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Gifford v. Burke

Appeals Court of Massachusetts, Suffolk

February 8, 2018

JOHN A. GIFFORD
v.
ANDREW J. BURKE & another.[1]

          Heard: December 6, 2017.

         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.

          Present: Milkey, Henry, & Wendlandt, JJ.

          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 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 In an unpublished memorandum and order issued on December 7, 2012, pursuant to our rule 1:28, that Land Court order was affirmed on appeal. 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 Burke to pay a share of those fees. The Giffords also argued that the ...


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