Doe v. Gonpo

• Court: Massachusetts Appeals Court
• Decided: September 7, 2023
• Docket: AC 22-P-729
• Status: Published

Opinion

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22-P-729 Appeals Court

JANE DOE1 vs. JAMPA GONPO2 & another.3

No. 22-P-729.

Franklin. May 3, 2023. – September 7, 2023.

Present: Massing, Ditkoff, & Singh, JJ.

Practice, Civil, Action to reach and apply, Judgment, Injunctive relief, Attorney's fees, Costs. Injunction. Lien. Attorney at Law, Lien.

Civil action commenced in the Superior Court Department on February 4, 2020.

Motions for postjudgment security and for a permanent injunction were heard by Michael K. Callan, J.

Joshua M. Daniels for the plaintiff. Tiffany Troy for Troy Law, PLLC.

MASSING, J. A Superior Court jury awarded the plaintiff,

Jane Doe, $10 million in damages for sexual assault and

1 A pseudonym.

2 Also known as Jampa Golam.

3 Troy Law, PLLC, as a reach and apply defendant. 2

emotional distress inflicted upon her by the defendant, Jampa

Gonpo. To secure partial payment of her award, Doe sought to

reach and apply a judgment that had been awarded to Gonpo in a

Federal action. A Superior Court judge issued orders for

postjudgment security and for a permanent injunction, allowing

Doe to reach and apply only part of Gonpo's Federal judgment,

ruling that Gonpo's attorneys in the Federal action, Troy Law,

PLLC (Troy Law), had a superior interest in the portion of the

Federal judgment representing its reasonable attorney's fees and

costs. Doe appeals from the aspects of the orders precluding

her from reaching the fees and costs awarded in the Federal

case. We affirm.

Background. In 2008, Gonpo immigrated to the United States

from Nepal and, upon arrival, lived with Doe's family for

several months. In addition, he worked for Doe's father's

stonemasonry business from the time he arrived in the United

States until 2015. In 2016, a Franklin County grand jury

returned seven indictments charging Gonpo with various sex

offenses against Doe, starting when Doe was approximately eight

years old and Gonpo was living with Doe's family.4 The

4 Two of the indictments charged rape of a child under sixteen, aggravated by age difference; two charged rape and abuse of a child under sixteen; and three charged indecent assault and battery on a child under fourteen. 3

Commonwealth nol prossed three of the indictments, and a jury

acquitted Gonpo of the remaining charges after a trial in March

2018.

Meanwhile, while Gonpo was in custody awaiting trial on the

criminal charges, on September 27, 2016, Troy Law commenced a

Federal lawsuit on behalf of Gonpo against Doe's father and his

business for wage payment violations, asserting claims under the

Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., and

several Massachusetts wage laws: the wage act, G. L. c. 149,

§ 148; and the minimum wage and overtime statutes, G. L. c. 151,

§§ 1 and 1A. On January 3, 2020, a Federal jury handed down a

verdict for Gonpo; however, the full extent of Gonpo's damages

was not determined until April 1, 2021, when the Federal judge

issued a memorandum and order directing the entry of judgment

awarding Gonpo compensatory damages of $181,426.37, attorney's

fees totaling $97,954.75, and costs amounting to $8,285.94

(Federal judgment).

Doe commenced this Superior Court civil lawsuit against

Gonpo on February 4, 2020, approximately one month after the

verdict in the Federal lawsuit, but more than one year before

that judgment would enter. To attach Gonpo's interest in the

Federal verdict, which appeared to be his only asset, Doe named

her father and his business as reach and apply defendants. On

February 28, 2020, Doe obtained a preliminary injunction 4

prohibiting Gonpo from transferring or assigning his interest in

the Federal verdict and restraining Doe's father and his

business from disbursing any funds to Gonpo.

On November 19, 2021, more than seven months after the

Federal judgment entered, Doe prevailed in her civil action

against Gonpo, and the jury awarded her $10 million in damages.

Judgment entered on November 29, 2021, awarding Doe a total of

$12,184,930, inclusive of accrued prejudgment interest and

costs.5 On December 2, 2021, the trial judge allowed "without

prejudice" Doe's postjudgment motion to make permanent the

provisions of the preliminary injunction, pending additional

briefing and further argument.

On December 22, 2021, Troy Law filed an appearance in Doe's

Superior Court suit as a party in interest and submitted an

opposition to so much of Doe's request for a permanent

injunction as sought to attach the portion of the Federal

judgment allocated to attorney's fees and costs.6 On February 8,

2022, a Superior Court judge other than the trial judge (motion

judge) issued a decision and order allowing Doe's motions for

postjudgment security and for a permanent injunction only as to

5 On December 15, 2021, an amended judgment reflecting two additional days of prejudgment interest was entered, bringing Doe's total award to $12,191,510.

6 Pursuant to court order, Doe amended her complaint to name Troy Law as a reach and apply defendant. 5

the portion of the Federal judgment representing compensatory

damages and interest, ruling that Troy Law had a superior

interest in the attorney's fees and costs portion of the award.

In effect, this means that Troy Law will receive the fees and

costs portion of the Federal judgment and Doe will receive the

balance.

Discussion. Doe contends that the entire Federal judgment,

including attorney's fees, was awarded to Gonpo, and she has a

priority interest over Troy Law in the fees because she obtained

an equitable lien before Troy Law sought to assert or enforce

its attorney's lien and before the attorney's lien matured. We

review for error of law or abuse of discretion the motion

judge's decision to limit the scope of the permanent injunction

to the portion of the Federal judgment representing compensatory

damages and interest. See LightLab Imaging, Inc. v. Axsun

Techs., Inc., 469 Mass. 181, 194 (2014).

1. Gonpo's interest in the award of attorney's fees and

costs. Doe asserts that the motion judge erred by ruling that

the fees and costs portion of the Federal judgment was not

awarded to Gonpo, but directly to Troy Law, and therefore was

not an interest of Gonpo subject to an action to reach and

apply. See G. L. c. 214, § 3 (6) (providing for equitable

jurisdiction of "[a]ctions by creditors to reach and apply, in 6

payment of a debt, any property, right, title or interest, legal

or equitable, of a debtor"). We agree.

As a matter of fact, the judgment in the Federal case was

"entered for the plaintiff Jampo Gonpo." The Federal judge's

order on the issue of damages likewise concluded by stating,

"Plaintiff is awarded $181,426.37 in damages, $97,954.74 in

attorneys' fees, and $8,285.95 in costs." No part of the

judgment was awarded to Troy Law.

As a matter of law, Gonpo's Federal lawsuit was based on

claims brought under Massachusetts wage laws and the FLSA. The

Federal judge's order is clear that damages, including

attorney's fees and costs, were awarded to Gonpo under

Massachusetts law based on the Federal doctrine that allows a

successful plaintiff with overlapping State and Federal claims

to choose the more advantageous result.7 See Tobin v. Liberty

Mut. Ins. Co., 553 F.3d 121, 146 (1st Cir. 2009) ("When federal

and state claims overlap, the plaintiff may choose to be awarded

damages based on state law if that law offers a more generous

outcome than federal law").

7 The Federal judge observed that compared to the FLSA, the Massachusetts wage laws mandate a higher minimum wage, allow recovery of wages that are not timely paid, provide for mandatory treble damages, permit recovery of both prejudgment interest and treble damages, and prohibit good faith defenses. 7

The Massachusetts wage laws at issue provide, in almost

identical language, that attorney's fees and costs, in addition

to damages, are to be awarded to the prevailing "employee." See

G. L. c. 149, § 150 ("An employee so aggrieved who prevails in

such an action shall be awarded treble damages, as liquidated

damages, for any lost wages and other benefits and shall also be

awarded the costs of the litigation and reasonable attorneys'

fees"); G. L. c. 151, § 20 ("An employee so aggrieved who

prevails in such an action shall be awarded treble damages, as

liquidated damages, for any loss of minimum wage and shall also

be awarded the costs of the litigation and reasonable attorneys'

fees"). This language clearly and unambiguously requires

attorney's fees and costs to be awarded to the employee, rather

than to the employee's attorney. See DiMasi v. Secretary of the

Commonwealth, 491 Mass. 186, 192 (2023) ("We have recognized the

word 'shall' as an imperative that indicates the Legislature's

intent to prescribe a mandatory act"). This interpretation

aligns with Massachusetts decisions concerning other fee-

shifting statutes, which consistently state that fees are

awarded directly to the prevailing party, not to the party's

attorney. See Kadlick v. Department of Mental Health, 431 Mass.

850, 856-857 (2000); Cambridge Trust Co. v. Hanify & King

Professional Corp., 430 Mass. 472, 479 (1999). Troy Law's

attempt to distinguish the Massachusetts wage laws from other 8

fee-shifting statutes is unpersuasive. See Finance Comm'n of

Boston v. Commissioner of Revenue, 383 Mass. 63, 68 (1981)

("only positive demonstration of contrary legislative purpose

can overcome plain text"). Nor are we moved by Troy Law's

reliance on James v. Home Constr. Co. of Mobile, 689 F.2d 1357,

1358 (11th Cir. 1982), in which the court held that "it is the

attorney who is entitled to fee awards in a [Truth in Lending

Act] case, not the client." James decidedly represents the

minority view in the Federal courts and was all but repudiated

by the United States Supreme Court in Evans v. Jeff D., 475 U.S.

717, 730-732 & nn.18, 19 (1986), superseded by statute on other

grounds. The entire Federal judgment, including attorney's fees

and costs, was awarded to Gonpo.

2. Priority of interests. Troy Law and Doe have competing

liens on Gonpo's Federal judgment. Troy Law holds an attorney's

lien under the Massachusetts attorney's lien statute, G. L.

c. 221, § 50, securing the attorney's fees owed to it by Gonpo

for representing him in the Federal action. Doe was permitted

to reach and apply Gonpo's interest in the Federal judgment to

satisfy her Superior Court judgment against Gonpo. Doe asserts

that her lien was perfected before Troy Law's and that she

therefore "has priority under the principle of first in time,

first in right." PGR Mgt. Co. Health Props. v. Credle, 427

Mass. 636, 640 (1998). A close analysis of the nature and 9

timing of the competing liens shows that Troy Law's attorney's

lien has priority.

General Laws c. 221, § 50, provides, in relevant part,

"From the authorized commencement of an action, counterclaim or

other proceeding in any court, or appearance in any proceeding

before any state or federal department, board or commission, the

attorney who appears for a client in such proceeding shall have

a lien for his reasonable fees and expenses upon his client's

cause of action, counterclaim or claim, upon the judgment,

decree or other order in his client's favor entered or made in

such proceeding, and upon the proceeds derived therefrom."

Under the statute, an "inchoate lien" in favor of the attorney

arises upon the filing of the action or counterclaim and

"mature[s] upon entry of judgment" for the client. PGR Mgt. Co.

Health Props., 427 Mass. at 640. Once the judgment is entered,

the lien relates back to the day the action was commenced. See

In re Albert, 206 B.R. 636, 640 (Bankr. D. Mass. 1997) (under

Massachusetts law, attorney's lien "relates back to the date the

action was filed"); 51 Am. Jur. 2d Liens § 8, at 97 (2021)

("When an inchoate lien becomes consummate, the priority of its

enforcement relates back to the date the lien was created").

Here, an inchoate attorney's lien arose in favor of Troy

Law when it brought the Federal lawsuit on Gonpo's behalf on 10

September 27, 2016. It matured when judgment entered on April

1, 2021, relating back to the date of commencement.

Doe contends that Troy Law's interest remained inchoate

"long after" she obtained an enforceable interest in the Federal

judgment. In support of this assertion, Doe argues that she

perfected her lien when she obtained the preliminary injunction

on February 28, 2020, because she had satisfied all the

requirements for a reach and apply action, whereas Troy Law's

lien was still inchoate pending entry of the Federal judgment.

We are not persuaded by Doe's analysis, for two reasons.

First, Doe did not and could not have established an

essential element of her reach and apply claim -- the existence

of a debt owed to her -- before she prevailed against Gonpo in

her Superior Court case.8 See Massachusetts Elec. Co. v. Athol

One, Inc., 391 Mass. 685, 687 (1984) (first step in statutory

reach and apply action is to "show the existence of a debt

owed"). As a result, the preliminary injunction created no more

than an equitable lien in Doe's favor. See McCarthy v. Rogers,

295 Mass. 245, 247 (1936) (temporary injunction preventing

8 Because Gonpo was found not guilty of the criminal charges and, in any event, brought the Federal lawsuit prior to the criminal trial, we need not consider whether a criminal conviction, with the resultant collateral estoppel consequences, see Metropolitan Prop. & Cas. Ins. Co. v. Morrison, 460 Mass. 352, 364 (2011), would effectively establish the existence of a debt owed to the victim of the crime. 11

assignment of defendant's property sought to be reached and

applied toward payment of debt owed to plaintiff, if

established, created equitable lien upon property); Bank of New

England, N.A. v. Mortgage Corp. of New England, 30 Mass. App.

Ct. 238, 242 (1991) (same); In re Osgood, 203 B.R. 865, 869

(Bankr. D. Mass. 1997) ("upon both the filing of an action to

reach and apply and the issuance of an injunction restraining

the transfer of the property sought to be reached and applied

. . . the plaintiff acquire[s] an equitable lien or equitable

attachment upon the property"). Because the existence and

amount of Doe's lien turned on the outcome of her civil suit,

the lien Doe obtained by way of the preliminary injunction --

after the Federal verdict in Gonpo's favor, but before judgment

entered -- like Troy Law's at that time, was inchoate. See

United States v. Acri, 348 U.S. 211, 214 (1955) (attachment lien

inchoate where "at the time the attachment issued, the fact and

the amount of the lien were contingent upon the outcome of the

suit for damages").

Troy Law's lien became enforceable on April 1, 2021, upon

entry of the Federal judgment. At the time, Doe's interest in

the Federal judgment was still inchoate because her Superior

Court claims were pending. Doe's interest did not become

enforceable until, at the earliest, she obtained the jury

verdict in her favor on November 19, 2021. 12

Second, even if Doe had perfected her reach and apply

interest before April 1, 2021, while Troy Law's lien was

inchoate and had not yet become enforceable, Troy Law's lien

would still have priority. This is because, whenever Troy Law's

inchoate attorney's lien matured, it would relate back to the

date the Federal lawsuit commenced, September 27, 2016. This

result is dictated by the language of G. L. c. 221, § 50

("[f]rom the authorized commencement of an action . . . the

attorney who appears for a client in such proceeding shall have

a lien"), and is consistent with case law holding that an

attorney's lien arises upon the commencement of an action,9 see

Craft v. Kane, 51 Mass. App. Ct. 648, 650-651 (2001) (treating

notice of lien, filed after attorney withdrew from case, as

dating back to commencement of suit); Hayes v. Department of

Revenue, 44 Mass. App. Ct. 905, 905 (1997) (attorney's lien

"commenced" same day attorney brought action and had priority

over tax liens that arose after commencement, but before

settlement, of action).

Doe nevertheless asserts that Troy Law was required to file

a notice of lien or otherwise assert its attorney's lien in the

Superior Court to obtain an enforceable interest. Doe argues

9 Assuming, but not deciding, that Doe's reach and apply interest related back to the date she obtained the preliminary injunction, Troy Law's attorney's lien would still predate Doe's interest. 13

not only that Troy Law was aware of Doe's suit against Gonpo,

but also that one of its attorneys was present in the Superior

Court for the preliminary injunction hearing in Doe's action to

reach and apply, yet it failed to assert its interests until

after judgment had entered for Doe. Doe relies on language in

Cohen v. Lindsey, 38 Mass. App. Ct. 1, 5 (1995), in which we

stated that an attorney's lien had priority over the interests

of the Federal Deposit Insurance Corporation (FDIC), which had

intervened to establish a claim to an escrow fund, because the

attorney "preempted the FDIC by filing first in the Superior

Court the appropriate notice of lien." The Cohen decision also

recognized, however, that "[t]he [attorney's] lien takes effect

from the authorized commencement of an action or any proceeding

in any court." Id. Even if the attorney in Cohen had filed a

notice of lien after the FDIC had moved to intervene, the

attorney's lien would still have priority as it related back to

the commencement of the case. To the extent filing a notice of

lien is ever required to enforce an attorney's lien, here the

existence and priority of Troy Law's attorney's lien on Gonpo's

Federal judgment in no way depended on the filing of a notice of

lien in Doe's Superior Court case.10

10The filing of a notice of lien might be required to prevent disbursement of funds paid into an escrow account pending resolution of the proceedings, as in Cohen, 38 Mass. App. Ct. at 3, or where the attorney who initially brought the 14

Therefore, the motion judge did not err or abuse his

discretion in determining that because Troy Law's attorney's

lien on the Federal judgment was "first in time," PGR Mgt. Co.

Health Props., 427 Mass. at 640, Troy Law had a superior

interest in the fees and costs portion of the Federal judgment.

In short, Doe's action to reach and apply the Federal judgment

did not vitiate Troy Law's attorney's lien securing its fees on

that judgment. See Newton Hous. Auth. v. Cumberland Constr.

Co., 5 Mass. App. Ct. 1, 8-9 (1977).

Conclusion. The orders for postjudgment security and for a

permanent injunction are affirmed.11

So ordered.

action withdraws or is discharged. See Black, Attorneys' Liens in Massachusetts, 43 Mass. L.Q. (No. 3) 33, 38 (1958). Such notice, however, would normally be filed in the proceeding in which the attorney's lien arose; here, Gonpo's Federal court case. See G. L. c. 221, § 50; Neuwirth v. Neuwirth, 87 Mass. App. Ct. 640, 641 (2015); McCann, The Attorney's Lien in Massachusetts, 69 Mass. L. Rev. 68, 83 (1984).

11Troy Law's request for appellate attorney's fees and costs is denied.