Opinion
No. 05-01017-E.
November 10, 2005.
FINDINGS OF FACT, RULINGS OF LAW AND ORDER ON THE PLAINTIFF'S SECOND VERIFIED COMPLAINT FOR CONTEMPT
This matter is before the Court on the Plaintiff United Mortgage C.B., LLC's ("Plaintiff's" or "United's") second complaint for contempt against the Defendant James P. Long (the "Defendant" or "Defendant Long"). For the reasons stated below, I find and rule that there was a clear and unequivocal order of the Court in place, and I find by a preponderance of the evidence that Defendant Long knowingly violated it in clear and undoubted disobedience.
BACKGROUND OF THIS ORDER
The dispute underlying the case relates to a residential property located at 33 Oldfields Road in Dorchester ("the Property"). In the late 1980's it was owned by Alexandrina Young ("Alexandrina") and Robert Young ("Robert"), mother and son. At all material times it was held exclusively as an income producing property. Alexandrina died in April 1996, and almost continuously since then the title to and mortgage security interests in the Property have been in dispute. The central issues in the litigation were whether Robert had conveyed his interest in the property prior to Alexandrena's death to her and whether United's mortgage interests in the property survived against Robert. Hearings were held before this Court in April 2005, and thereafter an order issued ("the April 15th Order"). It provided the following:
A more complete procedural history of the underlying dispute and issues is provided in the April 15th Order.
[1] The Tenants of the real property at 33 Oldfields Road, Dorchester, MA pay their rents to the Plaintiff or its duly authorized agent;
[2] The Defendant [James] P. Long, Trustee, pay all rents from 33 Oldfields Road, Dorchester, MA to the Plaintiff or its designated agent pending the conclusion of foreclosure proceedings against said Property;
[3] Plaintiff or its designated agent be allowed to enter upon the real property located at 33 Oldfields Road, Dorchester, MA for the purpose of inspecting, maintaining and managing such property;
[4] The Defendant [James] P. Long, or anyone acting on his behalf be enjoined from interfering with the collection of rents or the maintenance and management of the property by Plaintiff or its designated agent.
[5] Said Defendant be ordered to disclose to Plaintiff's counsel the names and unit numbers of all current tenants at 33 Oldfields Road, Dorchester, MA along with the amount of rent being paid by such tenants.
[6] Said Defendant turn over to the Plaintiff such rent monies as are in his possession, custody or control. (Emphasis added because of pertinence to the matter presently before the Court.)
The Defendant filed an appeal of the April 15th Order, but it was denied by the Appeals Court (Dreben, J.), except for a non-substantive modification. The Defendant then sought reconsideration of the denial of his appeal, but that was also denied by the Appeals Court on June 9th. Notwithstanding the April 15th Order and the failure of the Defendant's appeal, the Defendant Long refused to comply with the order.
The Plaintiff then brought a verified complaint for contempt, and a trial was held on June 27, 2005. The Court found the Defendant in contempt. See the Court's Findings of Fact and Rulings of Law on the Plaintiff's Verified Complaint for Contempt, dated July 1, 2005 (the "July 1st Contempt Order").
Among the findings made in the July 1st Contempt Order were that the Defendant Long "intentionally failed to turn over to United rent monies from the property that were in his possession, custody or control" in violation of the April 15th Order and that the Defendant Long "had no good faith basis to take the obstructive action he did with regard to the Property". Among the rulings made in the July 1st Contempt Order was that "the Court's April 15th Order remains in effect". Thus, the Defendant Long was ordered (again) to " turn over to the Plaintiff such rent monies as are in his possession, custody or control".
Notwithstanding the Court's July 1st Contempt Order, the Defendant thereafter refused to remit to the Plaintiff (on the Plaintiff's demand) the security deposits and rent advances in accounts controlled by him. The Plaintiff responded on August 3, 2005 by filing a Motion to Order Defendant to Remit Security Deposits and Other Funds to the Plaintiff, to which the Defendant filed an opposition.
The Court took the matter under advisement, and on September 7, 2005 the Court allowed the motion and ordered that "Defendants to transfer to Plaintiff all referenced funds by 5 p.m., September 16, 2005" (hereinafter, the "September 7th Order"). The Defendant Long did not do so.
The Plaintiff then filed its second complaint for contempt on October 6, 2005. Pursuant to Rule 65.3(d) a summons issued and a hearing was held this date. As he did at the time of the trial of the first contempt complaint, the Defendant Long represented himself.
Because there appeared to be no disputed facts, I concluded that there was no reason to further mark the matter down for trial and proceeded to hold a hearing on the merits. The following facts and rulings are based on the representations of the Defendant Long and the totality of the record before the Court.
FINDINGS OF FACT
By a preponderance of the evidence before me, I find:
The Defendant Long was aware of the terms of the September 7th Order and of his obligation under such order to transfer all security deposit, rent and other funds to the Plaintiff by 5 p.m. on September 16th.
At that time (and up until the present), the Defendant Long had (and has) such funds in an account or accounts at the Bank of America.
The Defendant intentionally failed and refused on demand by the Plaintiff to transfer such funds to the Plaintiff.
The Defendant's actions in that regard were in direct violation of the September 7th Order.
The Defendant had no good faith basis to do so. His asserted grounds, inter alia, that this Court lacked the authority to issue such an order, that the order was in contravention of G.L. c. 186, §§ 8 and 15B relating to security deposits and the "Mandatory Injunction Act" and that the funds "belong to the Young Realty Trust" to which the "plaintiff has no legal or equitable right to make a claim", bear no reasonable support in light of the procedural history of the case and the prior rulings of this Court and the Appeals Court.
SUBSTANTIVE STANDARDS
Civil contempt requires a "clear and undoubted disobedience of a clear and unequivocal command" of the court. Town of Manchester v. Dept. of Environmental Quality Engineering, 381 Mass. 208, 212 (1980), citing United States Time Corp. v. G.E.M. of Boston, Inc., 345 Mass. 279, 282 (1963). See also Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501, 565-567 (1997). The plaintiff has the burden to prove contempt by a preponderance of the evidence. Town of Manchester, 381 Mass. at 212. If civil contempt is proven, counsel fees and costs may be awarded to the prevailing parties. Coyne Indus. Laundry of Schenectady, Inc. v. Gould, 359 Mass. 269, 277 (1971). It is also within the court's discretion to impose a compensatory or coercive order. Giannetti v. Thomas, 32 Mass. App. Ct. 960, 961-962 (1992). As a general matter, "[I]t is within the Court's discretion to formulate a remedy in a civil contempt proceeding." Demoulas, 424 Mass. at 571.
RULINGS OF LAW
Accordingly, I make the following rulings:
The Court's September 7th Order was a clear and unequivocal command.
The Defendant's conduct was a clear and undoubted disobedience of the September 7th Order. The Defendant Long knowingly, intentionally and without excuse violated the explicit terms of the order and thereby caused damage to the Plaintiff and to the Court and the Court's function to administer civil justice.
As a result of the above, the Defendant Long in his individual capacity and in his capacity as Trustee of the Young Realty Trust is in contempt of the September 7th Order.
ORDER
For the reasons stated above, the Defendant James P. Long is in contempt of court.
It is, therefore, ORDERED that the Defendant James P. Long transfer to counsel for the Plaintiff by 12 Noon on November 14, 2005 all the funds in the Bank of America accounts or in any other accounts holding proceeds of security deposits or rents received from tenants or former tenants of the Property.
Furthermore, it is ORDERED that the Defendant James P. Long shall be assessed a civil penalty of $1,000 (One Thousand Dollars) if he fails to make the above transfer by the time indicated and shall be assessed a civil penalty for a like amount for every 24 hour period thereafter within which he further fails to make such transfer.
Furthermore, it is ORDERED that the Defendant James P. Long pay the costs and attorneys fees incurred by the Plaintiff in responding to the Defendant's failure to comply with the Court's July 1st Contempt Order and the Court's September 7th Order.
Furthermore, it is ORDERED that on or before November 23, 2005 the Plaintiff shall file with the Court an itemized account of all such time and expense charges, not already submitted pursuant to the Court's July 1st Contempt Order.
Furthermore, it is ORDERED that the Defendant James P. Long pay court costs in an amount to be determined at the conclusion of these proceedings.
Furthermore, it is ORDERED that the Court's April 15th Order remains in full force and effect as amended by the Court's July 1st Contempt Order.
Finally, it is ORDERED that a copy of this decision and any subsequent decisions and orders of the Court in the matter of the Defendant James P. Long's contempt be forwarded to the Office of Bar Counsel for its consideration of whether the Defendant James P. Long's conduct referenced herein has violated the Rules of Professional Conduct, S.J.C. Rule 3.07.
SO ORDERED.