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22-P-974 Appeals Court

ERIC PORTER vs. BOARD OF APPEAL OF BOSTON & another.1

No. 22-P-974.

Suffolk. September 11, 2023. – January 18, 2024.

Present: Milkey, Blake, & Sacks, JJ.

Zoning, Appeal, Board of appeals: decision, Person aggrieved, 

Variance, Bond. Surety. Practice, Civil, Appeal, Bond, 

Zoning appeal, Standing, Attorney's fees.

Civil action commenced in the Superior Court Department on 

August 17, 2017.

Following review by this court, 99 Mass. App. Ct. 1123 

(2021), a motion for an order to pay fees from a surety bond was 

heard by Maureen Mulligan, J.

Eric Porter, pro se.

Jose C. Centeio for Fung & Hsu Realty Associates, LLC.

BLAKE, J. Eric Porter filed a complaint in the Superior 

Court challenging a decision of the Board of Appeal of Boston

(board) that granted variances to the defendant Fung & Hsu 

1 Fung & Hsu Realty Associates, LLC.
2

Realty Associates, LLC (Fung & Hsu). The variances permitted 

Fung & Hsu to construct an addition on a residential building in 

the Allston section of Boston. After a trial in the Superior 

Court, the judge (trial judge) concluded that Porter lacked 

standing and dismissed the complaint with prejudice. After 

Porter filed a notice of appeal (first appeal), Fung & Hsu filed 

a motion to compel Porter to post a surety bond as a condition 

thereof. The trial judge allowed the motion and issued an order

requiring Porter to post a surety bond in the amount of $25,000

(bond order). 

Porter applied for a bond through United Casualty and 

Surety Insurance Company (bond company); thereafter, he posted 

the bond2 and prosecuted the first appeal. In an unpublished 

memorandum and order issued pursuant to our Rule 23.0, a panel 

of this court affirmed the judgment. See Porter v. Board of 

Appeal of Boston, 99 Mass. App. Ct. 1123 (2021).3 In a footnote

rejecting Porter's challenge to the bond order, the panel noted 

2 The condition of the bond was "that if [Porter] shall 

prosecute the case with effect and shall indemnify and save 

harmless Fung and Hsu . . . in whose favor the [board] decision 

was rendered, from damages and costs which he or they may 

sustain in case the decision of said board is affirmed then this 

obligation to be void; otherwise to remain in full force, power 

and virtue." 

 

3 Porter's request for further appellate review was denied. 

See Porter v. Board of Appeal of Boston, 488 Mass. 1102 (2021).
3

that "we see no abuse of discretion in the [trial] judge's 

allowance of the defendant's request for an appeal bond in the 

amount of $25,000." Id. However, the panel expressly declined 

to award the appellate attorney's fees and costs that Fung & Hsu

had requested on the ground that Porter's appeal was frivolous. 

See id. 

After the rescript issued, Fung & Hsu moved for an "order 

to pay . . . Fung & Hsu . . . from the surety bond" (motion).

Fung & Hsu argued that because a panel of this court upheld the 

bond order, and Fung & Hsu successfully defended the first 

appeal, it was entitled to have the $25,000 from the bond 

disbursed to it. A different Superior Court judge (motion

judge) allowed the motion. In her decision and order

(disbursement order), the motion judge limited her role to 

"decid[ing] the amount of damages and losses flowing from the 

appeal" (quotation omitted). She then authorized the 

disbursement of the bond in the amount of $23,979.99, an amount 

representing the attorney's fees and costs that Fung & Hsu 

incurred in successfully defending the first appeal.4 Porter

timely appealed that order. For the reasons that follow, we

vacate the disbursement order. 

4 Porter's motion to stay the disbursement order was denied 

by a single justice of this court.
4

Discussion. In addition to challenging the disbursement 

order, Porter appears to be claiming that the trial judge did 

not have the authority to enter the bond order.5 Because Porter 

did not raise the issue whether the trial judge had the 

authority to enter the bond order in his opposition to the 

motion to disburse the bond, that claim is waived. See Imbrie

v. Imbrie, 102 Mass. App. Ct. 557, 575-576 (2023). Moreover, 

the panel in the first appeal already concluded that issuance of 

the bond order was not an abuse of the trial judge's discretion. 

See Porter, 99 Mass. App. Ct. at 1123 n.3. Nonetheless, some 

discussion of the bond order is necessary as a framework to our 

analysis of the disbursement order.

1. Statutory authority for the bond order. In its motion, 

Fung & Hsu cited two statutes in support of its requested 

relief. The first is the Boston zoning enabling act, St. 1956, 

c. 665, § 11, as amended by St. 1993, c. 461, § 5 (§ 11). 

Section 11 provides, in part, that:

5 Fung & Hsu contend that Porter lacked standing to appeal 

the disbursement order because the bond company paid the claim. 

We disagree. First, it appears uncontested that the bond 

company paid the funds to Fung & Hsu, and that Porter reimbursed 

the bond company. In addition, "[t]he scope of a surety's 

liability is determined by the intent of the parties." Wood v. 

Tuohy, 67 Mass. App. Ct. 335, 341 (2006). Here, the bond 

agreement required Porter to indemnify the bond company, and 

thus Porter can demonstrate the potential for injury sufficient 

to establish standing. See Sullivan v. Chief Justice for Admin. 

& Mgt. of the Trial Court, 448 Mass. 15, 21 (2006). Cf. Mass. 

R. Civ. P. 65.1, as appearing in 483 Mass. 1401 (2019). 
5

"[a]ny person aggrieved by a decision of [the board] . . . 

may appeal to the superior court . . . . The court may in 

its discretion require the person or persons so appealing 

to file a bond with sufficient surety, for such a sum as 

shall be fixed by the court, to indemnify and save harmless 

the person or persons in whose favor the decision was 

rendered from damages and costs which . . . they may 

sustain in case the decision of said board is affirmed"

(emphasis added).

Notably, § 11 further provides that "costs shall not be allowed 

against the party appealing from the decision of the board 

unless it shall appear to the court that said party acted in bad 

faith or with malice in appealing to the court." Because § 11 

applies only to an appeal of the board's decision to the 

Superior Court, it does not by its terms govern here. See

Schlager v. Board of Appeal of Boston, 9 Mass. App. Ct. 72, 75 

(1980).

We therefore turn to the alternative source of authority 

cited in Fung & Hsu's motion. That authority, now appearing at 

G. L. c. 231, § 117 (§ 117),6 authorizes a judge to enter 

interlocutory orders, such as orders requiring surety bonds, to 

protect parties' rights pending appeal.7 See Broderick v. Board 

6 Section 117 provides that "[a]fter an appeal has been 

taken from a final judgment of the superior court . . . until 

such order has been modified or annulled, the justice of the 

superior court by whom the final judgment appealed from was 

made, . . . may make any proper interlocutory orders, pending 

such appeal."

7 The decision in Broderick cited G. L. c. 214, § 22, but 

that provision was replaced by G. L. c. 231, § 117, as appearing 
6

of Appeal of Boston, 361 Mass. 472, 475-476 (1972) (citing

predecessor of § 117). We construe the bond order entered here 

to be authorized pursuant to § 117 and conclude that the factors

outlined in Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 

64-65 (1971), governing the setting of a bond under § 11, should 

be considered in setting a bond under § 117. These include 

consideration of the purpose of a bond, which is "(a) to 

discourage frivolous and vexatious appeals from the decisions of 

the Boston board of appeal, but not (b) unreasonably to 

prohibit, directly or indirectly (by requiring too large a 

bond), meritorious appeals from allegedly illegal variances" 

(quotation and citation omitted). Damaskos, supra at 64.8 

"Without a careful balancing of interests . . . [someone] with a 

meritorious appeal might be barred from bringing a claim if 

[that person] is without resources to pay for, and provide 

collateral for, a substantial bond." Feldman v. Board of Appeal

of Boston, 29 Mass. App. Ct. 296, 298 (1990), citing Damaskos, 

supra at 58.

in St. 1973, c. 1114, § 202. See Schlager, 9 Mass. App. Ct. at 

76 n.10. Our decision does not turn on this change.

8 We observe that there is a pending appeal about whether 

the Damaskos standard has been changed by Marengi v. 6 Forest 

Rd. LLC, 491 Mass. 19 (2022). See Shoucair v. Pure Oasis, LLC,

SJC-13526. However, that issue is not before us in this appeal.
7

2. The bond. The trial judge ruled that Porter lacked 

standing to challenge the board's grant of a variance, and that 

even if he had standing, his challenge to the board's decision 

on the merits would fail. Some of the language that the trial 

judge used suggested that she did not see the case as a close 

call. For example, she characterized some of Porter's 

"accusations" as "wild," and found the board's decision to be 

"clear and well-reasoned." Without question, the trial judge 

had the discretion to order Porter to file a surety bond "in an 

amount which is sufficient to protect the interests of [Fung & 

Hsu] and is otherwise appropriate." Schlager, 9 Mass. App. Ct. 

at 77.

In requesting a $25,000 bond, Fung & Hsu did not explain 

why a bond in that amount was justified. Rather, it stated only 

that this was the maximum bond amount permitted by § 11 for a 

project of this size. In turn, the trial judge offered no 

explanation of why she was entering the bond order or the 

reasons for the amount. However, it seems evident that she 

believed that it was appropriate for Fung & Hsu to be provided 

security for the potential compensable damages and costs it 

faced in defending what the trial judge thought was a weak 

appeal. Notably, however, the trial judge did not find in this 

case that Porter was a vexatious litigant or that his claims 
8

were frivolous. Such findings may bear on, among other things,

the amount of the bond. See Damaskos, 359 Mass. at 64.

The motion judge recognized that in requiring a litigant to 

post a bond, a judge must perform a balancing test of 

"inhibiting vexatious and frivolous appeals . . . with not 

unreasonably restraining meritorious appeals." She asserted 

that "[this] analysis was already performed by the [trial] judge 

who decided to issue the bond and determined its amount." On 

this record, it is not at all clear that the motion judge's 

observation was correct. For example, there is nothing in the 

record to suggest that in ordering that the bond be posted, the 

trial judge considered Porter's ability to post the bond, 

whether the amount of the bond was necessary to protect Fung & 

Hsu's interests, and the potential that the requirement to post 

the bond would chill a nonfrivolous appeal. See Schlager, 9 

Mass. App. Ct. at 76-77.

Having concluded that the trial judge conducted the 

analysis set forth in Damaskos, the motion judge limited her 

consideration "to decid[ing] the amount of 'damages and losses 

flowing from the appeal.'" In other words, the motion judge 

accepted Fung & Hsu's position that it was automatically 

entitled to disbursement of the bond if it prevailed in the 
9

first appeal, and that the only question before her was the 

amount to be paid.9 This was error.

The purpose of an appeal bond is to provide security to the 

appellee for compensable damages and costs should it prevail in 

the appeal. See N-Tek Constr. Servs., Inc. v. Hartford Fire 

Ins. Co., 89 Mass. App. Ct. 186, 191 (2016). This begs the 

question what damages and costs are compensable in that event. 

Although Fung & Hsu in part sought reimbursement for cost 

overruns it claimed had resulted from the first appeal, the 

motion judge rejected that claim, and Fung & Hsu has not argued 

that the judge erred in doing so. Instead, the motion judge 

appears to have disbursed money from the bond based on the 

attorney's fees incurred by Fund & Hsu in defending the first

appeal. But whether a winning litigant is entitled to 

attorney's fees is governed by the so-called "American Rule." 

John T. Callahan & Sons, Inc. v. Worcester Ins. Co., 453 Mass. 

447, 449 (2009). Under this rule, in the absence of a statute, 

9 The motion judge observed in a footnote that there were 

three other zoning cases in which Porter was the plaintiff. 

These facts alone hardly established that Porter's claim here 

was frivolous or that he is a vexatious litigant. Indeed, in 

one of the referenced cases, Porter was successful in obtaining 

reversal of the trial court judge's decision that he lacked 

standing. See Porter v. Board of Appeal of Boston, 99 Mass. 

App. Ct. 240 (2021). And that leaves aside that determining 

standing in a zoning appeal can be quite complex. The motion 

judge simply labeled Porter a "habitual appealer of zoning 

decisions" without a concomitant analysis. See Montgomery v. 

Selectmen of Nantucket, 95 Mass. App. Ct. 65, 71-72 (2019).
10

court rule, or case law, successful litigants are responsible 

for their own attorney's fees and expenses. See Preferred Mut.

Ins. Co. v. Gamache, 426 Mass. 93, 95 (1997). The bond order 

served to provide Fung & Hsu a means to secure payment of its 

appellate attorney's fees, but it did not alter the framework 

for determining whether it was entitled to such fees.

Importantly, determining "whether an appeal is frivolous is 

left to the sound discretion of the appellate court" (citation 

omitted). Dacey v. Burgess, 491 Mass. 311, 319 (2023). Thus, 

whether Fung & Hsu was entitled to its attorney's fees in 

defending the earlier appeal was not an issue for the motion 

judge to consider. In fact, Fung & Hsu asked this court for 

such fees in the first appeal, and a panel of this court 

declined that request. That should have ended the matter to the 

extent that Fung & Hsu's request for disbursement of the bond 

was based on such fees. Given that the motion judge rejected 

Fung & Hsu's only other basis for disbursing the bond (the 

claimed cost overruns), the disbursement order cannot stand.

Conclusion. The order allowing the motion for an order to 

pay Fung & Hsu from the surety bond is vacated. A new order 

shall enter requiring Fung & Hsu to pay to Porter the sum of

$23,979.99 within thirty days. Fung & Hsu's request for 

attorney's fees and costs incurred in the current appeal is 

denied.
11

So ordered.