GORDON C. ANDREWS v. ROBERT GAYNOR, KOZHAYA NESSRALLA, ROBERT DURGIN and GERALD JOY, as they are members of the HALIFAX ZONING BOARD OF APPEALS; ROBERT PICCIRILLI, as he is the BUILDING INSPECTOR for the TOWN OF HALIFAX; and CORRIE S. MERRITT, AMANDA MONTI and EDWARD JOHNSON, as Trustees of THE PARTY TRUST

Having prevailed on one of the two issues tried in May 2019, see Andrews v. Gaynor, 27 LCR 310 , 316 (2019), plaintiff Gordon C. Andrews has filed a preliminary motion for an award of costs and attorneys' fees under M.G.L. c. 231, §6F and c. 40A, §17. The defendant members of the Halifax Zoning Board of Appeals (the "ZBA") and The Party Trust oppose that motion. For the reasons set forth below, the Court DENIES Mr. Andrews's motion under §6F for costs and attorney's fees. The Court also DENIES his motion under §17 for an award of attorney's fees. The Court rules, however, that subject to his compliance with the requirements of Rule 54(d), Mass. R. Civ. P., Andrews will be entitled to an award of costs from the Trust. Whether the ZBA also will be liable for that award will require a hearing, unless practicalities dictate otherwise.

The Court begins with Mr. Andrews's motion under c. 231, §6F for an award of attorney's fees and costs. Section 6F provides, in pertinent part:

Upon motion of any party in any civil action in which a finding, verdict, decision, award, order or judgment has been made by a judge or justice . . . , the court may determine, after a hearing, as a separate and distinct finding, that all or substantially all of the . . . defenses, . . . 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 . . . .

If such a finding is made with respect to a party's defenses, the court shall award to each party against whom such defenses . . . were asserted . . . an amount representing the reasonable counsel fees, costs and expenses of the claimant in prosecuting his claims . . . .

No finding shall be made that any . . . defense . . . was wholly insubstantial, frivolous and not advanced in good faith solely because a novel or unusual argument or principle of law was advanced in support thereof.

The ZBA and the Trust present several arguments as to why they have no liability whatsoever under §6F, but their winning argument stems from an observation in Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760 , 781-782 (1986), that where a question of law is fairly "subject to debate," the loser of that debate shouldn't be liable under §6F.

In Andrews, this Court concluded that the Halifax Planning Board conditioned the Trust's site plan approval for the Trust's development, Amanda's Estates, on the Trust siting each of the six Estates duplexes on its own lot. See Andrews, 27 LCR at 315. (For simplicity's sake, the Court will call that condition the "Subdivision Condition.") From Mr. Andrews's perspective, nothing is debatable about the Subdivision Condition, and he claims (as the Court found, see id. at 312-313) that the Trust knew the moment the Planning Board endorsed the Trust's Site Plan that the Condition existed.

The existence of the Subdivision Condition may have been crystal clear to Mr. Andrews, but it wasn't so clear to the Court at the time Andrews moved (and when the ZBA and the Trust cross-moved) for summary judgment. That lack of clarity stemmed from the absence of a clear statement, in either the Trust's endorsed Site Plan Approval or in the Halifax Planning Board's letter accompanying that Approval, that the Trust had to subdivide the Amanda's Estates development. The existence of the Subdivision Condition became apparent to the Court only after it heard testimony concerning what led the Trust to put, on what became the endorsed Site Plan, solid lines indicating division of Amanda's Estates.

There was something else that wasn't clear at the time the parties moved for summary judgment: the answer to a question of law. That question was whether a planning board could enforce, as a condition of a site-plan approval, something not clearly stated in the approval. As far as this Court knows, no court before this one, in Andrews, had ruled on that issue. See Andrews, 27 LCR at 315 (extending principles of Lussier v. Zoning Bd. of Appeals of Peabody, 476 Mass. 531 (2006), and Monogram Residential 22 Water St. Project Owner, LLC v. Alexander, 25 LCR 550 (2017), to site-plan approvals).

Given both the ambiguous Site Plan Approval and the open question of law, by the time the parties went to trial in Andrews, the issue of whether the Approval imposed the Subdivision Condition was "debatable" within the meaning of Datacomm. Accordingly, this Court may not hold the ZBA or the Trust liable under § 6F for anything.

The Court thus turns to Mr. Andrews's other theory for why he's entitled to an award of attorney's fees and costs. The starting point for the Court's analysis is Rule 54(d), Mass. R. Civ. P. It provides: "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. . . ." See also M.G.L. c. 261, §1 ("In civil actions the prevailing party shall recover his costs, except as otherwise provided."). The word "costs" in both Rule 54(d) and c. 261, §1 is a term of art. It doesn't include, for example, attorney's fees, unless a separate statute authority permits an award of such fees, or "a valid contract of stipulation provides for costs, or rules concerning damages permits recovery." Judge Rotenberg Educ. Ctr., Inc. v. Comm'r of the Dep't of Mental Retardation, 424 Mass. 430 , 468 (1997). Attorney's fees never were available under the pre-1993 version of Federal Rule of Civil Procedure 54(d) (see, for example, Marek v. Chesny, 473 U.S. 1, 7-8 (1985)), upon which the Massachusetts rule is based (see Waldman v. American Honda Motor Co., 413 Mass. 320 , 325 (1992)). Current Federal Rule 54(d)(1) makes the distinction between "costs" and "attorney's fees" explicit, with only the former being recoverable by the prevailing party as a matter of course.

Mr. Andrews seems to suggest that c. 40A, §17, authorizes an award of attorney's fees against the ZBA, provided he can show that it acted with gross negligence, bad faith or malice in rejecting his two petitions for zoning relief and enforcement. That's a misreading of §17. Section 17 contains no language authorizing awards of attorney's fees, or even costs for that matter. Instead, §17 merely imposes two limitations on Rule 54(d)'s automatic awards, to prevailing parties, of costs. First, §17 provides that "[c]osts shall not be allowed against [a zoning] board [of appeals] unless it shall appear to the court that the board . . . in making the decision appealed from acted with gross negligence, in bad faith or with malice." Second, §17 provides that "[c]osts shall not be allowed against the party appealing from the decision of the board . . . unless it shall appear to the court that said appellant . . . acted in bad faith or with malice in making the appeal to the court." Nowhere does §17 authorize, or even mention, awards of attorney's fees. Andrews thus can't collect his attorney's fees under §17.

That leaves Mr. Andrews's request for ordinary "costs." The Trust tries to avoid any liability for costs by claiming that, per the two provisions of §17 quoted in the preceding paragraph, only malicious zoning boards and appellants can be liable for costs. Again, §17 states only two exceptions to Rule 54(d)'s general rule that a "prevailing party" in Massachusetts civil litigation always gets its "costs." The Trust doesn't qualify for either §17 exception, so Rule 54(d) applies to the Trust without limitation.

The Trust and the ZBA next contest Mr. Andrews's status as a "prevailing party" in this action. After all, as Andrews points out, the Trust and the ZBA prevailed on a big issue at summary judgment, and won on the second of the two issues the parties tried in May 2019. But being the "prevailing party" under Rule 54(d) doesn't depend on a tally of wins and losses on legal issues. Instead, under Rule 54(d), the "'[p]revailing party' ordinarily means the party achieving a favorable judgment." Waxman v. Waxman, 84 Mass. App. Ct. 314 , 326 (2013). This Court hasn't entered a judgment in this case (the parties' tussle over fees and costs has intervened), but were the judgment to issue today, it would be favorable to Andrews: the judgment would vacate the two ZBA decisions that Andrews appealed to this Court and remand the case with instructions to the ZBA that it revoke the Trust's building permits for Amanda's Estates.

For these reasons, the Trust will be liable under Rule 54(d) for Mr. Andrews's "costs," but not his attorney's fees. The ZBA may share that liability if Andrews is able to prove that, "in making the decision[s] appealed from," the ZBA "acted with gross negligence, in bad faith or with malice." Issues of fact prevent the Court from making that determination at this time. But the Court's present rulings now beg the question: just what are Andrews's "costs," exclusive of his (unrecoverable) attorney's fees? The Court has no inkling. Thus, before it will entertain a second trial over the ZBA's liability for costs, the Court hereby ORDERS Mr. Andrews, consistent with Rule 54(d), to submit by October 17, 2019 an itemization, via "certificates, affidavits and vouchers," of the costs he seeks to recover from the ZBA and the Trust. That filing should enable all parties to ascertain whether further litigation over the ZBA's alleged "gross negligence, . . . bad faith or . . . malice" is worth it.

SO ORDERED.