Opinion
10-P-1973
10-26-2011
WILLIAM D. STRECKER & another v. MARY TAVARES, trustee, & another.
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
Nancy and William Strecker (Streckers) appeal from the October 19, 2010, order of the single justice reversing the award of attorney's fees and costs against Mary Tavares and Francis Sutula (Sutulas) pursuant to G. L. c. 231, § 6F. We vacate and remand for further proceedings as there is an inadequate factual record developed for the § 6F decision by the trial judge and the single justice, and the trial judge failed to follow required procedures.
The statute in question provides for an award of 'reasonable counsel fees and other costs and expenses' if the court finds that 'all or substantially all' of a party's claims, defenses, or counterclaims in a proceeding 'were wholly insubstantial, frivolous and not advanced in good faith' (emphasis supplied). G. L. c. 231, § 6F, inserted by St. 1976, c. 233, § 1. See Danger Records, Inc. v. Berger, 444 Mass. 1, 13-14 (2005) (noting necessity of 'findings addressing each of the three items required by § 6F'). However, the statute sets forth several procedural prerequisites before such an award may be made. The court must make its determination 'after a hearing.' G. L. c. 231, § 6F. It must make 'a separate and distinct finding' of bad faith, frivolousness, and insubstantiality, and must 'include . . . the specific facts and reasons on which the finding is based.' Ibid. And in determining the amount of fees and costs, 'the court shall specify in reasonable detail the method by which the amount of the award was computed and the calculation thereof.' Ibid.
The trial judge appeared to award fees under § 6F because of the whipsawing tactics used by the Sutulas, which he discussed in his earlier ruling on the merits, a nearly one-hundred page decision involving five separate lawsuits and numerous claims. However, he did not satisfy the § 6F procedural requirements or specifically explain his reasoning for the fee award. The trial judge's § 6F decision was essentially that the Sutulas' claim to relocate the driveway easement from its present location back to the pre-2003 physical driveway location 'is frivolous under G. L. c. 231, § 6F, for the reasons previously stated.' He did not lay out the specific facts and reasons underlying the award. He also did not explicitly find that the claim was wholly insubstantial and made in bad faith. 'The failure of the judge to make express findings that the . . . action was wholly insubstantial and frivolous and to express his rationale for that conclusion in and of itself warrants reversal . . . .' Pirie v. First Congregational Church, 43 Mass. App. Ct. 908, 910 (1997). See Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass. App. Ct. 282, 292 (1996) ('[A]n award of attorney's fees under § 6F requires both an evidentiary showing and an explicit judicial finding that the plaintiffs' claims were not advanced in good faith'). In addition, the judge did not hold a separate hearing on whether to award attorney's fees, or 'specify in reasonable detail the method by which the amount of the award was computed.' G. L. c. 231, § 6F. See Strand v. Herrick & Smith, 396 Mass. 783, 792 (1986) ('Failure to comply with these requirements [including specifying the calculation of the award] in and of itself warrants reversal of the order '). See also Danger Records, Inc. v. Berger, 444 Mass. at 14 (affirming fee award in absence of 'procedural error that would affect the § 6F award').
See the judge's decision at pages 72 through 75 (record appendix at pages 484 through 487).
We addressed the prior appeal regarding the merits in a rule 1:28 decision dated June 10, 2010. See Strecker v. Tavares, 77 Mass. App. Ct. 1101 (2010). (Further appellate review was not sought.) As we noted in that decision, the issue of the § 6F award was not before us at that time, being subject to the separate notice of appeal to the single justice under G. L. c. 231, § 6G.
While the Streckers suggested at oral argument that the § 6F issue may have been partly addressed at a hearing, we can find no reference in the record appendix to any hearing after the trial judge's ruling on the merits. Even if a hearing was held, and could be categorized as a § 6F hearing, the other failures and the state of the record would still necessitate remand.
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The single justice did not directly address the Sutulas' whipsawing tactics, but instead focused on his understanding of the purpose of the easement, the holding in M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 90-92 (2004), and the balancing of equities in analyzing the merits of the Sutulas' claim. Without delineating the facts upon which he relied, the single justice concluded that the Sutulas' argument 'enjoyed strong support in the case law' and that the claim was not frivolous because 'the equities did not fall only on one side.' He described the Sutulas' argument as a 'credibl[e]' claim that the driveway easement should be moved under the principles in M.P.M. Builders, LLC v. Dwyer, supra. He did not, however, directly confront the trial judge's fundamental finding at trial, which appears to be incorporated in his § 6F decision, that the claim was absurd because it 'contravenes . . . the action of [the Sutulas] throughout this complicated litigation process.' The single justice is 'bound by 'the subsidiary facts as found by the trial judge' in [his] § 6F decision unless they are without basis.' Fronk v. Fowler, 456 Mass. 317, 327-328 (2010), quoting from Danger Records, Inc. v. Berger, 444 Mass. at 9. There also appears to be record support for this finding of whipsawing by the Sutulas. Moreover, M.P.M. Builders, LLC v. Dwyer, supra, involved no such whipsawing tactics and is distinguishable on this ground.
In sum, given the limited state of the record, and gaps in both the trial judge's and the single justice's § 6F decisions, we are unable to say whether a § 6F award is appropriate in this case. We therefore vacate the order of the single justice and vacate so much of the judgment as awards attorney's fees and costs under G. L. c. 231, § 6F. We remand that matter to the Land Court for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Cypher, Kafker & Meade, JJ.),