MISC 11-444479

April 13, 2015

Essex, ss.



Before the court is the request of Black Swan Country Club, LLC and 258 Andover Street LLC (“Defendants”) for the imposition of costs and fees against plaintiff Susan R. Wojtkun (“Susan Wojtkun” or “Plaintiff”) and against the third party defendant, Dr. Peter Wojtkun (“Peter Wojtkun”). Additionally, Defendants seek costs and fees against Plaintiff’s counsel, Attorney Thomas Curran (“Thomas Curran”). This court agrees with Defendants in part, and will order an award of G. L. c. 231, §6F costs and fees against Peter Wojtkun. This court does not, however, find grounds to impose responsibility for costs and fees, or any other sanctions, upon either Susan Wojtkun or Thomas Curran.

This litigation concerned the scope and meaning of an easement burdening the Plaintiff’s property and benefiting the Defendants’ land. Plaintiff took the position that the easements, established in 1993 instruments, did not permit the Defendants to make use of the Plaintiff’s property for general golf course purposes. After trial, the court found, based on evidence evincing the intent of the original drafters, that the disputed instruments granted Defendants full rights to use and maintain a golf course on the easement area. The court also found that Peter Wojtkun at all relevant times understood that the scope of the easement was to allow the use of the Plaintiff’s property as part of a golf course; the court concluded that his testimony to the contrary was not credible.

Judgment entered December 7, 2012. The case was reviewed on appeal, and in a memorandum of decision entered December 4, 2013 pursuant to Appeals Court Rule 1:28, a panel of that court affirmed the judgment.

On January 4, 2013, while the appeal from the judgment remained unresolved, Defendants moved for the imposition of attorney’s fees and costs pursuant to both G. L. c. 231, §6F and Mass. R. Civ. P. 11(a). On January 7, 2013, Susan Wojtkun filed her notice of appeal. Susan Wojtkun and Peter Wojtkun filed an opposition to Defendants’ motion for costs and fees on February 4, 2013. The hearing on Defendants’ motions was held on February 5, 2013. The court declined to reach the requests for fees and sanctions while the judgment was on appeal. In addition, on May 22, 2013, Peter Wojtkun filed for bankruptcy. The parties agreed that an automatic stay applied to the case pursuant to 11 U.S.C. §362.

On August 13, 2013, Peter Wojtkun was granted a discharge under Chapter 7 of the Bankruptcy Code. [Note 1] Although the automatic stay appears to have been lifted at the date of Peter Wojtkun’s discharge, the parties did not advise this court of the lifting of the bankruptcy stay. On January 6, 2014 the rescript of the Appeals Court issued, affirming this court’s judgment. [Note 2] In September of 2014, counsel confirmed for this court that the automatic stay had been lifted, and that the court was at liberty to reach the pending question of attorney’s fees and costs. The court now rules on the G. L. c. 231, §6F motions against Susan Wojtkun and Peter Wojtkun and the Mass. R. Civ. P. 11(a) motion against Thomas Curran.

Facts [Note 3]

In 1993, New England Golf Partners Nominee Trust (“New England Golf Trust” or “NEGP”) acquired 258 Andover Street (“golf course property”), now owned by Defendants. Until November, 2001, Peter Wojtkun owned a fifty percent share of the interest in New England Golf Trust. Because of financial difficulties, beginning in around 1993, New England Golf Trust carved residential lots 2, 3, 4, and 5 out of the existing golf course property with the intent to sell the lots for residential use. Lot 2 and lot 5 were sold as part of New England Golf Trust’s bankruptcy and refinance workout. The December 15, 1993 easement agreement for the Locus established New England Golf Trust’s right to “pass and repass on, over and across that portion of lot 2" “to provide NEGP, including its members, invitees and employees access from the tee for the 1st green to the 2nd tee and fairway.” The deed of the same date granting the Locus uses broader language, providing New England Golf Trust rights for the “use and maintenance of a golf course and all other uses required of a golf course” on the easement area. In 1995, the Georgetown Golf Club, Inc. (“Georgetown Club”), in which Peter Wojtkun also maintained a substantial percentage interest, bought the golf course property from New England Golf Trust. At the time the easement was created, and at all times subsequent, at least one tee box, one sand trap, and the major portion of a golf green have been located within the easement area of the Locus and used for golf course purposes.

The court found that Peter Wojtkun was largely responsible for the real estate ventures of New England Golf Trust, including the drafting, negotiation, and execution of both the easement agreement and the deed for the Locus in 1993. The court found that at the time of the sale of the residential lots to resolve the bankruptcy issues, Peter Wojtkun, and others involved with the creation and sale of the residential lots carved out of the existing golf course property, were deeply concerned about the potential for enforcement of Georgetown municipal zoning bylaws that prohibited the dual commercial and residential use of residential lots. This problem, known as the “dual use” problem, arose because the lots being sold for residential purposes to generate cash--lots which wrapped around the rest of the golf course--had physical facilities of the golf course located on the residential lots, and were actively used for the golf course’s functions, including the daily playing of golf. When they were sold off, those residential lots were drawn to sizes and shapes that complied with the dimensional minima of the zoning laws, but within their perimeters the house lots contained golf facilities and activities. The realities of the zoning laws led to an irreconcilable problem–that the land area required for the residential lots to comply with dimensional zoning minima included features and uses which were intrinsically part of the commercial golf course use. There was grave concern on the part of Peter Wojtkun and others that this problem, already raised by neighbors and under discussion locally, could slow down or scuttle the liquidation of the residential lots, on which the financial workout depended.

To avoid this dual use problem, Peter Wojtkun directed the drafting of the conveyancing papers, including the disputed conveyancing documents, plans, and easement instruments, in a manner that would, at least on the face of the documents, meet the dimensional requirements of the residential lot zoning law while preserving the rights of New England Golf Trust to maintain and continue to operate a golf course on the land that was within, and conveyed as part of, the house lots.

Based on the intent of the parties at the time the easement was created, the court determined that the disputed easement documents authorized the maintenance and full use of a golf course on the easement area, which forms a substantial part of the rear yard of Lot 2, the house lot which Plaintiff owned at the time of trial. The court did not at all credit Peter Wojtkun’s directly contrary trial testimony--that in selling off the residential lots, he intentionally directed deeds or easement agreements to be drafted which gave up the golf course’s right to maintain the easement area for golf course use. The court instead found that Peter Wojtkun intended to create full rights in favor of the golf course to use the rear portions of the house lots for full-bore golf purposes. The intention of Peter Wojtkun and others in creating the deed and the easement agreement was to burden the Locus with an easement that allowed the club to install, maintain, and use the described area with a tee box, tee area, and facility for the operation of a golf course. The plan was to create record documents with language which might help keep at bay the Town, should it push ahead with zoning enforcement, but still preserve the ability to keep using the rear yards of the residential lots for commercial golf course purposes. There was ongoing use of the residential lots (including Lot 2) for golf course purposes for an extended period while Peter Wojtkun controlled the golf course. Only after he later lost control of the golf course and club, and was denied the right to use the course, did objections arise from the Plaintiff about the golf use of Lot 2. In light of this, Peter Wotjkun’s testimony at trial that he intended (at the time the residential deeds first went out) to cut off easement rights benefiting the golf course rang false.

On December 15th, 1993, New England Golf Trust sold one of the residential parcels, lot 5, to Resolution Properties, controlled by Louis Minicucci (“Mr. Minicucci”). Peter Wojtkun guided the drafting of the easement agreement for lot 5. The easement agreement for lot 5 explicitly granted New England Golf Trust a non-exclusive right to pass and repass over lot 5 to access the 1st hole fairway from the 1st tee. The court found that, notwithstanding the claim that the easement agreement language for lot 5 granted passage rights to New England Golf Trust, Mr. Minicucci, a long time friend of Peter Wojtkun, understood when his entity purchased lot 5 that golf use far more intensive than occasional passage would take place on the rear portion of the land he was buying subject to the recorded easement.

Plaintiff, Susan Wojtkun, purchased the Locus, Lot 2, in 1999 subject to the terms of the easement. Susan Wojtkun and Peter Wojtkun resided together at the Locus throughout. [Note 4] Defendants purchased the golf course property in 2010, after further loan difficulties led to a non-consensual transfer from Peter Wojtkun’s control. After Defendants took title to the golf course, Peter Wojtkun lodged various complaints with the Town of Georgetown about the manner of the operations of the golf course. Peter Wojtkun was sued by the Defendants for a deficiency on a 1.7 million dollar promissory note that he personally guaranteed.

After Defendants acquired title to the golf course and took over the golf operation, Peter Wojtkun deliberately entered the 11th tee box, located on the easement area of Lot 2, and sprayed herbicide in and around the tee box. This action resulted in the destruction of part of the grass on the tee box. On another occasion after Defendants took title to the golf course, Peter Wojtkun drove a motor vehicle over the easement area, causing damage. The court concluded that these episodes violated the easement rights enjoyed by Defendants, and issued a prospective injunction against future actions which would injure the easement area and impair its use for the purposes established by the record easements.

Grounds for Requiring a Party to Pay Attorneys Fees and Costs Under G. L. c. 231, §6F

G. L. c. 231, §6F provides that where a party’s claims are found to be “wholly insubstantial, frivolous and not advanced in good faith . . . the court shall award to each party against whom such claims were asserted an amount representing the reasonable counsel fees and other costs and expenses incurred in defending against such claims.” G. L. c. 231, §6F imposes responsibility for these fees and costs on “[a]ny party who was represented by counsel during most or all of the proceeding.” The provision can apply to “claims, defenses, setoffs, or counterclaims, whether of a factual, legal, or mixed nature” put forward by the party.

In determining whether to require payment under G. L. c. 231, §6F, the court should “not focus on the conduct of the defendant prior to trial.” Lewis v. Emerson, 391 Mass. 517 , 526 (1984). Instead, G. L. c. 231, §6F awards should be imposed based “on the conduct of the litigation by the” party. Id. A claim will be considered “wholly insubstantial” or “frivolous” where the court finds a “total absence of evidentiary or legal support.” Fronk v. Fowler, 456 Mass. 317 , 325 (2010). For the court to award amounts under this provision, the court must determine that “all or substantially all of the claims or defenses are frivolous.” Strand v. Hubbard, 27 Mass. App. Ct. 684 , 685-86 (1989) (internal quotations omitted) (determining that G. L. c. 231, §6F sanctions would not apply where the judge sustained one of the claims brought by the party against whom fees were sought).

“[A] showing of bad faith gives rise to one of the traditional exceptions to the general American rule that counsel fees are not part of the costs awarded to a successful litigant.” Miakiewicz v. LeTourneau, 12 Mass. App. Ct. 880 , 881 (1981). G. L. c. 231, §6F is designed “to punish a party for acting in bad faith.” Gonzales v. Pierce-Williams, 68 Mass. App. Ct. 785 , 789 (2007); see also Fronk v. Fowler, 456 Mass. 317 , 335-36 (2010) (“Where, as here, parties lack the legal or factual basis to commence or sustain an action, yet press ahead for reasons related only to obstinance or avarice, the prospect of reimbursing their harassed opponents should cause them to rethink their litigious venture”). Bad faith includes “the knowing pursuit of frivolous or unwarranted claims or defenses.” Compugraphic Corp. v. DiCenso, 11 Mass. App. Ct. 1020 , 1020 (1981). Where “a claim is advanced which essentially is unsupported by evidence . . . a subjective belief of a person in his claim may be ruled . . . not to preclude an award under these sections.” Massachusetts Adventura Travel, Inc. v. Mason, 27 Mass. App. Ct. 293 , 299 (1989); see also Katz v. Savitsky, 10 Mass. App. Ct. 792 , 797 (1980) (sanctions imposed where “neither the plaintiff nor his counsel had . . . any reason to believe” the circumstances alleged in the complaint).

The Legal Framework for Mass. R. Civ. P. 11(a) Attorney Sanctions

By signing a pleading, an attorney certifies to the court that “he has read the pleading; that 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” Mass. R. Civ. P. 11(a). “A ‘good ground’ requires that the pleadings be supported by ‘reasonable inquiry and an absence of bad faith.’” Tilman v. Brink, 74 Mass. App. Ct. 845 , 851 (2009) (quoting Bird v. Bird, 24 Mass. App. Ct. 362 , 368 (1987)); see also Doe v. Nutter, McClennen & Fish, 41 Mass. App. Ct. 137 , 141-42 (1998). “The court will impose attorney’s fees and costs where an attorney has failed to show a subjective good faith belief that the pleading was supported in both fact and law.” Van Christo Advertising Inc. v. M/A-COM/LCS, 426 Mass. 410 , 416 (1998). To trigger Rule 11(a) sanctions, “the position taken must have been meritless” and “the position must have been advanced in bad faith.” Raymond v. SM Fin. Servs. Corp., 22 LCR 254 , 256-57 (2014) (Misc. Case No. 11 MISC 453960) (Piper J.) (sanctions imposed after attorney was warned by opposing counsel that his pleading had no basis in law). Rule 11(a) “authorizes a judge to impose attorney’s fees and costs where an attorney has failed to show a subjective good faith belief that the pleading was supported in both fact and law...”; the rule “does not excuse an attorney’s ‘wilful ignorance’ of facts and law....” Van Christo Advertising Inc. v. M/A-COM/LCS, 426 Mass. 410 , 416-17 (1998). In evaluating the opportunity to impose Rule 11(a) sanctions, the court’s focus is upon the actions and subjective belief of the attorney, and “[u]nless there is evidence to the contrary, a client’s improper motivation should not be imputed to his attorney.” Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627 , 651 (2010); see also Thomson McKinnon Securities, Inc. v. Lewis, 11 Mass. L. Rptr. 773 (2000) (Rule 11 sanctions imposed where attorney “willfully disregarded evidence that she herself had offered another court and submitted a motion based on inaccurate materials”).

Peter Wojtkun is liable for costs and attorneys fees pursuant to G. L. c. 231, §6F

Peter Wojtkun is subject to sanctions under G. L. c. 231, §6F; he is a party to this suit. The clear language of G. L. c. 231, §6F applies to “[a]ny party who was represented by counsel during most or all of the proceeding” who presents “claims, defenses, setoffs, or counterclaims, whether of a factual, legal or mixed nature.” The broad language of the section assures fee awards under G. L. c. 231, §6F may be applied to a variety of frivolous actions taken during civil litigation, including “a transparent defense . . . without even a colorable basis in law.” Lewis v. Emerson, 391 Mass. 517 , 526 (1984) (characterizing the defense as one “to which a party should not be required to respond”).

Here, as a third party defendant, Peter Wojtkun knowingly presented a defense that had no basis in fact. See Fronk v. Fowler, 456 Mass. 317 , 335-36 (2010). That defense--that the golf club had no right to use the rear yard of Lot 2 for golf course activities--was a defense to the claims the defendants lodged against Peter Wojtkun for having damaged the disputed area (because, lacking a right to use the area for golf, the club had little to complain of with regard to damage done to the tee area). The testimony he presented also was central to Wojtkun’s spouse, Susan’s, principal claim–that Lot 2, the house lot on which both Wojtkuns long resided, was not available to the golf club to use for full golf course purposes.

The court found Peter Wojtkun’s testimony regarding the intent of the creators of the easement documents to be untruthful. The court found that Peter Wojtkun orchestrated the drafting of the easement documents to avoid the dual use zoning problems associated with the creation of the residential lots, but at all times intended to maintain perpetual rights benefiting New England Golf Trust and its successor owners to operate and maintain a championship golf course on the residential lots, including the Locus. The court found that at the creation of the easement, Peter Wojtkun and the other drafters intended the full use of the golf course would continue uninterrupted on the easement area. Defendants brought claims against Peter Wojtkun as a third party after he intentionally vandalized the easement area, causing damage to the Defendants. Peter Wojtkun claimed in his defense that the scope of the easement did not provide Defendants the right to challenge (or secure damages for, and injunctive relief against) his actions. Peter Wojtkun’s defense relied on his false statements to the court that he and the other drafters never intended the use and maintenance of a golf course on the easement area of Lot 2.

Peter Wojtkun mounted his defense in bad faith. G. L. c. 231, §6F is designed “to punish a party for acting in bad faith.” Gonzales v. Pierce-Williams, 68 Mass. App. Ct. 785 , 789 (2007). The court also accepts Defendants’ position that Peter Wojtkun, in putting forward testimony that was not credible, acted with a bad faith motive directed at gaining leverage over Defendants. Defendants point to the litigation elsewhere pending at the time of trial in which the Defendants sought judgment for an alleged deficiency of 1.7 million dollars under a promissory note guaranteed by Peter Wojtkun. Defendants also rely on numerous complaints against the Defendants concerning the golf operation, lodged with the Town of Georgetown by Peter Wojtkun, as proof of his bad faith motive. Even without making a firm finding about the truth regarding these related but collateral disputes, it is entirely appropriate to impute bad faith to Peter Wojtkun’s actions in this litigation. He knowingly presented false testimony to the court. See Compugraphic Corp. v. DiCenso, 11 Mass. App. Ct. 1020 , 1020 (1981) (including in bad faith “the knowing pursuit of frivolous or unwarranted claims or defenses”). The false representations of Peter Wojtkun in this litigation, leading up to and including through his trial testimony, imposed significant and unwarranted costs upon the Defendants. Plaintiff’s case relied centrally upon the false statements of Peter Wojtkun. If Peter Wojtkun had revealed initially the truth about his intent and that of the other drafters regarding the genuine scope and purpose of the easement documents, Defendants would not have needed to expend the significant costs they incurred in this litigation.

Based on the significance of Peter Wojtkun’s false testimony not only in his own defense, but regarding the claims of the Plaintiff, it is appropriate to impose on him under G. L. c. 231, §6F attorney’s fees and costs which include the entirety of those expended by the Defendants. Fees imposed by G. L. c. 231, §6F are limited to the reasonable costs of defending against the frivolous action. See Compugraphic Corp. v. DiCenso, 11 Mass. App. Ct. 1020 , 1020 (1981) (costs imposed based on the time opposing party took to respond to frivolous counterclaims but not costs associated with legitimate third party action); see also Farmer & Flier Assocs. v. Guilford Transp. Indus., Inc., 74 Mass. App. Ct. 1125 (2009) (Rule 1:28) (limiting fees to those incurred defending against frivolous claims while granting no relief for fees expended to respond to claims with merit). Without the testimony and representations of Peter Wojtkun, the Plaintiff had no basis for her suit against Defendants on her primary contention--seeking to free Lot 2 from a full-bore golf course easement. This must have been obvious to Peter Wojtkun. He also sought, as a long-time resident of the home on Lot 2 with Plaintiff and the rest of their family, to free the land where he lived from the burden of the full golf easement, and he offered his incredible testimony to accomplish that end. Under these circumstances, it is nothing but fair to hold Peter Wojtkun fully answerable for the entirety of the Defendants’ reasonable legal fees and costs. It is because of Peter Wojtkun’s conduct in this litigation that “bad-faith, insubstantial frivolity permeate[d] the pleadings.” Jaraki v. Quinlan, Mass. Super., No. 933406, slip op. at 9, 1995 WL 1312571 (Sept. 28, 1995). The reasonable costs and fees expended by Defendants will be imposed on Peter Wojtkun under G. L. c. 231, §6F. [Note 5]

Susan Wojtkun as Trustee of the Susan Wojtkun Living Trust is not liable for fees under G. L. c. 231, §6F

Despite the Defendants’ claims that Susan Wojtkun knew or should have known that the suit she brought was frivolous, there is not enough evidence to conclude that she possessed a clear understanding that her case rested on outright false factual contentions. To make that finding, the court would need to impute the knowledge of Peter Wojtkun to his wife, Susan Wojtkun, or to find that he had communicated to her the falsity of his version of the facts.

While it would be open to the court to draw such an inference from the evidence at trial, the court does not do so. There is no direct testimony or other evidence that establishes that Peter Wojtkun made known to his spouse the falsity of the position he took at trial about the true origins and purposes of the disputed easement documents. The spousal disqualification stood firmly in the way of inquiry about private communications that might have passed between Susan and Peter Wojtkun. Defendants call upon the court to draw inferences about the extent of the knowledge Susan Wojtkun had of her husband’s scheme to avoid the dual use zoning issues. There is no proof that Susan was involved directly in the workout transaction and the consequent negotiations surrounding the drafting of the easement documents. There is no hard evidence that Susan Wojtkun was told outright by her husband, counsel, or anyone else about the true intent of those who drafted the documents which were under scrutiny in this litigation. It is not implausible that Peter and Susan Wojtkun might have had occasion to discuss those matters, but, on the evidence the court has, it is unwilling as a factual matter to make the finding that that knowledge actually reached Susan Wojtkun. And Susan Wojtkun’s involvement as a director of various entities having control of the golf course does not show that she knew very much about the creation of the disputed easements in 1993, well before she took office as director. The court declines to order Susan Wotjkun pay for the costs of this litigation based on supposition that she might have come to know what Peter Wotjkun surely did. Although the court has considered fully the Defendants’ arguments, none of them suffice to impose G. L. c. 231, §6F sanctions on Susan Wojtkun. [Note 6]

Despite Defendants’ arguments to the contrary, Peter Wojtkun’s actions cannot be imputed to the Lot 2 record title holder, Susan Wojtkun as Trustee of the Susan R. Wojtkun Living Trust; the parties are in agreement that Peter Wojtkun has no beneficial interest under that trust. Defendants contend that, even though Peter Wojtkun has no stated beneficial interest in the particular trust that held record title to the Locus, he may be treated as if Lot 2 had been held in trust for him, because Peter Wojtkun made possible the acquisition of title. Defendants argue that Susan Wojtkun’s holding of record title as trustee does not reflect the true ownership, which they say is in Peter Wojtkun. On this basis, Defendants see no reason the court should not order Lot 2's true owner--which they say is Peter Wojtkun--to be responsible for the award of costs and fees made by the court in this Order. In this way, Defendants hope to tap the money generated by the recent sale of Lot 2 (see note 4, infra) to fund Defendants’ recovery, from Peter Wojtkun, of costs and fees in this litigation. The court does not agree with these contentions by the Defendants.

Their arguments--that Peter Wojtkun’s contributions to the acquisition of Lot 2's title mean that it is held in trust for him--are unpersuasive on the evidence the court has heard. The doctrine of resulting trust presumes that the individual supplying the purchase price of real estate does so with personal interest, resulting in a trust “in favor of the one who pays the consideration.” Howe v. Howe, 119 Mass. 598 , 600-01 (1908); see also Caron v. Wadas, 1 Mass. App. Ct. 651 , 655 (1974) (finding that the intent of the mother while furnishing consideration for a trust in her son’s name was for her own benefit and was therefore not a gift to the son). The presumption, however, relies on the intent of the parties at the creation of the trust. See Epstein v. Epstein, 287 Mass. 248 , 252-53 (1934) (trust not found in favor of father where there was “no finding that he made his contribution for any specific interest in the property”); see also Dwyer v. Dwyer, 275 Mass. 490 , 494 (1931) (quoting Edgerly v. Edgerly, 112 Mass. 175 , 179 (1873)) (internal quotations omitted) (“The mere fact that the husband paid the consideration for the property would not control the presumption that the deed was intended by him as a provision for her [the wife], nor establish a resulting trust in his favor without further proof that such was the intention at the time of the conveyance”). Although Peter Wojtkun furnished the consideration for the creation of the trust, there is no firm testimony or other evidence that speaks to the intent of the parties at the time the trust was created. The Defendants point to the financial circumstances afflicting Peter Wojtkun at the time title came to the Plaintiff, and to the fact that he has had the obvious benefit of residing in the home on Lot 2 for many years with his spouse and children. That much is true. But Defendants’ insistence that the court find and rule that Peter Wojtkun therefore has an interest in the trust, without firmer evidence of intent at the time the trust was created, cannot be adopted by the court. On the evidence the court credits, the court cannot find, and certainly cannot presume, that Peter Wojtkun has an interest in the trust which owned Lot 2.

Attorney Thomas Curran is not subject to sanctions under Mass. R. Civ. P. 11(a)

There is not enough evidence to show that Attorney Thomas Curran had the knowledge required for the court to impose Rule 11 sanctions. An attorney need only display a “subjective good faith belief that the pleading was support in both fact and law” to avoid sanctions under Rule 11. Van Christo Advertising Inc. v. M/A-COM/LCS 426 Mass. 410 , 416 (1998). “[A] client’s improper motivation should not be imputed to his attorney” for the purposes of Rule 11 sanctions. Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627 , 651 (2010). Here, although Peter Wojtkun knew well the true original intent surrounding the creation of the easement documents for the Locus, there is no proof that this knowledge was in any express way imparted to Thomas Curran.

This is not a case where a party’s counsel is to be sanctioned because the lawyer proceeds with litigation knowing the claim or defense is lacking in legal merit. Cf. Raymond v. SM Fin. Servs. Corp., 22 LCR 254 , 256-57 (2014) (Misc. Case No. 11 MISC 453960) (Piper, J.) (sanctions imposed after attorney was warned by opposing counsel that his pleading had no basis in law). If supported by proper facts, the defense Peter Wojtkun mounted (and, indeed, the claim Susan Wojtkun advanced in her case in chief) would have been legally tenable. Defendants seek sanctions because the Wojtkuns’ cases rested on testimony that lacked credibility. The question, therefore, is whether their lawyer should be charged with sanctions based on knowledge he had of the fundamentally false factual premise of the cases Peter and Susan Wojtkun put forward.

There is no evidence the court adopts which shows Thomas Curran knew or should have known that Peter Wojtkun’s testimony regarding the scope of the easement would be (or, as offered, was) untruthful. Although Defendants claim that Thomas Curran had involvement with the easement documents as the attorney for New England Golf Trust, there is no firm proof that he had knowledge of the intent of the drafters and of their purpose in crafting the easements. Thomas Curran’s role representing the New England Golf Trust was limited to the then ongoing bankruptcy proceedings; it did not extend to all legal matters of the club entities and their then principals. Mr. Curran is not a real estate specialist. There were other lawyers and other law firms involved in handling the real estate transactions that were undertaken to consummate the financial workout in which Attorney Curran and his then firm were deeply involved. Some drafts of some of the real estate documents for the division and transfer of the residential lots were copied to Mr. Curran and his colleagues. But there is insufficient evidence which the court credits showing that Mr. Curran had acquired any guilty knowledge that easement documents were being prepared in a manner which would preserve the club’s right to full-bore golf use on Lot 2 and other residential parcels--something which this court has found took place, notwithstanding Peter Wojtkun’s directly contrary testimony. It is not that there is no evidence which would support a finding of knowledge on Mr. Curran’s part. It is only that the court, weighing the evidence as finder of fact, finds insufficient credible evidence on which to rest such a finding.

The facts concerning Thomas Curran’s representation of Peter Wojtkun and the Georgetown Club in prior litigation do not prove that Mr. Curran became exposed to direct actual knowledge regarding the intention of the easement’s drafters, including Peter Wojtkun, about its scope and purpose. Although the question is not free from doubt, the court concludes that there are insufficient proved facts on which to base a finding that Mr. Curran acquired in his prior litigation work enough knowledge to hold Mr. Curran responsible for the unfounded position Peter Wojtkun took in the litigation in this court.

It is true, for example, that in the prior lawsuit with Beverly Enos concerning her land, lot 4, the golf course argued for recognition of broad golf rights over a portion of the Enos property. The court in that case did not side with the club on the main issue in that suit–the location of the limit of the easement– based on the express language of the lot 4 easement documents, which the court enforced. There certainly is palpable inconsistency between the broad golf rights asserted by Peter Wojtkun and the club’s other witnesses in the Enos suit, on the one hand, and the testimony he offered in his wife’s case in this court, on the other. There is nothing, however, which this court credits in the evidence about the Enos case that leads this court to find that Thomas Curran knew of the dual use problem, or of the 1993 intention to craft easement rights that would skirt that problem--by drafting clever easement documents that were intended to establish golf rights, while giving plausible protection against zoning enforcement by the Town. And the easement documents created for Enos’ lot 4 employ noticeably different language than those prepared for Lot 2. Under these circumstances, the court cannot bring itself to find that Thomas Curran did actually know of the falsity of his client’s version of the facts provided in trial testimony in this case. It is not that the court lacked any evidence on which it could have based such a finding; [Note 7] rather, as trier of fact, weighing the evidence, and drawing the reasonable inferences required, the court finds itself unable to make the required finding as to Mr. Curran. The court declines to impose the sanctions sought by Defendants against Thomas Curran under Rule 11(a). [Note 8]

Calculation of Costs and Fees

The court having concluded that Peter Wojtkun is responsible to the Defendants under G.L. c. 231, §6F for their reasonable attorney’s fees and costs in connection with this litigation, the court now must turn to the calculation of the award. There is not great dispute among the parties about the total amount of the attorney’s fees and costs the court is to award under G.L. c. 231, §6F. The parties are far apart on the issue of liability for an award, a question the court now has decided. They also disagree about whether the award should be made for the entire amount of the Defendants’ reasonable legal fees costs in this litigation, or whether the court should make a reduced award after apportioning the fees and costs among various claims, defenses and issues in this litigation; the court now has rejected the request for apportionment. This court finds the amounts of the fees and costs sought by the Defendants to be fair, reasonable, and adequately supported in the record. Having had familiarity with the work of Defendants’ lawyers (from both firms involved) by observing the pre-trial and trial proceedings since the litigation commenced, the court concludes that the work of each of Defendants’ lawyers was well-done, efficient, and reasonably priced given the experience and skills of the attorneys involved, the complexity of the case, and the results achieved. The court accepts as fair and reasonable the calculations as set forth by Defendants in their Motion for Costs and Attorney’s Fees, and the additional calculations provided in the Defendants’ Motion to Modify the Real Estate Attachment. “What constitutes a reasonable fee is a question committed to the sound discretion of the judge.” Berman v. Linnane, 434 Mass. 301 , 302-03 (2001); see also Fontaine v. Ebtec Corp., 415 Mass. 309 , 324 (1993). Defendants have provided sufficient materials detailing the legal services provided to Defendants throughout the course of this proceeding, as well as the additional costs associated with defending against this action. Defendants are entitled to the full award requested, $141,027.51. The court will direct that that amount be paid by Peter Wojtkun.

Accordingly, it is

ORDERED that Defendants’ motion to impose costs and fees on Susan Wojtkun pursuant to G. L. c. 231, §6F is DENIED. It is further

ORDERED that Defendants’ motion to impose costs and fees on Thomas Curran pursuant to Mass. R. Civ. Pro. 11(a) is DENIED. It is further

ORDERED that the Defendants’ motion for attorney’s fees and costs pursuant to G. L. c 231, §6F against Peter Wojtkun is ALLOWED. Peter Wojtkun is ORDERED to pay Defendants within forty-five days of the date of this Order good funds in the amount of $141,027.51, representing the Defendants’ reasonable attorney’s fees and costs.

So Ordered.


[Note 1] In re Peter Wojtkun, U.S. Bankruptcy Ct., Case No. 13 – 12719 (D. Mass 2013).

[Note 2] Wojtkun v. 258 Andover Street LLC, 84 Mass. App. Ct. 1123 (2013) (Rule 1:28).

[Note 3] The following section recounts, to the extent relevant, the findings and rulings made by this court. Findings of fact and rulings, pursuant to Mass. R. Civ. P. 52(a), were entered by the court from the bench. The findings and rulings from the bench, as transcribed and filed, constitute the court’s decision on which the judgment affirmed by the Appeals Court was based; those findings and rulings are incorporated by reference in this Order.

[Note 4] The court allowed in September, 2014 a joint motion to lift an attachment earlier placed of record against the Locus’ title. Counsel represented that this was done to facilitate the sale of Lot 2, which then was owned by Susan Wojtkun as Trustee of the Susan R. Wojtkun Living Trust, to third party buyers. The net proceeds are, evidently, being held pending this court’s ruling on the Defendants’ request for an award of costs and fees.

[Note 5] The court is mindful of Peter Wojtkun’s bankruptcy proceedings. While counsel in this case are clear that the automatic stay no longer is an impediment to the court reaching and deciding the current motion, they have been less than fulsome in clarifying whether or not, as a result of the outcome of the bankruptcy, Peter Wotjkun is or is not amenable to the imposition on him of attorney’s fees and costs in this action. This court has ruled on the pending motion on the understanding that Peter Wojtkun’s responsibility to pay this award was not discharged as a result of the Bankruptcy Court’s orders. This court does not address in a binding way whether the costs and fees imposed on Peter Wojtkun in this Order have been discharged (or would have been dischargeable) in the bankruptcy. Under 11 U.S.C. 523(a)(6) debt “for willful and malicious injury by the debtor to another entity or to the property of another entity” is nondischargeable. Sanctions imposed for asserting a frivolous or insubstantial claim can be nondischargeable under this section. See In re Johnson, 445 B.R. 50, 63 (D. Mass. 2011) (upholding sanctions and attorneys fees as nondischargeable under 11 U.S.C. 523(a)(6) because injury was caused in the defense of “frivolous litigation which was commenced . . . intentionally without just cause and with specific intent to injure”). This court leaves the resolution of that question to the Bankruptcy Court, to which counsel may resort if appropriate.

[Note 6] Defendants present a series of arguments regarding Susan Wojtkun’s liability under G. L. c. 231, §6F. The court addresses the Defendants’ leading arguments in this Order, but is not convinced that any of them, individually or in the aggregate, warrant the imposition of costs and fees upon Susan Wojtkun. Any arguments not addressed by the court in this Order have been considered and rejected, substantially for the reasons set out in the papers the Wojtkuns’ counsel have submitted.

[Note 7] The court has considered that in prior Superior Court proceedings, including the Enos and the Rich litigation, judges of that court have drawn unfavorable conclusions about Peter Wojtkun’s candor in those cases. This history certainly ought have given Mr. Curran pause about relying on the accuracy of Peter Wojtkun’s version of events surrounding the creation of the 1993 easements when Mr. Curran made the decision to bring this case on behalf of Susan Wojtkun, and to defend Peter Wojtkun in it as well. While Mr. Curran should have been on guard, given the prior cases, this court does not conclude that he actually did know of the falsity of the facts Peter Wotjkun did put in evidence in this litigation.

[Note 8] Defendants present numerous arguments in their brief regarding Thomas Curran’s liability under Rule 11. The court has considered the arguments by Defendants on this point, but decides nothing presented rises to a sanctionable level under Rule 11. Any arguments not addressed by the court are deemed insufficient for the reasons set out in the opposing papers.