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17-P-341 Appeals Court

JOHN A. GIFFORD vs. ANDREW J. BURKE & another.1

No. 17-P-341.

Suffolk. December 6, 2017. - February 8, 2018.

Present: Milkey, Henry, & Wendlandt, JJ.

Contempt. Practice, Civil, Contempt, Appeal, Attorney's fees, 

Costs.

Civil action commenced in the Land Court Department on 

December 30, 2008.

A complaint for contempt, filed on July 20, 2016, was heard 

by Alexander H. Sands, III, J.

Michael J. Traft for the plaintiff.

Robert J. Cotton, pro se.

MILKEY, J. John A. Gifford and Debra F. Gifford, who are 

married, together held a fifty percent, undivided interest in 

waterfront property in Revere (property). In 2008, the Giffords 

filed a petition for partition in Land Court against their 

 

1 Robert J. Cotton, partition commissioner, was granted 

leave to participate in this appeal as an intervener. Andrew J. 

Burke did not participate in this appeal.
2

coowner, Andrew J. Burke. A Land Court judge appointed a 

partition commissioner (intervener Robert J. Cotton, henceforth, 

the commissioner) to assist the parties and the judge in 

resolving the matter. See G. L. c. 241, § 12. Nevertheless, 

the process did not go smoothly. Indeed, the case, together 

with related litigation spawned in the Land Court, the Superior 

Court, and the United States Bankruptcy Court, took a path that 

best can be described as tortuous.

The current appeal, which is the third one having come 

before this court, is limited in scope. In it, John Gifford 

appeals a contempt judgment that, in pertinent part, required 

him to pay certain fees and costs to the commissioner.2 We agree 

that the majority of the contested fees and costs are not 

recoverable, and we therefore vacate the contempt judgment and 

remand for further proceedings consistent with this opinion.

Background. We begin by summarizing only those milestone 

events relevant to the current appeal. In 2011, the Land Court 

judge ordered the Giffords to sell their share of the property 

to Burke and to pay off their mortgage on it. In an unpublished

memorandum and order issued on December 7, 2012, pursuant to our 

rule 1:28, that Land Court order was affirmed on appeal. 

 

2 As noted below, only John Gifford was the subject of the 

contempt judgment, because the proceedings involving Debra 

Gifford remained stayed as a result of pending bankruptcy 

proceedings. Debra Gifford is not a party to this appeal.
3

Gifford v. Burke, 83 Mass. App. Ct. 1101 (2012). After the 

Giffords failed to comply, Burke filed a contempt complaint, but 

the matter was stayed after each of the Giffords filed for 

bankruptcy protection. Once the bankruptcy of John Gifford 

concluded, the property was in fact conveyed to Burke and the 

mortgage was discharged. After some additional Land Court 

proceedings related to the bankruptcy, final judgment in the 

partition action entered on April 6, 2015 (2015 judgment).

In the 2015 judgment, the judge ordered the Giffords to pay 

the commissioner $30,635 within thirty days after the entry of 

the judgment. That amount represented 100% of the 

commissioner's then-outstanding fees and costs. The judgment 

also referenced the judge's order of the same date, which

included the following language relevant to the current appeal:

"If [the Giffords] fail to timely comply with this [o]rder, 

the [c]ommissioner may seek additional relief against [the 

Giffords] in order to compel such compliance, including, 

without limitation, the entry of a monetary judgment 

against [the Giffords] in the amount of the 

[c]ommissioner's unpaid legal bills and/or an order of 

contempt for non-compliance with this [o]rder, and [the 

Giffords] may be held liable for any further legal fees as 

may be incurred by the [c]ommissioner in connection with 

enforcing this [o]rder."

The Giffords filed a notice of appeal from the 2015

judgment on April 17, 2015 (second appeal). They challenged the 

judge's allocation to them of 100% of the commissioner's 

outstanding fees, arguing that the judge erred in not requiring 
4

Burke to pay a share of those fees. The Giffords also argued 

that the commissioner was not entitled to any fees for work done 

after they had paid off their mortgage.

Although the commissioner was not a party to the second 

appeal and never sought status as an intervener in the appeal, 

he submitted his own brief in support of Burke's position. He 

also participated in oral argument. A panel of the court once 

again ruled in Burke's favor in a memorandum and order pursuant 

to our rule 1:28, but summarily denied his request for appellate 

attorney's fees and double costs. Gifford v. Burke, 89 Mass. 

App. Ct. 1116 (2016). The commissioner made a parallel request 

to recover his own appellate attorney's fees and double costs, 

which was also denied.3 The rescript was entered on the Land 

Court docket on July 12, 2016, and the second appeal came to a 

close.

On July 20, 2016, the commissioner filed a complaint for 

civil contempt against the Giffords, because he still had not 

been paid the fees and costs covered by the 2015 judgment. 

Those fees long since have been paid and no longer are in 

dispute. In the contempt action, the commissioner also sought 

payment for the time he spent representing himself in the second 

 

3 Both Burke and the commissioner had argued that the second 

appeal was frivolous and pursued in bad faith, citing to G. L. 

c. 231, § 6F; Mass.R.A.P. 25, as appearing in 376 Mass. 949 

(1979); and Mass.R.Civ.P. 11(a), as amended, 456 Mass. 1401 

(2010).
5

appeal. Those requested fees and costs, which the Land Court 

judge and the parties referred to as "the Appeals Court 

[b]ills," totaled $17,619.51. According to the commissioner, 

the Giffords are liable for such fees and costs pursuant to the 

2015 judgment, because they constitute "further legal fees as 

may be incurred by the [c]ommissioner in connection with 

enforcing [the 2015 judgment]." On this same basis, the 

commissioner sought payment for his time and costs in pursuing 

his contempt action, which he valued at $6,750. The parties 

agreed that the contempt action should proceed only against John 

Gifford, because Debra Gifford's bankruptcy action remained 

pending. The judge eventually issued a contempt judgment that, 

inter alia, required John Gifford to pay the commissioner "the 

entirety of the Appeals Court [b]ills, to wit: $17,619.51 [and] 

the entirety of his legal fees in connection with the 

[c]ommissioner's [c]ontempt [a]ction, to wit: $6,750.00."4

Discussion. 1. The Appeals Court bills. For purposes of 

this appeal, we will assume arguendo that the 2015 judgment 

 

4 Monies to fund the Giffords' obligations to the 

commissioner were placed in escrow. Notwithstanding the 

pendency of this appeal, the judge ordered that $6,750 (for the 

commissioner's legal fees in the contempt action) be released to 

the commissioner from the escrow account. Although the Giffords 

acquiesced to the release of those funds, they did not thereby 

waive their right to argue that the money was not owed. Cf. PGR 

Mgmt. Co., Heath Properties v. Credle, 427 Mass. 636, 636 (1998)

(tenant separately appealed from order releasing to her landlord 

all funds held in escrow).
6

provided the commissioner valid grounds to seek reimbursement of 

the attorney's fees and costs he incurred in participating in 

the second appeal. In other words, we will assume that such 

fees and costs properly could be characterized as "further legal 

fees . . . incurred . . . in connection with enforcing [the 

final judgment]."5 Compare Howe v. Tarvezian, 73 Mass. App. Ct. 

10, 17-19 (2008) (where partition commissioners have incurred 

"unnecessary additional work and expense" in defending on appeal 

award by Probate and Family Court of their fees and costs, they 

may petition appellate court for their appellate fees and costs 

pursuant to G. L. c. 215, § 45).6 As noted, the commissioner 

already had sought his appellate fees and costs from this court

during the second appeal, albeit solely on the grounds that that 

appeal was frivolous. At that time, the commissioner did not 

claim that his appellate fees and costs independently were 

 

5 We note that the validity of this assumption is far from 

clear. Certainly, the commissioner had an interest in defending 

the amount of his fees, but only four of the fourteen pages of 

argument in the commissioner's brief in the second appeal dealt 

with that issue. The bulk of the appeal, and the commissioner's 

brief, dealt with what share of the commissioner's fees would be 

paid by the Giffords (as opposed to Burke). What legitimate 

interest the commissioner had with regard to that issue is not 

immediately apparent.

6 Under a different statutory provision, judges of the Land 

Court and Probate and Family Court may award "reasonable costs 

and charges of partition proceedings," which include "the fees 

of counsel [and] of the commissioners." G. L. c. 241, § 22. In 

Howe v. Tarvezian, 73 Mass. App. Ct. at 17, we ruled that that 

section does not address appellate attorney's fees and costs.
7

recoverable as "enforcement" costs under the 2015 judgment and, 

therefore, the court did not reach that issue.

Having failed to raise the current grounds for recovering 

his appellate fees and costs to the court during the second 

appeal, the commissioner appears to have assumed that he was 

free to raise such grounds on remand. That assumption is 

erroneous. One seeking to recover appellate fees and costs 

generally is required to make such a request to the appellate 

court. Yorke Mgmt. v. Castro, 406 Mass. 17, 19-20 (1989). See 

Nardone v. Patrick Motor Sales, Inc., 46 Mass. App. Ct. 452, 454 

(1999) ("Without a directive from this court, the [trial court] 

had no authority to award appellate attorney's fees and costs"). 

In fact, such a request is required to be made in the party's 

initial appellate brief. Fabre v. Walton, 441 Mass. 9, 10 

(2004). Having failed to make a timely request to this court to 

recover his appellate fees and costs based on the terms of the 

2015 judgment, the commissioner waived such a claim. See Beal 

Bank, SSB v. Eurich, 448 Mass. 9, 12 (2004); Haser v. Wright, 65 

Mass. App. Ct. 903, 903-904 (2005). Furthermore, a party, of 

course, can be barred from asserting an issue he timely failed 

to raise in an earlier proceeding regardless of whether that 

issue actually had been litigated in that proceeding. Cf. 

Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 

(2005) (distinguishing between "issue preclusion," which 
8

"prevents relitigation of an issue determined in an earlier 

action where the same issue arises in a later action, based on a 

different claim," and "claim preclusion," which "prevents 

relitigation of all matters that were or could have been 

adjudicated in the [prior] action" [quotations omitted]).

The judge therefore erred in awarding the commissioner 

reimbursement for any of the Appeals Court bills. Accordingly, 

the money held in escrow to secure payment of the Appeals Court 

bills should be returned to John Gifford.

2. The fees and costs in the contempt action. As the 

commissioner has acknowledged, much of the fees and costs that 

he incurred in prosecuting the contempt action related to his 

efforts to collect the Appeals Court bills. Because the 

commissioner at that point had forfeited any rights to recover 

his appellate fees and costs for the second appeal, the judge 

erred in allowing the commissioner additional fees and costs for 

trying to collect them.

However, some share of the fees and costs that the 

commissioner incurred in bringing the contempt action related to 

the fact that the Giffords at that time had not paid the 

original outstanding fees and costs required by the 2015

judgment.7 We remand this matter to the Land Court for a 

 

7 John Gifford argues that the entire contempt complaint was 

filed prematurely and that his motion to dismiss that complaint 
9

redetermination of how much of the $6,750 that the commissioner 

has been paid for prosecuting the contempt action is recoverable 

on this basis, with the balance to be refunded to John Gifford.

3. Attorney's fees and costs in this appeal. Both parties 

have requested their appellate attorney's fees and costs in the 

current appeal. The Giffords do so on the ground that the 

commissioner's efforts to enforce the contempt judgment were 

frivolous. We deny that request as unfounded.

For his part, the commissioner has requested his current 

appellate attorney's fees and costs as enforcement costs 

recoverable under the 2015 judgment. To the extent that the 

commissioner's current fees and costs relate to his fruitless 

quest to recover payment for his earlier appellate fees and 

costs,8 he is not entitled to recovery. However, as discussed 

above, the commissioner has prevailed in this appeal to the 

limited extent of upholding an as-yet-undetermined portion of 

 

therefore should have been allowed. However, at the time he 

filed that motion to dismiss (August 15, 2016) -- even under his 

theory of when payment under the 2015 final judgment was due --

the deadline to make payment had run. It follows that even if 

the contempt action initially was premature, it was no longer 

so. Moreover, to the extent that a contempt action is a 

disfavored means of collecting a debt, we note that the judge 

specifically invited the commissioner to file such an action 

here. Finally, the alacrity with which the commissioner acted 

in filing his contempt complaint must be seen in the context of 

his having been owed a large sum for a lengthy period of time.

8 The bulk of the commissioner's appellate brief addresses 

the Appeals Court bills and his efforts to recover payment on 

those bills.
10

the fees and costs he incurred in bringing the contempt 

proceeding. To that limited extent, he might be entitled to a 

share of his reasonable appellate attorney's fees and costs 

incurred in this appeal. In accordance with the procedure 

specified in Fabre v. Walton, 441 Mass. at 10-11, the 

commissioner may, within thirty days, submit a statement of his 

attorney's fees and costs related only to that portion of this 

appeal on which he prevailed (together with argument on why he 

believes he is entitled to such fees and costs).9 Within fifteen 

days thereafter, John Gifford may submit an opposition to the 

amount requested.

The judgment on the commissioner's complaint for civil 

contempt is vacated and the case is remanded to the Land Court 

for further proceedings consistent with this opinion.

So ordered.

 

9 We have given the commissioner thirty days rather than 

fifteen days to submit his application so that the parties have 

sufficient time to resolve the matter should they wish to do so. 

The limited issues that remain in dispute are: (1) how much the 

commissioner will be allowed to retain of the $6,750 already 

paid to him from the escrow account, and (2) whether the 

commissioner is entitled to a portion of his attorney's fees and 

costs incurred in the current appeal, and, if so, how much he is 

owed.