32 Mass. App. Ct. 404 | Mass. App. Ct. | 1992
The defendants were found to be in contempt of a preliminary injunction against operating a “Nutri/System” outlet at a particular address in Norwell, the problem being, according to the plaintiffs, who operate a Nutri/System weight loss center in Braintree, that the Norwell
There was a hearing on the contempt complaint on October 3, 1989, at which the defendants acknowledged their violation, according to the judge’s findings. From affidavits the individual defendants filed at the hearing, we gather that their position was that the presence of their Norwell Nutri/ System outlet impinged little on the plaintiffs’ actual market, which continued to grow despite the defendants’ Norwell facility, and that the closing of their Norwell location would leave an opening for market penetration by a major Nutri/ System competitor, “Jenny Craig.” The judge entered findings and a judgment of contempt, imposing damages of $250 per day, for fifty days, that being the time (according to the judge’s calculation) that the injunction had been in effect up to the date of the hearing on October 3, and $500 per day for each day thereafter that the defendants should remain in violation. She also awarded attorneys’ fees and costs of $16,069.02, as outlined in an affidavit furnished by the plaintiffs’ counsel.
The difficulty we have in evaluating both of these contentions is that we have absolutely no idea what transpired at the October 3 hearing on the contempt complaint. No transcript of the hearing has been furnished, and the defendants have not availed themselves of any alternative method of reconstructing the evidentiary record (see Mass. R.A.P. 8[c] and [d], 378 Mass. 932, 933-934 [1979]). Without a record of the testimony or representations at the hearing, we have no basis for concluding that the evidence did not support the judge’s findings of damages. Kunen v. First Agric. Natl. Bank, 6 Mass. App. Ct. 684, 689 (1978). The burden is on the appellant in the first instance to furnish a record that supports his claims on appeal. Id. Errors that are not disclosed by the record afford no basis for reversal.
We can only look at what we are given: this is the judge’s findings and three affidavits, two furnished by the defendants the day of the trial, the other furnished by the plaintiffs’
There is no fatal inconsistency between the judge’s award of $250 per day for past violations and $500 per day for future violations. Lost profits are notoriously difficult to prove with precision, see Frank D. Wayne Assocs., Inc. v. Lussier, 16 Mass. App. Ct. 986, 988 (1983), and a judge may rationally employ conservative principles in estimating damages for past violations, where the purpose is entirely compensatory, but employ more expansive principles in assessing a periodic fine for ongoing violations, where the purpose is less compensatory and more coercive, to compel obedience to the injunction. Especially in civil contempts where the fine is prospec
The large daily fine was ordered by the judge to take effect not from the date of the contempt judgment but from the date of the hearing, October 3. At that time the defendants stood before the court in open violation of the court’s order. They were, or should have been, then on notice that the court could not treat ongoing violations with lofty indifference. In this situation a fine based on strictly compensatory principles, conservatively calculated, could be viewed “ ‘as nothing more than an acceptable cost of violation rather than as a deterrence to violation.’ ” Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 313 (1991), quoting from United States v. ITT Continental Baking Co., 420 U.S. 223, 231 (1975). There was no error or abuse of discretion in finding the amount of the coercive daily fine or in ordering it to apply from the date of the hearing.
The defendants also contend that the judge erred in her award of counsel fees to the plaintiffs. The principal contention here is that a major portion of the hours spent in July and August, 1989, appear, from the descriptions of the work appearing in the plaintiffs’ counsel’s affidavit, to have been
Part (a) of the judgment, relating to attorneys’ fees and costs, is vacated, and the matter is remanded to the Superior Court for reconsideration. The judgment is otherwise affirmed.
So ordered.
The very limited record that the defendants have furnished to this court does not show that the underlying action in the Superior Court has been concluded. There is doubt whether a civil contempt order in an ongoing action is a presently appealable order, at least in the absence of an order of commitment. See Cabral’s Case, 18 Mass. App. Ct. 141, 143-144 (1984). This court has discretion to entertain an appeal, however, even if it is not one that is here of right. Id. at 144. We elect to entertain the appeal in
The affidavit of the plaintiffs* counsel could be the source of the figures in the judge’s findings relative to gross-per-client at the plaintiffs’ Brain-tree facility, but we have no way of knowing whether those figures were independently supported by evidence at the October 3 hearing, nor do we know that the defendants had no opportunity to rebut the affidavit. It should be noted that at least one of the figures used by the judge in her findings (that concerning the number of clients served by the Norwell facility) comes from the affidavits furnished by the defendants.
During the pendency of this appeal, the plaintiffs’ counsel advised the court of the return of a jury verdict in favor of the plaintiffs against Nutri/System, Inc., in a pending Federal District Court action, Arch Medical Associates, Inc. vs. Nutri/System, Inc., No. 88-2483-Y (D. Mass.). Still pending, apparently, is a G. L. c. 93A claim. Although the jury verdict in the Federal action may represent the plaintiffs’ damages resulting from the defendants’ operation of the Nor well facility, without seeing the pleadings and the jury instructions in the Federal action we are in no position to compare the damages awards in that action and this. To whatever extent it might be thought relevant, such questions should be addressed in the first instance to the trial court. It goes without saying that different fact finders measuring the same damages against different obligors on different evidentiary records in actions involving different parties may validly reach inconsistent results, leaving the plaintiffs free to collect, if they can, on the larger of the awards. See, e.g., Sprague v. Oakes, 19 Pick. 455, 458 (1837).