MISC 02-281892

February 5, 2010


Trombly, J.


Related Cases:

This case is before the Court on the Plaintiff’s Complaint for Contempt filed February 25, 2009 and Defendant’s Motion for Attorneys’ Fees. The underlying action in this case was a complaint for declaratory judgment to establish the Plaintiff’s easement rights over property known and numbered as 82 and 86 American Legion Highway, owned of record by the Defendant, for the benefit of Plaintiff’s property known and number as 86R American Legion Highway (the Property), and for permanent injunction enjoining the Defendant from interfering with use of the claimed easement.

On August 8, 2008, the Court entered a Judgment in favor of the Plaintiff declaring that Plaintiff’s Property is benefited by the claimed easement, enjoining the Defendant from interfering with the Plaintiff’s use of the easement, and ordering the Defendant to remove any object which interferes with the Plaintiff’s use thereof. Defendant filed a timely appeal on September 2, 2008. [Note 1] Plaintiff filed a Motion to Enforce Injunction with the Land Court on November 28, 2008 and Defendant filed an opposition to that motion and a motion to stay the injunction pending appeal on December 18, 2008. After a hearing on the motion, the Court issued an Order on January 28, 2009 denying the motion to stay the injunction but also modifying the August Judgment by limiting the hours that the Plaintiff could access the right of way.

The Defendant filed a timely appeal of the January 28, 2009 Order and also filed a motion in the Appeals Court seeking a stay of the August 8, 2008 Order. That motion was denied by a single justice the Appeals Court on March 10, 2009. From August 8, 2008 until March 26, 2009, the Defendant was not in compliance with either the August 8, 2008 Judgment or the January 28, 2009 Order. After the Appeals Court denial of the motion to stay the injunction, the Defendant complied with the requirements of the Land Court.

On February 25, 2009, the Plaintiff filed a Complaint for Contempt. Trial on the complaint for contempt was held on August 4, 2009. The Court issued a Decision on the contempt complaint on August 27, 2009, finding the Defendant in contempt of the Court’s Orders. Trial on the damages portion of the contempt complaint was held on January 15, 2010. Exhibits one through six were admitted into evidence. The proceedings were limited to the issue of damages caused by the Defendant’s contempt. Testifying was Plaintiff Balbino White. Parties were allowed to file post-trial briefs; both parties have done so. Defendant has also filed a motion for attorneys’ fees for compensation for Plaintiff’s counsel’s failure to appear for the originally scheduled trial on contempt damages on November 2, 2009.

After reviewing the record before the court, I find the following facts, in addition to the facts found in the Decision on contempt:

1. Mr. White is self-employed. He does construction work, consisting mainly of masonry projects and some cabinetry work.

2. Mr. White owns real property known and numbered as 86R American Legion Highway in Boston (the Property). The Property is benefited by an easement over the Defendant’s property providing vehicle access.

3. Mr. While uses the Property to store the materials for use in his construction business and to maintain a small garden.

4. This Court’s August 8, 2008 Judgment declared that Mr. White could legally drive to the Property over the easement. The January 28, 2009 Order limited the timing of Mr. White’s access, pending resolution of the Defendant’s appeal

5. Because of the Defendant’s contemptuous actions, Mr. White was unable to access the Property in this manner from August 8, 2008 until March 26, 2009 (the Contempt Period). While he was able to use the easement, he was stopped by the fence along the lot line; therefore, he was unable to drive his truck onto his Property to access the materials he uses in his construction business.

6. During the Contempt Period Mr. White used a wheelbarrow to make approximately fifteen trips to load his truck in the morning and fifteen trips to unload his truck in the afternoon over uneven ground on each day that he worked.

7. Mr. White’s “busy season” is April through November.

8. During winter, Mr. White does not need to access the Property often because he mainly does indoor work, which doesn’t require the materials he stores on the Property.

9. Mr. White only has one invoice for work performed during the Contempt Period, totaling $750.00 in services performed.

10. Mr. White did not turn away any work during the Contempt Period.

11. Mr. White charges his clients by the job rather than by the hour.

12. Mr. White’s 2008 Federal Income Tax Return indicates his gross sales attributable to his business for the year was $20,470.

13. The invoices that Mr. White produced in response to the Defendant’s request for documents for work done in 2008 total $13,638.

14. Mr. White’s 2008 Federal Income Tax Return is a true reflection of his income.

Plaintiff’s Damages

The amount of compensatory damages awarded must be a direct result of the violation of the Court’s order and cannot exceed the actual loss to the complainant. Burke v. Guiney, 700 F.2d 767, 770 (1983); Town of Manchester v. Dept. of Envtl. Quality Eng’g., 381 Mass. 208 , 215 (1980). The damage award cannot be punitive in nature, only compensatory. Manchester, 381 Mass. at 215. Although this figure does not need to be calculated with undue precision, there must be some evidence of the extent to which the complainant has been injured. Id. Uncertainty as to the amount of damages is not a bar to recovery as long as the damages are certain to be the result of the contempt. Dalton v. Demos Bros. General Contractors, Inc., 334 Mass. 377 , 378 (1956); McKenna v. Begin, 5 Mass. App. Ct. 304 , 311 (1977). “While the damages may not be determined by speculation or guess, an approximate result is permissible if the evidence shows the extent of damages to be a matter of just and reasonable inference.” Id.

Mr. White claims that the loss that he has suffered because of the Defendant’s contempt is “lost time,” more specifically, the wages he could have earned in the extra time it took him to load and unload his truck resulting from his inability to access his Property by truck. In Mr. White’s testimony at trial on the contempt damages, he stated that he bills his customers by the job rather than by the hour; that his “busy season” is April through November; that he did not refuse any work during the period August 2008 through March 2009; that from November to April he does mainly indoor work for which he does not need to access his property to load and unload his truck; that he does not retain all of his invoices or bills from work that he has completed; and that his 2008 Federal Tax Return is true and accurate.

From the above testimony, it is clear to the Court that Mr. White did not incur any pecuniary loss as a result of the Defendant’s contempt. While the blockage of the driveway did cause Mr. White to spend up to four hours each work day loading and unloading his truck, which may have increased the length of time each project took, this extra time did not preclude Mr. White from taking other jobs. Because Mr. White is paid by the job, his compensation for each discrete job is not affected by the time required for completion. His compensation would only be affected if he had to turn away jobs because he did not have enough time to complete them as a result of wasting up to four hours each day loading and unloading his truck. He did not have to charge his clients any less because of this lost time and he did not lose any hours in employment elsewhere resulting from the lack of access.

However, Mr. White was injured in other respects. Mr. White testified that he had to take several wheelbarrow trips between his truck and the materials storage location over uneven ground and was required to lift the heavy materials into the truck as a result of the blocked driveway. As a result he suffered aches, pains, and tiredness. Although it does not appear that he sought any medical treatment for these injuries, they are still compensable. Also, although the “time lost” did not damage Mr. White’s business income, he did lose time in which he could have pursued non-business related activities. I find that an award of $5,000.00 is appropriate to compensate Mr. White for these injuries and for his time lost. This figure is not speculation; rather it is a reasonable inference from the evidence presented to the Court. Simply put, Mr. White was required to spend more time and effort on his work than he should have had to.

Plaintiff’s Attorneys’ Fees

Attorneys’ fees are a recognized component of an award for damages for civil contempt as long as those fees are for services related to the defendant’s contempt. Coyne industrial Laundry of Schenectady, Inc. v. Gould, 359 Mass. 269 , 277 (1971); Arch Med. Assocs. V. Bartlett Health Enter., 32 Mass. App. Ct. 404 , 409 (1992). That is, fees for time spent defending an order in a higher court or litigating a motion for a stay should not be included in an award for attorneys’ fees. Arch Med. Assocs. 32 Mass. App. Ct. at 409.

The fee award lies with the discretion of the trial judge and is not required upon a finding of contempt. Giannetti v. Thomas, 32 Mass. App. Ct. 960 , 961 (1992). The Court must consider several factors related to both the reasonableness of the attorney’s hourly fee and also the reasonableness of the number of hours spent on the case in order to determine a valuation of legal services rendered. These factors include: the length of the trial; the nature of the case and issues presented; the time and labor required, the experience, reputation, and ability of counsel; and the result obtained. Linthicum v. Archambault, 379 Mass. 381 , 388-89 (1979). This calculation should include time spent establishing and defending attorneys’ fees. Stratos v. Dept. of Pub. Works, 387 Mass. 312 , 325 (1982). The party seeking attorneys’ fees is not required to submit contemporaneous billing records to establish the fee award; however, such records greatly assist the court in determining the reasonableness of an award. Arlington Trust Co. v. Caimi, 414 Mass. 839 , 848 (1993). Therefore, it is not inappropriate, but also not required, for the court to reduce the award requested when contemporaneous billing records are not part of the record. Handy v. Penal Inst. Comm’r of Boston, 412 Mass. 759 , 768 (1992). The contractual payment obligation between the party and counsel is not relevant to the question of reasonableness. Kladlick v. Department of Mental Health, 431 Mass. 850 , 857 (2000).

The Plaintiff seeks compensation for 60.65 hours of work at $375.00 per hour, totaling $22,743.75, for Mr. Collier’s (Plaintiff’s attorney) services. [Note 2] Mr. Collier has not submitted contemporaneous billing records. Instead, he has submitted affidavits stating hours worked on various dates, along with a description of how the time was spent. The Defendant objects to the requested award on the grounds that no contemporaneous billing records have been produced, that some of the hours detailed are not related to the Defendant’s contempt, and that the requested billing rate is unreasonably high.

I find that a reasonable rate for Mr. Collier’s services is $300.00 per hour. This figure falls within the range of comparable rates charged for attorneys of Mr. Collier’s experience, as stated in his affidavit, and is also comparable to other attorney fee awards that Mr. Collier has received in the past at the trial court level. I agree with the Defendant that there are several entries in Mr. Collier’s affidavit that do not warrant compensation because they are not related to the Defendant’s disobedience. Those are the entries for October 9, 2008, February 12, 2009, February 13, 2009, March 4, 2009, and March 11, 2009. Therefore, I reduce the number of hours to be compensated by 11.25 hours, to 49.40 hours. Given the nature of the case, the length of trial, and the outcome for the Plaintiff, 49.40 hours is a reasonable number of hours to be compensated. The total award for Plaintiff’s attorneys’ fees is $14,820.00

Defendant’s Attorneys’ Fees

The Defendant requests attorneys’ fees to compensate for Plaintiff’s attorney’s failure to appear before the Court on November 2, 2009, the originally scheduled date for the trial on contempt damages. The Court has inherent power to assess attorneys’ fees against an offending attorney who fails to appear for a scheduled trial. Comm. v. Rogers, 46 Mass. App. Ct. 109 , 112, 113 n.6 (1999).

While the Court was lenient in rescheduling the contempt damages trial, Plaintiff’s counsel did fail to appear which unfairly caused the Defendant to incur unnecessary attorneys’ fees. I find that the amount of time spent for preparation for and travel to the trial and the hourly rate charged by Defendant’s counsel to be reasonable. I award $720.00 in attorneys’ fees to the Defendant. The Plaintiff’s award of attorneys’ fees is thereby reduced by said amount.

Accordingly, it is hereby:

ORDERED that Plaintiff Balbino White is awarded damages and attorneys’ fees in the total amount of Nineteen Thousand, One Hundred Dollars ($19,100.00), that amount to be paid by the Defendant, Amiff Housing Associates, L.P. within thirty days.

So Ordered.

By the Court (Trombly, J.).


[Note 1] The August 8, 2008 Decision of the Land Court determining the existence of the easement and granting the permanent injunction was upheld by the Appeals Court on January 4, 2010.

[Note 2] There appears to be an error in the Plaintiff’s calculation as 60.65 hours multiplied by $375.00 per hour equals $22,743.75 but the Plaintiff has only requested $22,723.75. The Court assumes the correct figure was intended.