Opinion
19-P-1373
10-21-2020
TOWN OF BROOKFIELD v. John D. HOLDCRAFT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal arises from a series of proceedings in the Land Court concerning zoning enforcement actions against John D. Holdcraft relating to two properties in the town of Brookfield (town). The town filed complaints in September 2017 alleging that Holdcraft illegally stored junk, debris, and salvage materials on the properties, in violation of its zoning bylaws, and that he violated cease and desist orders issued by the town. To resolve the complaints, the parties signed an agreement for judgment (judgment) that was approved by a judge on February 12, 2018. The judgment provided, among other things, that Holdcraft would bring the properties into compliance by removing all junk, debris, and salvage, no later than August 31, 2018. To ensure compliance, the judgment provided for inspections by the town.
The town filed a separate complaint for each property. The cases were heard together.
On May 31, 2018, the town filed a complaint for contempt alleging that Holdcraft was in violation of the judgment. After a trial, on December 3, 2018, the judge entered a judgment (contempt judgment) that found Holdcraft had intentionally violated the judgment. The judge ordered Holdcraft to comply with the judgment, to pay $5,922.44 to the town for attorney's fees and costs, and, commencing January 1, 2019, to pay $100 per day per property for each day he failed to comply with the judgment.
The town filed a second complaint for contempt on January 29, 2019, alleging Holdcraft was in violation of the contempt judgment. The judge held hearings on the second contempt complaint on February 14 and March 14, 2019. Following each hearing, the judge issued orders (contempt orders) that found Holdcraft in violation of the judgment and the contempt judgment; the judge ordered a suspension of the daily fines from March 14, 2019, to March 31, 2019, due to weather conditions. At a hearing held on April 3, 2019, the judge ended the daily fines as to one of the properties based on the town's report that Holdcraft was in compliance as to that property. However, the judge increased the daily fine for the remaining noncompliant property to a rate of $200 per day.
Holdcraft filed a purported notice of appeal from the "April 3 order" on May 2, 2019. A further hearing was held on the second complaint for contempt on May 15, 2019. At that hearing the judge found that Holdcraft remained in contempt. Just prior to a hearing on June 5, 2019, Holdcraft brought the second property into compliance. On July 10, 2019, the judge held another hearing and issued an order for Holdcraft to pay $27,000 in fines and $13,187.76 in attorney's fees and costs to the town (fee order). Holdcraft filed a notice of appeal from the "order for payment of fines and attorneys' fees pursuant to judgment of contempt entered against him ... on July 10, 2019."
This notice of appeal was untimely as it was filed five months after entry of the contempt judgment on December 3, 2018, and two and three months after the entry of the contempt orders on February 14, 2019, and March 14, 2019. See Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013). The clerk of the Land Court did not assemble the record and Holdcraft did not seek leave of court to file a late notice of appeal. Additionally, the judge addressed counsel's untimely notice of appeal at the May 15, 2019 hearing. In response to counsel's assertion that he "took the Court's April 3 order as a further judgment of contempt against my client," the judge explained that "it's not a judgment. It didn't change the result from the contempt trial," and that as such the notice of appeal was untimely. We also note that the defendant was represented by new counsel after the April 3, 2019 hearing.
We first address Holdcraft's contention that this appeal pertains to the contempt judgment and the contempt orders, as well as the fee order. Rule 4 (a) of the Massachusetts Rules of Appellate Procedure, as amended, 464 Mass. 1601 (2013), requires any appeal from a judgment to be taken within thirty days of the entry of the judgment. See Pierce v. Hansen Eng'g & Mach. Co., 95 Mass. App. Ct. 713, 715 (2019) ; Standard Register Co. v. Bolton-Emerson, Inc., 35 Mass. App. Ct. 570, 571-572 (1993). Because Holdcraft did not timely appeal from any of the judgments of contempt, his claim, without citation to authority, that the "Land Court's actions and orders after December 3, 2018, are subject to this Appeal and should be reviewed" is unavailing. The only order properly before us is the fee order.
The Rules of Appellate Procedure "were wholly revised, effective March 1, 2019, primarily for stylistic and organizational purposes. See Mass. R. A. P. 1, Reporter's Notes -- 2019. The substantive requirements of rule 4 at issue in this case are unchanged. See Mass. R. A. P. 4, as amended, 481 Mass. 1606 (2019)." Pierce v. Hansen Eng'g & Mach. Co., 95 Mass. App. Ct. 713, 713 n.2 (2019).
To the extent the May 2, 2019 notice of appeal has any effect, the only new aspect of the April 3, 2019 order adverse to Holdcraft was the increase in the amount of the fine from $100 to $200 per day with respect to the noncompliant property.
A finding of contempt must be based on clear and convincing evidence of disobedience of a clear and unequivocal command. Birchall, petitioner, 454 Mass. 837, 852-853 (2009). Having found Holdcraft in contempt, the judge had the "discretion to formulate a remedy." Demoulas v. Demoulas Supermkts., Inc., 424 Mass. 501, 571 (1997). To that end, the judge awarded attorney's fees and costs to compensate the town, and assessed fines in order to obtain compliance from Holdcraft. "Unlike its criminal counterpart, civil contempt is not punitive but ‘intended to achieve compliance with the court's orders for the benefit of the [town].’ " Commonwealth v. Rape Crisis Servs. of Greater Lowell, Inc., 416 Mass. 190, 193 (1993), quoting Furtado v. Furtado, 380 Mass. 137, 141 (1980).
The fee order properly compensated the town for its costs and assessed fines for Holdcraft's repeated failure to comply with the judge's orders. See Ventresca v. Town Manager of Billerica, 68 Mass. App. Ct. 62, 65 (2007). Moreover, in the context of contempt proceedings, it was proper for the judge to utilize prospective, coercive fines for future violations to ensure compliance with his orders, and to double the fines when Holdcraft continued to resist compliance. See Labor Relations Comm'n v. Fall River Educators' Ass'n, 382 Mass. 465, 474 (1981). The fee order and fines were particularly appropriate where Holdcraft admitted to the judge that he had no intention of complying with the terms of the judgment when he signed it. Moreover, Holdcraft was less than forthright in claiming certain items of debris were for personal use. His blatant disobedience is perhaps best exemplified by his harassment of and threats to the town employees performing the inspections provided for in the judgment. See id. at 482 (appropriateness of fines depends on character and magnitude of threatened harm and probable effectiveness of sanction).
After considering detailed pleadings and affidavits addressing the nature of the case and the issues presented, the time and labor required, the result obtained, the experience, reputation, and ability of the attorneys, and the hourly rates charged by other attorneys in the same area, the judge assessed attorney's fees and costs. We are mindful that the judge was in the best position to assess these factors and that an award of reasonable attorney's fees is largely a matter of discretion. See Linthicum v. Archambault, 379 Mass. 381, 388-390 (1979). Therefore, we see no reason to disturb the judge's award. ,
An abuse of discretion occurs where "the judge made a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
We decline to award appellate attorney's fees and costs.
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Order dated July 10, 2019, affirmed.