T & D VIDEO, INC. [Note 1] vs. CITY OF REVERE & others. [Note 2]

MARSHALL, C.J. Title 42 U.S.C. § 1988(b) (2006) provides in part that a court may, in its discretion, award attorney's fees to a "prevailing party," other than the United States, in a proceeding to enforce a provision of 42 U.S.C. § 1983 (2006). [Note 3] In

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2001, the United States Supreme Court explained that a "prevailing party" is one who obtains a "judicially sanctioned change in the legal relationship of the parties," and that "enforceable judgments on the merits" and "court-ordered consent decrees" may permit an award of attorney's fees. Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598, 604, 605 (2001) (Buckhannon). [Note 4] Six years later, in Sole v. Wyner, 127 S. Ct. 2188, 2196 (2007) (Sole), the Court elaborated further that a party "who gains a preliminary injunction does not qualify for an award of counsel fees under § 1988(b) if the merits of the case are ultimately decided against her." The corollary of this ruling is that a party who obtains a preliminary injunction (trial or appellate) may be required to await further developments in the case to clarify whether it is a "prevailing party" for Buckhannon purposes. As the Sole Court noted, the "tentative character" of the preliminary injunction, where the litigation must continue "to definitively resolve the controversy," makes a fee award "at the initial stage premature." Id. at 2195. [Note 5]

The issue in this appeal is whether the plaintiff, T & D Video, Inc. (T & D), which in 2002 obtained permanent injunctive relief in a final judgment in the Superior Court, is eligible for an award of attorney's fees for its successful defense in 1994-1996 against the city of Revere's (city's) interlocutory appeals from a preliminary injunction, where T & D did not request those fees. Instead, T & D sought its interlocutory appellate (and other) attorney's fees for the first time in the Superior Court in 2003 after final judgment entered in its favor. In 2004, a judge in the Superior Court granted T & D its fees and costs

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pursuant to 42 U.S.C. § 1988(b), and G. L. c. 12, § 11I, see note 7, infra, including in the award T & D's fees and costs for defending against the city's interlocutory appeals in 1994-1996. The Appeals Court vacated the award, holding in part that any request for fees incurred on appeal to the Supreme Judicial Court should have been submitted in this court. See T & D Video, Inc. v. Revere, 66 Mass. App. Ct. 461, 478 (2006), cert. denied, 127 S. Ct. 2905 (2007). We granted T & D's application for further appellate review on that issue.

For reasons we shall explain, we conclude that T & D is eligible for its interlocutory appellate attorney's fees. We also take this opportunity to clarify the Massachusetts procedure for requesting interlocutory appellate attorney's fees and costs under 42 U.S.C. § 1988(b) and similar Federal fee-shifting statutes. See note 4, supra.

1. Background. In November, 1994, owing to difficulties that it experienced in obtaining permission from the city to open an "adult" video store in Revere, T & D commenced an action in the Superior Court against the city, claiming, inter alia, that the city's "adult entertainment" zoning ordinances [Note 6] violated T & D's rights to protected expression under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights, and violated 42 U.S.C. § 1983 and G. L. c. 12, §§ 11H and 11I (Massachusetts act). [Note 7] T & D sought and obtained in the Superior Court a preliminary injunction restraining enforcement of the ordinances against it. The

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city filed a petition for relief from the injunction pursuant to G. L. c. 231, § 118, first par., [Note 8] which a single justice of the Appeals Court denied. The city also appealed from the Superior Court judge's preliminary injunction pursuant to G. L. c. 231, § 118, second par. [Note 9] In February, 1995, this court granted the city's application for direct appellate review and, in September, 1996, affirmed the Superior Court judge's order granting the preliminary injunction. See T & D Video, Inc. v. Revere, 423 Mass. 577, 583 (1996).

Following discovery, T & D moved for summary judgment in the Superior Court, which was denied by a different judge in November, 2001. The case then proceeded to a jury-waived trial before a third judge in the Superior Court. In October, 2002, that judge concluded that enforcement of the city's adult entertainment ordinances violated the constitutional rights of T & D to engage in the sale of nonobscene "adult" videotapes, and entered an order permanently enjoining the city from enforcing the ordinances against T & D. In January, 2003, T & D filed a motion in the Superior Court, as a "prevailing party" under "both federal and state law," requesting attorney's fees and costs in the total amount of $1,163,233.28. [Note 10] T & D's request included fees and costs associated with its defense of the city's appeals from the preliminary injunction in both the Appeals Court and in this court, identifying the amount of those fees and costs in detailed daily billing records submitted by T & D's counsel, but without specifying the total amount in either court. [Note 11] In February, 2004, the judge awarded T & D

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attorney's fees and costs in a total amount of $915,027, but did not specify the portion of the award, if any, that related to the city's appeals from the preliminary injunction.

The city appealed from the final judgment in the Superior Court on the merits, and from the award of attorney's fees and costs to T & D. The Appeals Court affirmed the judgment on the merits. See T & D Video, Inc. v. Revere, 66 Mass. App. Ct. 461, 474 (2006). The court, however, disagreed with the judge's calculation of T & D's attorney's fees and costs and vacated so much of the order as had awarded those fees and costs, id. at 484, and remanded the matter to the Superior Court for recalculation of T & D's fees and costs. Id. [Note 12] The Appeals Court also concluded, without briefing or argument, that T & D could

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recover none of its attorney's fees and costs related to its defense against the city's interlocutory appeal to this court, holding that any request for fees in connection with that appeal "should have been submitted" to this court, which, it noted, "awards attorney's fees where appropriate in its own cases, and has procedures for doing so." Id. at 478. [Note 13], [Note 14] T & D petitioned for a rehearing in the Appeals Court solely on the issue of its interlocutory appellate attorney's fees, which was denied.

Both parties applied for further appellate review. In the city's application, which we denied, it challenged the decision of the Appeals Court on the merits, and further claimed the Appeals Court should have denied "in its entirety" T & D's request for attorney's fees and costs. In T & D's application, which we granted, T & D sought review only of the denial of its appellate attorney's fees pertaining to the city's 1994-1996 appeals from the preliminary injunction. [Note 15] In its application, T & D asserted that the Appeals Court's decision on this point misconstrued the relevant law, arguing that there is "no basis under [42 U.S.C.] § 1988 to recover fees relating to a preliminary injunction while the merits of the underlying case are yet undecided," citing Buckhannon and other Federal cases. [Note 16] It also argued that, at the time of the interlocutory appeals, "it was not mandatory

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that requests for appellate legal fees be made to the appellate court in the parties' briefs," citing Fabre v. Walton, 441 Mass. 9 (2004).

2. Discussion. We first address the appropriateness of awarding T & D its interlocutory appellate attorney's fees and costs under 42 U.S.C. § 1988(b), and then outline the procedure for the request for, and award of, such fees and costs in the future.

As noted earlier, 42 U.S.C. § 1988(b) authorizes a court to award attorney's fees and costs to a "prevailing party," including attorney's fees incurred on appeal. See Buckhannon, supra at 604; Powell v. Alexander, 391 F.3d 1, 24 (1st Cir. 2004) (allowing plaintiff's motion for reasonable attorney's fees and costs of appeal pursuant to 42 U.S.C. § 1988[b]). There is no question that T & D is a "prevailing party" eligible for an award of attorney's fees and costs: it has obtained a permanent injunction enjoining enforcement of the city's "adult entertainment" ordinances against it. See Buckhannon, supra; Staley v. Harris County, 485 F.3d 305, 314 (5th Cir. 2007) (party who obtained permanent injunction in trial court was "prevailing party" entitled to attorney's fees); Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 835-836 (6th Cir. 2005) (same). See also T & D Video, Inc. v. Revere, 66 Mass. App. Ct. 461, 475 (2006) ("That [T & D] is the prevailing party here is not disputed").

The city argues, however, that, in 1996, when this court affirmed the order of the Superior Court granting T & D a preliminary injunction, T & D was a "prevailing party" under the then prevailing "catalyst test," [Note 17] and that T & D's failure to request its appellate attorney's fees and costs in its 1995 brief to this court was a "clear waiver" of that claim. Buckhannon and its progeny, however, "must be given full retroactive effect in all cases still open on direct review." Newell v. Department of Mental Retardation, 446 Mass. 286, 303 n.31 (2006), quoting

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Toms v. Taft, 338 F.3d 519, 530 (6th Cir. 2003). Buckhannon and Sole govern our resolution of this appeal.

The Appeals Court, which did not have the benefit of Sole, supra, rejected T & D's petition for rehearing on the issue of its interlocutory appellate attorney's fees for two reasons. First, it held that T & D "prevailed" before this court, and T & D's "status as a prevailing party in that appeal became fixed when the court returned its decision regardless of what might happen in subsequent proceedings regarding a permanent injunction." This is contrary to Buckhannon and Sole. See Sole, supra at 2196; Buckhannon, supra at 604-605.

The Appeals Court gave a second reason, in its view of "greater importance," pertaining not to the timing of T & D's fee request, but rather its "location." The Appeals Court noted that it was "not persuaded that it is the business either of the Appeals Court or of a trial court to pass upon fee requests pertaining to proceedings in the Supreme Judicial Court." We agree with the Appeals Court that the appropriate forum for such a request is here, because we are in "a far better position to evaluate the worth of the appellate work than the trial judge." Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989). The question, however, is whether, by failing to request its appellate attorney's fees and costs from this court in 1995, T & D waived its right to obtain those fees and costs as the prevailing party. The answer to that question is "no."

The fee request at issue in this appeal is based on a Federal statute, 42 U.S.C. § 1988(b). The procedure for requesting fees and costs, however, is governed by Massachusetts law. See Society of Jesus of New England v. Boston Landmarks Comm'n, 411 Mass. 754, 756-757 (1992); Draper v. Town Clerk of Greenfield, 384 Mass. 444, 449, 425 (1981), cert. denied sub nom. Draper v. Prescott, 456 U.S. 947 (1982). The Massachusetts procedure for requesting appellate attorney's fees and costs was settled in Fabre v. Walton, 441 Mass. 9 (2004), which held for the first time that parties "must" request such fees and costs in their appellate briefs. Id. at 10. In so doing, the Fabre court clarified that the admonition in Yorke Mgt. v. Castro, supra at 20, in effect when the city pursued interlocutory appeals in 1994-1996, that parties "should" request attorney's fees and

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costs in their appellate brief, was mandatory, not discretionary. [Note 18] T & D's request does not come too late. [Note 19] It may submit a request for its 1994-1996 appellate attorney's fees in this court and in the Appeals Court as explicated in Fabre v. Walton, supra at 10-11. [Note 20]

We now clarify the procedure for parties seeking interlocutory appellate attorney's fees and costs under 42 U.S.C. § 1988(b) and other similar Federal fee-shifting statutes. See note 4, supra. [Note 21] In fee requests filed pursuant to Federal fee-shifting statutes after the date of this opinion, a party seeking interlocutory appellate attorney's fees and costs must, consistent with Fabre v. Walton, supra, note its request in any interlocutory appellate brief, thereby giving notice to the appellate court and all other parties that it intends to seek fees and costs related to the interlocutory appeal in the event it is later determined to be a "prevailing party," as explicated by Buckhannon and Sole. [Note 22] See Sole, supra at 2196; Buckhannon, supra at 603-605.

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If a party later becomes a "prevailing party" in the trial court, that party must, within thirty days of the judgment or other action in the trial court judicially sanctioning a change in the legal relationship of the parties, Buckhannon, supra at 604-605, file an application for attorney's fees and costs, with appropriate supporting materials, in the trial court and in any appellate court for which it intends to seek its interlocutory appellate fees. If the nonprevailing party appeals from the judgment or other judicial action in the trial court, it may file a motion to stay all assessments of fees and costs in both the trial court and in any appellate court where fees are sought. [Note 23] It shall then become the obligation of the "prevailing party" to move to lift any stay if the appeal is not pursued or when its "prevailing party" status is affirmed in subsequent proceedings. If the "prevailing party" fails to file a motion to lift any stay obtained by the nonprevailing party within thirty days of the date on which it became entitled to do so, any requests for attorney's fees and costs shall, except for good cause shown, be deemed waived.

If a party later becomes a "prevailing party" for the first time in an appellate court, the "prevailing party" must, within thirty days of the date of the appellate court rescript, file an application for attorney's fees and costs, with appropriate supporting materials, in both that appellate court in accordance with Fabre v. Walton, supra, and in the trial court, if it intends to seek attorney's fees and costs incurred in proceedings in the trial court.

3. Conclusion. Within thirty days of the date of the rescript, T & D may file in this court an application for

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its attorney's fees and costs relating to its 1995-1996 defense in this court of the city's appeal from the preliminary injunction, with appropriate supporting materials. See Fabre v. Walton, supra. T & D also has sought attorney's fees and costs in connection with this appeal. Its application for those fees and costs shall be filed at the same time. Id.

With respect to appellate attorney's fees and costs T & D may have incurred opposing the city's direct appeal in the Appeals Court, T & D may apply for such fees and costs from the Appeals Court. See Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Comm'n Against Discrimination, 449 Mass. 675, 688-689 (2007). At the same time T & D may apply in the Appeals Court for any attorney's fees and costs it may have incurred opposing the city's 1994-1995 interlocutory appeals in that court: for the same reasons explained above that T & D did not waive its right to seek fees and costs for the interlocutory appeal to this court, it also did not waive the right to seek fees and costs for the interlocutory appeals in the Appeals Court.

So ordered.