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Case Name

FRANZ MARX vs. PATRICIA BROOKS & another.

Release Date

5/9/2025

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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

23-P-415

FRANZ MARX

vs.

PATRICIA BROOKS & another.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

These cross appeals, arising from a dispute over the

ownership of personal property, concern a complaint for civil

contempt brought by plaintiff Franz Marx. After a trial, a

judge of the Worcester Superior Court found defendant Patricia

Brooks in contempt. The trial judge dismissed the complaint for

contempt as to Brooks's husband Jon Krecidlo. Brooks appeals

from so much of the judgment as found her in contempt, and Marx

appeals from so much of the judgment as dismissed the contempt

complaint against Krecidlo. Marx also contests the amount of

Jon Krecidlo.

attorney's fees and costs he was awarded. We affirm in all

respects.

A judge's finding of civil contempt must "be supported by

clear and convincing evidence of disobedience of a clear and

unequivocal command." Birchall, petitioner, 454 Mass. 837, 853

(2009). See Quinn v. Quinn, 49 Mass. App. Ct. 144, 147 (2000)

(purpose of contempt is to "achieve compliance" with underlying

order [citation omitted]). "Where the order is ambiguous or the

disobedience is doubtful, there cannot be a finding of

contempt." Cooper v. Keto, 83 Mass. App. Ct. 798, 804 (2013),

quoting Birchall, supra at 852. See Sax v. Sax, 53 Mass. App.

Ct. 765, 772 (2002) ("vague or ambiguous language in a judicial

decree will not suffice"). A finding of contempt will be

upheld, however, "where the court order, although subject to

some legal interpretation, has nonetheless placed the party

bound by the order on notice that certain actions could

constitute the basis for contempt." Demoulas v. Demoulas Super

Mkts., Inc., 424 Mass. 501, 567 (1997). "We review [a] judge's

ultimate finding of contempt for abuse of discretion, but we

review underlying conclusions of law de novo and underlying

findings of fact for clear error." Commercial Wharf E.

Condominium Ass'n v. Boston Boat Basin, LLC, 93 Mass. App. Ct.

523, 532 (2018).

On June 11, 2019, the court issued a preliminary injunction

that ordered Brooks "enjoined from removing, selling or

transferring the personalty of the plaintiff."

During

litigation, the parties exchanged a list of personal property in

dispute, which included a covered trailer, a Toyota, several car

parts, and the shell of a Corvette. In 2021, Brooks, in concert

with Krecidlo, sold the trailer and the Toyota for approximately

$5,000.

The judge determined that Brooks "clearly violated the

order by selling the two items." We agree and conclude that

there was no abuse of discretion or clear error in this finding.

Thus, we affirm the order of contempt as to the trailer and

Toyota.

The judge also found that in 2022, Krecidlo, at Brooks's

instruction, "moved many of the disputed car parts from a

covered and protected environment, either in the covered trailer

or in the garage, to the outdoor elements" and that the Corvette

was moved from the garage to the yard. On appeal, Brooks

asserts that the order's language of "removing" was vague and

From the early 2000s to approximately 2017, Brooks and

Marx lived together and accumulated personal property in their

Charlton residence. Pursuant to an ex parte restraining order,

Marx left the residence. In 2018, he brought a civil action to

retrieve property he had left behind.

On appeal, Brooks maintains that the Toyota was registered

in her name and that she owned the trailer. However, the judge

credited Marx's testimony that he purchased both items and

disbelieved Brooks's testimony to the contrary.

claims that she was not on notice that "moving" the items

outside would result in contempt. The judge concluded that the

preliminary injunction clearly "put the parties on notice that

the status quo of these items was to remain in place, so that

the court action could resolve proper ownership of the items."

We agree and conclude that Brooks's conduct clearly violated the

preliminary injunction by moving the disputed property to an

area where the elements would cause it to be damaged. See

Demoulas, 424 Mass. at 567. We discern no abuse of discretion

in the judge's finding and affirm the order of contempt as to

the car parts and Corvette shell.

Marx argues that the judge made a clear error in finding

that Krecidlo did not have actual notice of the preliminary

injunction. To be found in contempt of an order, a party must

"have fair notice of the conduct the order prohibits." Sax, 53

Mass. App. Ct. at 772. More specifically, "[a]n injunction is

binding on the parties and 'upon those persons in active concert

or participation with them who receive actual notice of the

order by personal service.'" Mohamad v. Kavlakian, 69 Mass.

App. Ct. 261, 265 (2007), quoting Mass. R. Civ. P. 65 (d), 365

Mass. 832 (1974). Here, the judge found that, although Krecidlo

received a letter in 2022 from Marx's counsel that mentioned the

order, Krecidlo did not have knowledge of the order because he

did not receive a copy of the actual order.

This finding is

supported by the trial transcript and is not clearly erroneous.

We conclude that the judge did not abuse his discretion in

declining to hold Krecidlo in contempt and affirm the order of

dismissal as to him.

Following the contempt finding, Marx successfully moved for

an award of attorney's fees and costs. The judge ordered Brooks

to pay Marx's legal fees in the amount of $22,500 and $518.34 in

costs for Marx's pursuit of the contempt action. "As matter of

law, the awarding of attorney's fees and costs is an appropriate

element of a successful civil contempt proceeding . . . and it

is within the court's discretion to formulate a remedy in a

civil contempt proceeding." Demoulas, 424 Mass. at 571. In

determining the reasonable attorney's fee amount, "the judge

. . . should consider the nature of the case and the issues

presented, the time and labor required, the amount of damages

involved, the result obtained, the experience, reputation and

ability of the attorney, the usual price charged for similar

services by other attorneys in the same area, and the amount of

awards in similar cases." Linthicum v. Archambault, 379 Mass.

381, 388-389 (1979).

Counsel's letter recited language from the order, but it

did not use quotation marks to indicate it was language from the

order.

On appeal, Marx contends that the judge abused his

discretion in lowering the requested attorney's fees from

$55,080 to $22,500 and expenses from $3,647.36 to $440.

Marx

argues that the judge did not set forth any findings for his fee

reduction, hours reduction, or costs. We disagree. The judge

based the award on what he considered to be a reasonable hourly

rate and a reasonable number of hours given the issues presented

at the contempt trial. The judge "observe[d] the case

presentation" and "reviewed the affidavit provided by counsel

documenting and detailing the time spent on the tasks

undertaken." In addition, the judge noted that "the legal

issues raised in this matter were not complicated or unique and

the factual investigation was relatively straightforward."

Thus, we discern no abuse of discretion in the judge's decision

on attorney's fees and costs.

The judge actually awarded $518.34, including $440 for the

police details and $78.34 for process service, but Marx makes no

reference to the latter amount in his brief.

Marx also seeks attorney's fees and costs of the appeal.

We cannot conclude that this appeal was frivolous, and therefore

decline to exercise our discretion to award appellate

attorney's fees and costs. See Cusack v. Clasby, 94 Mass. App.

Ct. 756, 760 (2019).

The judgement on the contempt complaint and the order for

attorney's fees and costs are affirmed.

So ordered.

By the Court (Massing,

Englander & D'Angelo, JJ. ),

Clerk

Entered: May 9, 2025.

The panelists are listed in order of seniority.

Docket Number - 23-P-0415main content

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