Doe v. Gonpo ( 2023 )

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22-P-729 Appeals Court
JANE DOE1 vs. JAMPA GONPO2 & another.3
No. 22-P-729.
Franklin. May 3, 2023. – September 7, 2023.
Present: Massing, Ditkoff, & Singh, JJ.
Practice, Civil, Action to reach and apply, Judgment, Injunctive
relief, Attorney's fees, Costs. Injunction. Lien.
Attorney at Law, Lien.
Civil action commenced in the Superior Court Department on
February 4, 2020.
Motions for postjudgment security and for a permanent
injunction were heard by Michael K. Callan, J.
Joshua M. Daniels for the plaintiff.
Tiffany Troy for Troy Law, PLLC.
MASSING, J. A Superior Court jury awarded the plaintiff,
Jane Doe, $10 million in damages for sexual assault and
1 A pseudonym.
2 Also known as Jampa Golam.
3 Troy Law, PLLC, as a reach and apply defendant.
2
emotional distress inflicted upon her by the defendant, Jampa
Gonpo. To secure partial payment of her award, Doe sought to
reach and apply a judgment that had been awarded to Gonpo in a
Federal action. A Superior Court judge issued orders for
postjudgment security and for a permanent injunction, allowing
Doe to reach and apply only part of Gonpo's Federal judgment,
ruling that Gonpo's attorneys in the Federal action, Troy Law,
PLLC (Troy Law), had a superior interest in the portion of the
Federal judgment representing its reasonable attorney's fees and
costs. Doe appeals from the aspects of the orders precluding
her from reaching the fees and costs awarded in the Federal
case. We affirm.
Background. In 2008, Gonpo immigrated to the United States
from Nepal and, upon arrival, lived with Doe's family for
several months. In addition, he worked for Doe's father's
stonemasonry business from the time he arrived in the United
States until 2015. In 2016, a Franklin County grand jury
returned seven indictments charging Gonpo with various sex
offenses against Doe, starting when Doe was approximately eight
years old and Gonpo was living with Doe's family.4 The
4 Two of the indictments charged rape of a child under
sixteen, aggravated by age difference; two charged rape and
abuse of a child under sixteen; and three charged indecent
assault and battery on a child under fourteen.
3
Commonwealth nol prossed three of the indictments, and a jury
acquitted Gonpo of the remaining charges after a trial in March
2018.
Meanwhile, while Gonpo was in custody awaiting trial on the
criminal charges, on September 27, 2016, Troy Law commenced a
Federal lawsuit on behalf of Gonpo against Doe's father and his
business for wage payment violations, asserting claims under the
Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., and
several Massachusetts wage laws: the wage act, G. L. c. 149,
§ 148; and the minimum wage and overtime statutes, G. L. c. 151,
§§ 1 and 1A. On January 3, 2020, a Federal jury handed down a
verdict for Gonpo; however, the full extent of Gonpo's damages
was not determined until April 1, 2021, when the Federal judge
issued a memorandum and order directing the entry of judgment
awarding Gonpo compensatory damages of $181,426.37, attorney's
fees totaling $97,954.75, and costs amounting to $8,285.94
(Federal judgment).
Doe commenced this Superior Court civil lawsuit against
Gonpo on February 4, 2020, approximately one month after the
verdict in the Federal lawsuit, but more than one year before
that judgment would enter. To attach Gonpo's interest in the
Federal verdict, which appeared to be his only asset, Doe named
her father and his business as reach and apply defendants. On
February 28, 2020, Doe obtained a preliminary injunction
4
prohibiting Gonpo from transferring or assigning his interest in
the Federal verdict and restraining Doe's father and his
business from disbursing any funds to Gonpo.
On November 19, 2021, more than seven months after the
Federal judgment entered, Doe prevailed in her civil action
against Gonpo, and the jury awarded her $10 million in damages.
Judgment entered on November 29, 2021, awarding Doe a total of
$12,184,930, inclusive of accrued prejudgment interest and
costs.5 On December 2, 2021, the trial judge allowed "without
prejudice" Doe's postjudgment motion to make permanent the
provisions of the preliminary injunction, pending additional
briefing and further argument.
On December 22, 2021, Troy Law filed an appearance in Doe's
Superior Court suit as a party in interest and submitted an
opposition to so much of Doe's request for a permanent
injunction as sought to attach the portion of the Federal
judgment allocated to attorney's fees and costs.6 On February 8,
2022, a Superior Court judge other than the trial judge (motion
judge) issued a decision and order allowing Doe's motions for
postjudgment security and for a permanent injunction only as to
5 On December 15, 2021, an amended judgment reflecting two
additional days of prejudgment interest was entered, bringing
Doe's total award to $12,191,510.
6 Pursuant to court order, Doe amended her complaint to name
Troy Law as a reach and apply defendant.
5
the portion of the Federal judgment representing compensatory
damages and interest, ruling that Troy Law had a superior
interest in the attorney's fees and costs portion of the award.
In effect, this means that Troy Law will receive the fees and
costs portion of the Federal judgment and Doe will receive the
balance.
Discussion. Doe contends that the entire Federal judgment,
including attorney's fees, was awarded to Gonpo, and she has a
priority interest over Troy Law in the fees because she obtained
an equitable lien before Troy Law sought to assert or enforce
its attorney's lien and before the attorney's lien matured. We
review for error of law or abuse of discretion the motion
judge's decision to limit the scope of the permanent injunction
to the portion of the Federal judgment representing compensatory
damages and interest. See LightLab Imaging, Inc. v. Axsun
Techs., Inc., 469 Mass. 181, 194 (2014).
1. Gonpo's interest in the award of attorney's fees and
costs. Doe asserts that the motion judge erred by ruling that
the fees and costs portion of the Federal judgment was not
awarded to Gonpo, but directly to Troy Law, and therefore was
not an interest of Gonpo subject to an action to reach and
apply. See G. L. c. 214, § 3 (6) (providing for equitable
jurisdiction of "[a]ctions by creditors to reach and apply, in
6
payment of a debt, any property, right, title or interest, legal
or equitable, of a debtor"). We agree.
As a matter of fact, the judgment in the Federal case was
"entered for the plaintiff Jampo Gonpo." The Federal judge's
order on the issue of damages likewise concluded by stating,
"Plaintiff is awarded $181,426.37 in damages, $97,954.74 in
attorneys' fees, and $8,285.95 in costs." No part of the
judgment was awarded to Troy Law.
As a matter of law, Gonpo's Federal lawsuit was based on
claims brought under Massachusetts wage laws and the FLSA. The
Federal judge's order is clear that damages, including
attorney's fees and costs, were awarded to Gonpo under
Massachusetts law based on the Federal doctrine that allows a
successful plaintiff with overlapping State and Federal claims
to choose the more advantageous result.7 See Tobin v. Liberty
Mut. Ins. Co., 553 F.3d 121, 146 (1st Cir. 2009) ("When federal
and state claims overlap, the plaintiff may choose to be awarded
damages based on state law if that law offers a more generous
outcome than federal law").
7 The Federal judge observed that compared to the FLSA, the
Massachusetts wage laws mandate a higher minimum wage, allow
recovery of wages that are not timely paid, provide for
mandatory treble damages, permit recovery of both prejudgment
interest and treble damages, and prohibit good faith defenses.
7
The Massachusetts wage laws at issue provide, in almost
identical language, that attorney's fees and costs, in addition
to damages, are to be awarded to the prevailing "employee." See
G. L. c. 149, § 150 ("An employee so aggrieved who prevails in
such an action shall be awarded treble damages, as liquidated
damages, for any lost wages and other benefits and shall also be
awarded the costs of the litigation and reasonable attorneys'
fees"); G. L. c. 151, § 20 ("An employee so aggrieved who
prevails in such an action shall be awarded treble damages, as
liquidated damages, for any loss of minimum wage and shall also
be awarded the costs of the litigation and reasonable attorneys'
fees"). This language clearly and unambiguously requires
attorney's fees and costs to be awarded to the employee, rather
than to the employee's attorney. See DiMasi v. Secretary of the
Commonwealth, 491 Mass. 186, 192 (2023) ("We have recognized the
word 'shall' as an imperative that indicates the Legislature's
intent to prescribe a mandatory act"). This interpretation
aligns with Massachusetts decisions concerning other fee-
shifting statutes, which consistently state that fees are
awarded directly to the prevailing party, not to the party's
attorney. See Kadlick v. Department of Mental Health, 431 Mass.
850, 856-857 (2000); Cambridge Trust Co. v. Hanify & King
Professional Corp., 430 Mass. 472, 479 (1999). Troy Law's
attempt to distinguish the Massachusetts wage laws from other
8
fee-shifting statutes is unpersuasive. See Finance Comm'n of
Boston v. Commissioner of Revenue, 383 Mass. 63, 68 (1981)
("only positive demonstration of contrary legislative purpose
can overcome plain text"). Nor are we moved by Troy Law's
reliance on James v. Home Constr. Co. of Mobile, 689 F.2d 1357,
1358 (11th Cir. 1982), in which the court held that "it is the
attorney who is entitled to fee awards in a [Truth in Lending
Act] case, not the client." James decidedly represents the
minority view in the Federal courts and was all but repudiated
by the United States Supreme Court in Evans v. Jeff D., 475 U.S.
717, 730-732 & nn.18, 19 (1986), superseded by statute on other
grounds. The entire Federal judgment, including attorney's fees
and costs, was awarded to Gonpo.
2. Priority of interests. Troy Law and Doe have competing
liens on Gonpo's Federal judgment. Troy Law holds an attorney's
lien under the Massachusetts attorney's lien statute, G. L.
c. 221, § 50, securing the attorney's fees owed to it by Gonpo
for representing him in the Federal action. Doe was permitted
to reach and apply Gonpo's interest in the Federal judgment to
satisfy her Superior Court judgment against Gonpo. Doe asserts
that her lien was perfected before Troy Law's and that she
therefore "has priority under the principle of first in time,
first in right." PGR Mgt. Co. Health Props. v. Credle, 427
Mass. 636, 640 (1998). A close analysis of the nature and
9
timing of the competing liens shows that Troy Law's attorney's
lien has priority.
General Laws c. 221, § 50, provides, in relevant part,
"From the authorized commencement of an action, counterclaim or
other proceeding in any court, or appearance in any proceeding
before any state or federal department, board or commission, the
attorney who appears for a client in such proceeding shall have
a lien for his reasonable fees and expenses upon his client's
cause of action, counterclaim or claim, upon the judgment,
decree or other order in his client's favor entered or made in
such proceeding, and upon the proceeds derived therefrom."
Under the statute, an "inchoate lien" in favor of the attorney
arises upon the filing of the action or counterclaim and
"mature[s] upon entry of judgment" for the client. PGR Mgt. Co.
Health Props., 427 Mass. at 640. Once the judgment is entered,
the lien relates back to the day the action was commenced. See
In re Albert, 206 B.R. 636, 640 (Bankr. D. Mass. 1997) (under
Massachusetts law, attorney's lien "relates back to the date the
action was filed"); 51 Am. Jur. 2d Liens § 8, at 97 (2021)
("When an inchoate lien becomes consummate, the priority of its
enforcement relates back to the date the lien was created").
Here, an inchoate attorney's lien arose in favor of Troy
Law when it brought the Federal lawsuit on Gonpo's behalf on
10
September 27, 2016. It matured when judgment entered on April
1, 2021, relating back to the date of commencement.
Doe contends that Troy Law's interest remained inchoate
"long after" she obtained an enforceable interest in the Federal
judgment. In support of this assertion, Doe argues that she
perfected her lien when she obtained the preliminary injunction
on February 28, 2020, because she had satisfied all the
requirements for a reach and apply action, whereas Troy Law's
lien was still inchoate pending entry of the Federal judgment.
We are not persuaded by Doe's analysis, for two reasons.
First, Doe did not and could not have established an
essential element of her reach and apply claim -- the existence
of a debt owed to her -- before she prevailed against Gonpo in
her Superior Court case.8 See Massachusetts Elec. Co. v. Athol
One, Inc., 391 Mass. 685, 687 (1984) (first step in statutory
reach and apply action is to "show the existence of a debt
owed"). As a result, the preliminary injunction created no more
than an equitable lien in Doe's favor. See McCarthy v. Rogers,
295 Mass. 245, 247 (1936) (temporary injunction preventing
8 Because Gonpo was found not guilty of the criminal charges
and, in any event, brought the Federal lawsuit prior to the
criminal trial, we need not consider whether a criminal
conviction, with the resultant collateral estoppel consequences,
see Metropolitan Prop. & Cas. Ins. Co. v. Morrison, 460 Mass.
352, 364 (2011), would effectively establish the existence of a
debt owed to the victim of the crime.
11
assignment of defendant's property sought to be reached and
applied toward payment of debt owed to plaintiff, if
established, created equitable lien upon property); Bank of New
England, N.A. v. Mortgage Corp. of New England, 30 Mass. App.
Ct. 238, 242 (1991) (same); In re Osgood, 203 B.R. 865, 869
(Bankr. D. Mass. 1997) ("upon both the filing of an action to
reach and apply and the issuance of an injunction restraining
the transfer of the property sought to be reached and applied
. . . the plaintiff acquire[s] an equitable lien or equitable
attachment upon the property"). Because the existence and
amount of Doe's lien turned on the outcome of her civil suit,
the lien Doe obtained by way of the preliminary injunction --
after the Federal verdict in Gonpo's favor, but before judgment
entered -- like Troy Law's at that time, was inchoate. See
United States v. Acri, 348 U.S. 211, 214 (1955) (attachment lien
inchoate where "at the time the attachment issued, the fact and
the amount of the lien were contingent upon the outcome of the
suit for damages").
Troy Law's lien became enforceable on April 1, 2021, upon
entry of the Federal judgment. At the time, Doe's interest in
the Federal judgment was still inchoate because her Superior
Court claims were pending. Doe's interest did not become
enforceable until, at the earliest, she obtained the jury
verdict in her favor on November 19, 2021.
12
Second, even if Doe had perfected her reach and apply
interest before April 1, 2021, while Troy Law's lien was
inchoate and had not yet become enforceable, Troy Law's lien
would still have priority. This is because, whenever Troy Law's
inchoate attorney's lien matured, it would relate back to the
date the Federal lawsuit commenced, September 27, 2016. This
result is dictated by the language of G. L. c. 221, § 50
("[f]rom the authorized commencement of an action . . . the
attorney who appears for a client in such proceeding shall have
a lien"), and is consistent with case law holding that an
attorney's lien arises upon the commencement of an action,9 see
Craft v. Kane, 51 Mass. App. Ct. 648, 650-651 (2001) (treating
notice of lien, filed after attorney withdrew from case, as
dating back to commencement of suit); Hayes v. Department of
Revenue, 44 Mass. App. Ct. 905, 905 (1997) (attorney's lien
"commenced" same day attorney brought action and had priority
over tax liens that arose after commencement, but before
settlement, of action).
Doe nevertheless asserts that Troy Law was required to file
a notice of lien or otherwise assert its attorney's lien in the
Superior Court to obtain an enforceable interest. Doe argues
9 Assuming, but not deciding, that Doe's reach and apply
interest related back to the date she obtained the preliminary
injunction, Troy Law's attorney's lien would still predate Doe's
interest.
13
not only that Troy Law was aware of Doe's suit against Gonpo,
but also that one of its attorneys was present in the Superior
Court for the preliminary injunction hearing in Doe's action to
reach and apply, yet it failed to assert its interests until
after judgment had entered for Doe. Doe relies on language in
Cohen v. Lindsey, 38 Mass. App. Ct. 1, 5 (1995), in which we
stated that an attorney's lien had priority over the interests
of the Federal Deposit Insurance Corporation (FDIC), which had
intervened to establish a claim to an escrow fund, because the
attorney "preempted the FDIC by filing first in the Superior
Court the appropriate notice of lien." The Cohen decision also
recognized, however, that "[t]he [attorney's] lien takes effect
from the authorized commencement of an action or any proceeding
in any court." Id. Even if the attorney in Cohen had filed a
notice of lien after the FDIC had moved to intervene, the
attorney's lien would still have priority as it related back to
the commencement of the case. To the extent filing a notice of
lien is ever required to enforce an attorney's lien, here the
existence and priority of Troy Law's attorney's lien on Gonpo's
Federal judgment in no way depended on the filing of a notice of
lien in Doe's Superior Court case.10
10The filing of a notice of lien might be required to
prevent disbursement of funds paid into an escrow account
pending resolution of the proceedings, as in Cohen, 38 Mass.
App. Ct. at 3, or where the attorney who initially brought the
14
Therefore, the motion judge did not err or abuse his
discretion in determining that because Troy Law's attorney's
lien on the Federal judgment was "first in time," PGR Mgt. Co.
Health Props., 427 Mass. at 640, Troy Law had a superior
interest in the fees and costs portion of the Federal judgment.
In short, Doe's action to reach and apply the Federal judgment
did not vitiate Troy Law's attorney's lien securing its fees on
that judgment. See Newton Hous. Auth. v. Cumberland Constr.
Co., 5 Mass. App. Ct. 1, 8-9 (1977).
Conclusion. The orders for postjudgment security and for a
permanent injunction are affirmed.11
So ordered.
action withdraws or is discharged. See Black, Attorneys' Liens
in Massachusetts, 43 Mass. L.Q. (No. 3) 33, 38 (1958). Such
notice, however, would normally be filed in the proceeding in
which the attorney's lien arose; here, Gonpo's Federal court
case. See G. L. c. 221, § 50; Neuwirth v. Neuwirth, 87 Mass.
App. Ct. 640, 641 (2015); McCann, The Attorney's Lien in
Massachusetts, 69 Mass. L. Rev. 68, 83 (1984).
11Troy Law's request for appellate attorney's fees and
costs is denied.