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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     In an unpublished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.
