carmen Hunter Insurance and Chase Financial
Services.
Background. On August 16, 2023, the plaintiffs filed a
verified complaint (complaint) in the Superior Court seeking
enforcement in Massachusetts of a 2011 judgment in the amount of
$9,432,125 against the defendant from the "County Court of the
Ninth Judicial Circuit in and for Orange County Florida"
(Florida judgment).3 The complaint also sought to "reach and
apply" the defendant's alleged interest in real estate located
in Massachusetts (the property) and sought injunctive relief.4
In conjunction with the complaint, the plaintiffs also filed a
motion for preliminary injunction, which sought to restrain and
enjoin the defendant from selling, transferring, or otherwise
disposing of "any interest of the [d]efendant" in the property.
On August 23, 2023, and September 26, 2023, a Superior
Court judge held hearings on the motion for preliminary
injunction. On September 27, 2023, the judge allowed the
motion, in part, and ordered as follows:
"The defendant is forthwith restrained and enjoined from
selling, transferring, assigning or otherwise disposing of,
3 On March 20, 2023, the plaintiffs obtained an "Execution"
on the Florida judgment in the same Florida court, in the amount
of $9,432,125.
4 The complaint alleged that the defendant "is an objector
in a current probate proceeding filed in Hampden County Probate
[and Family] Court" (the probate action); that the main asset in
the probate action "is a single-family residence in the
approximate amount of $200,000.00;" and that the defendant "has
a half interest in the assets of the Probate Action." In
support of their allegations, the plaintiffs attached to the
complaint various exhibits related to the Florida judgment.
2
alienating or pledging any interest of the defendant in the
single family residence formerly owned by [defendant's
deceased mother] pending further order of this court."
The defendant now appeals therefrom.
Discussion.5 1. Waiver. We first note that our review is
somewhat hampered by the defendant's failure to comply with the
Massachusetts Rules of Appellate Procedure, as several arguments
in her brief lack citation to relevant legal authority, or any
legal authority whatsoever. An appellant's brief must contain
"the contentions of the appellant with respect to the issues
presented, and the reasons therefor, with citations to the
authorities and parts of the record on which the appellant
relies." Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass.
1628 (2019). The rule "is more than a 'mere technicality. It
is founded on the sound principle that the right of a party to
have this court consider a point entails a duty; that duty is to
assist the court with argument and appropriate citation of
authority.'" Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86
(1995), quoting Lolos v. Berlin, 338 Mass. 10, 14 (1958).
In addition, the plaintiffs contend that the defendant
waived her claims on appeal by failing to order and include
certified transcripts of the Superior Court proceedings relevant
5 The defendant filed a purported "Unopposed Brief" and
claimed that the plaintiffs "have not participated in this
appeal." The docket and the plaintiffs' comprehensive brief and
myriad filings in this court demonstrate otherwise.
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to the issues on appeal. There is a measure of persuasiveness
to this argument, as the defendant's record appendix contains
unofficial transcripts purportedly created and "certified" by
the defendant herself. The failure to comply with Mass.
R. A. P. 8 (b), as appearing in 481 Mass. 1611 (2019),
constitutes a basis for waiver of her claims on appeal. See
Cameron, 39 Mass. App. Ct. at 84 (failure to provide transcripts
necessary to decide issue on appeal results in waiver of issue).
2. Merits. Despite the shortcomings in the record
discussed supra, we turn to the merits of the defendant's
claims. As to the partial allowance of the motion for
preliminary injunction, the judge was governed by the familiar
preliminary injunction standard:
"To succeed in an action for a preliminary injunction, a
plaintiff must show (1) a likelihood of success on the
merits; (2) that irreparable harm will result from denial
of the injunction; and (3) that, in light of the
plaintiff[']s likelihood of success on the merits, the risk
of irreparable harm to the plaintiff outweighs the
potential harm to the defendant in granting the
injunction."
Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass.
217, 219 (2001). "At the preliminary injunction stage, an
appellate court will not reverse the action of the motion judge
if there is a supportable legal basis for that action." Boston
Harbor Commuter Serv., Inc. v. Massachusetts Bay Transp. Auth.,
46 Mass. App. Ct. 122, 123 (1999). Of course, "[i]f the basis
4
on which the preliminary injunction was issued is wrong as a
matter of law, the preliminary injunction cannot be sustained."
Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 212 (1997).
In the present case, we discern no abuse of discretion or
error in the judge's decision. The plaintiffs produced
certified copies of the Florida judgment and exhibits related
thereto. There is nothing in the record before us that supports
the defendant's position that there was insufficient information
before the judge to allow the motion for preliminary injunction.
Furthermore:
"the full faith and credit clause of the United States
Constitution, art. IV, § 1, requires Massachusetts courts
to recognize a final judgment obtained in another State as
long as the judgment-rendering State possessed personal
jurisdiction over the parties and jurisdiction over the
subject matter of the action in which the judgment was
rendered."
Bishins v. Mateer, 61 Mass. App. Ct. 423, 428 (2004). See
Cavanagh v. Cavanagh, 396 Mass. 836, 839 (1986); Bassett v.
Blanchard, 406 Mass. 88, 90 (1989). Here, the defendant does
not argue that the Florida court lacked personal or subject
matter jurisdiction. Rather, she argues that the Massachusetts
court lacked jurisdiction. The defendant cites no relevant
authority to support her claim. Moreover, subject matter
jurisdiction exists in the Superior Court over the present
action pursuant to G. L. c. 214, § 3.
5
We likewise discern no abuse of discretion in the judge's
determination that the plaintiffs met their burden of
demonstrating a substantial risk of irreparable harm in the
absence of injunctive relief. The record provides a clear basis
for a determination that there was a substantial risk that the
defendant might ultimately sell, transfer, assign, or encumber
the real estate at issue, and that the risk of irreparable harm
to the plaintiff outweighed the potential harm to the defendant
in granting the injunction.
Finally, there is no merit to the defendant's claim that
the present controversy is not justiciable. Indeed, the
defendant cites no relevant authority to support this
proposition and we are unaware of any. See Lyman v.
Commissioner of Correction, 46 Mass. App. Ct. 202, 208 (1999)
(failure to provide meaningful argument supported by proper
authority may result in waiver of argument).6 Accordingly, on
6 Other points, relied on by the defendant but not discussed
in this decision, have not been overlooked. We find nothing in
them that requires further discussion. See Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).
6
the record before us, we discern no error or abuse of
discretion.7
Order allowing motion for
preliminary injunction
affirmed.
By the Court (Vuono, Neyman &
D'Angelo, JJ.8),
Clerk
Entered: October 17, 2024.
7 We deny both the plaintiffs' request for an award of
attorney's fees and the defendant's request for an award of
costs. Having addressed the merits of the defendant's claims,
the defendant's pending motions for orders waiving the costs of
transcripts and compelling action by the Clerk of the Superior
Court, and to strike the plaintiffs' brief, are likewise denied.
8 The panelists are listed in order of seniority.
7