Opinion
13-P-1558
12-11-2014
GREEN LANDSCAPES, LLC v. CITY OF WORCESTER.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, the city of Worcester, appeals from: (1) a judgment entered after a bench trial, which found the defendant was responsible for assessment and remediation of approximately four acres of land currently owned by the plaintiff (the site); (2) a judgment awarding attorney's fees and costs to the plaintiff; and (3) an order denying the defendant's motion to set aside the judgment. We affirm.
The judge clarified on October 18, 2013, that the order requiring the defendant to assess and remediate "shall be read to mean the disposal site of ap[p]roximately 4.3 acres as currently delineated by the LSP and approved by Mass DEP" as opposed to the entire site. On the basis of that clarification and the plaintiff's representations at oral argument, we understand that, in affirming the judgment, it is the incinerator ash attributed to the defendant that the defendant will be required to remediate, and not the surface debris deposited by others, which, apparently, is located primarily outside the designated contaminated area.
Discussion. Finding that the defendant is a responsible party. The defendant argues that the judge's finding that the defendant is a responsible party was clearly erroneous. This argument lacks merit. The Superior Court judge found that the defendant was a responsible party for two different reasons. The defendant seems to argue that in reaching those conclusions the judge credited the wrong testimony and made the wrong inferences. However, the judge as finder of fact is in the "best position to judge the weight and credibility of the evidence [and] . . . [w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997) (quotation marks and citations omitted). Here, the judge detailed in his findings of fact what evidence he credited and the inferences that he drew from that evidence. There is no basis to conclude any of these findings was clearly erroneous.
First, the judge found that the defendant was an operator of the site when the hazardous material was stored or disposed of and, second, the judge found that the defendant used the site for the disposal of hazardous materials and was responsible for or arranged for the transport of hazardous materials at the site. See G. L. c. 21E, § 5(a)(2), (3), (4).
The defendant makes a similar argument concerning its laches defense. The judge credited the testimony of the plaintiff's witness and based on that testimony concluded there was no unreasonable delay. The judge further noted that the defendant did not prove that any delay worked to the defendant's disadvantage. There is no basis to conclude the judge's finding that the defendant failed to establish the affirmative defense of laches was clearly erroneous. See AW Chesterton Co. v. Massachusetts Insurers Insolvency Fund, 445 Mass. 502, 517 (2005) ("[A] judge's finding as to laches will not be overturned unless clearly erroneous"). See also G.E.B. v. S.R.W., 422 Mass. 158, 166 (1996) (the defendant has the burden of proof for a laches defense). As a result, there is no need to address the question whether a laches defense is available under this statute.
Other responsible parties/attorney's fees and costs. The defendant argues that it cannot be held liable under G. L. c. 21E, § 5, because there are other responsible parties and that attorney's fees and costs cannot be assessed against it because the plaintiff is partially at fault.
Contrary to the defendant's assertion, the judge concluded that the only reason the plaintiff had been liable to pay any remediation and assessments costs was because of its ownership status. As a result, the plaintiff is not responsible for contribution and may receive attorney's fees and costs pursuant to G. L. c. 21E, § 15. See Martignetti v. Haigh-Farr, Inc., 425 Mass. 294, 319-320 (1997). Further, any liable party is jointly and severally liable for a claim under G. L. c. 21E, § 5, to a nonliable plaintiff. See Commonwealth v. Boston Edison Co., 444 Mass. 324, 344 (2005) ("[T]he third paragraph of § 4 permits a nonliable plaintiff to collect the entire amount of its response costs jointly and severally"). There was no error in assigning full liability for the contamination and assessing attorney's fees and costs against the defendant.
Alternatively, even if the judge had found that the plaintiff was partially responsible, an award of attorney's fees and costs pursuant to G. L. c. 21E, § 4A, would be proper because the plaintiff met the statutory requirements of sending a notification making a demand that the defendant take responsibility for the assessment and remediation and the defendant did not respond to that demand. See G. L. c. 21E, § 4A(d)(1), inserted by St. 1992, c. 133, § 294 ("[T]he court shall award the plaintiff its litigation costs and reasonable attorneys' fees if the plaintiff shows, and the court finds, that the person against whom the civil action is brought is liable and: [1] failed without reasonable basis to make a timely response to a notification pursuant to this section . . ."); Buddy's Inc. v. Saugus, 62 Mass. App. Ct. 256, 2 58 (2004) ("Under § 4A, even those who are adjudged partially responsible for a release of hazardous materials may recover awards of attorney's fees and costs if statutory conditions are met").
The plaintiff has also requested pursuant to G. L. c. 21E, §§ 4A, 15, an award of attorney's fees and costs incurred since March 1, 2013. The plaintiff may seek an award for reasonable appellate fees and costs by filing with the court such a request within fourteen days of the date of the rescript from this court, in accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). See Yorke Mgmt. v. Castro, 406 Mass. 17, 19 (1989). The defendant will be given fourteen days thereafter to respond.
To the extent the plaintiff is also requesting fees and costs for work done for proceedings in the trial court, the plaintiff is not authorized to seek those fees and costs in this court and we will not consider that request. Cf. T & D Video, Inc. v. Revere, 450 Mass. 107, 114 (2007) (the appropriate forum for a request for attorney's fees pertaining to a proceeding in the Supreme Judicial Court was the Supreme Judicial Court, not the Appeals Court or a trial court).
Defendant's motion. After a hearing and reviewing the parties submissions, the trial judge denied the defendant's motion to set aside the judgment based upon alleged newly discovered evidence, Mass.R.Civ.P. 60(b)(2), 365 Mass. 828 (1974), because the defendant was not "excusably ignorant" of the information and the defendant had not demonstrated the importance or materiality of the evidence. See Cahaly v. Benistar Property Exch. Trust Co., 451 Mass. 343, 361 (2008). "The trial judge typically has an intimate, first-hand knowledge of the case, and, thus, is best positioned to determine whether the justification proffered in support of a [r]ule 60(b) motion should serve to override the opposing party's rights and the law's institutional interest in finality. Consequently, we defer broadly to the [judge's] informed discretion in granting or denying relief from judgment, and we review [the] ruling solely for abuse of that discretion." Id. at 361-362 (quotation marks and citations omitted). We do not discern any abuse of discretion here.
"A party seeking postjudgment relief on grounds of newly discovered evidence invokes rule 60(b)(2), and must satisfy four requirements: (1) the evidence has been discovered since the trial; (2) the evidence could not by due diligence have been discovered earlier by the movant; . . . and (4) the evidence is of such a nature that it would probably change the result were a new trial to be granted." Cahaly v. Benistar Property Exch. Trust Co., supra (quotation marks and citation omitted).
Judgments affirmed.
Order denying motion to set aside judgment affirmed.
By the Court (Cohen, Trainor & Meade, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 11, 2014.