Com. v. Fall River Motor Sales, Inc.

• Decision Date: 31 January 1991
• Citation: 409 Mass. 302,565 N.E.2d 1205
• Parties: COMMONWEALTH v. FALL RIVER MOTOR SALES, INC. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1205

565 N.E.2d 1205

409 Mass. 302

COMMONWEALTH v. FALL RIVER MOTOR SALES, INC. ¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 3, 1990.

Decided Jan. 31, 1991.

Allan R. Curhan, Richard J. Shea, Boston, with him, for defendant.

Stephen A. Jonas, Deputy Atty. Gen., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

Pursuant to G.L. c. 93A, § 4, the Commonwealth, through the Attorney General, commenced a civil contempt action in the Superior Court against the defendant Fall River Motor Sales, Inc., for violation of an earlier consent judgment prohibiting the defendant from engaging in misleading advertising. The Commonwealth moved for summary judgment on the issue of contempt. The motion was allowed. After the defendant was adjudged in contempt, a judge of the Superior Court allowed the Commonwealth's request for summary judgment on the issue of an appropriate penalty, assessed the defendant a civil penalty of $20,000, and made other orders of compliance. The defendant appealed from the judgment incorporating the civil penalty and compliance orders. We transferred the case to this court on our motion and now affirm the judgment.

The defendant is an automobile dealership which does business in the name Lynngate Motors. In 1984, the Commonwealth brought a civil enforcement action pursuant to G.L. c. 93A, § 4, seeking to enjoin the defendant from using "invoice price" advertisements for motor vehicles. ² The Commonwealth alleged that the defendant's advertisements violated G.L. c. 93A, and 940 Code Mass.Regs. § 5.02(5) (1977). ³ In 1985, the parties entered into a consent judgment which enjoined the defendant from using advertisements that violate 940 Code Mass.Regs. § 5.02(5). ⁴

In August, 1988, the Commonwealth filed a complaint against the defendant pursuant to the last paragraph of G.L. c. 93A, § 4, for civil contempt alleging violation of the consent judgment and seeking the imposition of a civil penalty and other relief. ⁵ The defendant had placed an advertisement in the Boston Globe newspaper which offered "6.9% over factory invoice on any in stock Volkswagen" except Volkswagen Fox sedans. The advertisement did not state the exact figure of the price standard or the actual price at which the vehicles were being offered for sale. The advertisement appeared three successive Sundays, on January 10, 17, and 24, 1988. The Commonwealth's complaint sought $10,000 in damages, the maximum penalty for a single violation under G.L. c. 93A, § 4.

The parties jointly obtained an order setting a discovery schedule, Mass.R.Civ.P. 65.3(g), 386 Mass. 1244 (1982), and subsequently commenced discovery. The Commonwealth, however, objected to most of the defendant's interrogatories and requests for document production. The defendant filed motions seeking to compel production of documents and answers to interrogatories. The Commonwealth then filed its motion for summary judgment, seeking judgment on the issues of contempt and sanctions. In its motion, the Commonwealth asked for a civil penalty of $30,000, claiming that it had learned through discovery that the advertisement had appeared three times in the newspaper, constituting, in the Commonwealth's view, three separate violations instead of one. The Commonwealth opposed the defendant's motion to compel discovery and moved for a protective order pursuant to Mass.R.Civ.P. 37, as amended, 390 Mass. 1208 (1984).

The defendant sought to schedule argument on its pending discovery motions and to postpone hearing on the Commonwealth's summary judgment motion until after decision of the discovery controversy. The defendant also filed a memorandum of opposition to the summary judgment motion on its merits. Without expressly ruling on the discovery motions, a judge of the Superior Court granted summary judgment for the Commonwealth on the contempt issue and ordered a second hearing on the issue of the penalty.

The Commonwealth next moved to amend its original complaint to increase the amount of the penalty sought from $10,000 to $30,000. The defendant again moved to postpone the decision of the penalty issue pending a ruling on its discovery motions. After a nonevidentiary hearing, another judge of the Superior Court ordered the defendant to: (1) pay a $20,000 civil penalty; (2) comply with the consent judgment; (3) send to the Attorney General for one year copies of all "invoice price" advertisements; and (4) pay attorneys' fees and costs to the Commonwealth.

The defendant does not deny that its advertisement violated the consent judgment and, consequently, that it was properly found in civil contempt. The defendant's arguments are directed to the assessment of the $20,000 civil penalty. The defendant maintains that the judge erred in setting that penalty before it had the chance to complete discovery and in failing to make findings of fact and conclusions of law to support the amount of the penalty. The defendant also argues that its violation was de minimis and warranted only a nominal penalty. In the alternative, the defendant claims that it committed only one violation--not three--and that the maximum civil penalty should have been set at $10,000. Finally, the defendant argues that G.L. c. 93A, § 4, does not authorize the award of attorney's fees and costs to the Commonwealth.

1. We take up the discovery point first. The defendant sought extensive discovery about similar cases brought by the Commonwealth under G.L. c. 93A against automobile dealers in the past and the Commonwealth's policies and recommendations concerning penalties in such cases. The defendant also sought a description by the Commonwealth of the factual basis for the assertion that its advertisement was false, misleading or deceptive. The Commonwealth opposed the discovery on several grounds, maintaining that the information sought by the defendant was irrelevant and privileged and would be burdensome to produce.

The defendant contends that it was error for the judge to have granted summary judgment on the civil penalty issue without first allowing it to complete its intended discovery. The defendant argues that the judge should have allowed its motions to compel discovery and granted a continuance until the discovery was complete. The information requested, the defendant claims, was necessary because it would show that the penalty sought by the Commonwealth in this case was grossly disproportionate when compared to the Commonwealth's civil penalty policies in other cases. The defendant also claims that the information would have assisted the judge in setting the amount of the civil penalty.

The judge's refusal to grant the continuance sought by the defendant was a discretionary ruling which will be set aside only upon a clear showing of an abuse of discretion. See First Nat'l Bank v. Slade, 379 Mass. 243, 245-246, 399 N.E.2d 1047 (1979). See also Daily Press, Inc. v. United Press Int'l, 412 F.2d 126, 135 (6th Cir.1969), cert. denied, 396 U.S. 990, 90 S.Ct. 480, 24 L.Ed.2d 453 (1969); Blake Brothers Corp. v. Roche, 12 Mass.App.Ct. 556, 560-561, 427 N.E.2d 501 (1981); Commonwealth v. Colonial Motor Sales, Inc., 11 Mass.App.Ct. 800, 810, 420 N.E.2d 20 (1981). The defendant has not demonstrated such an abuse.

A continuance is appropriate if the party opposing a summary judgment motion shows that it cannot, without further discovery, "present by affidavits facts essential to justify [its] opposition." Mass.R.Civ.P. 56(f), 365 Mass. 825 (1974). See Godbout v. Cousens, 396 Mass. 254, 262 n. 11, 485 N.E.2d 940 (1985); First Nat'l Bank v. Slade, 379 Mass. 243, 244-245 (1979). See generally Annot., Sufficiency of Showing, Under Rule 56(f) of Federal Rules of Civil Procedure, of Inability to Present by Affidavit Facts Justifying Opposition to Motion for Summary Judgment, 47 A.L.R.Fed. 206 (1980). One common reason for the denial of a continuance in this context is the irrelevance of further discovery to the issue being adjudicated in summary judgment. See Blake Bros., supra 12 Mass.App. at 560-561, 427 N.E.2d 501; 10 A.C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2741, at 558-559 (1983 & Supp.1990); J. Smith & H. Zobel, Rules Practice § 56.8, at 362 (1977 & Supp.1990). See also First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 265, 88 S.Ct. 1575, 1580, 20 L.Ed.2d 569 (1968) ("... Rule 56[f], Fed.Rules Civ.Proc., ... provides for comparatively limited discovery for the purpose of showing facts sufficient to withstand a summary judgment motion, rather than Rule 26, which provides for broad pretrial discovery.").

In this case, the judge could have concluded that discovery with respect to the Commonwealth's past recommendations and policies in other automobile dealer advertising cases was of little or no relevance to his assessment of the civil penalty. The amount of any civil penalty to be imposed under G.L. c. 93A, § 4, presents an issue substantially within the judge's discretion; and, in determining the amount, the judge is not obliged to look to the information sought by the defendant's discovery. See United States v. ITT Continental Baking Co., 420 U.S. 223, 229 n. 6, 95 S.Ct. 926, 930 n. 6, 43 L.Ed.2d 148 (1975); United States v. T & S Brass & Bronze Works, Inc., 681 F.Supp. 314, 322 (D.S.C.1988); aff'd in part, vacated in part, 865 F.2d 1261 (4th Cir.1988); United States v. Phelps Dodge Indus., Inc., 589 F.Supp. 1340, 1362 (S.D.N.Y.1984). Compare United States v. 225 Cartons, More or Less, of an Article or Drug, 871 F.2d 409, 419-420 (3d Cir.1989) (possible evidence of inconsistent policy of the Food and Drug Administration is not sufficient to defeat summary judgment and does not justify granting a continuance pursuant to rule 56[f] ).

The judge could also have considered that much of the discovery sought by the defendant appeared to be privileged as work product and would not have been allowed even if a...