Gifford v. Burke, et al. (Lawyers Weekly No. 11-015-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 17-P-341 Appeals Court JOHN A. GIFFORD vs. ANDREW J. BURKE & another.[1] No. 17-P-341. Suffolk. December 6, 2017. – February 8, 2018. Present: Milkey, Henry, & Wendlandt, JJ. Contempt. Practice, Civil, Contempt, Appeal, Attorney’s fees, Costs. Civil action commenced in the Land Court Department on December 30, 2008. A complaint for contempt, filed on July 20, 2016, was heard by Alexander H. Sands, III, J. Michael J. Traft for the plaintiff. Robert J. Cotton, pro se. MILKEY, J. John A. Gifford and Debra F. Gifford, who are married, together held a fifty percent, undivided interest in waterfront property in Revere (property). In 2008, the Giffords filed a petition for partition in Land Court against their coowner, Andrew J. Burke. A Land Court judge appointed a partition commissioner (intervener Robert J. Cotton, henceforth, the commissioner) to assist the parties and the judge in resolving the matter. See G. L. c. 241, § 12. Nevertheless, the process did not go smoothly. Indeed, the case, together with related litigation spawned in the Land Court, the Superior Court, and the United States Bankruptcy Court, took a path that best can be described as tortuous. The current appeal, which is the third one having come before this court, is limited in scope. In it, John Gifford appeals a contempt judgment that, in pertinent part, required him to pay certain fees and costs to the commissioner.[2] We agree that the majority of the contested fees and costs are not recoverable, and we therefore vacate the contempt judgment and remand for further proceedings consistent with this opinion. Background. We begin by summarizing only those milestone events relevant to the current appeal. In 2011, the Land Court judge ordered the Giffords to sell their share of the property to Burke and to pay off their mortgage on it. In an unpublished memorandum and order issued on December 7, 2012, pursuant to our rule 1:28, that Land Court order was affirmed on appeal. Gifford v. Burke, 83 Mass. App. Ct. 1101 (2012). After the Giffords failed to comply, Burke filed a contempt complaint, but the matter was stayed after each of the Giffords filed for bankruptcy protection. Once the bankruptcy of John Gifford concluded, the property was in fact conveyed to Burke and the mortgage was discharged. After […]
Burke v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, et al. (Lawyers Weekly No. 11-121-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-117 Appeals Court JOSEPH L. BURKE vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & another.[1] No. 15-P-117. Suffolk. March 16, 2016. – September 12, 2016. Present: Cohen, Katzmann, & Blake, JJ. Board of Appeal on Motor Vehicle Liability Policies and Bonds. Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence, License to operate, Homicide. License. Registrar of Motor Vehicles, Revocation of license to operate. Administrative Law, Agency’s interpretation of statute. Statute, Construction, Retroactive application. Civil action commenced in the Superior Court Department on December 9, 2013. The case was heard by Edward P. Leibensperger, J., on a motion for judgment on the pleadings, and a motion for reconsideration was considered by him. Brian K. Wells for the plaintiff. David R. Marks, Assistant Attorney General, for the defendants. KATZMANN, J. In this appeal, we are again asked to consider whether a lifetime suspension is appropriate for a driver who, after having committed an operating under the influence (OUI) offense, causes a fatality in the course of a second OUI offense. Plaintiff Joseph Burke appeals from a judgment of the Superior Court upholding a decision of the defendant Board of Appeal on Motor Vehicle Liability Policies and Bonds (Board) that affirmed the denial by the Registrar of Motor Vehicles (registrar) of Burke’s application for reinstatement of his driver’s license pursuant to G. L. c. 90, § 24(1)(c)(4), as amended through St. 1982, c. 373, § 4, as well as the registrar’s permanent revocation of that license, on the basis that Burke’s second drunk driving offense resulted in a fatality.[2] We affirm. Background. On February 27, 2000, Burke, was arrested for OUI after a motor vehicle accident in Rehoboth. On May 1, 2000, Burke admitted to sufficient facts for a finding of guilty of OUI in connection with the February incident but received the benefit of a continuance without a finding of guilty (CWOF) for one year until May 1, 2001, during which time he was placed on probation. The terms of his probation included a 180-day loss of license and an assignment to an alcohol education program. On August 6, 2000, while still on probation with his license suspended as a result of the incident the previous February, Burke drove a […]