The PATRIOT GROUP, LLC v. STEVEN C. FUSTOLO & Others.

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-293

THE PATRIOT GROUP, LLC

vs.

STEVEN C. FUSTOLO & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial on a complaint for civil contempt, a

judge of the Superior Court found that the defendant, Steven C.

Fustolo, violated a 2012 permanent injunction that imposed

certain spending limits on Fustolo's living expenses and

required him to document his expenditures until he satisfied an

outstanding $20.4 million judgment in favor of the plaintiff,

1Winchester Savings Bank was a trustee process defendant.
The following defendants were joined solely on reach and apply
claims: James J. Fox & Company LLP, National Tax Institute,
Inc., CPE Meetings, Inc., Terrace Hall Partners LLC, Five High
Street LLC, Huntington Properties, Inc., Property Trust
Corporation, Huntington Properties Holding Company, L.L.C., 23-
25 Highland Avenue, LLC, Fustolo Development LLC, and Atlas
Garden Supply LLC. Fustolo CPE, LLC, was later added as a reach
and apply defendant pursuant to the judgment on the contempt
complaint.
the Patriot Group, LLC (Patriot). A judgment entered that,

among other things, ordered Fustolo to provide documentation of

his and his wife's annual expenditures from 2012 forward,

enjoined Fustolo and his wife from spending more than $7,000 per

month on ordinary living expenses, and added a newly-formed

entity, Fustolo CPE, LLC (Fustolo CPE), as a reach and apply

defendant.2 By separate order, the judge also awarded Patriot

$15,000 in attorney's fees.

On appeal, Fustolo argues that the judge erred in finding

Fustolo in violation of the injunction (but not in contempt)

both because the requirement that Fustolo provide annual

documentation of his expenditures was not clear and unequivocal,

and because Fustolo was not obligated to comply with the

injunction during two bankruptcy stays entered in this matter.

Fustolo also argues that the judge exceeded his authority by

clarifying the injunction to require Fustolo to provide annual

accountings dating back to 2012, by adding to Fustolo's wife and

Fustolo CPE to the injunction, and by awarding attorney's fees

to Patriot. We affirm.

2 Although Fustolo's notice of appeal also identifies a May
31, 2022 order for judgment, and an August 23, 2022 order on
Patriot's motion to compel Fustolo's compliance with the order
for judgment, we treat those two orders as subsumed in the
judgment on the contempt complaint dated January 6, 2023.

2
Background. We set forth those facts that are undisputed,

as well as the facts found by the judge after trial. We reserve

certain facts for our later discussion.

1. Underlying judgment and injunction. Fustolo has been a

certified public accountant (CPA) since the 1980s. He has

wholly owned and operated businesses involving real estate

development, publishing, and continuing professional education

for CPAs, attorneys, and other tax professionals. In 2007,

Fustolo created a company to hold and develop a property located

in the city of Revere. That development company secured a $13.6

million loan from Patriot, a private lender. The company

subsequently defaulted on the loan and Fustolo became liable

under a personal guaranty.

In February 2010, Patriot brought an action in the Superior

Court against Fustolo under the guaranty and named several

companies that are owned by Fustolo as reach and apply

defendants (Superior Court action).3 In May 2011, a separate and

final judgment entered against Fustolo in the amount of $20.4

million. Patriot then moved for entry of a reach and apply

judgment and permanent injunction under G. L. c. 214, § 3 (6).

In April 2012, final judgment and a permanent injunction entered

3 For the names of the reach and apply defendants, see note
1, supra.

3
against Fustolo and the reach and apply defendants. As relevant

here, paragraphs two and four of the injunction read as follows:

"2. That Steven C. Fustolo and his respective managers,
agents, members, partners, nominees, representatives,
servants, employees, attorneys, and all people in active
concert or participation with them are permanently
restrained and enjoined from directly or indirectly
assigning, alienating, selling, transferring, pledging,
encumbering, concealing or in any other manner, disposing
of, diminishing, dissipating, re-directing or otherwise
instructing the re-direction and/or misapplication of any
and all intangible properties received by Steven C. Fustolo
from the Reach and Apply Defendants, except to pay ordinary
living expenses for mortgage, food and the like, not to
exceed $84,000 per year or a cumulative average of $7,000
per month, to be documented to the Plaintiff on an annual
basis, and to pay ordinary operating expenses for the
operation of the Reach and Apply Defendants, including but
not limited to real estate taxes, utilities, insurance
premiums, payroll (excluding Steven C. Fustolo), payroll
taxes, occupancy costs, and supplies, or as otherwise
directed by this Court and from paying any monies directly
or indirectly to any other person or entity created or
controlled by Steven C. Fustolo;

. . .

"4. That the Reach and Apply Defendants . . . and all of
their respective managers, directors, officers, agents,
partners, members, subsidiaries, nominees, representatives,
servants, employees and attorneys, and each and every one
of them, and all people in active concert or participation
with them, are permanently restrained and enjoined from
directly or indirectly paying money or any other form of
compensation or dividend to or for the benefit of Steven C.
Fustolo, or from altering, amending, modifying,
hypothecating, assigning, alienating, selling,
transferring, encumbering, concealing or in any other
manner, disposing of, diminishing or dissipating the value
of Steven C. Fustolo's beneficial, equitable, shareholder
and/or ownership interests in the Reach and Apply
Defendants. However, the above Reach and Apply Defendants
may advance funds to Fustolo in an amount not to exceed
$84,000 per year or a cumulative average of $7,000 per

4
month to cover his personal living expenses as described
above in paragraph 2, or to pay the Plaintiff."

2. Bankruptcy matters. Shortly after the injunction

issued, in 2013, Patriot (and other creditors) brought a chapter

7 involuntary bankruptcy proceeding against Fustolo. In 2014,

Patriot (and another creditor) commenced a related adversary

proceeding against Fustolo, also in bankruptcy court, seeking to

except certain debts from discharge or, in the alternative, deny

Fustolo a discharge. After a six-day trial, the bankruptcy

judge ultimately denied Fustolo's bankruptcy discharge.

While the bankruptcy matters were pending, two automatic

stays were imposed in the Superior Court action pursuant to 11

U.S.C. § 362. The stays were in effect from May 2013 to January

2017, while the matter initially was pending before the

bankruptcy judge, and from July 2018 to February 2019, after a

remand by the United States Court of Appeals for the First

Circuit.

3. Contempt action. a. Proceedings. After the first

bankruptcy stay was lifted in 2017, Patriot filed a Superior

Court complaint for civil contempt against Fustolo and the reach

and apply defendants.4 Patriot alleged, among other things, that

Fustolo violated paragraph two of the injunction by spending in

4 As of May 2018, Fustolo had not made any payments toward
the outstanding judgment to Patriot.

5
excess of $84,000 per year on ordinary living expenses and

failing to provide documentation of same; Patriot also alleged

that Fustolo violated paragraph four by transferring in excess

of $84,000 per year from the reach and apply defendants or their

successors to Fustolo.

During the proceedings, Fustolo took the position that he

complied with the injunction based on his understanding that

paragraph two only required him to document and limit his living

expenses if he received intangible property (which, according to

Fustolo, did not include cash payments) from the reach and apply

defendants. Fustolo further argued that he complied with

paragraph four because "money" did not include the repayment of

loans that Fustolo previously had made to the reach and apply

defendants, and paragraph four did not impose any documentation

requirement.

A judge held three days of trial on the contempt complaint

in May 2018. However, before the trial concluded, the second

bankruptcy stay was imposed. After that stay was lifted, the

trial on the contempt complaint resumed for two additional days

before a different judge in April 2022 (hereinafter, the judge).5

5 The first judge had retired by the time that the trial
resumed.

6
b. Findings. Following the trial, the judge found as

follows. Fustolo never provided Patriot with any report or

disclosure of his expenditures traced to money that he received

from the reach and apply defendants. Moreover, despite having

the expertise to do so, Fustolo also did not set up any system

to track his expenses (ordinary living or otherwise) or the

funds that he received from the reach and apply defendants after

the injunction issued. Instead, Fustolo, who had twenty-nine

business bank accounts and nine personal accounts, comingled

money from his companies with his personal accounts (including

those held with his wife). Like the bankruptcy judge, the judge

found that "Fustolo used his businesses to promote fraud. . . .

Fustolo took money from [reach and apply defendant CPE Meetings,

Inc.] and other companies when he saw fit, ignoring the

[injunction] that . . . required Fustolo to document expenses to

Patriot." In short, the judge found that Fustolo's failure to

maintain records, books, or accounts precluded his creditors,

like Patriot, from fully understanding his financial condition

and business transactions.

Based on this conduct, the judge found that Fustolo

violated the injunction by failing to document his monthly

expenses to Patriot on an annual basis; however, the judge also

found that Fustolo was not in contempt because the documentation

7
requirement concerning cash payments from the reach and apply

defendants was not "clear and unequivocal." The judge reasoned

that paragraph four of the injunction -- that limited the

transfer of funds from the reach and apply defendants -- did not

explicitly include the documentation requirement and the

requirement was only incorporated through cross-reference to

paragraph two -- that limited the transfer of intangible assets

by the reach and apply defendants. Although the judge noted the

obvious intent of the documentation requirement was to allow

Patriot to verify that Fustolo had complied with the living

expense limitations, he concluded that the proper course was to

clarify the injunction to require Fustolo to document his living

expenses for each year since the injunction issued.

Unlike the injunction's documentation requirement, the

judge found that paragraph four did include a clear and

unequivocal command that Fustolo was prohibited from receiving

funds from the reach and apply defendants exceeding $84,000 per

year or a cumulative average of $7,000 per month to cover his

personal expenses as described in paragraph two, i.e.,

"mortgage, food and the like." The judge explained that he had

"serious suspicions" that Fustolo had exceeded the spending

limit and had "serious questions about the use of various

entities to conceal assets or personal spending." However, the

8
judge found that Patriot was not able to prove a violation of

the spending limit by clear and convincing evidence at that

juncture through no fault of its own. The judge deferred acting

on that portion of the complaint until Fustolo furnished Patriot

with the requisite documentation.6

c. Order for judgment. On May 31, 2022, the judge issued

an order for judgment (the substance of which entered as a

judgment on January 6, 2023). The order required Fustolo to

remedy his violation of the documentation requirement by

providing Patriot on or before August 31, 2022, "with an

accounting [demonstrating], on a yearly basis, beginning from

April 19, 2012, the expenditures from all funds received by

Fustolo, his wife, and anyone else acting in concert with him,

and identify the specific source of the funds for each

expenditure (e.g., from any Reach and Apply Defendant)."

The order also "clarified and modified" the injunction by

setting forth the following conditions that applied

prospectively: Fustolo and his wife were restrained from

directly or indirectly spending more than $7,000 per month on

ordinary living expenses until the underlying judgment was

6 Although the judge indicated that he intended to dismiss
the portion of the contempt complaint alleging a violation of
the spending limit without prejudice, the judgment deferred
action on that portion of the complaint.

9
satisfied; Fustolo was required to provide a detailed and

itemized description of the prior year's expenses with

documentation on August 1st of each year; and Fustolo was

prohibited from causing any entity he owned or controlled from

paying him more than $7,000 per month subject to certain

conditions. The order also set certain fines for any future

violations of the above conditions, added Fustolo CPE as a reach

and apply defendant, and permitted Patriot to file a fee

petition.7

d. Attorney's fees. As authorized by the order for

judgment, Patriot filed a petition with a supporting affidavit,

seeking $104,080 in attorney's fees and $24,441.35 in costs.

The judge awarded $15,000 in attorney's fees by order dated

January 5, 2023. The judge reasoned that thus far, Patriot had

only prevailed on the issues of the "failure to report and

clarification of the court's earlier order."

Discussion. We review the judge's ultimate finding on the

contempt complaint for abuse of discretion, but we review

underlying conclusions of law de novo and underlying findings of

7 In August 2022, Patriot filed a motion to compel Fustolo's
compliance with the order for judgment. The judge allowed the
motion, concluding that Fustolo violated the requirement that he
provide an accounting for the prior year on August 1, 2022.

10
fact for clear error. See Commercial Wharf E. Condominium Ass'n

v. Boston Boat Basin, LLC, 93 Mass. App. Ct. 523, 532 (2018).

1. Violation of injunction. a. Documentation

requirement. Fustolo first argues that the judge's decision was

"internally inconsistent" because Fustolo could not be found in

violation of the documentation requirement when that requirement

was not clear and unequivocal. Fustolo is correct that to

support a finding of civil contempt, a plaintiff must prove by

clear and convincing evidence that the defendant disobeyed "a

clear and unequivocal command." Birchall, petitioner, 454 Mass.

837, 853 (2009). "Where the order is ambiguous or the

disobedience is doubtful, there cannot be a finding of

contempt." Martinez v. Lynn Hous. Auth., 94 Mass. App. Ct. 702,

708 (2019), quoting Birchall, petitioner, supra at 852. It

follows then that not every violation of an order constitutes

contempt. See Smith v. Smith, 93 Mass. App. Ct. 361, 363-364

(2018).

Here, the judge properly applied these principles. He

found that the injunction imposed a documentation requirement on

Fustolo, but that the command as written "just barely" fell

short of constituting a clear and unequivocal command at least

as related to the cash payments from the reach and apply

defendants. Given that the language of the injunction was

11
imprecise, the judge was permitted to "comb relevant parts of

the record to discern the authoring court's intention," and he

did just that. Negron-Almeda v. Santiago, 528 F.3d 15, 23 (1st

Cir. 2008). Consistent with the overall purpose of the

injunction, the judge concluded that paragraphs two and four

limited the monthly living expenses that Fustolo could receive

from the reach and apply defendants. The documentation

requirement, in turn, was intended to ensure Fustolo's

compliance with the spending limit and to provide verification

of same to Patriot (beyond Fustolo's self-reports of

compliance). As the judge ultimately found, and we agree,

"[t]here is no reason to think that an order, so drafted,

intended to allow the serious loophole that Fustolo now seeks to

exploit."

For these reasons, the judge did not err in finding that

Fustolo violated the injunction, but that the violation did not

amount to contempt.8 This is so even if, as Fustolo argues, his

noncompliance was in good faith based on his own interpretation

8 To the extent Fustolo asserts that he voluntarily complied
with the documentation requirement even though he was not
required to do so, the judge found to the contrary based on
Fustolo's testimony, and we find no basis to set aside that
finding. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass.
501, 509-510 (1997) (trial judge in best position to judge
weight and credibility of evidence).

12
of the injunction. See Wooters v. Wooters, 74 Mass. App. Ct.

839, 844 (2009) (finding husband in violation but not in

contempt of alimony order where order not clear and unequivocal,

and husband had good faith belief of compliance).9

b. Bankruptcy stays. Fustolo next argues that he was not

required to comply with the injunction during the pendency of

the bankruptcy stays. This argument fails as a matter of law.

Title 11 U.S.C. § 362(a)(2), imposes a stay of the

"enforcement" of any judgment against a debtor that was obtained

before the commencement of a bankruptcy proceeding. See Ritzen

Group, Inc. v. Jackson Masonry, LLC, 589 U.S. 35, 37 (2020)

("filing a petition for bankruptcy automatically 'operates as a

stay' of creditors' debt-collection efforts outside the umbrella

of the bankruptcy case" [emphasis added; citation omitted]).

"The purpose of the automatic stay is 'to relieve a debtor of

collection proceedings which would nullify the Bankruptcy Code's

objective of orderly liquidations or reorganizations which treat

creditors equally'" (citation omitted). Beverly v. Bass River

Golf Mgt., Inc., 92 Mass. App. Ct. 595, 599 (2018). Thus,

"[t]he automatic stay is designed to effect an immediate freeze

9 Because Fustolo was not found in contempt, we need not
pass on "the kind and degree of intent that must be shown to
support a judgment of contempt" against an individual, as
opposed to a corporate, defendant. O'Connell v. Greenwood, 59
Mass. App. Ct. 147, 150 n.3 (2003).

13
of the status quo." Interstate Commerce Comm'n v. Holmes

Transp., Inc., 931 F.2d 984, 987 (1st Cir. 1991).

Contrary to Fustolo's argument, the stay does not have the

effect of relieving a debtor of his obligations under an

outstanding judgment. Instead, the automatic stay simply bars a

creditor from pursuing any "collection efforts against the

debtor or the debtor's property." Black's Law Dictionary 1709

(11th ed. 2019) (defining "automatic stay"). If the discharge

is denied or the trustee abandons the property at issue, and the

stay is lifted as a result, "title reverts to the bankrupt, nunc

pro tunc, so that he is treated as having owned it continuously"

(citation omitted). Barletta v. Tedeschi, 121 B.R. 669, 673

(N.D.N.Y. 1990). See 11 U.S.C. § 362(c)(2). Cf. In re Wilton

Armetale, Inc., 968 F.3d 273, 284 (3d Cir. 2020) (if trustee

abandons derivative claim, creditor's right to pursue claim

"spring[s] back to life" [citation omitted]). Accordingly, we

discern no error in the judge's conclusion that once the

bankruptcy stays were lifted, Patriot was free to pursue a claim

that Fustolo violated the injunction by failing to satisfy the

documentation requirement and spending limit, even during the

stays.

2. Clarification and enforcement of injunction. Fustolo

next argues that the judge exceeded the scope of his authority

14
by clarifying the injunction to require Fustolo to document his

annual expenses from 2012 to 2022, and by modifying the

injunction to expressly include Fustolo's wife, Fustolo CPE, and

other nonparties. We address each argument in turn.

a. Documentation of annual expenses. "'The purpose of

civil contempt proceedings is remedial,' and the formulation of

the remedy is within the judge's discretion." Eldim, Inc. v.

Mullen, 47 Mass. App. Ct. 125, 129 (1999), quoting Demoulas v.

Demoulas Super Mkts., Inc., 424 Mass. 501, 571 (1997). "[W]hile

judges will not read into an order additional terms, judges will

not allow a party to do indirectly what an order makes clear he

cannot do directly" (citation omitted). Judge Rotenberg Educ.

Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation,

424 Mass. 430, 449 (1997), abrogated on other grounds by

Birchall, petitioner, 454 Mass. at 852-853. A judge may clarify

a judgment on a contempt complaint. See Colorio v. Marx, 72

Mass. App. Ct. 382, 385 (2008).

Here, the judge ordered Fustolo to provide documentation of

his expenditures from 2012 forward. Although Fustolo

characterizes this remedy as "retrospective," it is remedial and

designed to determine whether Fustolo violated the injunction's

clear and unequivocal limit on the amount of funds that could be

advanced to Fustolo to cover personal expenses. See Labor

15
Relations Comm'n v. Fall River Educators' Ass'n, 382 Mass. 465,

476 (1981) ("Remedial or compensatory actions are essentially

backward looking, seeking to compensate the complainant through

the payment of money for damages caused by past acts of

disobedience" [citation omitted]). Indeed, the judge expressed

concern that Fustolo was not in compliance with the spending

limit and cited several compelling reasons in support. For

example, the judge noted large, unexplained deposits and

withdrawals of cash, and numerous expensive purchases made by

Fustolo, including for gemstones and a country club golf

membership. The judge also found that as of 2014, Fustolo's

monthly household living expenses were approximately $20,000

(which, if substantiated, placed Fustolo well on track to exceed

the annual $84,000 limit). Notably, the judge also found that

Fustolo -- and not Patriot -- was able to provide the

documentation necessary to ascertain whether Fustolo violated

the spending limit.

The judge was within his discretion to require that Fustolo

provide that documentation where it was Fustolo's obligation to

ensure that he complied with the spending limit.10 See Eldim,

10We also reject Fustolo's argument that the judge exceeded
his authority by clarifying the documentation and spending
requirements prospectively. See Colorio, 72 Mass. App. Ct. at
385.

16
Inc., 47 Mass. App. Ct. at 128 ("Where an injunction is in

effect, the party bound by the order is responsible for

ascertaining whether any proposed actions are among the

proscribed activities. It is not the plaintiff's obligation to

police the decree but the defendant's obligation to make certain

he does not violate it" [citation omitted]). See also New

England Novelty Co. v. Sandberg, 315 Mass. 739, 746, cert.

denied, 323 U.S. 740 (1944) (judge has power to compel obedience

to his decrees and punish those who obstruct or degrade

administration of justice). Cf. Judge Rotenberg Educ. Ctr.,

Inc., 424 Mass. at 449 ("contempt finding is appropriate where

'steps are taken to subvert the decree'" [citation omitted]).11

b. Inclusion of Fustolo's wife, Fustolo CPE, and other

nonparties. "An 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 or

otherwise.'" Mohamad v. Kavlakian, 69 Mass. App. Ct. 261, 265

11 Fustolo's argument that it is impossible for him to
comply with the documentation requirement for past years is
premature. As the judge noted in a September 2022 order,
impossibility might be a defense to a contempt finding, but
litigation of that issue has yet to occur. See, e.g.,
Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 412
(1992).
Similarly, to the extent that Fustolo contests the
potential fines for future noncompliance included in the
judgment on the contempt complaint, none of the orders before us
impose such a fine on Fustolo.

17
(2007), quoting Mass. R. Civ. P. 65 (d), 365 Mass. 832 (1974).

Indeed, even a nonparty may be held in contempt if that person

"counsels or aids a party in disobeying a decree" (citation

omitted). Bird v. Capital Site Mgt. Co., 423 Mass. 172, 178

(1996).

The judge enjoined, among others, Fustolo's wife from

"directly or indirectly spending more than $7,000 per month

. . . on ordinary living expenses for food, mortgage and the

like until the judgment in this case is paid," starting in May

2022. On the issue of notice, the evidence was that Fustolo's

wife was shown a copy of the original injunction during a

deposition in 2012, and she testified at the contempt

proceedings in May 2018.

Evidence also was presented that Fustolo's wife was an

active participant in Fustolo's financial affairs. Fustolo and

his wife lived together and shared expenses. Fustolo's wife

primarily paid the household bills using checks from her own

accounts or joint accounts shared with Fustolo. The wife

received funds in her accounts from unknown sources, including,

for instance, $119,000 that Fustolo deposited into his wife's

accounts during a one-year period between 2012 and 2013.

Fustolo also comingled money from the reach and apply defendants

with personal accounts that he shared with his wife; the judge

18
found that such use of the businesses "promote[d] fraud."

Moreover, Fustolo's wife helped Fustolo with his seminar

business for over a decade, and Fustolo, on behalf of Fustolo

CPE, entered into an agreement with Fustolo's wife to compensate

her for marketing and communications work that she did for the

company. In light of this evidence, the judge did not err in

including Fustolo's wife in the judgment, particularly where the

injunction imposed a limit on spending for ordinary living

expenses. See Bird, 423 Mass. at 178-179 (wife who received and

spent proceeds in violation of attachment order may be held in

contempt if aware of order).

With respect to Fustolo CPE, Fustolo argues that

Massachusetts did not have jurisdiction over the Delaware

company. To the contrary, there are sufficient contacts between

Fustolo CPE and Massachusetts to satisfy both the long-arm

statute, G. L. c. 223A, § 3 (a), and due process. See, e.g.,

Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 712-713 (1st Cir.

1996), cert. denied, 20 U.S. 1155 (1997).

The judge found that Fustolo formed Fustolo CPE around

December 2013, to carry on the same seminar business of two

previously named reach and apply defendants, CPE Meetings, Inc.,

and National Tax Institute, Inc. As noted by the judge, the

bankruptcy judge found based on "'several badges of fraud,'

19
[that] Fustolo 'transferred the business model to the new entity

in an attempt to defraud creditors.'"

Fustolo CPE provided income to Fustolo at some points in

time. For instance, the judge found that approximately $1.9

million flowed through Fustolo CPE between December 2013 and

December 2015, and Fustolo paid himself $100,000 from Fustolo

CPE in 2015 alone without accounting for payments to pay down

his wife's credit card debt.

The company's sole owner is Fustolo, a Massachusetts

resident, and the company holds a bank account in Massachusetts.

See Walden v. Fiore, 571 U.S. 277, 285 (2014) (physical entry

into State by agent relevant contact between defendant and

forum). Fustolo, on behalf of the company, also entered into a

contract with Fustolo's wife, another Massachusetts resident,

for marketing services. Moreover, the company entered an

appearance in a parallel action in the Superior Court, not for

the limited purpose of challenging jurisdiction. Given this

evidence, Fustolo CPE was properly added as a reach and apply

defendant under G. L. c. 214, § 3 (8), for the purposes of

satisfying the outstanding judgment against Fustolo.12

12General Laws c. 214, § 3 (8), grants the Superior Court
original and concurrent jurisdiction over the following:

20
3. Attorney's fees. Finally, Fustolo argues that Patriot

was not entitled to attorney's fees in the absence of a contempt

finding. As a general rule, a "successful" or "prevailing"

litigant in a contempt action is entitled to attorney's fees.

Ventresca v. Town Manager of Billerica, 68 Mass. App. Ct. 62, 66

(2007). Here, the judge found that Patriot prevailed only in

demonstrating that Fustolo violated the documentation

requirement and in obtaining clarification of the injunction.

Because most of the trial and preparation related to Patriot's

other claims, the judge awarded Patriot just under fifteen

percent of Patriot's requested fees.

The partial award of attorney's fees was appropriate

because Patriot succeeded in obtaining an order directing

Fustolo to provide accountings of his annual expenditures so

that Patriot can assess whether Fustolo adhered to the spending

limit in the injunction. The judge was within his discretion to

award fees for that request. See Police Comm'r of Boston v.

"Actions to reach and apply in payment of a debt any
property, right, title or interest, real or personal, of a
debtor, liable to be attached or taken on execution in a
civil action against him and fraudulently conveyed by him
with intent to defeat, delay or defraud his creditors, or
purchased, or directly or indirectly paid for, by him, the
record or other title to which is retained in the vendor or
is conveyed to a third person with intent to defeat, delay
or defraud the creditors of the debtor."

21
Gows, 429 Mass. 14, 18-19 (1999), and cases cited (fees may be

awarded to party even when no finding of contempt).

Conclusion. The judgment on the complaint for contempt

dated January 6, 2023, is affirmed. The order on the petition

for attorney's fees and costs dated January 5, 2023, is

affirmed.

So ordered.

By the Court (Meade, Blake &
Desmond, JJ.13),

Assistant Clerk

Entered: May 28, 2024.

13 The panelists are listed in order of seniority.

22