DocketNumber: 17–P–341
Citation Numbers: 94 N.E.3d 407, 92 Mass. App. Ct. 724
Judges: Henry, Milkey, Wendlandt
Filed Date: 12/6/2017
Status: Precedential
Modified Date: 10/18/2024
*409*724John 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 *725a petition for partition in Land Court against their 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.
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 In an unpublished memorandum and order issued on December 7, 2012, pursuant to our rule 1:28, that Land Court order was affirmed on appeal. Gifford v. Burke,
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 *726Giffords] 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 Burke to pay a share of those fees. The Giffords also argued that the commissioner *410was 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,
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 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 *727this 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."
Discussion. 1. The Appeals Court bills. For purposes of this appeal, we will assume arguendo that the 2015 judgment 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]."
*411Compare Howe v. Tarvezian,
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,
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 *412the fact that the Giffords at that time had not paid the original outstanding *729fees and costs required by the 2015 judgment.
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,
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.
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.
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
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,
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.
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,
John Gifford argues that the entire contempt complaint was filed prematurely and that his motion to dismiss that complaint 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.
The bulk of the commissioner's appellate brief addresses the Appeals Court bills and his efforts to recover payment on those bills.
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.