TOWN OF BROOKFIELD, by and through its ZONING ENFORCEMENT OFFICER v. JOHN D. HOLDCRAFT, a/k/a DAVID HOLDCRAFT.

In the underlying consolidated actions pertinent to this complaint for civil contempt, the Town of Brookfield ("Town") sought injunctive relief to enforce the unappealed orders of the Town's zoning enforcement officer. The zoning enforcement officer had ordered the defendant John D. Holdcraft to cease and desist from the continued outdoor storage of "junk, debris and salvage materials" in violation of the Town's zoning bylaw at two properties owned by him in the Town. The consolidated cases were set down for trial on February 9, 2018, but were reported to the court as settled, and an Order of Dismissal Nisi was issued on February 7, 2018. On or about February 9, 2018, the Town and Mr. Holdcraft entered into an Agreement for Judgment. The Agreement for Judgment was filed with the court and was approved by me in accordance with Land Court Rule 10 on February 12, 2018. In pertinent part, the Agreement for Judgment contained Mr. Holdcraft's acknowledgment (previously denied) that he "has been storing junk, debris and salvage materials at the Properties," and his agreement to "remove all junk, debris and salvage currently placed on the Properties by August 31, 2018." The Agreement for Judgment also required Mr. Holdcraft to allow periodic inspections of the two properties subject to the Agreement for Judgment, and to provide the Town with proof of lawful disposition of the materials removed from the properties.

On May 31, 2018, the Town filed a Verified Complaint for Civil Contempt, alleging that Mr. Holdcraft had violated the Agreement for Judgment in several respects, including his failure to allow inspections, and to provide proof of lawful disposition of materials.

At an initial hearing held pursuant to Mass. R. Civ. P. 65.3, I scheduled a trial on the Town's contempt complaint for September 12, 2018. On that date, a trial was held before me. Two witnesses, Mr. Holdcraft, and the Town's zoning enforcement officer, Nicholas Thomo, testified, and 9 exhibits were entered into evidence. Following the submission of post-trial memoranda, requests for rulings and findings of fact, I took the matter under advisement on October 1, 2018.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, and my assessment as the trier of fact of the credibility, weight, and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:

1. The defendant John D. Holdcraft owns, among others, properties at 26 Allen Road, Brookfield, where he resides, and 90 Lake Road, also in Brookfield.

2. Mr. Holdcraft refers to himself as "a junk man," meaning that he is in the business of hauling junk and salvage materials, including hauling junk and cleaning out cellars, and dealing in all kinds of junk and salvage, including air conditioners, refrigerators, washing machines, dryers, heavy scrap metal, and other materials. "Anything and anything. I take it out." [Note 1] He has been in the junk business since 1986, and considers himself to be semi- retired. [Note 2]

3. In the present consolidated cases, Mr. Holdcraft entered into an Agreement for Judgment with the Town, which I approved in accordance with Land Court Rule 10, and which became an order of the court no later than upon approval on February 12, 2018.

4. In the Agreement for Judgment, Mr. Holdcraft and the Town agreed to entry of judgment including the following provisions:

a. Mr. Holdcraft agreed that pursuant to the Brookfield Zoning Bylaw, "all open air storage of junk, salvage materials … are expressly prohibited in all zoning districts." [Note 3]

b. "Notwithstanding the By-law, the Defendant, John D. Holdcraft ('Mr. Holdcraft') has been storing junk, debris and salvage materials at the Properties." [Note 4]

c. "Mr. Holdcraft agrees to remove all junk, debris and salvage currently placed on the Properties by August 31, 2018." [Note 5]

d. "Mr. Holdcraft shall allow the Town to conduct interim inspections of the Properties every 21 days to ensure progress is being made toward compliance and any and all requirements for remediation are being followed. Mr. Holdcraft shall provide the Town with proof of lawful disposition of any materials removed from the Properties." [Note 6]

e. "Any public statements made by Mr. Holdcraft to repudiate or otherwise challenge the validity of this Agreement or its terms, or to disparage the Town or its officials in connection with this enforcement action shall constitute a violation of this Agreement." [Note 7]

5. By August 31, 2018, Mr. Holdcraft had failed to remove all junk and salvage materials from either of the two properties subject to the Agreement for Judgment.

6. A video taken on September 7, 2018 showed bathtubs, tarps, a safe, awnings, a car battery, lumber, and bleach and other cleaners strewn about on the ground on the outside of the 90 Lake Road property. [Note 8]

7. A video of the 26 Allen Road property taken the same day, showed a boat trailer, a car carrier, several lawn mowers, a coal or wood stove, a mirror, a trailer, old window sashes, water buckets, old tarps, another car carrier covered with vegetation, a pillow, pipes, and plywood leaning against a truck. [Note 9]

8. There are two unregistered trucks on the 26 Allen Road property. I do not credit Mr. Holdcraft's testimony that the trucks are "back-up trucks" for his business or that they are there in any other capacity than as junk or salvage.

9. I do not credit Mr. Holdcraft's testimony that the several lawnmowers on the 26 Allen Road property are useful, working lawnmowers. I also do not credit his testimony that a circa 1986 lawnmower is a "lawn ornament," or that I-beams on the Allen Road property are also "lawn ornaments" as opposed to junk or salvage.

10. Of more than 100 air conditioners on the two properties, most, but not all, have been removed. Mr. Holdcraft did not provide the Town with timely, or adequate, proof of lawful disposition of these items. [Note 10]

11. Mr. Holdcraft testified that 40 to 50 percent of the materials still situated on the Lake Road property are not junk, but are there for his personal use. He similarly testified that all of the materials stored outdoors at the Allen Road property, where he resides, are not junk, but rather these items are there for his personal use. I do not credit this testimony, as it contradicts his explicit agreement otherwise in the Agreement for Judgment, and as I do not find it credible in light of the evidence. For instance, I do not find credible the testimony that a thirty-two year old non-functioning lawnmower is a lawn ornament, nor do I credit testimony or argument that unregistered vehicles lying dormant on the property for years, trailers with vegetation growing out of them, and old construction materials strewn about the property do not come within the ambit of the Agreement for Judgment as junk or salvage materials.

12. I find that not only has Mr. Holdcraft failed to comply with the requirement of the Agreement for Judgment that all junk and salvage materials be removed from the two properties by August 31, 2018, I also find that his failure to do so was intentional.

13. I find that Mr. Holdcraft signed the Agreement for Judgment knowing he either could not or did not intend to comply with its requirements for removal of junk and salvage by August 31, 2018. [Note 11]

14. I also find that Mr. Holdcraft intentionally failed to provide the Town with "proof of lawful disposition of any materials removed from the Properties" as required by the Agreement for Judgment. [Note 12]

15. Exhibit 9 consists of a collection of receipts Mr. Holdcraft testified he received to document his disposal of some of the junk or other materials removed from the two properties. There are 9 receipts from Wheelabrator Millbury for material identified as "spot commercial waste," totaling approximately 9 tons in weight. There are also documents handwritten on lined notebook paper, with an illegible signature, purporting to be receipts for the disposal of various items, including 120 air conditioners, a paddle boat, eight 50-gallon jugs used to float a lake dock, 50 wooden pallets, a 1992 Ford pick-up truck for $250.00, 60 pallets of aluminum scrap and stainless steel, 10 wheelbarrows, an "antique" refrigerator, a "pile of ele[ctric] motors," stacks of old metal doors," 6 boxes of assorted china, a non-working gas stove, 15 steam radiators of "various sizes," 2 welding carts, a sofa, 5 wooden doors, a hot tub motor, 8 tarps, a table saw, a "small pull-behind lawn tractor trailer," a refrigerator, 10 tires, 9 bird houses, 100 bags of "nasty, dirty, some broken – bottles and cans," a pool ladder, 10 trash buckets, 2 antique kitchen tables, 15 lawn chairs, a small organ, a pop-up camper, and various other items. While the receipts for these items were produced at the trial of this matter, they were not given to the Town as required by the Agreement for Judgment. Some receipts are dated as early as early July, 2018. I do not credit Mr. Holdcraft's testimony that he did not give them to the Town because of a physical injury suffered by him in a July 26th car accident. [Note 13] Rather, I find that Mr. Holdcraft's failure to give receipts to the Town was part of a pattern of intentional behavior on his part to drag his feet on compliance, and to demonstrate his disdain for the zoning enforcement officer, who asked Mr. Holdcraft for receipts on a number of occasions and was repeatedly rebuffed.

16. Mr. Holdcraft has been prominently displaying on a sign at one of his properties the following sentiment: "SELECTMEN ALLOW CRIMINAL ACTS IN OUR TOWN GOVT." Mr. Holdcraft placed the quoted language on the sign after the filing of the complaint for contempt was filed in this action. [Note 14]

DISCUSSION

"In order to constitute contempt, there must be, in addition to a clear and unequivocal command, an 'equally clear and undoubted disobedience.'" Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501 , 567 (1997), quoting in part Nickerson v. Dowd, 342 Mass. 462 , 464 (1961). "The purpose of civil contempt proceedings is remedial, and the formulation of the remedy is within the judge's discretion." Eldim, Inc. v. Mullen, 47 Mass. App. Ct. 125 , 129 (1999).

For the reasons discussed below, I find and rule that the evidence presented in this action constitutes "clear and convincing evidence of disobedience of a clear and unequivocal command." In re Birchall, 454 Mass. 837 , 853 (2009).

THE AGREEMENT FOR JUDGMENT CONSTITUTED A CLEAR AND UNEQUIVOCAL COMMAND, AND MR. HOLDCRAFT WAS DEMONSTRATED TO HAVE VIOLATED IT BY CLEAR AND CONVINCING EVIDENCE.

An agreement for judgment, agreed to by the parties and entered onto the docket of the court, is a judgment of the court. "[W]hen any party files an agreement for judgment…the agreement…shall, upon being filed, constitute the judgment, for all purposes…." Mass. R. Civ. P. 58(a). An agreement is effective upon entry of the docket of the court. Id., and Mass. R. Civ. P. 79(a). The Agreement for Judgment in the present action was signed by the parties, was approved by the court in accordance with Land Court Rule 10, and was entered on the docket of the court as approved on February 12, 2018.

The requirements of the Agreement for Judgment that Mr. Holdcraft is accused of disobeying constituted a "clear and unequivocal command." The Agreement for Judgment did not leave for further argument whether the materials being stored on Mr. Holdcraft's properties were "junk" or "salvage materials" that were prohibited from outdoor storage within the meaning of the Bylaw. The Agreement for Judgment contained Mr. Holdcraft's admission and acknowledgement that he was "storing junk, debris and salvage materials at the Properties." [Note 15] It was not open to him to later claim selectively that some of the materials being stored outdoors on his properties were items reserved for his personal use, were antiques, or were "lawn ornaments." The time to carve out exceptions to the dictates of the Agreement for Judgment would have been before signing the document, not after. Mr. Holdcraft cannot avoid compliance with the Agreement for Judgment by claiming after the fact that some of what he agreed was junk or salvage is in fact something else. While I find and rule that Mr. Holdcraft is foreclosed by the Agreement for Judgment from claiming that some of the material stored outdoors at his properties was not junk, I have also found that all of the material was, in fact, junk or salvage material, regardless whether Mr. Holdcraft considers it to be otherwise.

The evidence of Mr. Holdcraft's violation of the Agreement for Judgment was clear and convincing. His testimony confirmed, and I so find, that the reason he did not comply with the Agreement for Judgment was not because of inability, but rather because of his openly expressed hostility towards the Town and its officials, and I conclude that he never intended to comply with the Agreement for Judgment. [Note 16] He repeatedly rebuffed Mr. Thomo's attempts to confirm compliance with the Agreement for Judgment, he refused to allow inspections of his properties as required by the Agreement for Judgment, and he intentionally avoided his obligation to provide documentation of proper disposal of materials removed from the properties, by avoiding Mr. Thomo and refusing to give Mr. Thomo receipts that were in Mr. Holdcraft's possession, by selectively providing some documentation to officials other than those the Town had designated for receipt of the documents, by failing to provide any documentation at all of much of the materials removed from the properties (until tardily producing some of this documentation, much of it inadequate, at the trial of this matter), and by generally demonstrating obstreperous intentions with respect to all of his obligations under the Agreement for Judgment.

Nor is it a defense for Mr. Holdcraft to contend, even if it were true, (and I find that it is not), that it was impossible to comply with the Agreement for Judgment by August 31, 2018. Mr. Holdcraft freely entered into the Agreement for Judgment, and if he believed that he could not comply with it within the time to which he had agreed, he either should not have signed it, or when it became apparent that he could not finish by the deadline, he should have asked for an extension. In fact, his tardy efforts to remove much of the material only after August 31, 2018 and just prior to the contempt trial, are evidence that the Agreement for Judgment could have been complied with had he made the effort in a timely manner. It has long been a basic principle of our law that "[i]t is not for [one subject to an order of the court] to decide whether the…order was valid." Wireless Specialty Apparatus Co. v. Priess, 246 Mass. 274 , 277 (1923). Those subject to an injunction may seek its modification or may appeal it, but must continue to obey its commands while it remains in force. New England Novelty Co. v. Sandberg, 315 Mass. 739 , 753 (1944). Notwithstanding the clarity of the Agreement for Judgment, to the extent Mr. Holdcraft was unsure whether he could remove the materials in time, "if [he] saw the decree as ambiguous on the point in question, he could have sought clarification from the court before he engaged in the questionable conduct." Demoulas v. Demoulas Super Markets, Inc., supra, 424 Mass. at 569. It was not for Mr. Holdcraft to unilaterally decide that clearing his properties of the materials he agreed to remove by August 31, 2018 was in fact a "three-year job" [Note 17] and that he therefore need not comply with the Agreement for Judgment.

The Town also seeks a ruling of contempt with respect to Mr. Holdcraft's placement of language disparaging Town officials on a sign on his property at 6 Maple Street. While this language certainly disparages Town officials, and was placed there after the Agreement for Judgment was in effect and after the complaint for contempt was filed, Mr. Holdcraft has a long history of using this sign for expressing his disparaging opinions of the Town and its officials. I do not find that it is sufficiently clear that Mr. Holdcraft's disparaging message on the sign was "in connection with this enforcement action" so as to violate Paragraph 9 of the Agreement for Judgment.

REMEDY AND ATTORNEYS' FEES.

"The purpose of civil contempt proceedings is remedial, and the formulation of the remedy is within the judge's discretion." Eldim, Inc. v. Mullen, supra, 47 Mass. App. Ct. at 129. The remedial purpose of civil contempt allows for the payment of damages: "[I]t is settled law that 'criminal contempt sanctions are punitive in nature and are imposed to vindicate the authority of the court. On the other hand, sanctions in civil contempt proceedings may be employed 'for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained.'" Labor Rels. Comm'n v. Salem Teachers Union, Local 1258, 46 Mass. App. Ct. 431 , 435 (1999), quoting Mahoney v. Commonwealth, 415 Mass. 278 , 284 (1993). Accordingly, in order to compensate the Town for the damages it has incurred as a result of the Mr. Holdcraft's violation of the Agreement for Judgment, Mr. Holdcraft is hereby ORDERED to remit to the Town $100.00 per day for each of the two properties, for each day each property remains out of compliance with the Agreement for Judgment, provided that this fine is implemented as of, and will start to accrue, on January 2, 2019. In other words, the daily fine will not start to accrue if Mr. Holdcraft, prior to that date, clears the properties of all junk, debris and salvage materials, and provides the Town with sufficient evidence of lawful disposition, and the Town so certifies following an inspection. All such proof of lawful disposition shall be delivered by the defendant to the Town's zoning enforcement officer, Mr. Thomo.

"As matter of law, the awarding of attorney's fees and costs is an appropriate element of a successful civil contempt proceeding…This award is proper regardless of whether the court has considered the violation of the underlying order to be wilful, and it is within the court's discretion to formulate a remedy in a civil contempt proceeding." Demoulas v. Demoulas Super Mkts., supra, 424 Mass. at 571. "[T]here is no question that counsel fees and costs are allowable in determining a compensatory fine payable to the prevailing party in a civil contempt proceeding…" Giannetti v. Thomas, 32 Mass. App. Ct. 960 , 961 (1992).

The court's task in determining attorneys' fees to be awarded was generally stated in Linthicum v. Archambault, 379 Mass. 381 , 388 (1979), overruled on other grounds, Knapp Shoes, Inc. v. Sylvania Shoe Manufacturing Corp., 418 Mass. 737 (1994): "While the amount of a reasonable attorney's fee is largely discretionary, the judge on remand should consider the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases." Where the judge awarding the attorneys' fees is the judge who presided over the underlying action, and where the attorneys' fees are not being awarded on the basis of a contractual relationship between the parties, there is no need for the court to hold a separate evidentiary hearing with respect to the award of attorneys' fees. See Heller v. Silverbranch Construction Corp., 376 Mass. 621 , 629-630 (1978).

The Town has submitted a request for award of attorneys' fees in the amount of $5,922.44, supported by the affidavit of the Town's counsel and by counsel's contemporaneous time records. Counsel, who practices in the metropolitan Boston area, has billed his time at a billing rate of $175 per hour, which I find to be a below-market rate and which I find to be reasonable under all of the circumstances of this case. I further find that while the issues in this case are not novel, the obstreperous conduct of the defendant required the Town's counsel to pursue the present complaint for contempt, and I find that he ably represented his client in presenting these claims, and in obtaining a desirable result in the contempt portion of these consolidated actions.

I find the amount of time spent on this matter by the Town's counsel, which included the drafting of the complaint for contempt, and two court appearances including a trial, to be generally reasonable, and given my conclusion that the conduct of the defendant was contumacious conduct, and that there was no reasonable alternative left to the Town but to seek enforcement as it has, it is appropriate to assess these fees to the defendant.

CONCLUSION

Having found that there was clear and undoubted disobedience by Mr. Holdcraft of a clear and unequivocal command, I find and rule that Mr. Holdcraft is liable in contempt to the plaintiff for $5,922.44 in attorneys' fees, and Mr. Holdcraft is further ORDERED to pay fines as provided above should he fail to fully comply with the Agreement for Judgment no later than January 1, 2019.

Judgment will issue accordingly.