GIFFORD vs. BURKE, MISC 08-390774

Facts and Procedural History

This case (the "Partition Action") was commenced by Petitioners John A. Gifford ("John") and Debra F. Gifford ("Debra") (together, "Petitioners") on December 30, 2008. In their Petition for Partition, Petitioners sought to partition the property located at 15-15A Pierview Avenue in Revere, Massachusetts (the "Partition Property"), which, at the time, was owned jointly by Petitioners (fifty per cent interest) and Respondent Andrew J. Burke ("Respondent") (fifty per cent interest). [Note 1] By Order dated August 4, 2009 (the "Appointment Order"), this court appointed Robert Cotton as Partition Commissioner (the "Commissioner"). By Warrant dated December 23, 2009, this court authorized the Commissioner to sell the Partition Property at a private sale. Subsequently, the parties attempted to negotiate a settlement of the Partition Action, which ultimately was unsuccessful.

On July 30, 2010, Petitioners commenced a separate case (Land Court Case No. 10 MISC 435104 (AHS)), in which they sought to convert the Partition Property to condominium status (the "Specific Performance Action"), the filing of which had the effect of putting the Partition Action on hold. On August 26, 2010, Respondent moved to dismiss the Specific Performance Action, which, after a hearing, I allowed by Decision dated February 18, 2011 (the "Specific Performance Decision"). On March 18, 2011, Petitioners appealed the Specific Performance Decision to the Appeals Court (Appeals Court Case No. 2011-P-1758).

On June 21, 2011, this court issued an order (the "June 2011 Order") in this case outlining a bidding process between Petitioners and Respondent relative to the sale of the Partition Property. On September 14, 2011, this court issued another order (the "September 2011 Order"), which directed that Petitioners' interest in the Partition Property be sold to Respondent after Petitioners paid off the Mortgage. On September 28, 2011, Petitioners appealed the September 2011 Order to the Appeals Court. On the same date, that appeal (Appeals Court Case No. 2011-P-2003) was consolidated with Petitioners' related appeal of the Specific Performance Decision (Appeals Court Case No. 2011-P-1758) (together, the "Consolidated Appeal"). By Decision dated January 8, 2013 in the Consolidated Appeal, the Appeals Court affirmed the Specific Performance Decision and the September 2011 Order. The Supreme Judicial Court denied further appellate review in the Consolidated Appeal on February 14, 2013.

Following the dismissal of the Consolidated Appeal, on March 22, 2013, Respondent filed a Complaint for Contempt against Petitioners (the "Respondent Contempt Action") in the Partition Action, alleging that Petitioners had violated the terms of the September 2011 Order by not paying off the Mortgage on the Partition Property. On November 22, 2013, Petitioners filed a suggestion of bankruptcy, indicating that John had filed for Chapter 7 bankruptcy (the "John Bankruptcy Case") in the United States Bankruptcy Court for the District of Massachusetts (Case No. 13-16797), thus staying the Respondent Contempt Action. At a status conference held on July 26, 2014 in this case, the parties reported that, on May 12, 2014, John was granted a Chapter 7 bankruptcy discharge in connection with the John Bankruptcy Case (the "Discharge Order"). [Note 2] Following such discharge, a hearing on the Respondent Contempt Action was held on July 15, 2014, at which this court addressed the Twenty-first Report filed bythe Commissioner, as wellas the September 2011 Order. [Note 3] Thereafter, this court issued an Order dated August 14, 2014 (the "August 2014 Order"), in which, among other things, this court withheld a decision on the Respondent Contempt Action and the Commissioner's request for payment of his legal fees related to these actions, pending further information. [Note 4] [Note 5] [Note 6]

At a status conference held on September 30, 2014, this court determined that the matters raised in the August 2014 Order could not proceed until Respondent and/or the Commissioner received an order from the court presiding over the John Bankruptcy Case with respect to this court's jurisdiction over the outstanding Partition Action issues. [Note 7] By Order dated December 31, 2014 in the John Bankruptcy Case (the "Bankruptcy Order"), that court held as follows:

Upon consideration of the entire record of proceedings in this case, including, without limitation, the Debtor's Schedules of assets and liabilities, and the proceedings in the Land Court, this court finds and rules as follows 1) the fees for services rendered by the Commission after the commencement of this case do not constitute a claim that was affected by the Debtor's discharge in this case, and the Land Court is not interfering with the jurisdiction of this Court in entering any orders allowing or directing payment of the Commissioner's fees bythe Debtor which arose after the petition date, November 22, 2013; 2) to the extent the Commissioner is owed any fees by the Debtor for pre[-]petition services, those claims have been discharged; and 3) any claim of Andrew Burke against the Debtor, that is the subject of the Land Court proceeding, has been discharged by the order of discharge entered in this case.

The court also held that all claims asserted by Respondent against John in connection with this matter had been discharged. [Note 8]

At a hearing before this court on January 30, 2015, the Commissioner filed his Twenty-third Report. [Note 9] Thereafter, by Order dated April 6, 2015 (the "April 2015 Order"), this court found as follows:

the Commissioner is entitled to be paid by Petitioners for 100% of the legal fees requested in his Twenty-first, Twenty-second, and Twenty- third Reports, in the amount of $30,635.00. As such, Petitioners shall pay to the Commissioner the sum of $30,635.00 within thirty (30) days of the entry of this Order. If Petitioners fail to timely comply with this Order, the Commissioner may seek additional relief against Petitioners in order to compel such compliance, including, without limitation, the entry of a monetary judgment against Petitioners in the amount of the Commissioner's unpaid legal bills and/or an order of contempt for non-compliance with this Order, and Petitioners may be held liable for any further legal fees as may be incurred by the Commissioner in connection with enforcing this Order.

In accordance therewith, this court concurrently issued a Judgment Confirming Partition (the "Judgment"). On April 17, 2015, Petitioners appealed the Judgment (as well as all related pre- Judgment orders) to the Appeals Court, which had the effect of tolling the deadline by which Petitioners were required to pay the directed sums. By decision dated April 4, 2016 (the "Appeals Court Decision"), the Appeals Court affirmed the Judgment, subject to a proviso that "[t]he commissioner's and [Respondent]'s requests for double costs and attorney's fees on appeal are denied." [Note 10] On April 25, 2016, Petitioners moved the SJC for further appellate review of the Appeals Court Decision, which was denied on June 30, 2016. A Notice of Rescript was filed with this court on July 12, 2016.

Following these events, on July 20, 2016 the Commissioner filed a Complaint for Civil Contempt against Petitioners in this case (the "Commissioner Contempt Action"), claiming non- payment of his legal fees in the amount of $42,196.05 (total fees of $48,254.51, less $6,058.46 that Petitioners had already paid, and which the Commissioner was holding in escrow), which included two additional bills (the "Appeals Court Bills") for fees incurred in connection with Petitioner's appeal of the Judgment. [Note 11] This following day, this court issued a Summons to Petitioners with a hearing date of August 17, 2016.

On August 15, 2016, Petitioners filed a Motion to Dismiss the Commissioner Contempt Action, arguing (a) that the Commissioner Contempt Action was premature and not within the jurisdiction of this court to hear, (b) that Debra should not have been named as a party (due to the automatic stay issued in the Debra Bankruptcy Case), and (c) that the Commissioner was barred by the Appeals Court Decision from seeking any legal fees pertaining to the appeal of the Judgment. [Note 12] The hearing on the Commissioner Contempt Action was held on August 17, 2016; at that hearing, John acknowledged that he had not paid the Commissioner's fees. [Note 13] Following this hearing, this court issued an order dated August 18, 2016, which scheduled an evidentiary hearing on the Commissioner Contempt Action for September 27, 2016 on the issue of John's non-payment of the Commissioner's fees. The parties filed a joint pre-trial memorandum on August 26, 2016. [Note 14] On September 12, 2016, John filed a motion seeking to "clarify the status" of this proceeding. On September 26, 2016, John filed a supplemental memorandum discussing the Commissioner's legal fees.

Neither party presented any witness testimonyat the September 27, 2016 evidentiaryhearing, although the Commissioner and John's counsel each made extensive presentations (under oath) of the issues relative to John's non-payment of the Commissioner's fees. [Note 15] [Note 16] The transcript of the evidentiary hearing was filed with this court on October 11, 2016. The Commissioner filed his post-hearing memorandum on October 13, 2016. John filed his post-hearing memorandum on October 20, 2016. The Commissioner filed a reply memorandum on October 31, 2016. John filed a reply memorandum on November 2, 2016. [Note 17] At that time the matter was taken under advisement.

Discussion

Two issues were addressed at the evidentiary hearing: (1) the proper amount of the Commissioner's fees that John should be directed to pay, and (2) whether John had the ability to make such payments. [Note 18] I shall address each of these issues in turn.

I. The Proper Amount of the Commissioner's Fees

In their joint pre-trial memorandum, the parties agreed that "Commissioner Cotton is owed the amount specified in the April 6, 2015 judgment (less the amount of the Giffords' original deposit which he retained) and that he has not been paid any of that sum as of this date." Thus, the parties agree that the Commissioner is entitled to payment from John of at least $24,576.54 (i.e., $30,635.00, per the April 2015 Order, less the $6,058.46 previously paid to the Commissioner), which amount, as noted, was wired to the Commissioner on October 4, 2016. Still in contention between the parties are (a) the $17,619.51 set forth in the Appeals Court Bills (Invoice # 5023 for $13,644.51 and Invoice #6166 for $3,975.00) and (b) the $6,750.00 incurred in connection with the Commissioner Contempt Action (Invoice #6175 for $2,850.00 and Invoice #6178 for $3,900.00) -- for a total of $24,369.51 in contention. [Note 19]

A. The Appeals Court Bills

Both Respondent and the Commissioner opposed Petitioners' appeal of the Judgment, and both had different interests to protect in doing so. The Commissioner was seeking to defend not only his court-ordered disposition of the Partition Property, but also his entitlement to payment for a substantial amount of his legal fees incurred in connection therewith. Nonetheless, John argues that the Commissioner is not entitled to his fees incurred in connection with doing so, noting the proviso set forth in the Appeals Court Decision that "[t]he commissioner's and Burke's requests for double costs and attorney's fees on appeal are denied." John argues that this constitutes an adjudication by the Appeals Court that the Commissioner was not entitled to an award of his legal fees related to the appeal of the Judgment.

The Commissioner disputes this, arguing that the proviso made in the Appeals Court Decision does not constitute an across-the-board adjudication of whether he is entitled to his appellate legal fees, but rather was made in reference to his request, in his appellate briefs, for double his costs and legal fees pursuant to Mass. R. App. P. 25, which provides that "[i]f the appellate court shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee, and such interest on the amount of the judgment as may be allowed by law." [Note 20]

The Commissioner's request for his costs and fees was not founded upon his entitlement to his fees as a partition commissioner, but rather were premised upon his claim that Petitioners' appeal was insubstantial, frivolous and/or brought in bad faith, and thus that Petitioners should be sanctioned for bringing it. Such sanctions, in practice, are rarely awarded, and they were not awarded here. That is not to say, however, that the Appeals Court, by denying to enter such sanctions, was ruling as to the Commissioner's entitlement to his fees as partition commissioner in accordance with this court's Appointment Order [Note 21] and G. L. c. 241, § 22. [Note 22] As to those fees, the Appeals Court stated only that "we cannot say that the judge below abused his discretion in making the petitioners responsible for all of the commissioner's post-bankruptcy fees." Thus, it appears that the Appeals Court did not intend its denial of fees as a sanction against Petitioners to entail that the Commissioner could not later seek full compensation for his fees incurred in accordance with this court's directives.

As to those directives, moreover, it is clear from the Judgment that, at the time the appeal of the Judgment was pending, the Commissioner had not yet been released as partition commissioner, since, per the Judgment, only "upon receiving payment in full for his outstanding legal fees in accordance herewith, the Commissioner shall be released and discharged as partition commissioner in this case without need for further order of this court." [Note 23] Moreover, in his brief to the Appeals Court, the Commissioner, referencing the April 2015 Order in connection with his request for double costs, noted that, per said Order, this court specifically preserved the Commissioner's right to seek prospective legal fees incurred in enforcing the directives of the April 2015 Order:

If Petitioners fail to timely comply with this Order, the Commissioner may seek additional relief against Petitioners in order to compel such compliance, including, without limitation, the entry of a monetary judgment against Petitioners in the amount of the Commissioner's unpaid legal bills and/or an order of contempt for non-compliance with this Order, and Petitioners may be held liable for any further legal fees as may be incurred by the Commissioner in connection with enforcing this Order.

In view of this reference, the Commissioner cites the transcript of the oral argument before the Appeals Court, at which the following exchange occurred:

MR. COTTON: I created the work on this brief in this appeal, not the hearing, as additional costs and I sent to Mr. Traft, pursuant to this part of Judge Sands's opinion or decision, a bill an additional bill to be paid for by the Giffords in the amount of $14,600 . . . JUSTICE WOLOHOJIAN: But that has not been acted upon by the judge below, right?

* * *

So that's not before us.

Thus, the Commissioner argues, the Appeals Court recognized that this court had preserved the Commissioner's rights to seek his legal fees incurred in enforcing the April 2015 Order, but declined to rule on the propriety of those fees because the Land Court had not yet addressed them. As such, the Commissioner claims, the Appeals Court Decision should not be read as a determination that the Commissioner was not entitled to collect on the Appeals Court Bills.

In addition to the foregoing considerations, it should be noted that the Appeals Court upheld the Judgment, which gave effect to the April 2015 Order, directing that "in accordance with the [April 2015 Order] Petitioners shall remit payment in full to the Commissioner for his outstanding legal fees". Based on his above-discussed dual interests in defending against Petitioners' appeal of the Judgment (both as an appointee of this court and personally), it would appear that the Commissioner, under appointment from this court, was permitted to file an opposition to the appeal of the Judgment. Thus, it would be unfair to require the Commissioner, in fulfilling his duties as partition commissioner, to pay out of his own pocket fees that he spent doing so. To do that would be to discourage competent counsel from undertaking the vital responsibilities of partition commissioners.

In sum, I conclude that, by the Appeals Court Decision, the Appeals Court denied the Commissioner's request for double fees (as a sanction for Petitioners' allegedly filing a frivolous appeal), but did not intend to deny his ability to be reimbursed for his fees as partition commissioner. Thus, I FIND that the Commissioner is entitled to payment for the Appeals Court Bills, provided they are reasonable.

As to the question of the reasonableness of those fees, this court has broad discretion as to the awarding of legal fees. Howe v. Tarvezian, 73 Mass. App. Ct. 10 , 13 (2008) ("The computation of fees [under G. L. c. 241, § 22] rests in the sound discretion of the trial judge."); Stratos v. Dep't of Pub. Welfare, 387 Mass. 312 , 321322 (1982) (lodestar method used to calculate legal fees). The scope of work undertaken by the Commissioner is well-outlined in his legal invoices submitted to this court. Having reviewed those invoices (in particular the time spent on various tasks, what those tasks were, and how much the Commissioner billed for them), I FIND the full amount of legal fees set forth in the Appeals Court Bills to be entirely reasonable. Thus, I FIND that the Commissioner is entitled to payment from Petitioners of the entirety of the Appeals Court Bills, to wit: $17,619.51 (Invoice # 5023 for $13,644.51 and Invoice #6166 for $3,975.00).

B. The Commissioner Contempt Action Bills

In addition to the Appeals Court Bills, the Commissioner claims that he is entitled to full payment for his fees incurred in connection with the Commissioner Contempt Action. In support, the Commissioner cites the following language in the April 2015 Order:

This language was intended to provide the Commissioner with a clear course of action to take in the event Petitioners did not comply with their obligations to pay the Commissioner's legal fees, and it specifically provides that the Commissioner would be entitled to payment from Petitioners of all fees incurred by the Commissioner in enforcing Petitioners' obligations.

Importantly, John does not argue that the Commissioner's legal fees incurred in connection with the Commissioner Contempt Action bills were unreasonable; rather, he argues only that the Commissioner is not entitled to payment for such fees because, he claims, the Commissioner Contempt Action itself was filed prematurely. [Note 24] I disagree.

In the April 2015 Order, this court directed Petitioners to pay the Commissioner's fees within thirty days. Of that time period, eleven days had already run by April 17, 2015, on which date Petitioners filed their appeal of the Judgment, thus tolling the deadline to comply. The SJC denied the further appellate review of the Appeals Court Decision on June 30, 2016 and so notified the parties of even date, thus ending the tolling of the deadline to comply with the April 2015 Order. This left nineteen days for Petitioners to comply, ending on July 19, 2016. The Commissioner filed the Commissioner Contempt Action on July 20, 2016. Thus, the Commissioner Contempt Action was not prematurely filed. [Note 25]

Given that the issue of the timeliness of the Commissioner Contempt Action is without merit, it only remains to be determined whether the Commissioner's legal fees pertaining thereto are reasonable. As noted, John does not dispute the reasonableness of the Commissioner's fees here. Moreover, having reviewed the two Commissioner's bills (Invoice #6175 for $2,850.00 and Invoice #6178 for $3,900.00) pertaining to the Commissioner Contempt Action -- in particular the time spent on various tasks, what those tasks were, and how much the Commissioner billed for them -- I FIND the full amount of legal fees set forth in the Commissioner's bills pertaining to the Commissioner Contempt Action (i.e., $6,750.00) to be reasonable. Howe, 73 Mass. App. Ct. at 13; Stratos, 387 Mass. at 321322. Thus, I FIND that the Commissioner is entitled to payment from Petitioners of the entirety of his legal fees incurred in connection with the Commissioner Contempt Action, to wit: $6,750.00 (Invoice #6175 for $2,850.00 and Invoice #6178 for $3,900.00).

II. John's Ability to Pay the Commissioner's Fees

Having found that the Commissioner is entitled to be paid by Petitioners both for the Appeals Court Bills ( $17,619.51) and for his fees incurred in connection with the Commissioner Contempt Action ($6,750.00) -- for a total due of $24,369.51 -- I now turn to the issue of John's ability to pay.

John has raised the issue of whether he was able to pay any of the Commissioner's fees numerous times with this court, an issue that this court has discussed on multiple occasions. [Note 26] In addition to this court's discussion of this issue, two other courts (the Appeals Court [Note 27] and the bankruptcy court assigned to the John Bankruptcy Case [Note 28]) have also already addressed John's claim of inability to pay the Commissioner's fees, and found that claim to be lacking.

Despite these rulings, John argues that his claim of inability to pay the Commissioner's fees has never been "rejected at any evidentiary hearing in this Court." [Note 29] John's point here is that, while this court and others may have commented on the issue of his ability to pay the Commissioner's fees, John had not yet had an opportunity to formally present evidence as to that issue. Thus, the purpose of the evidentiary hearing on September 27, 2016 was to give John the opportunity to do just that, so that the court could rule upon this issue fully and finally, on the merits.

The day before the evidentiary hearing, John filed a supplemental memorandum, which, among other things, notified the court and the parties that he had secured funds to pay the Commissioner's outstanding legal fees, noting specifically that:

[a]lthough his Marshfield residence[ [Note 30] ] is subject to homestead protection, in order to resolve this matter he [John] has applied for a re-finance which allows him to take additional equity from the property in order to satisfy the liability in this case . . . he applied in July, 2016 and received notice of approval on September 22nd. The closing is scheduled for September 28th and he should receive the funds within five days.

At the evidentiary hearing, John's attorney represented to this court that John had obtained sufficient funds to pay all of the Commissioner's legal fees at issue -- including the fees that he was contesting -- but that John continued to contest the Appeals Court Bills and the Commissioner's fees incurred in connection with the Commissioner Contempt Proceeding. [Note 31] As a result of the foregoing, the issue of whether John had the ability to pay the Commissioner's fees became moot, and, thus, this issue was not addressed at the evidentiary hearing.

While the issue of John's ability to pay may be moot, it is a separate question whether John should be held in contempt of court. While John may now have funds available to pay the Commissioner's unpaid legal fees, the deadline for him to do so (as tolled by Petitioners' appeal to the Appeals Court of the Judgment) was July 20, 2016. Thus, when he finally informed the court and the parties that he had funds to pay the Commissioner's fees as directed, he was already over two months in arrears of that deadline.

However, the purpose of contempt is to induce a party to bring herself into compliance with a court directive. By obtaining funds necessary to comply with this court's directives to pay the Commissioner's fees (including his fees incurred in connection with these contempt proceedings), provided such funds are actually tendered to the Commissioner in a timely fashion, John has effectively mooted the purpose for this contempt proceeding. Thus, provided that John pays the Commissioner's fees as discussed in this Decision, I FIND that no further sanctions against John for his non-compliance with the April 2015 Order and the Judgment are warranted. [Note 32]

Conclusion

As noted above, Petitioners have already tendered payment to the Commissioner of the amount of the Commissioner's legal fees that Petitioners did not dispute (i.e., $24,576.54). As I found, supra, Commissioner is entitled to be paid the entiretyof the Appeals Court Bills ($17,619.51) and his fees incurred in connection with the Commissioner Contempt Action ($6,750.00), for a total of $24,369.51 -- which amount is currently being held in escrow by Kiley. Accordingly, I hereby FIND and RULE that, within fifteen (15) days of the issuance of this Decision, Kiley shall release from escrow and pay to the Commissioner the sum of $24,369.51 that Kiley is presently holding in escrow. [Note 33]

Judgment on the Commissioner's Complaint for Contempt shall enter accordingly.

[Note 1] On July 1, 2014, the parties jointly moved to add CitiMortgage, Inc. (the "Bank") as a nominal party to this case based on the fact that the Bank, at the time, held a mortgage granted by Petitioners and secured by the Partition Property (the "Mortgage"). By Order of the same date, this court allowed the motion to join the Bank

[Note 2] It also should be noted that, on November 14, 2013, Debra filed a separate Chapter 13 bankruptcy in the United States Bankruptcy Court for the District of South Carolina (Case No. 13-06828) (the "Debra Bankruptcy Case"). On January 10, 2014, that court confirmed a Chapter 13 bankruptcy plan, which provided for Debra to surrender possession of the Partition Property, and for a termination of the automatic bankruptcy stay issued in connection with that case with respect to the Partition Property. This court has no knowledge or information as to the current status of the Debra Bankruptcy Case and/or Debra's compliance with her bankruptcy plan, other than an August 4, 2016 letter from Huong T. Lam, Esq. (Debra's bankruptcy counsel), stating that "Mrs. Gifford is still in an active Chapter 13 bankruptcy" and claiming that Commissioner's naming of Debra as a Defendant in the Commissioner Contempt Action (defined infra) "is in violation of the automatic stay." The parties later resolved this issue by agreeing in their Joint Pre-Trial Memorandum filed on August 26, 2016 that Debra would not participate in the Commissioner Contempt Action. The court hereby clarifies that nothing in this Decision or the corresponding Judgment shall be deemed to override the automatic stay (or any other order or discharge) issued in the Debra Bankruptcy Case, nor to authorize any action and/or claim contrary thereto.

[Note 3] The Commissioner's Twenty-first Report requested payment of four legal bills of the Commissioner dated February 18, 2014 (Invoice No. 4003), June 25, 2014 (Invoice No. 4018), July 1, 2014 (Invoice No. 4020), and July 10, 2014 (Invoice No. 4021), which were annexed to said report, and which together totaled $14,775.00.

[Note 4] The August 2014 Order also discussed various issues related to the Commissioner's fees, but withheld a decision on the issue of whether the Commissioner was acting within the scope of his duties as partition commissioner when addressing a case filed by Petitioners against the Commissioner on November 29, 2013 in Suffolk County Superior Court (Docket No. 2013-4225) (the "Superior Court Action"), in which Petitioners asserted consumer protection claims under G. L. c. 93A relating to the Respondent Contempt Action. The August 2014 Order also referenced the four legal bills of the Commissioner that were annexed to the Commissioner's Twenty-first Report.

[Note 5] At the time of the August 2014 Order, the Commissioner was holding in escrow a deed dated March 24, 2013 conveying the Partition Property from the Commissioner to Respondent (the "Commissioner's Deed") pursuant to the September 2011 Order, pending the discharge of the Mortgage. Based on a settlement with the Bank, the Mortgage was discharged and the Commissioner's Deed was released from escrow and recorded in the Suffolk County Registry of Deeds on August 21, 2014 at Book 53378, Page 48.

[Note 6] The April 2015 Order (defined, infra) eventually dismissed the Respondent Contempt Action.

[Note 7] At this status conference, the Commissioner filed his Twenty-second Report -- which requested payment of an additional legal bill dated September 23, 2014 (Invoice No. 4027) for $8,100.00 -- as well as an affidavit of reasonableness with respect to his legal fees.

[Note 8] Respondent has asserted various claims in this case, including a request for his legal fees and expenses incurred in connection with the partition and sale of the Partition Property, as well as a request that Petitioners be compelled to turn over monies they received in connection with renting out the Partition Property. The Bankruptcy Order did not specify which of those claims were been discharged. Nonetheless, this court interprets the Bankruptcy Order to mean that all such claims (to the extent they accrued prior to John's bankruptcy discharge) were discharged. This court has advised Respondent that, should he wish to challenge this court's interpretation of the Bankruptcy Order, he should seek further clarification from that court.

[Note 9] The Commissioner's Twenty-third Report requested payment of two additional legal bills dated November 18, 2014 (Invoice No. 4030) and January 28, 2015 (Invoice No. 5005), which together totaled $8,803.00. The Commissioner also noted that, of the legal bills he had submitted, a duplicate charge of $750.00 should be deducted from Invoice No. 4021 (as this court's August 2014 Order had directed) and a charge of $293.00 (representing a filing fee that was never made) should be deducted from Invoice No. 4030.

[Note 10] On April 20, 2016, Petitioners filed with the Appeals Court a Petition for Rehearing, which was denied on the same day.

[Note 11] The Appeals Court Bills are Invoice #5023 dated August 28, 2015 (April 1, 2015 to August 31, 2015) for $13,644.51, and Invoice #6166 dated May 4, 2016 (February 1, 2016 to April 30, 2016) for $3,975.00.

[Note 12] Petitioners also sought to be excused from appearing at the August 17, 2016 hearing.

[Note 13] At the hearing, the Commissioner filed his Twenty-fourth Report, in which he opposed the motions filed by Petitioners and submitted an additional legal bill -- Invoice #6175 dated August 16, 2016 (July 1, 2016 to August 17, 2016) for $2,850.00.

[Note 14] In it, the parties stated that "[a]bsent proof that the [automatic] stay is not in place, Mrs. Gifford will not appear [at the evidentiary hearing] and will not provide discovery."

[Note 15] Three exhibits were submitted into evidence at the hearing: the transcript of the oral argument of Petitioners' appeal of the Judgment before the Appeals Court, a portion of the appellate brief submitted by the Commissioner in connection with that appeal, and an affidavit of the Commissioner dated September 27, 2016, which attached an additional legal bill (Invoice #6178).

[Note 16] Following the hearing, by order dated September 29, 2016, this court directed that certain funds obtained by John (in connection with a refinancing of property owned by John, discussed further below) for payment of the Commissioner's fees be held in escrow pending this court's directives as to distribution. On October 6, 2016, John filed a status report as to the holding of the escrow funds, indicating that David D. Kiley ("Kiley") had been designated as the escrow agent, that $24,369.51 had been wired to Kiley to be held in escrow, and that $24,576.54 had been wired to the Commissioner on October 4, 2016.

[Note 17] John never sought the court's permission to file this reply memorandum.

[Note 18] A third issue (i.e., whether the automatic stay in the Debra Bankruptcy Case barred the Commissioner's contempt claims against Debra), which this court raised in the August 18, 2016 Order, was resolved by the parties in their Joint Pre-Trial Memorandum filed on August 26, 2016 by agreeing that only John (not Debra) would participate in the Commissioner Contempt Action. The court reiterates here that nothing in this Decision or the corresponding Judgment shall be deemed to override the automatic stay (or any other order or discharge) issued in the Debra Bankruptcy Case, nor to authorize any action and/or claim contrary thereto.

In his briefs, John also again raised a fourth issue (previously raised in his motion to dismiss the Commissioner Contempt Action): namely, whether the Commissioner Contempt Action had been prematurely filed. This issue is discussed more fully, infra.

[Note 20] The Commissioner also argued that he was entitled to his costs and legal fees pursuant to G.L. c. 231, § 6F ("[T]he court may determine, after a hearing, as a separate and distinct finding, that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith.") and Mass. R. Civ. P. 11(a) ("The signature of an attorney to a pleading constitutes a certificate by him 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.").

[Note 21] The Appointment Order states, in relevant part, as follows: "This court makes the appointment of Mr. Cotton as commissioner under the partition statute [G.L. c. 241, § 12 ("If the court determines the petitioner is entitled to partition, it shall thereupon appoint one or more disinterested commissioners and issue a warrant to them to make partition.")] with the instructions that he be charged with preparing a report to the court concerning specific matters referred to him . . . . You will be entitled to be paid by the parties in proportion to their respective shares at the conclusion of this proceeding (or earlier if the court orders) for the actual, reasonable value of your services rendered as commissioner . . . . Unless and until an order of the court issues to the contrary, you are authorized to serve as commissioner under this Order without surety or bond. All fees, expenses, charges and costs actually and reasonably earned or incurred by you in accordance with this Order will constitute costs of the partition, G.L. c. 241, § 22, as they will be reviewed and determined by the court in accordance with that statute."

[Note 22] G. L. c. 241, § 22 provides, in relevant part, that "[t]he reasonable expenses and charges of partition proceedings, including . . . the fees of . . . the commissioners . . . shall be determined by the court, and in case of sale paid by the commissioners out of the proceeds . . . Such contribution shall be in proportion to the interests of the parties unless the court finds a different proportion more equitable."

[Note 23] The Appeals Court Decision also confirmed that the Commissioner had not been discharged from his duties.

[Note 24] This issue was also the basis of John's motion to dismiss the Commissioner Contempt Action, as to which, to date, this court has not acted.

[Note 25] As such, John's Motion to Dismiss the Commissioner Contempt Action is hereby DENIED.

[Note 26] This court addressed this issue in Orders dated September 14, 2011, August 20, 2013, and August 14, 2014. In my August 20, 2013 Order, I noted that "counsel for Petitioners represented in open court that Petitioners receive an annualized six-figure fixed income. This court is mindful of this representation as it relates to Petitioners' ability to pay the Commissioner at this time." In my August 14, 2014 Order, I further noted that "[w]hile the filing of Petitioners' bankruptcy in the U.S. Bankruptcy Court may suggest that Petitioners could claim the defense of impossibility, this court finds that Petitioners are responsible for their inability to pay, and thus are not entitled to this defense. Petitioners' discretionary spending (Petitioners admit to spending $19,000 on a Jeep for their daughter, $15,000 for their daughter's wedding, and $45,000 on home improvements) and sudden suspicious loss of savings and assets lead this court to conclude that Petitioners are responsible for the inability to pay some, if not all, of the amount ordered in the September 2011 Order." The Appeals Court Decision quotes directly from this Order.

It is true that none of these orders involved an evidentiary hearing. However, the August 14, 2014 Order was based upon some specific information as to Petitioners' finances that Petitioners had provided. As noted in that Order, "[w]hen Petitioners placed their bid for $65,000 with the Commissioner in 2011, they also provided evidence of a bank account holding more than $63,000 in support of their bid. Rather than applying this $63,000 to the Mortgage, this money mysteriously appears to have gone missing. Additionally, Petitioners sold three condos shortly before the September 2011 Order, but cannot account for the proceeds of any of these sales. Petitioners' tax records reflect income of approximately $200,000, yet Petitioners' bank records show a balance of only $2,500. This court also notes that on January 22, 2013, Petitioners deeded the Marshfield Property, one of Petitioners' last remaining assets known to this court, into a trust they created for estate planning purposes."

[Note 27] "The Land Court judge found that the petitioners intentionally prolonged the partition proceedings by not timely paying off their mortgage and otherwise complying with the September, 2011, order. The judge pointed to the petitioners' post-September, 2011, pre[-] bankruptcydiscretionaryspending and sudden suspicious loss ofsavings and assets' to rebut their contention that they were financially unable to comply with the order. The judge found that the petitioners' failure to comply with the order resulted in increased costs associated with Burke's complaint for contempt and in his loss of rental income from the property. Furthermore, the judge noted the increased costs resulting from the petitioners' Superior Court law suit against the Commissioner. In short, the judge below concluded that [i]t is unfair to force [Respondent] to pay any more of these fees [of the Commissioner], which never would have been necessary had [Petitioners] acted as this court ordered.' These findings bore on appropriate equitable considerations the judge was entitled to take into account, and we cannot say that the judge below abused his discretion in making the petitioners responsible for all of the commissioner's post-bankruptcy fees."

[Note 28] "Upon consideration of the entire record of proceedings in this case, including, without limitation, the Debtor's Schedules of assets and liabilities, and the proceedings in the Land Court, this court finds and rules as follows 1) the fees for services rendered by the commissioner after the commencement of this case do not constitute a claim that was affected by the Debtor's discharge in this case, and the Land Court is not interfering with the jurisdiction of this Court in entering any orders allowing or directing payment of the Commissioner's fees by the Debtor which arose after the petition date, November 22, 2013."

[Note 29] This was in response to a footnote in an Order of this court dated August 18, 2016, which states that "[t]he issue of Mr. Gifford's ability to pay has been raised and rejected numerous times in this court."

[Note 30] In addition to this residence in Marshfield, it should be noted that, in their motion seeking to excuse Petitioners from appearing at the initial hearing on the Commissioner Contempt Action, Petitioners stated, with reference to other assets that they held, that "[a]t the present time, John and Debra Gifford are both in South Carolina at a residence they own in that state", thus disclosing the existence of another valuable asset.

[Note 31] As noted above, John later notified the court that, on October 4, 2016, he tendered payment of $24,576.54 (i.e., the amount of the Commissioner's fees that Petitioners did not dispute) to the Commissioner, and that, on the same date, he wired the sum of $24,369.51 (representing the amount of the Commissioner's fees disputed by Petitioners) to Kiley to be held in escrow pending this court's determination as to that sum.

[Note 32] Should John fail to timely comply with this Order, the court will revisit this conclusion.

[Note 33] John previously represented that he would not appeal the $6,750.00 attributable to the Commissioner Contempt Action if ordered to pay that sum, but he made no such assurances with respect to the Appeals Court Bills. In the event that John appeals the $17,619.51 attributable to the Appeals Court Bills, Kiley shall continue to hold that amount in escrow pending such appeal, but Kiley shall immediately release to the Commissioner the $6,750.00 attributable to the Commissioner Contempt Action as directed herein. If this court's findings on the issue of the Appeals Court Bills are upheld on appeal, Kiley shall release the balance of the funds held in escrow within fifteen (15) days of the final disposition of John's appeal.

Notably, this court's prior directives with respect to the Commissioner's right to be compensated for his fees incurred in connection with seeking to enforce the April 2015 Order and Judgment remain in effect, and thus would allow the Commissioner to be compensated by John for any fees incurred in connection with any such prospective appeal, if warranted. As further previously directed, only upon payment in full for all fees due to the Commissioner will the Commissioner be released from his duties as partition commissioner.

JOHN A. GIFFORD and DEBRA F. GIFFORD vs. ANDREW J. BURKE and CITIMORTGAGE, INC.

MISC 08-390774

December 21, 2016

SANDS, J.

DECISION ON THE COMMISSIONER'S COMPLAINT FOR CIVIL CONTEMPT