Nickerson v. Dowd

• Citation: 342 Mass. 462,174 N.E.2d 346
• Parties: Warren V. NICKERSON et al. v. Lillian F. DOWD et al.
• Decision Date: 27 April 1961
• Court: United States State Supreme Judicial Court of Massachusetts

Page 346

174 N.E.2d 346

342 Mass. 462

Warren V. NICKERSON et al. v. Lillian F. DOWD et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued March 8, 1961.

Decided April 27, 1961.

Edward O. Proctor, Boston, for respondent Goldman.

Alan M. Winsor, Boston (John G. Miller, Boston, with him), for petitioner Capetown House, Inc.

Maurice M. Goldman, Brewster, for respondent Dowd.

Before WILKINS, C. J., and WILLIAMS, WHITTEMORE, CUTTER and SPIEGEL, JJ.

WILKINS, Chief Justice.

On this petition brought in the name of Capetown House, Inc., the respondents Maurice M. Goldman and Lillian F. Dowd were adjudged in contempt for violation of a temporary restraining order entered on April 13, 1960, in the Superior Court, Barnstable County, in case No. 25633, Nickerson v. Dowd. The respondent Goldman was committed to the common jail for a term of three months. The respondent Dowd was sentenced to pay a fine of $500 to the court for the use of the petitioner and committed to jail for a term of two months, but her sentence was suspended pending further order. The respondents appealed from the decree. Execution of the decree and commitment of the respondent Goldman were suspended by a single justice of this court.

We set out the restraining order verbatim: 'This cause came on to be heard upon the petitioners' [plaintiffs'] motion for a temporary restraining order, and thereupon, upon consideration thereof, it is ordered that Lillian F. Dowd and her agents, attorneys and counsellors, and each and everyone of them, to [sic] desist and refrain from interfering with the lawful operation of Capetown House Inc. and from going forward and prosecuting a petition for dissolution of Capetown House Inc., Barnstable County Superior Court in Equity No. 25729 and a motion for the appointment of a receiver, Barnstable County Superior Court in Equity No. 25729, or [from going forward and prosecuting] any other legal action for the purposes of hampering or dissolving the lawful operation of said Capetown House Inc., until final determination of this suit, No. 25633.'

The phrase 'lawful operation of Capetown House Inc.' was taken from the plaintiffs' motion. It is an unfortunate expression, particularly when carried over into the terms of the restraining order, and constitutes a confusing foundation upon which to base adjudications of contempt. The respondent Dowd lays heavy stress upon the phrase, and contends that the acts of one Nickerson, a business associate, whose acts she was charged with hindering, were not authorized and hence were unlawful. The respondents are charged with 'wilful defiance' of the restraining order. To find a violation there must be a clear and unequivocal command and an equally clear and undoubted disobedience. Terminal R. R. Ass'n v. United States, 266 U.S. 17, 29, 45 S.Ct. 5, 69 L.Ed. 150.

The petition for contempt was signed 'Capetown House, Inc., by Warren V. Nickerson, President and General Manager.' It alleged that an interlocutory decree entered on May 2, 1960, ¹ continued the restraining order of April 13, 1960, and that the respondents Dowd and Goldman violated that order in various respects. In an oral statement from the bench at the conclusion of the testimony the judge found that the averments in certain paragraphs of the petition had been sustained, six as to the respondent Dowd and two as to the respondent Goldman.

The parties are in agreement that the contempt was civil. We shall take the case as thus presented. It is settled beyond all question that appeal is a proper remedy for the review of an adjudication of civil contempt. Godard v. Babson-Dow Mfg. Co., 319 Mass. 345, 348, 65 N.E.2d 555; Cameron v. Durkin, 321 Mass. 590, 596, 74 N.E.2d 671; Commonwealth v. McHugh, 326 Mass. 249, 275, 93 N.E.2d 751; Alves v. Town of Braintree, 341 Mass. 6, 9, 166 N.E.2d 720.

As there were no detailed findings in the decree, and none but the naked oral findings that certain charges were sustained, the burden of making findings adequate to an understanding of this decision falls upon us. See Alves v. Town of Braintree, 341 Mass. 6, 10, 166 N.E.2d 720. In so doing we do not consider affidavits filed in this court with the purpose of filling in blank spots in the record. If any party desired to rely on such matters, application could have been made to the trial judge to report the case.

Capetown House, Inc., was a Massachusetts corporation, which operated a 'night club' and bar. Nickerson and the respondent Dowd each owned fifty per cent of its capital stock. At the time of the hearing its business had been closed since November, 1959. It occupied premises leased from the respondent Dowd under an indenture of October 28, 1958, the term being ninety-nine years and the yearly rental $1. The circumstances leading to the execution of this document do not appear in the record. The respondent Dowd operated a business known as Cape Self Service Laundry, which occupied part of the same building, the main doors being twenty-five feet apart. The laundry and Capetown House were separated by a common wall. A provision of the lease was, 'It is further agreed that whereas the Lessor is doing business as the Cape Self Service Laundry, and occupying part of the premises subject of this lease, but intends to vacate the premises within six months' time, that the Lessor may continue to occupy said premises without payment of rent for the said period of six months from the date of this lease.'

There is a controversy as to whether Nickerson or the respondent Dowd is president of the corporation. This question we cannot resolve on the record before us.

The original suit in equity (No. 25633) was brought on November 12, 1959, by Warren V. Nickerson and another against Lillian F. Dowd, Maurice M. Goldman, and others. On December 11, 1959, a final decree was entered on the plaintiffs' motion dismissing the bill of complaint without prejudice. The case then proceeded only on a counterclaim of the defendant (respondent) Dowd, with Mr. Goldman as her attorney, against the two plaintiffs and additional parties defendant, one of which was Capetown House, Inc. This case, two other equity suits, and an action at law were referred to a master and auditor. Mrs. Dowd became the sole plaintiff, and Mr. Goldman was her counsel. The hearings were bitterly contested. At one time the master and auditor disqualified himself. At another Mrs. Dowd moved to discharge the master and auditor. Upon resumption of the hearings, which Mrs. Dowd did not attend, a subpoena was issued and was followed by a capias for her arrest.

On February 8, 1960, Mrs. Dowd filed a petition (No. 25729) under G.L. c. 155, § 50, for the dissolution of Capetown House, Inc., and on April 12, 1960, filed a motion for the appointment of a receiver.

The litigation was in this posture when the temporary restraining order was issued on April 13, 1960. That order contains no recital that it was argued by counsel. The answer to the counterclaim was unsworn and signed by counsel only. The order was served on the respondents Dowd and Goldman on April 15 and 18, respectively. They urge that it was issued contrary to G.L. c. 214, § 9, as amended by St.1935, c 407, § 3. ² At that time the counterclaim had been tried before a master, who had made a report, still unconfirmed. The court had jurisdiction of the subject matter and the parties.

A motion by the respondent Dowd to dismiss the order was filed on April 18. It was endorsed 'Denied after hearing,' purportedly on May 1, which was a Sunday. ³ We assume that this was intended for May 2, the date of the interlocutory decree which continued the temporary restraining order in force 'pending the final determination of this suit.' That decree was in substance the granting of a preliminary injunction. Beacon Oil Co. v. Maniatis, 284 Mass. 574, 576, 188 N.E. 386; Davis v. Hayden, 4 Cir., 238 F. 734, 736-737; Schainmann v. Brainard, 9 Cir., 8 F.2d 11, 12. Of this the respondents had seasonable notice according to the docket. Any issue of violation of G.L. c. 214, § 9, could not be raised at the hearing on the petition for contempt. One who is charged with violating a temporary restraining order or a preliminary injunction, entered by a court having jurisdiction of the subject matter and the parties, cannot be heard to contest its validity in a proceeding for contempt. See Irving & Casson-A. H. Davenport Co. v. Howlett, 229 Mass. 560, 562-563, 118 N.E. 901; Commonwealth v. McHugh, 326 Mass. 249, 275, 93 N.E.2d 751; State Realty Co. of Boston, Inc. v. MacNeil, 341 Mass. 123, 167 N.E.2d 492; ⁴ In re Lennon, 166 U.S. 548, 554, 17 S.Ct. 658, 41 L.Ed. 1110; Howat v. State of Kansas, 258 U.S. 181, 189-190, 42 S.Ct. 277, 66 L.Ed. 550; United States v. United Mine Wkrs. of America, 330 U.S. 258, 293-294, 67 S.Ct. 677, 91 L.Ed. 884; Lewinsohn v. United States, 7 Cir., 278 F. 421, 423; Reich v. United States, 1 Cir., 239 F.2d 134, 137; Christian Hosp. v. People, 223 Ill. 244, 248-250, 79 N.E. 72.

In view of the result reached we find it unnecessary to decide whether by virtue of G.L. c. 214, § 9, the order of April 13 'terminated of its own force' on April 23 before it was renewed on May 2. See Stathopoulos v. Reeksting, 252 Mass. 542, 544, 147 N.E. 853. The only charges which would be affected are paragraph E ('on or about May 1, 1960') and paragraph K ('on or about April 29, 1960').

We now consider the charges which were sustained against the respondent Dowd. An underlying question, although not argued in any brief, is the effect of the provision in the lease regarding six months' free rental of the laundry premises. This period expired on April 28, 1959, and yet the respondent Dowd was still in possession more than a year later when the alleged acts in contempt occurred. There is nothing to show that such continued possession was not rightful.

(1) Paragraph A of the petition was: 'On May 11, 1960, the president and general...