NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-415
FRANZ MARX
vs.
PATRICIA BROOKS & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
These cross appeals, arising from a dispute over the
ownership of personal property, concern a complaint for civil
contempt brought by plaintiff Franz Marx. After a trial, a
judge of the Worcester Superior Court found defendant Patricia
Brooks in contempt. The trial judge dismissed the complaint for
contempt as to Brooks's husband Jon Krecidlo. Brooks appeals
from so much of the judgment as found her in contempt, and Marx
appeals from so much of the judgment as dismissed the contempt
complaint against Krecidlo. Marx also contests the amount of
1 Jon Krecidlo. attorney's fees and costs he was awarded. We affirm in all
respects.
A judge's finding of civil contempt must "be supported by
clear and convincing evidence of disobedience of a clear and
unequivocal command." Birchall, petitioner, 454 Mass. 837, 853
(2009). See Quinn v. Quinn, 49 Mass. App. Ct. 144, 147 (2000)
(purpose of contempt is to "achieve compliance" with underlying
order [citation omitted]). "Where the order is ambiguous or the
disobedience is doubtful, there cannot be a finding of
contempt." Cooper v. Keto, 83 Mass. App. Ct. 798, 804 (2013),
quoting Birchall, supra at 852. See Sax v. Sax, 53 Mass. App.
Ct. 765, 772 (2002) ("vague or ambiguous language in a judicial
decree will not suffice"). A finding of contempt will be
upheld, however, "where the court order, although subject to
some legal interpretation, has nonetheless placed the party
bound by the order on notice that certain actions could
constitute the basis for contempt." Demoulas v. Demoulas Super
Mkts., Inc., 424 Mass. 501, 567 (1997). "We review [a] judge's
ultimate finding of contempt for abuse of discretion, but we
review underlying conclusions of law de novo and underlying
findings of fact for clear error." Commercial Wharf E.
Condominium Ass'n v. Boston Boat Basin, LLC, 93 Mass. App. Ct.
523, 532 (2018).
2 On June 11, 2019, the court issued a preliminary injunction
that ordered Brooks "enjoined from removing, selling or
transferring the personalty of the plaintiff."2 During
litigation, the parties exchanged a list of personal property in
dispute, which included a covered trailer, a Toyota, several car
parts, and the shell of a Corvette. In 2021, Brooks, in concert
with Krecidlo, sold the trailer and the Toyota for approximately
$5,000.3 The judge determined that Brooks "clearly violated the
order by selling the two items." We agree and conclude that
there was no abuse of discretion or clear error in this finding.
Thus, we affirm the order of contempt as to the trailer and
Toyota.
The judge also found that in 2022, Krecidlo, at Brooks's
instruction, "moved many of the disputed car parts from a
covered and protected environment, either in the covered trailer
or in the garage, to the outdoor elements" and that the Corvette
was moved from the garage to the yard. On appeal, Brooks
asserts that the order's language of "removing" was vague and
2 From the early 2000s to approximately 2017, Brooks and Marx lived together and accumulated personal property in their Charlton residence. Pursuant to an ex parte restraining order, Marx left the residence. In 2018, he brought a civil action to retrieve property he had left behind.
3 On appeal, Brooks maintains that the Toyota was registered in her name and that she owned the trailer. However, the judge credited Marx's testimony that he purchased both items and disbelieved Brooks's testimony to the contrary.
3 claims that she was not on notice that "moving" the items
outside would result in contempt. The judge concluded that the
preliminary injunction clearly "put the parties on notice that
the status quo of these items was to remain in place, so that
the court action could resolve proper ownership of the items."
We agree and conclude that Brooks's conduct clearly violated the
preliminary injunction by moving the disputed property to an
area where the elements would cause it to be damaged. See
Demoulas, 424 Mass. at 567. We discern no abuse of discretion
in the judge's finding and affirm the order of contempt as to
the car parts and Corvette shell.
Marx argues that the judge made a clear error in finding
that Krecidlo did not have actual notice of the preliminary
injunction. To be found in contempt of an order, a party must
"have fair notice of the conduct the order prohibits." Sax, 53
Mass. App. Ct. at 772. More specifically, "[a]n injunction is
binding on the parties and 'upon those persons in active concert
or participation with them who receive actual notice of the
order by personal service.'" Mohamad v. Kavlakian, 69 Mass.
App. Ct. 261, 265 (2007), quoting Mass. R. Civ. P. 65 (d), 365
Mass. 832 (1974). Here, the judge found that, although Krecidlo
received a letter in 2022 from Marx's counsel that mentioned the
order, Krecidlo did not have knowledge of the order because he
4 did not receive a copy of the actual order.4 This finding is
supported by the trial transcript and is not clearly erroneous.
We conclude that the judge did not abuse his discretion in
declining to hold Krecidlo in contempt and affirm the order of
dismissal as to him.
Following the contempt finding, Marx successfully moved for
an award of attorney's fees and costs. The judge ordered Brooks
to pay Marx's legal fees in the amount of $22,500 and $518.34 in
costs for Marx's pursuit of the contempt action. "As matter of
law, the awarding of attorney's fees and costs is an appropriate
element of a successful civil contempt proceeding . . . and it
is within the court's discretion to formulate a remedy in a
civil contempt proceeding." Demoulas, 424 Mass. at 571. In
determining the reasonable attorney's fee amount, "the judge
. . . should consider the nature of the case and the issues
presented, the time and labor required, the amount of damages
involved, the result obtained, the experience, reputation and
ability of the attorney, the usual price charged for similar
services by other attorneys in the same area, and the amount of
awards in similar cases." Linthicum v. Archambault, 379 Mass.
381, 388-389 (1979).
4 Counsel's letter recited language from the order, but it did not use quotation marks to indicate it was language from the order.
5 On appeal, Marx contends that the judge abused his
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-415
FRANZ MARX
vs.
PATRICIA BROOKS & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
These cross appeals, arising from a dispute over the
ownership of personal property, concern a complaint for civil
contempt brought by plaintiff Franz Marx. After a trial, a
judge of the Worcester Superior Court found defendant Patricia
Brooks in contempt. The trial judge dismissed the complaint for
contempt as to Brooks's husband Jon Krecidlo. Brooks appeals
from so much of the judgment as found her in contempt, and Marx
appeals from so much of the judgment as dismissed the contempt
complaint against Krecidlo. Marx also contests the amount of
1 Jon Krecidlo. attorney's fees and costs he was awarded. We affirm in all
respects.
A judge's finding of civil contempt must "be supported by
clear and convincing evidence of disobedience of a clear and
unequivocal command." Birchall, petitioner, 454 Mass. 837, 853
(2009). See Quinn v. Quinn, 49 Mass. App. Ct. 144, 147 (2000)
(purpose of contempt is to "achieve compliance" with underlying
order [citation omitted]). "Where the order is ambiguous or the
disobedience is doubtful, there cannot be a finding of
contempt." Cooper v. Keto, 83 Mass. App. Ct. 798, 804 (2013),
quoting Birchall, supra at 852. See Sax v. Sax, 53 Mass. App.
Ct. 765, 772 (2002) ("vague or ambiguous language in a judicial
decree will not suffice"). A finding of contempt will be
upheld, however, "where the court order, although subject to
some legal interpretation, has nonetheless placed the party
bound by the order on notice that certain actions could
constitute the basis for contempt." Demoulas v. Demoulas Super
Mkts., Inc., 424 Mass. 501, 567 (1997). "We review [a] judge's
ultimate finding of contempt for abuse of discretion, but we
review underlying conclusions of law de novo and underlying
findings of fact for clear error." Commercial Wharf E.
Condominium Ass'n v. Boston Boat Basin, LLC, 93 Mass. App. Ct.
523, 532 (2018).
2 On June 11, 2019, the court issued a preliminary injunction
that ordered Brooks "enjoined from removing, selling or
transferring the personalty of the plaintiff."2 During
litigation, the parties exchanged a list of personal property in
dispute, which included a covered trailer, a Toyota, several car
parts, and the shell of a Corvette. In 2021, Brooks, in concert
with Krecidlo, sold the trailer and the Toyota for approximately
$5,000.3 The judge determined that Brooks "clearly violated the
order by selling the two items." We agree and conclude that
there was no abuse of discretion or clear error in this finding.
Thus, we affirm the order of contempt as to the trailer and
Toyota.
The judge also found that in 2022, Krecidlo, at Brooks's
instruction, "moved many of the disputed car parts from a
covered and protected environment, either in the covered trailer
or in the garage, to the outdoor elements" and that the Corvette
was moved from the garage to the yard. On appeal, Brooks
asserts that the order's language of "removing" was vague and
2 From the early 2000s to approximately 2017, Brooks and Marx lived together and accumulated personal property in their Charlton residence. Pursuant to an ex parte restraining order, Marx left the residence. In 2018, he brought a civil action to retrieve property he had left behind.
3 On appeal, Brooks maintains that the Toyota was registered in her name and that she owned the trailer. However, the judge credited Marx's testimony that he purchased both items and disbelieved Brooks's testimony to the contrary.
3 claims that she was not on notice that "moving" the items
outside would result in contempt. The judge concluded that the
preliminary injunction clearly "put the parties on notice that
the status quo of these items was to remain in place, so that
the court action could resolve proper ownership of the items."
We agree and conclude that Brooks's conduct clearly violated the
preliminary injunction by moving the disputed property to an
area where the elements would cause it to be damaged. See
Demoulas, 424 Mass. at 567. We discern no abuse of discretion
in the judge's finding and affirm the order of contempt as to
the car parts and Corvette shell.
Marx argues that the judge made a clear error in finding
that Krecidlo did not have actual notice of the preliminary
injunction. To be found in contempt of an order, a party must
"have fair notice of the conduct the order prohibits." Sax, 53
Mass. App. Ct. at 772. More specifically, "[a]n injunction is
binding on the parties and 'upon those persons in active concert
or participation with them who receive actual notice of the
order by personal service.'" Mohamad v. Kavlakian, 69 Mass.
App. Ct. 261, 265 (2007), quoting Mass. R. Civ. P. 65 (d), 365
Mass. 832 (1974). Here, the judge found that, although Krecidlo
received a letter in 2022 from Marx's counsel that mentioned the
order, Krecidlo did not have knowledge of the order because he
4 did not receive a copy of the actual order.4 This finding is
supported by the trial transcript and is not clearly erroneous.
We conclude that the judge did not abuse his discretion in
declining to hold Krecidlo in contempt and affirm the order of
dismissal as to him.
Following the contempt finding, Marx successfully moved for
an award of attorney's fees and costs. The judge ordered Brooks
to pay Marx's legal fees in the amount of $22,500 and $518.34 in
costs for Marx's pursuit of the contempt action. "As matter of
law, the awarding of attorney's fees and costs is an appropriate
element of a successful civil contempt proceeding . . . and it
is within the court's discretion to formulate a remedy in a
civil contempt proceeding." Demoulas, 424 Mass. at 571. In
determining the reasonable attorney's fee amount, "the judge
. . . should consider the nature of the case and the issues
presented, the time and labor required, the amount of damages
involved, the result obtained, the experience, reputation and
ability of the attorney, the usual price charged for similar
services by other attorneys in the same area, and the amount of
awards in similar cases." Linthicum v. Archambault, 379 Mass.
381, 388-389 (1979).
4 Counsel's letter recited language from the order, but it did not use quotation marks to indicate it was language from the order.
5 On appeal, Marx contends that the judge abused his
discretion in lowering the requested attorney's fees from
$55,080 to $22,500 and expenses from $3,647.36 to $440.5 Marx
argues that the judge did not set forth any findings for his fee
reduction, hours reduction, or costs. We disagree. The judge
based the award on what he considered to be a reasonable hourly
rate and a reasonable number of hours given the issues presented
at the contempt trial. The judge "observe[d] the case
presentation" and "reviewed the affidavit provided by counsel
documenting and detailing the time spent on the tasks
undertaken." In addition, the judge noted that "the legal
issues raised in this matter were not complicated or unique and
the factual investigation was relatively straightforward."
Thus, we discern no abuse of discretion in the judge's decision
on attorney's fees and costs.6
5 The judge actually awarded $518.34, including $440 for the police details and $78.34 for process service, but Marx makes no reference to the latter amount in his brief.
6 Marx also seeks attorney's fees and costs of the appeal. We cannot conclude that this appeal was frivolous, and therefore decline to exercise our discretion to award appellate attorney's fees and costs. See Cusack v. Clasby, 94 Mass. App. Ct. 756, 760 (2019).
6 The judgement on the contempt complaint and the order for
attorney's fees and costs are affirmed.
So ordered.
By the Court (Massing, Englander & D'Angelo, JJ.7),
Clerk
Entered: May 9, 2025.
7 The panelists are listed in order of seniority.