Gifford v. Burke

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17-P-341 Appeals Court
JOHN A. GIFFORD vs. ANDREW J. BURKE & another.1
No. 17-P-341.
Suffolk. December 6, 2017. - February 8, 2018.
Present: Milkey, Henry, & Wendlandt, JJ.
Contempt. Practice, Civil, Contempt, Appeal, Attorney's fees,
Costs.
Civil action commenced in the Land Court Department on
December 30, 2008.
A complaint for contempt, filed on July 20, 2016, was heard
by Alexander H. Sands, III, J.
Michael J. Traft for the plaintiff.
Robert J. Cotton, pro se.
MILKEY, J. John A. Gifford and Debra F. Gifford, who are
married, together held a fifty percent, undivided interest in
waterfront property in Revere (property). In 2008, the Giffords
filed a petition for partition in Land Court against their
1
Robert J. Cotton, partition commissioner, was granted
leave to participate in this appeal as an intervener. Andrew J.
Burke did not participate in this appeal.
2
coowner, Andrew J. Burke. A Land Court judge appointed a
partition commissioner (intervener Robert J. Cotton, henceforth,
the commissioner) to assist the parties and the judge in
resolving the matter. See G. L. c. 241, § 12. Nevertheless,
the process did not go smoothly. Indeed, the case, together
with related litigation spawned in the Land Court, the Superior
Court, and the United States Bankruptcy Court, took a path that
best can be described as tortuous.
The current appeal, which is the third one having come
before this court, is limited in scope. In it, John Gifford
appeals a contempt judgment that, in pertinent part, required
him to pay certain fees and costs to the commissioner.2 We agree
that the majority of the contested fees and costs are not
recoverable, and we therefore vacate the contempt judgment and
remand for further proceedings consistent with this opinion.
Background. We begin by summarizing only those milestone
events relevant to the current appeal. In 2011, the Land Court
judge ordered the Giffords to sell their share of the property
to Burke and to pay off their mortgage on it. In an unpublished
memorandum and order issued on December 7, 2012, pursuant to our
rule 1:28, that Land Court order was affirmed on appeal.
2
As noted below, only John Gifford was the subject of the
contempt judgment, because the proceedings involving Debra
Gifford remained stayed as a result of pending bankruptcy
proceedings. Debra Gifford is not a party to this appeal.
3
Gifford v. Burke, 83 Mass. App. Ct. 1101 (2012). After the
Giffords failed to comply, Burke filed a contempt complaint, but
the matter was stayed after each of the Giffords filed for
bankruptcy protection. Once the bankruptcy of John Gifford
concluded, the property was in fact conveyed to Burke and the
mortgage was discharged. After some additional Land Court
proceedings related to the bankruptcy, final judgment in the
partition action entered on April 6, 2015 (2015 judgment).
In the 2015 judgment, the judge ordered the Giffords to pay
the commissioner $30,635 within thirty days after the entry of
the judgment. That amount represented 100% of the
commissioner's then-outstanding fees and costs. The judgment
also referenced the judge's order of the same date, which
included the following language relevant to the current appeal:
"If [the Giffords] fail to timely comply with this [o]rder,
the [c]ommissioner may seek additional relief against [the
Giffords] in order to compel such compliance, including,
without limitation, the entry of a monetary judgment
against [the Giffords] in the amount of the
[c]ommissioner's unpaid legal bills and/or an order of
contempt for non-compliance with this [o]rder, and [the
Giffords] may be held liable for any further legal fees as
may be incurred by the [c]ommissioner in connection with
enforcing this [o]rder."
The Giffords filed a notice of appeal from the 2015
judgment on April 17, 2015 (second appeal). They challenged the
judge's allocation to them of 100% of the commissioner's
outstanding fees, arguing that the judge erred in not requiring
4
Burke to pay a share of those fees. The Giffords also argued
that the commissioner was not entitled to any fees for work done
after they had paid off their mortgage.
Although the commissioner was not a party to the second
appeal and never sought status as an intervener in the appeal,
he submitted his own brief in support of Burke's position. He
also participated in oral argument. A panel of the court once
again ruled in Burke's favor in a memorandum and order pursuant
to our rule 1:28, but summarily denied his request for appellate
attorney's fees and double costs. Gifford v. Burke, 89 Mass.
App. Ct. 1116 (2016). The commissioner made a parallel request
to recover his own appellate attorney's fees and double costs,
which was also denied.3 The rescript was entered on the Land
Court docket on July 12, 2016, and the second appeal came to a
close.
On July 20, 2016, the commissioner filed a complaint for
civil contempt against the Giffords, because he still had not
been paid the fees and costs covered by the 2015 judgment.
Those fees long since have been paid and no longer are in
dispute. In the contempt action, the commissioner also sought
payment for the time he spent representing himself in the second
3
Both Burke and the commissioner had argued that the second
appeal was frivolous and pursued in bad faith, citing to G. L.
c. 231, § 6F; Mass.R.A.P. 25, as appearing in 376 Mass. 949
(1979); and Mass.R.Civ.P. 11(a), as amended, 456 Mass. 1401
(2010).
5
appeal. Those requested fees and costs, which the Land Court
judge and the parties referred to as "the Appeals Court
[b]ills," totaled $17,619.51. According to the commissioner,
the Giffords are liable for such fees and costs pursuant to the
2015 judgment, because they constitute "further legal fees as
may be incurred by the [c]ommissioner in connection with
enforcing [the 2015 judgment]." On this same basis, the
commissioner sought payment for his time and costs in pursuing
his contempt action, which he valued at $6,750. The parties
agreed that the contempt action should proceed only against John
Gifford, because Debra Gifford's bankruptcy action remained
pending. The judge eventually issued a contempt judgment that,
inter alia, required John Gifford to pay the commissioner "the
entirety of the Appeals Court [b]ills, to wit: $17,619.51 [and]
the entirety of his legal fees in connection with the
[c]ommissioner's [c]ontempt [a]ction, to wit: $6,750.00."4
Discussion. 1. The Appeals Court bills. For purposes of
this appeal, we will assume arguendo that the 2015 judgment
4
Monies to fund the Giffords' obligations to the
commissioner were placed in escrow. Notwithstanding the
pendency of this appeal, the judge ordered that $6,750 (for the
commissioner's legal fees in the contempt action) be released to
the commissioner from the escrow account. Although the Giffords
acquiesced to the release of those funds, they did not thereby
waive their right to argue that the money was not owed. Cf. PGR
Mgmt. Co., Heath Properties v. Credle, 427 Mass. 636, 636 (1998)
(tenant separately appealed from order releasing to her landlord
all funds held in escrow).
6
provided the commissioner valid grounds to seek reimbursement of
the attorney's fees and costs he incurred in participating in
the second appeal. In other words, we will assume that such
fees and costs properly could be characterized as "further legal
fees . . . incurred . . . in connection with enforcing [the
final judgment]."5 Compare Howe v. Tarvezian, 73 Mass. App. Ct.
10, 17-19 (2008) (where partition commissioners have incurred
"unnecessary additional work and expense" in defending on appeal
award by Probate and Family Court of their fees and costs, they
may petition appellate court for their appellate fees and costs
pursuant to G. L. c. 215, § 45).6 As noted, the commissioner
already had sought his appellate fees and costs from this court
during the second appeal, albeit solely on the grounds that that
appeal was frivolous. At that time, the commissioner did not
claim that his appellate fees and costs independently were
5
We note that the validity of this assumption is far from
clear. Certainly, the commissioner had an interest in defending
the amount of his fees, but only four of the fourteen pages of
argument in the commissioner's brief in the second appeal dealt
with that issue. The bulk of the appeal, and the commissioner's
brief, dealt with what share of the commissioner's fees would be
paid by the Giffords (as opposed to Burke). What legitimate
interest the commissioner had with regard to that issue is not
immediately apparent.
6
Under a different statutory provision, judges of the Land
Court and Probate and Family Court may award "reasonable costs
and charges of partition proceedings," which include "the fees
of counsel [and] of the commissioners." G. L. c. 241, § 22. In
Howe v. Tarvezian, 73 Mass. App. Ct. at 17, we ruled that that
section does not address appellate attorney's fees and costs.
7
recoverable as "enforcement" costs under the 2015 judgment and,
therefore, the court did not reach that issue.
Having failed to raise the current grounds for recovering
his appellate fees and costs to the court during the second
appeal, the commissioner appears to have assumed that he was
free to raise such grounds on remand. That assumption is
erroneous. One seeking to recover appellate fees and costs
generally is required to make such a request to the appellate
court. Yorke Mgmt. v. Castro, 406 Mass. 17, 19-20 (1989). See
Nardone v. Patrick Motor Sales, Inc., 46 Mass. App. Ct. 452, 454
(1999) ("Without a directive from this court, the [trial court]
had no authority to award appellate attorney's fees and costs").
In fact, such a request is required to be made in the party's
initial appellate brief. Fabre v. Walton, 441 Mass. 9, 10
(2004). Having failed to make a timely request to this court to
recover his appellate fees and costs based on the terms of the
2015 judgment, the commissioner waived such a claim. See Beal
Bank, SSB v. Eurich, 448 Mass. 9, 12 (2004); Haser v. Wright, 65
Mass. App. Ct. 903, 903-904 (2005). Furthermore, a party, of
course, can be barred from asserting an issue he timely failed
to raise in an earlier proceeding regardless of whether that
issue actually had been litigated in that proceeding. Cf.
Kobrin v. Board of Registration in Med., 444 Mass. 837, 843
(2005) (distinguishing between "issue preclusion," which
8
"prevents relitigation of an issue determined in an earlier
action where the same issue arises in a later action, based on a
different claim," and "claim preclusion," which "prevents
relitigation of all matters that were or could have been
adjudicated in the [prior] action" [quotations omitted]).
The judge therefore erred in awarding the commissioner
reimbursement for any of the Appeals Court bills. Accordingly,
the money held in escrow to secure payment of the Appeals Court
bills should be returned to John Gifford.
2. The fees and costs in the contempt action. As the
commissioner has acknowledged, much of the fees and costs that
he incurred in prosecuting the contempt action related to his
efforts to collect the Appeals Court bills. Because the
commissioner at that point had forfeited any rights to recover
his appellate fees and costs for the second appeal, the judge
erred in allowing the commissioner additional fees and costs for
trying to collect them.
However, some share of the fees and costs that the
commissioner incurred in bringing the contempt action related to
the fact that the Giffords at that time had not paid the
original outstanding fees and costs required by the 2015
judgment.7 We remand this matter to the Land Court for a
7
John Gifford argues that the entire contempt complaint was
filed prematurely and that his motion to dismiss that complaint
9
redetermination of how much of the $6,750 that the commissioner
has been paid for prosecuting the contempt action is recoverable
on this basis, with the balance to be refunded to John Gifford.
3. Attorney's fees and costs in this appeal. Both parties
have requested their appellate attorney's fees and costs in the
current appeal. The Giffords do so on the ground that the
commissioner's efforts to enforce the contempt judgment were
frivolous. We deny that request as unfounded.
For his part, the commissioner has requested his current
appellate attorney's fees and costs as enforcement costs
recoverable under the 2015 judgment. To the extent that the
commissioner's current fees and costs relate to his fruitless
quest to recover payment for his earlier appellate fees and
costs,8 he is not entitled to recovery. However, as discussed
above, the commissioner has prevailed in this appeal to the
limited extent of upholding an as-yet-undetermined portion of
therefore should have been allowed. However, at the time he
filed that motion to dismiss (August 15, 2016) -- even under his
theory of when payment under the 2015 final judgment was due --
the deadline to make payment had run. It follows that even if
the contempt action initially was premature, it was no longer
so. Moreover, to the extent that a contempt action is a
disfavored means of collecting a debt, we note that the judge
specifically invited the commissioner to file such an action
here. Finally, the alacrity with which the commissioner acted
in filing his contempt complaint must be seen in the context of
his having been owed a large sum for a lengthy period of time.
8
The bulk of the commissioner's appellate brief addresses
the Appeals Court bills and his efforts to recover payment on
those bills.
10
the fees and costs he incurred in bringing the contempt
proceeding. To that limited extent, he might be entitled to a
share of his reasonable appellate attorney's fees and costs
incurred in this appeal. In accordance with the procedure
specified in Fabre v. Walton, 441 Mass. at 10-11, the
commissioner may, within thirty days, submit a statement of his
attorney's fees and costs related only to that portion of this
appeal on which he prevailed (together with argument on why he
believes he is entitled to such fees and costs).9 Within fifteen
days thereafter, John Gifford may submit an opposition to the
amount requested.
The judgment on the commissioner's complaint for civil
contempt is vacated and the case is remanded to the Land Court
for further proceedings consistent with this opinion.
So ordered.
9
We have given the commissioner thirty days rather than
fifteen days to submit his application so that the parties have
sufficient time to resolve the matter should they wish to do so.
The limited issues that remain in dispute are: (1) how much the
commissioner will be allowed to retain of the $6,750 already
paid to him from the escrow account, and (2) whether the
commissioner is entitled to a portion of his attorney's fees and
costs incurred in the current appeal, and, if so, how much he is
owed.