ROCSAM PROPERTIES, LLC v. CAREY INTERNATIONAL, INC. & Others (And a Companion Case).

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

22-P-713
22-P-1257

ROCSAM PROPERTIES, LLC

vs.

CAREY INTERNATIONAL, INC. & others1
(and a companion case2).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In these paired appeals, defendants Carey International,

Inc., Boston Cars, Inc., and Carey Limousine Boston, Inc.

(collectively, Carey), argue that they should have been awarded

attorney's fees and costs in two Superior Court actions brought

and dismissed by their former landlord, RocSam Properties, LLC

(RocSam).3 In the first action, the dismissal was accomplished

through the entry of a judgment of dismissal with prejudice that

did not include an award of attorney's fees and costs to Carey

but did include a sanction award against RocSam. Both parties

1 MGC Boston Property, LLC, Boston Cars, Inc., and Carey
Limousine Boston, Inc.
2 RocSam Properties, LLC vs. Carey International, Inc. & others.
3 Neither appeal presents any issues regarding the fourth

defendant, MGC Boston Property, LLC.
appealed the judgment, dated September 9, 2022, and the appeal

was docketed as 22-P-1257. In the second action, the dismissal

was accomplished through RocSam's filing of a notice of

dismissal without prejudice as of right, after which a different

judge entered an order denying Carey's requests for attorney's

fees and costs. Carey appealed that order, dated June 21, 2021,

and an order denying reconsideration dated January 11, 2022, and

the appeal was docketed as 22-P-713.

Separately, RocSam cross-appeals. In 22-P-1257, RocSam

argues that the Superior Court judge committed an abuse of

discretion in the denial of RocSam's motion to supplement its

complaint and in the award of sanctions to Carey. In 22-P-713,

RocSam argues abuse of discretion in a single justice's November

30, 2022 decision to permit Carey a fourth enlargement of time

to file its appellate brief and record appendix.4

On these issues, we discern no abuse of discretion. Nor do

we see error in the decisions not to award fees and costs to

Carey in the second action. We conclude, however, that Carey

should have been awarded attorney's fees and costs in the first

action where a judgment of dismissal with prejudice entered.

Accordingly, in 22-P-1257, the September 2022 judgment is

reversed in part, and the case is remanded for entry of a

4 RocSam's appeal from the single justice order was consolidated
with Carey's appeal.

2
judgment that includes attorney's fees and costs. In all other

respects, the judgment is affirmed. In 22-P-713, the Superior

Court orders of June 2021 and January 2022, and the single

justice order dated November 30, 2022, are affirmed.

1. Attorney's fees and costs. In March 2017, RocSam

brought the first action alleging that Carey leased property

owned by RocSam and that when Carey vacated the property, Carey

failed to make certain repairs required under the lease,

including replacing water-damaged ceiling tiles, repairing worn

carpets, replastering walls, painting interior walls, and

ensuring that air conditioning and heating units and light

fixtures were in working order. On the day of the final

pretrial conference, RocSam announced that it would seek a

voluntary dismissal due in large part to lead counsel's illness

and unavailability to try the case. Subsequently, RocSam filed

a motion to dismiss pursuant to Mass. R. Civ. P. 41 (a) (2), 365

Mass. 803 (1974), which Carey opposed on the limited bases that

it was entitled to attorney's fees and costs (1) incurred after

making two settlement offers that RocSam rejected, and (2)

pursuant to the "prevailing parties" provision of the lease.5 A

judge ordered the action dismissed with prejudice and denied

Carey's requests for attorney's fees and costs. A judgment of

5 Carey also sought enforcement of a sanctions award that we
discuss infra.

3
dismissal with prejudice and without a fee or cost award entered

on September 9, 2022.

Meanwhile, in January 2021, RocSam brought a second action

in Superior Court, alleging that Carey made improvements and

alterations to the property that it failed to restore as

required by the lease, including rearranging the floor plan.6 A

few months later, on April 27, 2021, RocSam filed a notice of

dismissal pursuant to Mass. R. Civ. P. 41 (a) (1) (i), 365 Mass.

803 (1974), noting that no party had yet answered the complaint

or filed a motion for summary judgment. Following RocSam's

notice of dismissal, Carey submitted a request for attorney's

fees and costs, which a different judge denied on June 21, 2021.

On January 11, 2022, the same judge denied Carey's motion for

reconsideration.

While the "American Rule" provides that "parties to

litigation generally bear the expense of their own attorney's

fees," Wilkinson v. Citation Ins. Co., 447 Mass. 663, 664

(2006), Carey argues that in both cases it should have been

awarded attorney's fees pursuant to a "prevailing party" fee

provision of the lease agreement. In deciding that question, we

look to the lease agreement. See Northern Assocs., Inc. v.

6 As we discuss infra, RocSam sought to supplement its complaint
in the first action, but that request was denied, leading RocSam
to bring the second action.

4
Kiley, 57 Mass. App. Ct. 874, 879 (2003). The lease agreement

provided as follows:

"If any action at law or in equity shall be brought . . .
for or on account of any breach of, or to enforce or
interpret any of the covenants, terms, provisions or
conditions of this [l]ease, . . . the prevailing party
shall be entitled to recover from the other party
reasonable attorneys' fees [sic], the amount of which shall
be fixed by the court and made part of any judgment or
decree rendered."

We construe the words of this provision according to their plain

meaning. See id.

The first action presents the question whether Carey was

the "prevailing party" where the Superior Court entered a

judgment of dismissal with prejudice. See rule 41 (a) (2). The

plain meaning of "prevailing party" is "[a] party in whose favor

a judgment is rendered, regardless of the amount of damages

awarded." Black's Law Dictionary 1351 (11th ed. 2019). See

Bardon Trimount, Inc. v. Guyott, 49 Mass. App. Ct. 764, 778

(2000), citing Hannon v. Original Gunite Aquatech Pools, Inc.,

385 Mass. 813, 828 (1982) ("prevailing party" refers "to the

party in whose favor judgment enters"). Here, a judgment

entered in Carey's favor with prejudice, meaning that RocSam may

not bring the same action again. Where the judgment

"engineer[ed] a permanent defeat" of the first action, Carey

prevailed for all practical purposes. Bardon Trimount, Inc.,

supra at 780.

5
Other language in the fee provision also supports our

conclusion. In particular, the fee provision required that the

fee award be "made part of any judgment or decree rendered."

This language contemplated that a prevailing party would be one

in whose favor a judgment or decree entered.7

We are unpersuaded by RocSam's reliance on the

circumstances surrounding the judgment of dismissal with

prejudice, namely that RocSam made a "prudent" decision to move

for a rule 41 (a) (2) dismissal due to lead counsel's illness.

RocSam suggests that Carey was not a prevailing party where

neither RocSam's decision to seek a dismissal nor the resulting

judgment were based on the merits.8 We are unpersuaded because

7 RocSam argues that one of the Carey defendants, Carey
International, Inc., was not a party to the lease and was
properly denied attorney's fees and costs on that basis. We
decline to address the argument. Even if Carey International,
Inc., was not a party to the lease, there is no dispute that the
other Carey defendants were parties to the lease, and nothing
before us establishes that any of the attorney's fees or costs
were specifically attributable to Carey International, Inc.,
versus all the Carey defendants collectively. Where we remand
for an award of attorney's fees and costs in the first action,
RocSam may raise the argument there.
8 Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health &

Human Resources, 532 U.S. 598 (2001), cited by RocSam, is
inapposite. Buckhannon, supra at 600-601, involved the question
whether a plaintiff whose lawsuit is dismissed as moot after the
lawsuit brings about a voluntary change in the defendant's
conduct is a prevailing party under Federal fee-shifting
statutes. The Supreme Court concluded that, in those
circumstances, the plaintiff would not be a prevailing party.
See id. at 610. Aside from the fact that we are asked to decide
a very different question, the Massachusetts Supreme Judicial
Court has "expressly rejected the application of Buckhannon

6
the fee provision "gives no hint of such a limitation," Bardon

Trimount, Inc., 49 Mass. App. Ct. at 778, and, furthermore, our

case law supports that a party may be the prevailing party

despite not having obtained a judgment on the merits, see id. at

779.9

The second action stands on different footing, as RocSam

dismissed that action without prejudice as of right. See rule

41 (a) (1) (i). Applying the same plain meaning of the words

"prevailing party," we conclude that Carey did not prevail in

the second action. No judgment entered in Carey's favor, let

alone one with prejudice; the dismissal does not preclude RocSam

from bringing the same action again; and nothing else

. . . and its progeny to fee requests under Massachusetts fee-
shifting statutes or other Massachusetts authority" (quotation
and citation omitted). Ferman v. Sturgis Cleaners, Inc., 481
Mass. 488, 491-492 (2019).
9 RocSam also argues that Carey needed to assert a counterclaim

for attorney's fees and costs. RocSam's sole support for this
argument is Bank v. Thermo Elemental Inc., 451 Mass. 638, 667
(2008), a case in which the Supreme Judicial Court held that the
defendants' claim for attorney's fees was waived, (1) because
the defendants' answer did not include a claim or request for
attorney's fees, and (2) because the fee-shifting statute at
issue was not self-effectuating and required the defendants to
prove certain facts, e.g., that the plaintiff did not
participate in negotiations in good faith. In contrast, the
Carey defendants' answers did include requests for attorney's
fees and costs, and the fee provision in the lease agreement was
self-effectuating.

7
"engineer[ed] a permanent defeat" of the second action. Bardon

Trimount, Inc., 49 Mass. App. Ct. at 780.10

We note that these appeals exemplify the sound reasons for

distinguishing between (1) a dismissal with prejudice requested

around the time of the final pretrial conference and (2) a

dismissal without prejudice as of right filed before the adverse

party answers the complaint or files a motion for summary

judgment. The first action was pending for over four years

before RocSam moved to dismiss. In the intervening time, Carey

incurred substantial attorney's fees and costs by engaging in

discovery and preparing for trial. Where Carey would have

recovered those fees and costs had it prevailed at trial, and

where RocSam made a last-minute decision not to try the case,

Carey should have been awarded the same fees and costs. In

contrast, little transpired in the second action, and the

dismissal without prejudice leaves open the possibility that

RocSam may bring the action again and go to trial on it.

Accordingly, it would be premature to conclude that Carey is the

prevailing party in the second action.11

10 Carey argues that the judgment of dismissal with prejudice of
the first action bars RocSam from litigating the claims asserted
in the second action due to the doctrine of claim preclusion.
The difficulty with this argument is that it asks us to
speculate on the merits of the second action, which we decline
to do where that action was dismissed without prejudice.
11 With respect to the first action, Carey also argues that it

should have been awarded costs as the prevailing party pursuant

8
2. RocSam's cross appeals. a. Motion to supplement

complaint. RocSam argues that it should have been allowed to

supplement its complaint in the first action, thereby obviating

the need for it to bring the second action. As a preliminary

matter, the argument is not properly before us. The argument

presents a challenge to the judgment of dismissal with

prejudice, which was entered at RocSam's request. RocSam cannot

now seek to undo that judgment and proceed to trial on a

supplemental complaint.12 Cf. TAL Fin. Corp. v. CSC Consulting,

Inc., 446 Mass. 422, 429 n.10 (2006) (disregarding argument

contrary to position taken at trial). Regardless, we briefly

address the merits.

RocSam brought the first action in March 2017 and did not

move to supplement its complaint until over three years later,

in August 2020, approximately sixteen months after the April 29,

2019 discovery deadline. RocSam did not articulate any reason

for the delay, and the supplemental complaint was based on facts

known to RocSam when it brought the first action. On these

facts, there was no abuse of discretion in the denial of

to Mass. R. Civ. P. 54 (d), as appearing in 382 Mass. 821
(1980). For the reasons already articulated, we agree. The
issue may be addressed on remand.
12 For that matter, it does not appear that RocSam seeks that

remedy. At oral argument, counsel for RocSam acknowledged that
there was no remedy for the denial of the motion to supplement
the complaint and that RocSam raised the argument to explain why
it filed the second action.

9
RocSam's motion to supplement its complaint. Cf., e.g.,

Kirschbaum v. Wennett, 60 Mass. App. Ct. 807, 815-816 (2004)

(involving motion to amend).

b. Sanctions. RocSam also argues abuse of discretion in

the award of sanctions to Carey in the first action.13 On

February 21, 2019, Carey's counsel advised RocSam's counsel that

Carey wished to inspect the property. From then until early

April, the attorneys discussed the possibility of an inspection,

but RocSam never agreed to a date. On or around April 11, 2019,

Carey filed a motion to compel. A judge of the Superior Court

(discovery judge) allowed the motion and ordered that the

inspection take place within seven days of her April 22, 2019

order. When Carey's counsel reached out to RocSam's counsel to

schedule the inspection, RocSam's counsel responded that Carey

could inspect the property on April 29 at 10 A.M. Thereafter,

Carey's counsel learned that Carey's expert witness and client

representative were not both available for an inspection until

the week of May 6. On April 26, the last business day before

the April 29 deadline to complete the inspection, Carey's counsel

sent two e-mail messages to RocSam's counsel asking if RocSam

13While the award of sanctions was also part of the judgment
that entered at RocSam's request, the judge addressed it in a
separate decision and RocSam specifically preserved the right to
challenge that award on appeal; accordingly, RocSam's arguments
regarding the sanctions award are properly before the court.

10
would consent to a brief extension of time. RocSam's counsel

responded to the second message but did not agree to an

extension of time.14 On or around April 29, 2019, Carey filed a

motion to modify the inspection order to permit an inspection

the week of May 6 and for sanctions. RocSam filed a limited

opposition, ultimately agreeing to the extension but arguing

against the request for sanctions.

RocSam argues that it was an abuse of discretion for the

discovery judge to award sanctions because (1) it was Carey's

fault, not RocSam's, that the inspection did not take place

within the original window of April 22 to April 29, (2) RocSam

was under no obligation to agree to an extension of time, and

(3) RocSam did not object to Carey's motion for an extension of

time. These arguments disregard what really happened here,

which is that RocSam employed obstructionist tactics from the

start. RocSam's dilatory responses to Carey's request to

inspect the property forced Carey to seek judicial intervention

and obtain the initial inspection order. At that point, it

should have been patently clear that the inspection would take

place. Yet, when Carey requested a brief extension of time,

RocSam again responded in a such a way that Carey was left with

14Later on April 26, Carey's counsel offered to look into
rearranging schedules to inspect the property on April 30 if
RocSam would agree to that, and RocSam's counsel again did not
respond.

11
no option but to seek judicial intervention. Accordingly, the

discovery judge did not abuse her discretion in sanctioning

RocSam. See Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542,

556 (2018) (judges have inherent power to impose sanctions

against those who obstruct administration of justice).

RocSam also argues that, subsequently, another judge of the

Superior Court abused her discretion in not fully reconsidering

the award of sanctions. RocSam's motion for reconsideration,

styled as a motion for relief, was not heard until RocSam filed

its motion to dismiss the first action, at which point the case

was before yet another judge (motion judge). RocSam argues that

the motion for reconsideration should have been transmitted back

to the judge who imposed the sanctions (i.e., the discovery

judge), and that the motion judge "dismissively" denied the

request for reconsideration without giving the sanction award a

"fresh look." Both arguments are without merit. At the

hearing, RocSam took the position that the motion judge could

rule on the request for reconsideration of the sanction award,

thereby waiving any argument that the motion should have been

transmitted back to the original discovery judge. See TAL Fin.

Corp. 446 Mass. at 429 n.10. As to the merits, while it is true

that a judge has the power to review or modify another's judge's

prior order, it is also true that "[a] judge should hesitate to

undo his own work" and "[s]till more . . . hesitate to undo the

12
work of another judge" (citation omitted). Tompson v.

Department of Mental Health, 76 Mass. App. Ct. 586, 592 (2010),

cert. denied, 565 U.S. 984 (2011). The motion judge's order

reflects a proper understanding and application of these

principles. Where the discovery judge did not abuse her

discretion in sanctioning RocSam, the motion judge did not abuse

her discretion in declining to undo the discovery judge's work.

c. Enlargement of time. RocSam argues abuse of discretion

in a single justice's decision in 22-P-713 to allow Carey's

motion for a fourth enlargement of time to file its appellate

brief and record appendix. Carey sought the enlargement of time

on the basis that (1) its other appeal had not yet been

docketed, (2) both appeals involved the same parties and similar

issues, and (3) Carey therefore planned to seek consolidation of

the appeals. Ultimately, the appeals were not consolidated, but

the fourth enlargement of time allowed the parties to brief, and

for us to hear and decide, the appeals at the same time, which

served the interest of judicial economy. Thus, we discern no

abuse of discretion.15

15We are unpersuaded by RocSam's argument that the Appeals Court
has a policy of not allowing enlargements of time beyond 120
days. See Lawrence Sav. Bank v. Garabedian, 49 Mass. App. Ct.
157, 161 n.14 (2000) (enlargements of time beyond 120 days are
"not ordinarily" granted). The policy is not a rule and
contemplates the possibility of enlargements beyond 120 days.

13
3. Conclusion. Regarding appeal 22-P-1257, so much of the

September 2022 judgment that did not award attorney's fees and

costs is reversed, and that aspect of the case is remanded for

further proceedings consistent with this memorandum and order.

In all other respects, the judgment is affirmed. In appeal 22-

P-713, the Superior Court orders of June 2021 and January 2022,

14
and the single justice order dated November 30, 2022, are

affirmed.16

So ordered.

By the Court (Vuono, Meade &
Walsh, JJ.17),

Assistant Clerk

Entered: January 26, 2024.

16 Carey and RocSam both seek appellate attorney's fees. Carey
seeks them pursuant to the fee provision of the lease agreement,
and RocSam seeks them on the basis that Carey's appeals are
frivolous. Carey is entitled to appellate attorney's fees and
costs incurred thus far in connection with the first action. In
accordance with the procedure specified in Fabre v. Walton, 441
Mass. 9, 10-11 (2004), Carey may, within fourteen days of
issuance of the rescript in 22-P-1257, submit an application for
appellate attorney's fees and costs. RocSam shall have fourteen
days thereafter to respond. RocSam's response may address
whether any of the requested fees should be denied on the basis
that Carey International, Inc., was not a party to the lease.
See note 8, supra. The other requests for appellate attorney's
fees are denied.
17 The panelists are listed in order of seniority.

15