Porter v. Board of Appeal of Boston

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22-P-974 Appeals Court

ERIC PORTER vs. BOARD OF APPEAL OF BOSTON & another.1

No. 22-P-974.

Suffolk. September 11, 2023. – January 18, 2024.

Present: Milkey, Blake, & Sacks, JJ.

Zoning, Appeal, Board of appeals: decision, Person aggrieved,
Variance, Bond. Surety. Practice, Civil, Appeal, Bond,
Zoning appeal, Standing, Attorney's fees.

Civil action commenced in the Superior Court Department on
August 17, 2017.

Following review by this court, 99 Mass. App. Ct. 1123
(2021), a motion for an order to pay fees from a surety bond was
heard by Maureen Mulligan, J.

Eric Porter, pro se.
Jose C. Centeio for Fung & Hsu Realty Associates, LLC.

BLAKE, J. Eric Porter filed a complaint in the Superior

Court challenging a decision of the Board of Appeal of Boston

(board) that granted variances to the defendant Fung & Hsu

1 Fung & Hsu Realty Associates, LLC.
2

Realty Associates, LLC (Fung & Hsu). The variances permitted

Fung & Hsu to construct an addition on a residential building in

the Allston section of Boston. After a trial in the Superior

Court, the judge (trial judge) concluded that Porter lacked

standing and dismissed the complaint with prejudice. After

Porter filed a notice of appeal (first appeal), Fung & Hsu filed

a motion to compel Porter to post a surety bond as a condition

thereof. The trial judge allowed the motion and issued an order

requiring Porter to post a surety bond in the amount of $25,000

(bond order).

Porter applied for a bond through United Casualty and

Surety Insurance Company (bond company); thereafter, he posted

the bond2 and prosecuted the first appeal. In an unpublished

memorandum and order issued pursuant to our Rule 23.0, a panel

of this court affirmed the judgment. See Porter v. Board of

Appeal of Boston, 99 Mass. App. Ct. 1123 (2021).3 In a footnote

rejecting Porter's challenge to the bond order, the panel noted

2 The condition of the bond was "that if [Porter] shall
prosecute the case with effect and shall indemnify and save
harmless Fung and Hsu . . . in whose favor the [board] decision
was rendered, from damages and costs which he or they may
sustain in case the decision of said board is affirmed then this
obligation to be void; otherwise to remain in full force, power
and virtue."

3 Porter's request for further appellate review was denied.
See Porter v. Board of Appeal of Boston, 488 Mass. 1102 (2021).
3

that "we see no abuse of discretion in the [trial] judge's

allowance of the defendant's request for an appeal bond in the

amount of $25,000." Id. However, the panel expressly declined

to award the appellate attorney's fees and costs that Fung & Hsu

had requested on the ground that Porter's appeal was frivolous.

See id.

After the rescript issued, Fung & Hsu moved for an "order

to pay . . . Fung & Hsu . . . from the surety bond" (motion).

Fung & Hsu argued that because a panel of this court upheld the

bond order, and Fung & Hsu successfully defended the first

appeal, it was entitled to have the $25,000 from the bond

disbursed to it. A different Superior Court judge (motion

judge) allowed the motion. In her decision and order

(disbursement order), the motion judge limited her role to

"decid[ing] the amount of damages and losses flowing from the

appeal" (quotation omitted). She then authorized the

disbursement of the bond in the amount of $23,979.99, an amount

representing the attorney's fees and costs that Fung & Hsu

incurred in successfully defending the first appeal.4 Porter

timely appealed that order. For the reasons that follow, we

vacate the disbursement order.

4 Porter's motion to stay the disbursement order was denied
by a single justice of this court.
4

Discussion. In addition to challenging the disbursement

order, Porter appears to be claiming that the trial judge did

not have the authority to enter the bond order.5 Because Porter

did not raise the issue whether the trial judge had the

authority to enter the bond order in his opposition to the

motion to disburse the bond, that claim is waived. See Imbrie

v. Imbrie, 102 Mass. App. Ct. 557, 575-576 (2023). Moreover,

the panel in the first appeal already concluded that issuance of

the bond order was not an abuse of the trial judge's discretion.

See Porter, 99 Mass. App. Ct. at 1123 n.3. Nonetheless, some

discussion of the bond order is necessary as a framework to our

analysis of the disbursement order.

1. Statutory authority for the bond order. In its motion,

Fung & Hsu cited two statutes in support of its requested

relief. The first is the Boston zoning enabling act, St. 1956,

c. 665, § 11, as amended by St. 1993, c. 461, § 5 (§ 11).

Section 11 provides, in part, that:

5 Fung & Hsu contend that Porter lacked standing to appeal
the disbursement order because the bond company paid the claim.
We disagree. First, it appears uncontested that the bond
company paid the funds to Fung & Hsu, and that Porter reimbursed
the bond company. In addition, "[t]he scope of a surety's
liability is determined by the intent of the parties." Wood v.
Tuohy, 67 Mass. App. Ct. 335, 341 (2006). Here, the bond
agreement required Porter to indemnify the bond company, and
thus Porter can demonstrate the potential for injury sufficient
to establish standing. See Sullivan v. Chief Justice for Admin.
& Mgt. of the Trial Court, 448 Mass. 15, 21 (2006). Cf. Mass.
R. Civ. P. 65.1, as appearing in 483 Mass. 1401 (2019).
5

"[a]ny person aggrieved by a decision of [the board] . . .
may appeal to the superior court . . . . The court may in
its discretion require the person or persons so appealing
to file a bond with sufficient surety, for such a sum as
shall be fixed by the court, to indemnify and save harmless
the person or persons in whose favor the decision was
rendered from damages and costs which . . . they may
sustain in case the decision of said board is affirmed"
(emphasis added).

Notably, § 11 further provides that "costs shall not be allowed

against the party appealing from the decision of the board

unless it shall appear to the court that said party acted in bad

faith or with malice in appealing to the court." Because § 11

applies only to an appeal of the board's decision to the

Superior Court, it does not by its terms govern here. See

Schlager v. Board of Appeal of Boston, 9 Mass. App. Ct. 72, 75

(1980).

We therefore turn to the alternative source of authority

cited in Fung & Hsu's motion. That authority, now appearing at

G. L. c. 231, § 117 (§ 117),6 authorizes a judge to enter

interlocutory orders, such as orders requiring surety bonds, to

protect parties' rights pending appeal.7 See Broderick v. Board

6 Section 117 provides that "[a]fter an appeal has been
taken from a final judgment of the superior court . . . until
such order has been modified or annulled, the justice of the
superior court by whom the final judgment appealed from was
made, . . . may make any proper interlocutory orders, pending
such appeal."

7 The decision in Broderick cited G. L. c. 214, § 22, but
that provision was replaced by G. L. c. 231, § 117, as appearing
6

of Appeal of Boston, 361 Mass. 472, 475-476 (1972) (citing

predecessor of § 117). We construe the bond order entered here

to be authorized pursuant to § 117 and conclude that the factors

outlined in Damaskos v. Board of Appeal of Boston, 359 Mass. 55,

64-65 (1971), governing the setting of a bond under § 11, should

be considered in setting a bond under § 117. These include

consideration of the purpose of a bond, which is "(a) to

discourage frivolous and vexatious appeals from the decisions of

the Boston board of appeal, but not (b) unreasonably to

prohibit, directly or indirectly (by requiring too large a

bond), meritorious appeals from allegedly illegal variances"

(quotation and citation omitted). Damaskos, supra at 64.8

"Without a careful balancing of interests . . . [someone] with a

meritorious appeal might be barred from bringing a claim if

[that person] is without resources to pay for, and provide

collateral for, a substantial bond." Feldman v. Board of Appeal

of Boston, 29 Mass. App. Ct. 296, 298 (1990), citing Damaskos,

supra at 58.

in St. 1973, c. 1114, § 202. See Schlager, 9 Mass. App. Ct. at
76 n.10. Our decision does not turn on this change.

8 We observe that there is a pending appeal about whether
the Damaskos standard has been changed by Marengi v. 6 Forest
Rd. LLC, 491 Mass. 19 (2022). See Shoucair v. Pure Oasis, LLC,
SJC-13526. However, that issue is not before us in this appeal.
7

2. The bond. The trial judge ruled that Porter lacked

standing to challenge the board's grant of a variance, and that

even if he had standing, his challenge to the board's decision

on the merits would fail. Some of the language that the trial

judge used suggested that she did not see the case as a close

call. For example, she characterized some of Porter's

"accusations" as "wild," and found the board's decision to be

"clear and well-reasoned." Without question, the trial judge

had the discretion to order Porter to file a surety bond "in an

amount which is sufficient to protect the interests of [Fung &

Hsu] and is otherwise appropriate." Schlager, 9 Mass. App. Ct.

at 77.

In requesting a $25,000 bond, Fung & Hsu did not explain

why a bond in that amount was justified. Rather, it stated only

that this was the maximum bond amount permitted by § 11 for a

project of this size. In turn, the trial judge offered no

explanation of why she was entering the bond order or the

reasons for the amount. However, it seems evident that she

believed that it was appropriate for Fung & Hsu to be provided

security for the potential compensable damages and costs it

faced in defending what the trial judge thought was a weak

appeal. Notably, however, the trial judge did not find in this

case that Porter was a vexatious litigant or that his claims
8

were frivolous. Such findings may bear on, among other things,

the amount of the bond. See Damaskos, 359 Mass. at 64.

The motion judge recognized that in requiring a litigant to

post a bond, a judge must perform a balancing test of

"inhibiting vexatious and frivolous appeals . . . with not

unreasonably restraining meritorious appeals." She asserted

that "[this] analysis was already performed by the [trial] judge

who decided to issue the bond and determined its amount." On

this record, it is not at all clear that the motion judge's

observation was correct. For example, there is nothing in the

record to suggest that in ordering that the bond be posted, the

trial judge considered Porter's ability to post the bond,

whether the amount of the bond was necessary to protect Fung &

Hsu's interests, and the potential that the requirement to post

the bond would chill a nonfrivolous appeal. See Schlager, 9

Mass. App. Ct. at 76-77.

Having concluded that the trial judge conducted the

analysis set forth in Damaskos, the motion judge limited her

consideration "to decid[ing] the amount of 'damages and losses

flowing from the appeal.'" In other words, the motion judge

accepted Fung & Hsu's position that it was automatically

entitled to disbursement of the bond if it prevailed in the
9

first appeal, and that the only question before her was the

amount to be paid.9 This was error.

The purpose of an appeal bond is to provide security to the

appellee for compensable damages and costs should it prevail in

the appeal. See N-Tek Constr. Servs., Inc. v. Hartford Fire

Ins. Co., 89 Mass. App. Ct. 186, 191 (2016). This begs the

question what damages and costs are compensable in that event.

Although Fung & Hsu in part sought reimbursement for cost

overruns it claimed had resulted from the first appeal, the

motion judge rejected that claim, and Fung & Hsu has not argued

that the judge erred in doing so. Instead, the motion judge

appears to have disbursed money from the bond based on the

attorney's fees incurred by Fund & Hsu in defending the first

appeal. But whether a winning litigant is entitled to

attorney's fees is governed by the so-called "American Rule."

John T. Callahan & Sons, Inc. v. Worcester Ins. Co., 453 Mass.

447, 449 (2009). Under this rule, in the absence of a statute,

9 The motion judge observed in a footnote that there were
three other zoning cases in which Porter was the plaintiff.
These facts alone hardly established that Porter's claim here
was frivolous or that he is a vexatious litigant. Indeed, in
one of the referenced cases, Porter was successful in obtaining
reversal of the trial court judge's decision that he lacked
standing. See Porter v. Board of Appeal of Boston, 99 Mass.
App. Ct. 240 (2021). And that leaves aside that determining
standing in a zoning appeal can be quite complex. The motion
judge simply labeled Porter a "habitual appealer of zoning
decisions" without a concomitant analysis. See Montgomery v.
Selectmen of Nantucket, 95 Mass. App. Ct. 65, 71-72 (2019).
10

court rule, or case law, successful litigants are responsible

for their own attorney's fees and expenses. See Preferred Mut.

Ins. Co. v. Gamache, 426 Mass. 93, 95 (1997). The bond order

served to provide Fung & Hsu a means to secure payment of its

appellate attorney's fees, but it did not alter the framework

for determining whether it was entitled to such fees.

Importantly, determining "whether an appeal is frivolous is

left to the sound discretion of the appellate court" (citation

omitted). Dacey v. Burgess, 491 Mass. 311, 319 (2023). Thus,

whether Fung & Hsu was entitled to its attorney's fees in

defending the earlier appeal was not an issue for the motion

judge to consider. In fact, Fung & Hsu asked this court for

such fees in the first appeal, and a panel of this court

declined that request. That should have ended the matter to the

extent that Fung & Hsu's request for disbursement of the bond

was based on such fees. Given that the motion judge rejected

Fung & Hsu's only other basis for disbursing the bond (the

claimed cost overruns), the disbursement order cannot stand.

Conclusion. The order allowing the motion for an order to

pay Fung & Hsu from the surety bond is vacated. A new order

shall enter requiring Fung & Hsu to pay to Porter the sum of

$23,979.99 within thirty days. Fung & Hsu's request for

attorney's fees and costs incurred in the current appeal is

denied.
11

So ordered.