Fronk v. Fowler
Fronk v. Fowler
Opinion of the Court
The central issue on appeal is whether a judge in the Superior Court may grant postjudgment statutory interest on an award of attorney’s fees and costs made pursuant to G. L. c. 231, § 6E
Background. Robert Fronk, Jack Saltiel, and Maila L. Walter (plaintiffs) brought a civil action against Jeffrey A. Millman, Robert Lee Wolff, Jr., Maple Leaf Cambridge Corp., and the Cambridge Company, Inc. (defendants), in 2002. They asserted claims for breach of contract, breach of fiduciary duty, and misappropriation of partnership opportunities. After a jury-waived trial in Superior Court, the defendants prevailed on all issues in a judgment issued on June 7, 2006, and subsequently affirmed by this court. Fronk v. Fowler, 71 Mass. App. Ct. 502 (2008) (Frank I).
After the plaintiffs appealed the merits of this decision, the defendants filed a motion in Superior Court pursuant to § 6F seeking fees and costs. The trial judge granted the defendants’ motion after finding that “substantially all, if not all, of the plaintiffs’ claims were wholly insubstantial, frivolous, and not advanced in good faith.” Fronk v. Fowler, 456 Mass. 317, 318 (2010) (Frank II) (quoting Superior Court). The judge entered an award for $1.23 million in costs and fees. A single justice of this court vacated that award, but the Supreme Judicial Court ultimately reinstated it. Ibid.
Following the trial court’s receipt of the rescript, the defendants filed a motion in the Superior Court for the computation of statutory interest on the earlier Superior Court award of fees and costs. A different Superior Court judge ruled that regardless of its descriptive title, a § 6F award of attorney’s fees and costs “qualifies as a ‘judgment for the payment of money.’ ” The judge allowed the motion and entered an order pursuant to G. L. c. 235, § 8, for postjudgment interest at the statutory rate of twelve percent per annum from February 26, 2007, the date the § 6F award had been docketed. The plaintiffs appealed this order to the single justice, who reported the case to a full panel of this court.
Discussion. The defendants contend that an award of attor-
Section 8 of G. L. c. 235 states that, “[wjhen judgment is rendered upon ... the finding of a justice, interest shall be
Like a formally titled “judgment,” an award of fees and costs pursuant to § 6F is subject to immediate appeal, starting the “timetable for appellate review.” G. L. c. 231, § 6G.
Relying on Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985), and Osborne, 404 Mass, at 116, plaintiffs also argue that awarding interest on attorney’s fees, as opposed to costs,
Because we rule that this § 6F award of attorney’s fees and costs was a judgment for the purposes of § 8, “[t]he addition of postjudgment interest is an automatic ministerial task and a judge need not expressly allow it.” Karellas v. Karellas, 54 Mass. App. Ct. 469, 475 (2002), citing Osborne, 404 Mass, at 117. The defendants are not precluded, therefore, from interest pursuant to § 8 on the award because the judge who ordered the original § 6F award did not mention interest. See Osborne, supra at 117; Karellas, supra at 475.
Finally, we note that Massachusetts courts have ordered post-
We turn to the statutory language in § 8 to determine when interest on the § 6F award begins to run. Section 8 provides that “[ejvery judgment for the payment of money shall bear interest from the day of its entry.” Interest on the defendants’ § 6F award runs from February 26, 2007, the date the award of attorney’s fees and costs pursuant to § 6F entered on the docket.
Judgment affirmed.
General Laws c. 231, § 6F, as inserted by St. 1976, c. 233, § 1, states in pertinent part:
“Upon motion of any party in any civil action in which a finding, verdict, decision, award, order or judgment has been made by a judge or justice or by a jury, auditor, master or other finder of fact, the court may determine, after a hearing, as a separate and distinct finding, that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith. The court shall include in such finding the specific facts and reasons on which the finding is based.
“If such a finding is made with respect to a party’s claims, the court shall award to each party against whom such claims were asserted an amount representing the reasonable counsel fees and other costs and expenses incurred in defending against such claims. If the party against whom such claims were asserted was not represented by counsel, the court shall award to such party an amount representing his reasonable costs, expenses and effort in defending against such claims.”
General Laws c. 235, § 8, as amended through St. 1983, c. 652, § 2, states:
“When judgment is rendered upon an award of county commissioners, a committee or referees, or upon the report of an auditor or master, or upon the verdict of a jury or the finding of a justice, interest shall be computed upon the amount of the award, report, verdict or finding from the time when made to the time the judgment is entered. Every judgment for the payment of money shall bear interest from the day of its entry at the same rate per annum as provided for prejudgment interest in such award, report, verdict or finding. The warrant or execution issued on a judgment for the payment of money shall specify the day upon which judgment is entered, and shall require the collection or satisfaction thereof with interest from the day of its entry.”
After Fronk I, this court declined to award appellate fees and costs to the defendants. See Fronk II, supra at 318. In Fronk II, the Supreme Judicial Court remanded the order denying appellate fees and costs to this court for reconsideration. Ibid. On remand, this court awarded appellate fees and costs in excess of $155,000. The award of statutory interest at issue in this case does not include interest on these appellate fees and costs.
Section 8 was originally enacted in 1847 by St. 1847, c. 153, while § 6F was originally enacted in 1976 by St. 1976, c. 233, § 1.
General Laws c. 231, § 6G, as amended by St. 1992, c. 133, § 561, states:
“Any party aggrieved by a decision on a motion pursuant to section six F may appeal as hereinafter provided. If the matter arises in the superior, land, housing or probate court, the appeal shall be to the single justice of the appeals court at the next sitting thereof. If the matter arises in the appeals court or before a single justice of the supreme judicial court, the appeal shall be to the full bench of the supreme judicial court. The court deciding the appeal shall review the finding and award, if any, appealed from as if it were initially deciding the matter, and may withdraw or amend any finding or reduce or rescind any award when in its judgment the facts so warrant.
“Any party may file a notice of appeal with the clerk or register of the court hearing the motion within ten days after receiving notice of the decision thereon. The clerk or register shall then forward the motion, the court’s findings and award, and any other documents relevant to the appeal to the clerk of the court deciding the appeal who, upon receipt thereof, shall refer the matter to the court for speedy decision*331 and shall notify the parties of such decision, which shall be final. Any appeal to the supreme judicial court or the appeals court shall proceed according to the Massachusetts Rules of Appellate Procedure; any appeal to a single justice of the Appeals Court shall proceed under the rules for the regulation of practice before a single justice of that court. The payment of any award made pursuant to section six F shall be stayed until the completion of all appeals relating to the civil action in which the award was made.”
This court’s determination that “[a] motion for counsel fees under [§ 6F] is not a judgment within the scope of [Mass.R.Civ.P. 59(e)],” Ben, supra at 814, does not preclude the result reached here because the holding in Ben is limited to an appeal of the denial of a motion under § 6F and does not consider whether a § 6F award can ever be a judgment. Our holding here is limited to a determination that a § 6F award can, in some circumstances, be a judgment for the purposes of interest on the award pursuant to G. L. c. 235, § 8.
Since the § 6F award here was a judgment for the purposes of § 8, we need not reach the plaintiffs’ argument, pursuant to Foley v. Lowell, 948 F.2d 10 (1st Cir. 1991), that the award should be incorporated into a final judgment in order for postjudgment interest to accrue. See Troy Indus., Inc., v. Samson Mfg. Corp., 76 Mass. App. Ct. 575, 584 n.9 (2010) (“A judge may enter a § 6F award as a postjudgment order or [the judge] may incorporate it into the final judgment” [emphasis added]).
The Supreme Judicial Court affirmed postjudgment interest on an award of costs in Osborne, 404 Mass, at 115.
Because the holding in Osborne concerned only the availability of interest on an award of costs, any portion of the opinion suggesting that interest is unavailable on attorney’s fees is dicta. See Osborne, 404 Mass, at 116 n.8. Moreover, since Patry refers only to prejudgment interest and Osborne is responding specifically to Patry, any dicta in Osborne regarding interest on attorney’s fees should be read as applying exclusively to prejudgment interest and thus is inapplicable here.
Because interest was awarded under § 8 and not § 6F, we reject the plaintiffs’ argument that the automatic stay provision of § 6G controls.
Finally, we note that the single justice also certified a question about the appropriate forum for this appeal’s initial presentation. Since interest on the § 6F award of costs and fees was granted pursuant to § 8, this case was not an appeal of the § 6F award itself and therefore not subject to appeal to the single justice pursuant to § 6G. However, the appeal is still appropriately before us because, in addition to their appeal to the single justice, the plaintiffs also filed a notice of appeal from the order allowing the defendants’ motion for interest pursuant to Mass.R.A.P. 4.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.