Opinion
15-P-821
04-04-2016
JOHN A. GIFFORD & another v. ANDREW J. BURKE & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The petitioners, John Gifford and Debra Gifford, sued Andrew Burke seeking partition of a property in Revere the parties owned as tenants in common. At issue in this appeal is whether the Land Court judge abused his discretion in his allocation of the commissioner's fees. We affirm.
1. Background. The petitioners and Burke owned a duplex structure in Revere (property) as tenants in common. In December, 2008, the petitioners filed a petition to partition the property. After the parties could not reach an agreement as to how to partition the property or to convert it to a condominium, the Land Court judge appointed a commissioner. Ultimately, the judge ordered that the petitioners' interest in the property be sold to Burke for $100,000, with the condition that the petitioners retire their mortgage on the property. This court affirmed that order in an unpublished memorandum and order issued pursuant to our rule 1:28, see Gifford v. Burke, 83 Mass. App. Ct. 1101 (2012), and further appellate review was denied.
Burke paid $5,000 for his fifty percent undivided interest on July 2, 1975. The petitioners bought their fifty percent undivided interest on November 9, 2004, for $380,000. Shortly thereafter, the petitioners encumbered their one-half of the property with a mortgage in the original principal amount of $300,000.
Burke filed a complaint for contempt against the petitioners on March 22, 2013, based on their failure to comply with the partition order. In November, 2013, the petitioners filed a suggestion of bankruptcy, which stayed the contempt action. Also that month, the petitioners sent a G. L. c. 93A letter to the commissioner and filed, but never served, a Superior Court action against him alleging misconduct on his part in the partition action.
On May 12, 2014, the United States Bankruptcy Court for the District of Massachusetts entered a bankruptcy discharge for John Gifford, while a bankruptcy plan for Debra Gifford was confirmed by the United States Bankruptcy Court for the District of South Carolina on January 10, 2014. The parties disagreed as to the effect of the bankruptcy judge's decision and there were, accordingly, further postdischarge proceedings seeking clarification from the judge in John Gifford's bankruptcy case. In the end, the bankruptcy judge ruled that (1) Burke's contempt action was discharged by John Gifford's bankruptcy discharge, but (2) the bankruptcy discharge had no effect on John Gifford's responsibility, if any, for the commissioner's fees incurred after John Gifford filed for bankruptcy. The Land Court judge subsequently ordered the petitioners to pay all of the commissioner's postbankruptcy legal bills, including those incurred by the commissioner reviewing the petitioners' Superior Court action against him. That same day, April 6, 2015, the judgment issued confirming the partition.
We note that there is nothing in the record indicating the specifics of this plan. Therefore, like the Land Court judge, we are unable to factor into our analysis what, if any, effect Debra Gifford's bankruptcy case had on her obligations stemming from the partition proceedings.
The petitioners reached a settlement with the mortgagee bank, defendant CitiMortgage, Inc., to discharge their mortgage on July 23, 2014.
2. Fee allocation. The petitioners challenge the Land Court judge's allocation to them of 100% of the commissioner's fees incurred after the bankruptcy filing. General Laws c. 241, § 22, provides in relevant part that "[t]he reasonable expenses and charges of partition proceedings, including . . . the fees . . . of the commissioners . . . shall be determined by the court." The statute presumes that these fees will be split "in proportion to the interests of the parties unless the court finds a different proportion more equitable." Ibid. The purpose of this provision "is to apportion the expenses incurred to achieve the common benefit from partition of shared property among the parties receiving that benefit." Aiello v. Aiello, 63 Mass. App. Ct. 914, 916 (2005). However, "[i]n some proceedings, the conduct of the litigation itself may give rise to equitable considerations favoring deviation from the presumptive proportionate allocation (such as, for example, when the petitioner needlessly pursues a course that causes the cost of the proceedings to escalate . . . )." Ibid. If "based on appropriate findings," a decision to deviate from the presumptive allocation is left "to the sound discretion of the trial judge." Ibid.
The Land Court judge found that the petitioners intentionally prolonged the partition proceedings by not timely paying off their mortgage and otherwise complying with the September, 2011, order. The judge pointed to the petitioners' post-September, 2011, prebankruptcy "discretionary spending and sudden suspicious loss of savings and assets" to rebut their contention that they were financially unable to comply with the order. The judge found that the petitioners' failure to comply with the order resulted in increased costs associated with Burke's complaint for contempt and in his loss of rental income from the property. Furthermore, the judge noted the increased costs resulting from the petitioners' Superior Court law suit against the commissioner. In short, the judge below concluded that "[i]t is unfair to force [Burke] to pay any more of these [commissioner's] fees, which never would have been necessary had [the petitioners] acted as this court ordered." These findings bore on appropriate equitable considerations the judge was entitled to take into account, and we cannot say that the judge below abused his discretion in making the petitioners responsible for all of the commissioner's postbankruptcy fees.
2. Commissioner dismissal. The petitioners argue that the commissioner should have been released when the petitioners' mortgage was discharged on July 23, 2014, rather than after the partition was confirmed. The petitioners cite no authority for the proposition that a commissioner is required to be discharged prior to confirmation of the partition. And, in the circumstances of this case, where the commissioner was continuing to work with the judge to resolve outstanding issues, we see no reason to create such a rule. Indeed, the commissioner filed his final report in this case on January 30, 2015, months after the petitioners' mortgage was discharged.
For the reasons stated above, we affirm the judgment dated April 6, 2015. The commissioner's and Burke's requests for double costs and attorney's fees on appeal are denied.
So ordered.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 4, 2016.