Town of Brookfield v. Holdcraft

98 Mass.App.Ct. 1114

157 N.E.3d 99 (Table)

TOWN OF BROOKFIELD

v.John D. HOLDCRAFT.

19-P-1373

Appeals Court of Massachusetts.

Entered: October 21, 2020

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal arises from a series of proceedings in the Land Court concerning zoning enforcement actions against John D. Holdcraft relating to two properties in the town of Brookfield (town). The town filed complaints² in September 2017 alleging that Holdcraft illegally stored junk, debris, and salvage materials on the properties, in violation of its zoning bylaws, and that he violated cease and desist orders issued by the town. To resolve the complaints, the parties signed an agreement for judgment (judgment) that was approved by a judge on February 12, 2018. The judgment provided, among other things, that Holdcraft would bring the properties into compliance by removing all junk, debris, and salvage, no later than August 31, 2018. To ensure compliance, the judgment provided for inspections by the town.

On May 31, 2018, the town filed a complaint for contempt alleging that Holdcraft was in violation of the judgment. After a trial, on December 3, 2018, the judge entered a judgment (contempt judgment) that found Holdcraft had intentionally violated the judgment. The judge ordered Holdcraft to comply with the judgment, to pay $5,922.44 to the town for attorney's fees and costs, and, commencing January 1, 2019, to pay $100 per day per property for each day he failed to comply with the judgment.

The town filed a second complaint for contempt on January 29, 2019, alleging Holdcraft was in violation of the contempt judgment. The judge held hearings on the second contempt complaint on February 14 and March 14, 2019. Following each hearing, the judge issued orders (contempt orders) that found Holdcraft in violation of the judgment and the contempt judgment; the judge ordered a suspension of the daily fines from March 14, 2019, to March 31, 2019, due to weather conditions. At a hearing held on April 3, 2019, the judge ended the daily fines as to one of the properties based on the town's report that Holdcraft was in compliance as to that property. However, the judge increased the daily fine for the remaining noncompliant property to a rate of $200 per day.

Holdcraft filed a purported notice of appeal from the "April 3 order" on May 2, 2019.³ A further hearing was held on the second complaint for contempt on May 15, 2019. At that hearing the judge found that Holdcraft remained in contempt. Just prior to a hearing on June 5, 2019, Holdcraft brought the second property into compliance. On July 10, 2019, the judge held another hearing and issued an order for Holdcraft to pay $27,000 in fines and $13,187.76 in attorney's fees and costs to the town (fee order). Holdcraft filed a notice of appeal from the "order for payment of fines and attorneys' fees pursuant to judgment of contempt entered against him ... on July 10, 2019."

We first address Holdcraft's contention that this appeal pertains to the contempt judgment and the contempt orders, as well as the fee order. Rule 4 (a) of the Massachusetts Rules of Appellate Procedure, as amended, 464 Mass. 1601 (2013),⁴ requires any appeal from a judgment to be taken within thirty days of the entry of the judgment. See Pierce v. Hansen Eng'g & Mach. Co., 95 Mass. App. Ct. 713, 715 (2019) ; Standard Register Co. v. Bolton-Emerson, Inc., 35 Mass. App. Ct. 570, 571-572 (1993). Because Holdcraft did not timely appeal from any of the judgments of contempt, his claim, without citation to authority, that the "Land Court's actions and orders after December 3, 2018, are subject to this Appeal and should be reviewed" is unavailing. The only order properly before us is the fee order.⁵

A finding of contempt must be based on clear and convincing evidence of disobedience of a clear and unequivocal command. Birchall, petitioner, 454 Mass. 837, 852-853 (2009). Having found Holdcraft in contempt, the judge had the "discretion to formulate a remedy." Demoulas v. Demoulas Supermkts., Inc., 424 Mass. 501, 571 (1997). To that end, the judge awarded attorney's fees and costs to compensate the town, and assessed fines in order to obtain compliance from Holdcraft. "Unlike its criminal counterpart, civil contempt is not punitive but ‘intended to achieve compliance with the court's orders for the benefit of the [town].’ " Commonwealth v. Rape Crisis Servs. of Greater Lowell, Inc., 416 Mass. 190, 193 (1993), quoting Furtado v. Furtado, 380 Mass. 137, 141 (1980).

The fee order properly compensated the town for its costs and assessed fines for Holdcraft's repeated failure to comply with the judge's orders. See Ventresca v. Town Manager of Billerica, 68 Mass. App. Ct. 62, 65 (2007). Moreover, in the context of contempt proceedings, it was proper for the judge to utilize prospective, coercive fines for future violations to ensure compliance with his orders, and to double the fines when Holdcraft continued to resist compliance. See Labor Relations Comm'n v. Fall River Educators' Ass'n, 382 Mass. 465, 474 (1981). The fee order and fines were particularly appropriate where Holdcraft admitted to the judge that he had no intention of complying with the terms of the judgment when he signed it. Moreover, Holdcraft was less than forthright in claiming certain items of debris were for personal use. His blatant disobedience...