T & D Video, Inc. v. City of Revere

• Decision Date: 27 November 2007
• Docket Number: SJC-09912.
• Citation: 876 N.E.2d 842,450 Mass. 107
• Parties: T & D VIDEO, INC.<SMALL><SUP>1</SUP></SMALL> v. CITY OF REVERE & others.<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

876 N.E.2d 842

450 Mass. 107

T & D VIDEO, INC.¹ v. CITY OF REVERE & others.²

SJC-09912.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 6, 2007.

Decided November 27, 2007.

Christopher DeMayo, Boston (Jeffrey Strom with him) for the plaintiff.

Ira H. Zaleznik, Boston, for the defendants.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & CORDY, JJ.

MARSHALL, C.J.

Title 42 U.S.C. § 1988(b) (2006) provides in part that a court may, in its discretion, award attorney's fees to a "prevailing party," other than the United States, in a proceeding to enforce a provision of 42 U.S.C. § 1983 (2006).³ In 2001, the United States Supreme Court explained that a "prevailing party" is one who obtains a "judicially sanctioned change in the legal relationship of the parties," and that "enforceable judgments on the merits" and "court-ordered consent decrees" may permit an award of attorney's fees. Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598, 604, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (Buckhannon).⁴ Six years later, in Sole v. Wyner, ___ U.S. ___, ___, 127 S.Ct. 2188, 2196, 167 L.Ed.2d 1069 (2007) (Sole), the Court elaborated further that a party "who gains a preliminary injunction does not qualify for an award of counsel fees under § 1988(b) if the merits of the case are ultimately decided against her." The corollary of this ruling is that a party who obtains a preliminary injunction (trial or appellate) may be required to await further developments in the case to clarify whether it is a "prevailing party" for Buckhannon purposes. As the Sole Court noted, the "tentative character" of the preliminary injunction, where the litigation must continue "to definitively resolve the controversy," makes a fee award "at the initial stage premature." Id. at 2195, 127 S.Ct. 2188.⁵

The issue in this appeal is whether the plaintiff, T & D Video, Inc. (T & D), which in 2002 obtained permanent injunctive relief in a final judgment in the Superior Court, is eligible for an award of attorney's fees for its successful defense in 1994-1996 against the city of Revere's (city's) interlocutory appeals from a preliminary injunction, where T & D did not request those fees. Instead, T & D sought its interlocutory appellate (and other) attorney's fees for the first time in the Superior Court in 2003 after final judgment entered in its favor. In 2004, a judge in the Superior Court granted T & D its fees and costs pursuant to 42 U.S.C. § 1988(b), and G.L. c. 12, § 11I, see note 7, infra, including in the award T & D's fees and costs for defending against the city's interlocutory appeals in 1994-1996. The Appeals Court vacated the award, holding in part that any request for fees incurred on appeal to the Supreme Judicial Court should have been submitted in this court. See T & D Video, Inc. v. Revere, 66 Mass. App.Ct. 461, 478, 848 N.E.2d 1221 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2905, 167 L.Ed.2d 1152 (2007). We granted T & D's application for further appellate review on that issue.

For reasons we shall explain, we conclude that T & D is eligible for its interlocutory appellate attorney's fees. We also take this opportunity to clarify the Massachusetts procedure for requesting interlocutory appellate attorney's fees and costs under 42 U.S.C. § 1988(b) and similar Federal fee-shifting statutes. See note 4, supra.

1. Background. In November, 1994, owing to difficulties that it experienced in obtaining permission from the city to open an "adult" video store in Revere, T & D commenced an action in the Superior Court against the city, claiming, inter alia, that the city's "adult entertainment" zoning ordinances⁶ violated T & D's rights to protected expression under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights, and violated 42 U.S.C. § 1983 and G.L. c. 12, §§ 11H and 11I (Massachusetts act).⁷ T & D sought and obtained in the Superior Court a preliminary injunction restraining enforcement of the ordinances against it. The city filed a petition for relief from the injunction pursuant to G.L. c. 231, § 118, first par.,⁸ which a single justice of the Appeals Court denied. The city also appealed from the Superior Court judge's preliminary injunction pursuant to G.L. c. 231, § 118, second par.⁹ In February, 1995, this court granted the city's application for direct appellate review and, in September, 1996, affirmed the Superior Court judge's order granting the preliminary injunction. See T & D Video, Inc. v. Revere, 423 Mass. 577, 583, 670 N.E.2d 162 (1996).

Following discovery, T & D moved for summary judgment in the Superior Court, which was denied by a different judge in November, 2001. The case then proceeded to a jury-waived trial before a third judge in the Superior Court. In October, 2002, that judge concluded that enforcement of the city's adult entertainment ordinances violated the constitutional rights of T & D to engage in the sale of nonobscene "adult" videotapes, and entered an order permanently enjoining the city from enforcing the ordinances against T & D. In January, 2003, T & D filed a motion in the Superior Court, as a "prevailing party" under "both federal and state law," requesting attorney's fees and costs in the total amount of $1,163,233.28.¹⁰ T & D's request included fees and costs associated with its defense of the city's appeals from the preliminary injunction in both the Appeals Court and in this court, identifying the amount of those fees and costs in detailed daily billing records submitted by T & D's counsel, but without specifying the total amount in either court.¹¹ In February, 2004, the judge awarded T & D attorney's fees and costs in a total amount of $915,027, but did not specify the portion of the award, if any, that related to the city's appeals from the preliminary injunction.

The city appealed from the final judgment in the Superior Court on the merits, and from the award of attorney's fees and costs to T & D. The Appeals Court affirmed the judgment on the merits. See T & D Video, Inc. v. Revere, 66 Mass.App.Ct. 461, 474, 848 N.E.2d 1221 (2006). The court, however, disagreed with the judge's calculation of T & D's attorney's fees and costs and vacated so much of the order as had awarded those fees and costs, id. at 484, 848 N.E.2d 1221, and remanded the matter to the Superior Court for recalculation of T & D's fees and costs. Id.¹² The Appeals Court also concluded, without briefing or argument, that T & D could recover none of its attorney's fees and costs related to its defense against the city's interlocutory appeal to this court, holding that any request for fees in connection with that appeal "should have been submitted" to this court, which, it noted, "awards attorney's fees where appropriate in its own cases, and has procedures for doing so." Id. at 478, 848 N.E.2d 1221.¹³, ¹⁴ T & D petitioned for a rehearing in the Appeals Court solely on the issue of its interlocutory appellate attorney's fees, which was denied.

Both parties applied for further appellate review. In the city's application, which we denied, it challenged the decision of the Appeals Court on the merits, and further claimed the Appeals Court should have denied "in its entirety" T & D's request for attorney's fees and costs. In T & D's application, which we granted, T & D sought review only of the denial of its appellate attorney's fees pertaining to the city's 1994-1996 appeals from the preliminary injunction.¹⁵ In its application, T & D asserted that the Appeals Court's decision on this point misconstrued the relevant law, arguing that there is "no basis under [42 U.S.C.] § 1988 to recover fees relating to a preliminary injunction while the merits of the underlying case are yet undecided," citing Buckhannon and other Federal cases.¹⁶ It also argued that, at the time of the interlocutory appeals, "it was not mandatory that requests for appellate legal fees be made to the appellate court in the parties' briefs," citing Fabre v. Walton, 441 Mass. 9, 802 N.E.2d 1030 (2004).

2. Discussion. We first address the appropriateness of awarding T & D its interlocutory appellate attorney's fees and costs under 42 U.S.C. § 1988(b), and then outline the procedure for the request for, and award of, such fees and costs in the future.

As noted earlier, 42 U.S.C. § 1988(b) authorizes a court to award attorney's fees and costs to a "prevailing party," including attorney's fees incurred on appeal. See Buckhannon, supra at 604, 121 S.Ct. 1835; Powell v. Alexander, 391 F.3d 1, 24 (1st Cir.2004) (allowing plaintiff's motion for reasonable attorney's fees and costs of appeal pursuant to 42 U.S.C. § 1988[b]). There is no question that T & D is a "prevailing party" eligible for an award of attorney's fees and costs: it has obtained a permanent injunction enjoining enforcement of the city's "adult entertainment" ordinances against it. See Buckhannon, supra; Staley v. Harris County, 485 F.3d 305, 314 (5th Cir.2007) (party who obtained permanent injunction in trial court was "prevailing party" entitled to attorney's fees); Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 835-836 (6th Cir. 2005) (same). See also T & D Video, Inc. v. Revere, 66 Mass.App.Ct. 461, 475, 848 N.E.2d 1221 (2006) ("That [T & D] is the prevailing party here is not disputed").

The city argues, however, that, in 1996, when this court affirmed the order of the Superior Court granting T & D a preliminary injunction, T & D was a "prevailing party" under the then prevailing "catalyst test,"¹⁷ and that T & D's failure to request its appellate attorney's fees and costs in its 1995 brief to this court was a "clear waiver" of that claim. Buckhannon and its progeny, however, "must be given full retroactive effect in all cases still open on direct review." Newell v. Department of Mental Retardation, 446 Mass. 286, 303 n. 31, 843 N.E.2d 1084 (2006),...