ROBERT J. WILLWERTH, III v. ANDREW S. RODENHISER and another [Note 1]

FLYNN, J. This appeal arises from the award of attorney's fees imposed against a litigant who wrongfully sought and received an execution on a civil money judgment that had been previously dismissed by stipulation of the parties.

Background. The underlying District Court action was a business dispute between Robert J. Willwerth, III ("Willwerth") and Andrew S. Rodenhiser ("Rodenhiser"). In 2002, the parties litigated their dispute in the Woburn District Court, resulting in a judgment for Rodenhiser on August 5, 2002 in the amount of $145,237.91. Shortly thereafter, the parties jointly entered into a stipulation of dismissal with prejudice as to all claims, which was filed with the court on October 29, 2002.

Some fourteen years later, Rodenhiser contacted his counsel in 2016, asserting that the judgment remained unsatisfied. Given the passage of time, counsel had destroyed Rodenhiser's file and did not remember the stipulation of dismissal. As a result, counsel reviewed the court's file, but apparently, inadvertently missed the stipulation of dismissal as to Willwerth. Thereafter, on May 2, 2016, Rodenhiser moved the court for issuance of an execution. After notice to Willwerth's prior counsel of record, the motion was heard on June 2, 2016. Rodenhiser's counsel appeared without opposition. Willwerth's counsel provided an affidavit confirming that he received notice of the motion for issuance of execution, but chose not to appear in opposition. At the hearing, the court reviewed the file, and apparently the stipulation of dismissal was not readily apparent to the judge either. As a result, Rodenhiser's motion was allowed. The execution was recorded, and notice of the same was provided to Willwerth by the sheriff's office.

Several months later, in October of 2016, Willwerth's now real estate counsel contacted Rodenhiser's counsel asserting that the District Court matter had already been resolved back in 2002. Rodenhiser's counsel requested proof of the settlement and payment, but also agreed to cooperate to rectify the alleged error. Little, if any, communication followed.

Ultimately, Willwerth's counsel filed a motion to recall the execution and for attorney's fees, costs, and expenses. The motion sought attorney's fees and costs under Mass. R. Civ. P. 11 and the court's inherent supervisory authority. Apparently realizing the error, Rodenhiser voluntarily returned the execution to the court and

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provided a release of seizure for recording at the registry of deeds. He opposed Willwerth's request for fees and costs. After hearing, the court ordered Rodenhiser to pay Willwerth's fees and expenses in excess of $10,000, and entered judgment in that amount, plus interest, on August 3, 2017. In a written decision, the court determined that Rodenhiser "is wholly and entirely responsible for the filing of this totally unfounded claim," that the claim is "knowingly baseless," "suggestive of an attempted fraud," and brought "out of greed," and is "liable for Plaintiff's costs, attorney's fees and the expenses he caused by his totally unjustifiable and indeed reprehensible conduct."

The court declined to impose attorney's fees under Rule 11 against Rodenhiser's counsel, however, finding that counsel "acted in good faith in relying on the representations of his client in the apparent absence of documentation to the contrary."

This appeal followed. With the exception of the legal fees award, no damages were assessed, or claimed, as a result of Rodenhiser's error in seeking an execution as Willwerth did not seek or offer proof of any other alleged damages.

Discussion. There does not appear to be a valid basis in law for the District Court's order for Rodenhiser to pay Willwerth's legal fees. Massachusetts generally follows the "American rule" and denies recovery of attorney's fees unless such fee-shifting is authorized by contract, statute, or court rule. See Police Comm'r of Boston v. Gows, 429 Mass. 14, 17 (1999) (Gows); Preferred Mut. Ins. Co. v. Gamache, 426 Mass. 93, 95 (1997). The commonly accepted American rule is that the prevailing party is not entitled to attorney's fees, except in four limited instances: (1) as costs, in accordance with specific statutes or rules of court; (2) as damages, in certain circumstances; (3) consistent with statutory provisions "under some of which the allowance may not be clearly categorized or may not be categorized at all"; or (4) pursuant to a valid contractual provision or stipulation. Bournewood Hosp., Inc. v. Massachusetts Comm'n Against Discrimination, 371 Mass. 303, 311-312 (1976). See Yorke Mgt. v. Castro, 406 Mass. 17, 18-19 (1989).

The Supreme Judicial Court, in discussing the variations in assessing attorney's fees, noted:

"In some circumstances, a judge in a civil case is expressly authorized by statute or rule to sanction an attorney for misconduct by requiring the attorney to pay opposing counsel's fees. A judge may award an adverse party reasonable attorney's fees and other costs upon a finding that 'all or substantially all of the claims, defenses, setoffs or counterclaims . . . made by any party who was represented by counsel . . . were wholly insubstantial, frivolous and not advanced in good faith.' G.L. c. 231, § 6F. See Mass. R. Civ. P. 11 (a), as amended, 456 Mass. 1401 (2010) (attorney may be subjected to 'appropriate disciplinary action' for wilful violation of rule requiring that attorney not sign pleading unless 'to the best of his knowledge, information, and belief there is a good ground to support it; and that it is not interposed for delay'). A judge is also granted abundant authority pursuant to Mass. R. Civ. P. 37 to impose sanctions, including attorney's fees, where an attorney violates a rule of discovery or an order regarding discovery. See Mass. R. Civ. P. 37 (b), as amended, 423 Mass. 1406 (1996). Furthermore,

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even though not expressly authorized by the rules governing contempt, we have recognized -- notwithstanding the American rule -- that '[w]here a party's conduct in a litigation constitutes contempt of court, . . . a court has discretion to award attorney's fees against the contumacious party.' [Police Comm'r of Boston v.] Gows, [ 429 Mass. 14, 17 (1999)]."

Wong v. Luu, 472 Mass. 208, 215-216 (2015).

In Tilman v. Brink, 74 Mass. App. Ct. 845 (2009), the Appeals Court held that "a District Court judge may impose attorney's fees against litigants only if such a determination is provided for by statute or falls within the inherent powers of the District Court." Id. at 852. The Appeals Court went on to explain that the statutory authority to sanction litigants contained in G.L. c. 231, § 6F does not extend to District Court judges [Note 2]:

"General Laws c. 231, § 6F allows a 'court' upon motion by any party in a civil case, to award reasonable attorney's fees and costs against any party, attorney or litigant, whose claim or defense was 'wholly insubstantial, frivolous and not advanced in good faith.' For purposes of this section, 'court' is defined as 'the supreme judicial court, the appeals court, the superior court, the land court, any probate court and any housing court, and any judge or justice thereof.' By omitting the District and Municipal courts from the definition of 'court,' the Legislature 'determin[ed] that litigants in smaller cases should not be threatened with the sanctions permitted by § 6F.' Following this court's decision in Brossi v. Fisher, [ 51 Mass. App. Ct. 543 (2001)], holding that § 6F does not apply to the District Court, the Legislature has not chosen to expand the definition of 'court.' Accordingly, a District or Municipal Court judge does not have authority to award attorney's fees pursuant to § 6F" (internal citations omitted).

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Id. at 852-853.

The Appeals Court then went on to consider whether the imposition of attorney's fees against litigants falls within the District Court's inherent powers. It held:

"While we recognize that judges possess the inherent power to act 'as necessary to secure the full and effective administration of justice,' the Legislature made clear its intent to withhold authority from the District and Municipal courts to impose attorney's fees against litigants. The Legislature, if it chose to give those courts such power, could easily have included them in the applicable statute. We do not deem the absence of the proposed power as impeding the full and effective administration of justice, particularly in light of the availability of rule 11 sanctions against offending attorneys" (internal citations omitted).

Id. at 853-854.

The Appeals Court then went on to find that the "trial judge did not have the authority to assess attorney's fees against the [litigant]" and vacated that portion of the judgment. Id. at 854-855. Thus, the Appeals Court's holding in Tilman is instructive and requires that the judgment against Rodenhiser be vacated. See also Nissenbaum v. McGovern, 1995 Mass. App. Div. 153 (1995).

In this case, the District Court judge did discuss sanctions against Rodenhiser's counsel, pursuant to Mass. R. Civ. P. 11, but the court declined to issue Rule 11 sanctions, specifically finding that Rodenhiser's counsel acted in "good faith" and that Rule 11 sanctions were not warranted. That finding is not before us on appeal.

It would not defy logic to assert that Rodenhiser's actions amounted to more than a mistake. However, there was no evidence before the District Court as to Rodenhiser's actual intent or motive. Rodenhiser never appeared before the court. Nor was the court provided any admissible evidence by way of affidavit, interrogatories, depositions, or otherwise. The court may have assumed that Rodenhiser had acted in bad faith, but the record contains little to support that he was acting "out of greed" and that his conduct was "reprehensible." Even if the court may have had inherent power to impose attorney's fees to act as necessary to secure the full and effective administration of justice, or to punish the contumacious, oppressive, and bad faith of a party, see Gows, supra at 18, we conclude in any event that the record does not establish that this is the type of those rare and egregious cases for which such authority should be exercised. See Brossi v. Fisher, 1999 Mass. App. Div. 99, 105 n.7.

The judgment entered on August 3, 2017 is vacated.