MISC 16-000038

November 20, 2018

Suffolk, ss.



This partition action (begun in January 2016, but spawned by a partition action filed in 2015) returned from the Appeals Court in August 2018 with the following instruction:

The order granting summary judgment to the plaintiff and ordering the commissioner to proceed with partition by sale of the locus, the warrant issued on March 31, 2017, authorizing the sale of the locus, and the order authorizing the eviction of [defendant] Vincent Pacelli are reversed.

See also Pacelli v. Pacelli, 93 Mass. App. Ct. 1121 (2018) (Rule 1:28 decision). The parties agree that the Appeals Court's order requires dismissal of plaintiff Gerald J. Pacelli's petition for partition. This Court will so order.

Anticipating that he had rendered all of his services as the partition commissioner in this case, attorney Neil M. Kerstein moved on September 6, 2018 for payment of his fees and expenses. He asks for $34,251.00 in fees and $477.10 in expenses. He also asks that the Court make the approved fees and expenses a joint and several liability of the parties to this case.

Before delving into the laws and rules that apply to the Commissioner's motion, it's helpful to understand when and how courts appoint partition commissioners. General Laws c. 241, § 12 establishes the court's power to appoint commissioners in partition actions. That statute provides in part:

If the court determines [in a partition proceeding brought under c. 241] the petitioner entitled to partition, it shall thereupon appoint one or more disinterested commissioners and issue a warrant to them to make partition. The commissioners, before entering upon their duties, shall be sworn to execute the warrant faithfully and impartially. . . .

Two things are noteworthy about this part of § 12. First, it contains a mandate: if the court determines that a petitioner in a partition proceeding is entitled to partition, the court "shall" appoint a commissioner. The courts don't take that instruction literally: if the court's partition determination prompts the parties to ask for time to explore settlement of their dispute, prudent judges often will delay appointing a commissioner for a spell. But absent that, under § 12, once the court determines that partition must occur, appointment of one or more commissioners is inevitable.

Second, once appointed, the commissioner must "faithfully and impartially" execute the "warrant . . . to make partition." Commissioners, like "auditors, referees, and the like," are officers "who act under the authority of the court. . . ." Potter v. Hazard, 93 Mass. (11 Allen) 187, 192 (1865). See also Grantham v. O'Riorden, 244 Mass. 472 , 477 (1923). Commissioners have no power to disobey their instructions or to second-guess the appointing court's determinations. When in doubt, a commissioner must ask the court for guidance. See Morgan v. Jozus¸ 67 Mass. App. Ct. 17 , 20 (2006).

Chapter 241, § 22, governs (somewhat) the commissioner's compensation. Section 22 begins: "The reasonable expenses and charges of partition proceedings, including . . . the fees . . . of the commissioners, . . . shall be determined by the court . . . ." That determination "rests in the sound discretion of the trial judge," and requires use of the "lodestar method" of calculating fees, namely, "the multiplication of a fair market hourly rate by the amount of [the commissioner's] reasonably spent time." Howe v. Tarvezian, 73 Mass. App. Ct. 10 , 13 (2008).

Deciding the Commissioner's fair-market hourly rate is easy in this case. Commissioner Kerstein seeks $325 hourly for his own time and $275 hourly for that of David Nielson, a litigation attorney. Those rates are consistent with those approved in other cases for commissioners in eastern Massachusetts, see id. at 13-14, and none of the parties has objected to them. The Court thus finds that the Commissioner has proposed an acceptable fair-market hourly rate for himself and attorney Nielson.

While he doesn't question the Commissioner's rates, Vincent Pacelli does question the reasonableness of the Commissioner's efforts. (Gerald Pacelli objected to the Commissioner's fees generally, but when the Court asked Gerald to identify specific charges or tasks he considers to be unreasonable, he didn't point to any.) Vincent first asks the Court to reject any work that the Commissioner performed prior to the warrant for partition that's identified in the Appeals Court's order. This Court (Sands, J.) issued that warrant on March 13, 2017. The warrant directed the Commissioner to sell the "locus" owned by the parties, 134 Thorndike Street in Cambridge, MA. Vincent seems to argue that the March 13, 2017 warrant is the sole source of the Commissioner's authority to recover his expenses in this case under § 22.

The Commissioner responds that he began the work that's the subject of his fees motion pursuant to a March 10, 2016 "Interim Order Appointing Neil Kerstein, Esq. Partition Commissioner 134 Thorndike Street, Cambridge, Massachusetts." While titled an "interim order," it held that (a) Gerald, Vincent, and five of their siblings and relatives owned 134 Thorndike Street in common; (b) the property likely couldn't be physically divided; and (c) "it seems that partition is appropriate." Interim Order at 2.

The Interim Order directed the Commissioner to investigate not whether partition should occur, but how. That makes the Interim Order just as much of a "warrant" within the meaning of c. 241, § 22 as is the March 13, 2017 warrant. Chapter 241 does not specify the form or content of what it calls a "warrant," nor does Chapter 241 define the term "warrant." Black's Law Dictionary (7th ed. 1999) defines "warrant" as "[a] writ directing or authorizing someone to do an act. . . ." The Interim Order directed and authorized the Commissioner to perform several acts, all of which resulted in an eventual partition by sale of 134 Thorndike Street (a sale that the Appeals Court nullified). Moreover, the Interim Order advised the parties: "All fees, expenses, charges and costs actually and reasonably earned or incurred by [the Commissioner] 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." None of the parties appealed the Interim Order. Because the Interim Order is a "warrant" in this partition case, and because the Commissioner performed all of his services subsequent to (and not before) March 10, 2016, § 22 allows him to be compensated for his work between March 10, 2016 and March 13, 2017.

Vincent's second challenge fares better. He objects to services that Commissioner Kerstein performed between July 11, 2016 and August 17, 2016 opposing a motion that Vincent filed for summary judgment. Vincent sought judgment dismissing this partition action on the very grounds embraced by the Appeal Court: that a 2003 agreement among the parties prohibited partition of 134 Thorndike Street without the unanimous consent of Vincent, Gerald, John and Joseph Pacelli. Vincent aimed his motion against Gerald and all of the other parties in this case. By July 2016, all of them were siding with Gerald in his efforts to obtain partition of 134 Thorndike Street. (Gerald and the other parties actually had petitioned as a group on April 28, 2015 to partition 134 Thorndike Street. The Appeals Court's decision notes that prior litigation, but the decision erroneously states that the group filed that action on April 28, 2016.)

Between mid-July and mid-August 2016, the Commissioner spent 12.3 hours, at a cost of $3997.50, opposing Vincent's motion. A commissioner's active effort to oppose a co-owner's motion for summary judgment seeking dismissal of a partition proceeding appears to be contrary to § 12's mandate that the commissioner execute his or her duties "impartially." The Commissioner responded at oral argument on his motion that the Court asked the Commissioner in May 2016 to present his "input" on Vincent's summary-judgment motion. The Court has reviewed the recording of a May 12, 2016 hearing during which the Court (Sands, J.) purportedly made the request. At that hearing, the Commissioner asked the Court if it wanted the Commissioner's "input" on the parties' 2003 agreement that purportedly delayed the partition of 134 Thorndike Street. The Court responded, "You might as well do that," and ordered the parties to serve on the Commissioner their summary-judgment briefs and oppositions so that he could prepare his comments. The Court didn't ask the Commissioner, however, to oppose Vincent's motion or do anything else that would violate § 12's requirement that a commissioner act impartially. The Commissioner's opposition to Vincent's motion is precisely that: it opposes Vincent's position. It confronts and takes a position against Vincent's arguments. It also argues that the Court should not dismiss Gerald's partition petition.

The Court thus DENIES the Commissioner's request for fees under § 22 for his efforts opposing Vincent's motion for summary judgment. This isn't to say that any time a commissioner disagrees with a party, the commissioner must be as silent as a potted plant, lest the court disallow a later fee request. There are times when a party might present to the court incorrect or incomplete facts; a commissioner who presents additional or contrary facts doesn't necessarily show bias or partiality. There also are occasions when a party may challenge the commissioner's conduct or her recommendations. A commissioner should feel free in that instance to defend her position, provided she does so in a manner that's consistent with § 12's mandate that she discharge her duties impartially. See Howe, 73 Mass. App. Ct. at 16-17 (allowing commissioners to recover fees and costs attributable to co-owner's challenge to compensation awarded by the probate court).

Third, Vincent objects to efforts by the Commissioner and attorney Nielson to seek an award from the Appeals Court of certain fees and costs. This Court hasn't seen the Commissioner's Appeals-Court motion, which that court denied "without prejudice to any filing in the Land Court." The Commissioner seeks $762.00 for preparing that motion. Gifford v. Burke, 92 Mass. App. Ct. 724 , 728-29 (2018), teaches that a commissioner who seeks payment of fees for his or her labors in the Appeals Court generally must apply to the Appeals Court for them; all other fee requests should be filed with the court that appointed the commissioner. The Commissioner's current fees motion contains no charges for work before the Appeals Court other than the filing of his (denied) fee application. That causes this Court to suspect that Appeals Court petition covered non-appellate work. As the Commissioner hasn't explained the purpose of his petition to the Appeals Court, the Court DENIES the Commissioner's request for $762.00 in fees relating to that application, without prejudice.

Finally, Vincent objects to as much as 5.7 hours of the Commissioner's time filing his motion for fees and costs in this Court. (The objection is to "as much as" 5.7 hours because the Commissioner block-billed 4.5 hours of his services on September 5, 2018, which included time for filing his motion and anticipated time appearing in court for a hearing on the motion.) Vincent argues that Gifford allows partition commissioners to seek fees related to preparing a fee petition only when the commissioner is pursuing collection of previously awarded fees.

This Court doesn't read Gifford that way. "As a general rule, time spent in establishing and defending a fee, or objecting to an unduly small award, should be included in the final calculation of the award." Stratos v. Department of Public Welfare, 387 Mass. 312 , 325 (1982). While courts interpreting other fee statutes have discounted an attorney's hourly rate for his or her time preparing a fee petition, calling the latter "non-core" work, see, for example, Showtime Entertainment LLC v. Ammendolia, 885 F.Supp.2d 507 (D. Mass. 2012), rev'd on other grounds by Showtime Entertainment, LLC v. Town of Mendon, 769 F.3d 61 (1st Cir. 2014), decisions acknowledge that the Massachusetts courts don't order such discounts. See Connolly v. Harrelson, 33 F.Supp.2d 92, 96 (D. Mass. 1999) ("The Court will not impose upon Massachusetts practice a relatively recent federal court innovation, but will instead calculate the lodestar using an undiluted hourly rate for both core and non-core work").

The Court thus HOLDS that Commissioner Kerstein is entitled to an award of $29,291.50 for services he has rendered in this action, along with $477.10 in costs.

The Court now turns to a more contentious issue: who pays? Chapter 241 doesn't explicitly answer that question in this case. Earlier this Order quoted the beginning of c. 241, § 22. That statute further provides that, after the court has determined the commissioner's fee, "in the case of [partition by] sale" the fee is to be "paid by the commissioners out of the proceeds; and in the case of partition by division shall be paid by the petitioner, who shall be entitled to contribution from the parties to whom shares of the land are set off who take a vested, and not contingent, interest." The appeals court has interpreted § 22's directions as presumptions that are subject to equitable deviation depending on "the conduct of the litigation itself," see, for example, Aiello v. Aiello, 63 Mass. App. Ct. 914 , 915 (2005), but that statute doesn't address who pays the commissioner's fees in the event that a court (either the trial court on reconsideration, or an appellate court on review) concludes that the partition proceeding shouldn't have happened in the first place.

The Court thus has to look at authorities outside of § 22. Potter is somewhat helpful. There a probate court, upon the petition of two devisees of Otis Little, appointed commissioners to partition Little's real estate. The probate court assumed that the shares of all of the devisees of Little's land weren't in dispute, and the court's warrant to the commissioners went so far as to list the devisees and their respective shares. After the commissioners started their work, "doubts arose as to the construction of the will under which the parties interested claimed title . . . ." Under a statute then in effect, a probate court couldn't order partition of land if the owners' shares in that land were disputed or uncertain. (Chapter 241 no longer includes that prohibition.) The commissioners nevertheless made partition. They then filed a report with the probate court asking for confirmation of their work. Realizing that the devisees' shares in Little's land were in dispute, the probate court set aside the commissioners' report and held that no partition should be made. Potter, 93 Mass. at 190-191.

After the time for appealing the dismissal of the partition action had passed, the Potter commissioners sought payment of their fees and expenses from the two devisees who had petitioned for partition. A jury gave judgment to the commissioners. The erstwhile petitioners argued on appeal that the commissioners had deviated from the warrant in making partition. The petitioners contended that if the commissioners hadn't strayed from the warrant, the probate court would have gone along with their work, made partition, and their fees would have been paid by all of the devisees (and not just the two original petititioners). The Supreme Judicial Court saw things differently: the court held that the probate court's dismissal of the proceeding was "for want of jurisdiction, rather than . . . the error of the plaintiff [commissioners]." Id. at 192. The SJC ruled that, despite the dismissal of the partition action, the commissioners were entitled to payment for their services from the petitioners.

While Potter holds that a commissioner's work is compensable even if a court later says "never mind," there's a key fact that distinguishes Potter from this case. The commissioners in Potter brought their action for fees and expenses in contract. That's because in the 1860s, the Massachusetts courts often required parties to employ referees, auditors and commissioners. See id. at 193; see also Russell v. Page, 147 Mass. 282 , 285-826 (1888) (alluding to the same practice). So Potter's holding, that the devisees who had petitioned for partition were obligated to pay the partition commissioners' expenses, ultimately rests on the Potter petitioners' contract with the Potter commissioners.

There's no such contract in this case. What Commissioner Kerstein had instead was the Interim Order. The Order provides in part:

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. . . .

Potter nevertheless identifies an important policy that lurks behind directives such as the Interim Order:

In the practice of all the courts it is found necessary, in order that the rights of parties may be understood and intelligently passed upon, to call in aid the services of those who act under the authority of the court in the capacity of commissioners, auditors, referees, and the like, and proceed to investigate and determine important and often complicated matters, without the immediate supervision of the court, and whose doings can only be controlled and corrected when return thereof is made for confirmation. To hold all this class of officers entitled to no compensation for their services because, though faithful and impartial, they have not complied with the terms of the commission, warrant, rule or other authority under which they acted, would be to cause a forfeiture of such services rendered at the request of others for errors and misconstructions, to which in cases of difficulty in matters of this description all [such officers] would be innocently liable.

Potter, 93 Mass. at 192.

The Court thus holds that, since § 22 does not determine who should pay the Commissioner's expenses in this proceeding, the Interim Order controls. That Order provides that the seven parties are severally liable for payment of the Commissioner's expenses, "in proportion to their respective shares" in 134 Thorndike Street. The Commissioner reported in May 2016 that each party holds a 1/7th interest in the net proceeds of the sale of 134 Thorndike Street. Thus, under the Interim Order, each party is responsible for payment of 1/7th of the Commissioner's expenses.

But one last analytical step remains. Rule 54(d), Mass. R. Civ. P., provides in part: "Except when express provision therefor is made either in a statute of the Commonwealth or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs. . . ." Together with G.L. c. 261, §§ 1 and 13, Rule 54(d) fills various statutory voids concerning who deserves an award of costs at the end of a case. See Creed v. Apog, 377 Mass. 522 , 524-525 (1979).

Vincent Pacelli is entitled under Rule 54(d) to award of his costs. First, he is a "prevailing party" under the Rule. A "prevailing party" "ordinarily means the party achieving a favorable judgment." Waxman v. Waxman, 84 Mass. App. Ct. 314 , 326 (2013). Vincent's the only party in this case who meets that description: he alone sought and obtained dismissal of this action. Second, there also is no statute that supplants Rule 54(d) in this situation: as noted earlier, while c. 241, § 22 usually governs who pays the costs of a partition proceeding, § 22 doesn't apply to cases in which partition ultimately doesn't occur.

Third, the Court holds that a commissioner's fees and expenses are taxable "costs" under Rule 54(d). While the Court has found no Massachusetts decisions that address the issue, several out-of-state cases (none addressing rules like Rule 54(d)) suggest they are "costs." See Catherwood v. Morris, 351 Ill. 557, 559, 184 N.E. 889, 890 (1933); Associated Almond Growers of Paso Robles v. Wymond, 69 F.2d 912, 914 (9th Cir. 1934); Most Worshipful Sons of Light Grand Lodge v. Sons of Light Lodge No. 9, 140 Cal. App.2d 833, 834-835, 295 P.2d 912, 913 (1956). While one could argue that Vincent hasn't incurred any "costs" associated with his share of the Commissioner's expenses -- Vincent hasn't yet paid a dime to the Commissioner -- there's little to be gained by waiting for Vincent to pay his share, petition this Court for an award of costs, and then have the Court tax the losing parties. That's especially true when the parties' several responsibility to pay the Commissioner's expenses arises not from statute, but from the Interim Order – an equitable order that the Court is free to modify on terms that are just, even post-dismissal.

Accordingly, the Court GRANTS in part and DENIES in part the Commissioner's Motion for Approval and Payment of Commissioner's Fees and Expenses Jointly and Severally By All Parties. The Court hereby NOTIFIES the parties pursuant to Rule 54(d), Mass. R. Civ. P., that after five days from the date of this Order, the Recorder will enter judgment in accordance with this Order. That judgment will include a dismissal of this action in accordance with the Appeals Court's rescript in this case, plus orders to each of Gerald J. Pacelli, John J. Pacelli, Joseph Pacelli, Antoinette Powers, Bernadette Richard and Rosemary Cowie to pay to the Commissioner $4,961.43 each, within 45 days of the entry of the judgment in this case.