RENITA K. JOHNSON v. GEORGE J. KERAMAS & Another.

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

Johnson "is entitled to full and complete discovery from

[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.

27