TOWN OF OXFORD v. DAVID BLONDIN & 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-528

TOWN OF OXFORD1

vs.

DAVID BLONDIN2 & others.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants, David Blondin and Prime Fitness and

Nutrition, Inc., doing business as Prime Supplements and

Nutrition (collectively, Prime Fitness), appeal from a Superior

Court judgment (1) dismissing their counterclaims against the

1 By and through its board of health.

2Individually and in his capacity as manager of Prime
Supplements and Nutrition and of Prime Fitness and Nutrition,
Inc.

3Prime Fitness and Nutrition, Inc.; Prime Supplements and
Nutrition; and the Governor of the Commonwealth, Lieutenant
Governor of the Commonwealth, Commissioner of the Department of
Public Health, and the Commonwealth, as parties in interest.
Defendants William G. Saad and Alfred Saad, sued in their
capacities as officers of North Oxford Garnetting Co., Inc. are
not parties to the appeal.
plaintiff, the Town of Oxford (town), and their cross claims

against the Governor of Massachusetts, Lieutenant Governor,

Commissioner of Public Health, and the Commonwealth of

Massachusetts (collectively, the Commonwealth), and (2) awarding

the town fines and attorney's fees and costs. We affirm.

Background. On March 10, 2020, former Governor Charles D.

Baker declared a state of emergency in Massachusetts due to the

spread of COVID-19 and issued a series of emergency orders

pursuant to his authority under the Civil Defense Act (CDA), St.

1950, c. 639, and G. L. c. 17, § 2A. See Desrosiers v.

Governor, 486 Mass. 369, 370 (2020). On March 23, 2020, the

Governor issued COVID-19 Order No. 13 requiring the temporary

closure of businesses that did not provide essential services.

On May 18, 2020, the Governor introduced a four-phase plan for

reopening sectors of the economy. Fitness studios and gyms were

included in phase three, and would not be authorized to reopen

until June 29, 2020, at the earliest.

Prime Fitness's gym and fitness center had closed in

accordance with Order No. 13, but reopened on May 18, 2020,

before authorized to do so under the Governor's above-referenced

plan and orders. The town issued three written citations to

Prime Fitness for operating a nonessential business, and on May

22, 2020, as Prime Fitness was still operating, the town's board

2
of health issued a cease and desist order. Prime Fitness did

not comply with the order.

On May 28, 2020, the town filed a verified complaint

against Prime Fitness, seeking injunctive relief.4 On June 5,

2020, a Superior Court judge issued a preliminary injunction

against Prime Fitness, enjoining it from operating "until

permitted to do so under any executive order issued by the

Governor." Prime Fitness pursued an interlocutory appeal of

that order.5 That appeal was unsuccessful.6

On June 8, 2020, the town filed a verified complaint for

civil contempt against Prime Fitness for failing to comply with

the Superior Court's June 5, 2020, order. After a hearing, the

judge found "clear and convincing evidence of [Prime Fitness's]

disobedience of the court's clear and unequivocal order to cease

operation" and assessed a prospective fine of $1,000 for every

4 In the verified complaint, the town also sought a
declaratory judgment that its board of health had authority to
enforce the cease and desist order against Prime Fitness.

5 In the interlocutory appeal, Prime Fitness challenged the
temporary restraining order and preliminary injunction on
grounds that (1) the Governor's COVID-19 orders were arbitrary
and capricious as applied to Prime Fitness and violated the
defendants' right to due process, and (2) the orders were an
unconstitutional delegation of the Legislature's lawmaking power
to the Governor.

6 On November 30, 2021, a panel of this court dismissed
Prime Fitness's appeal as moot because the preliminary
injunction, by its terms, had ceased to apply on June 6, 2020.

3
day of noncompliance. On June 18, 2020, after Prime Fitness

continued to defy the order, the judge ordered the town to

"cause the utilities to the premises to be discontinued" and

"secure the premises against re-entry by changing the locks."

On July 21, 2020, Prime Fitness filed counterclaims against

the town and cross claims against the Commonwealth arising out

of the issuance and enforcement of the Governor's COVID-19

orders. Specifically, Prime Fitness asserted takings claims for

damages under (1) the Fifth Amendment to the United States

Constitution and G. L. c. 79, and (2) section 5 (b) of the CDA,

St. 1950, c. 639. The Commonwealth and the town filed motions

to dismiss, which a Superior Court judge allowed on the basis

that Prime Fitness had failed to allege a compensable taking.7

The judge awarded the town $15,279 in attorney's fees, costs,

and fines. This appeal ensued.

Discussion. 1. Preliminary injunction. Prime Fitness

makes numerous arguments on appeal regarding the validity of the

preliminary injunction and the underlying COVID-19 orders.

Namely, Prime Fitness argues that the orders violated its due

process rights and constituted an impermissible delegation of

legislative authority in violation of art. 5 of the

7 On September 9, 2021, a Superior Court judge allowed the
Commonwealth's motion to dismiss. The same judge allowed the
town's motion to dismiss on April 14, 2022.

4
Massachusetts Declaration of Rights. Prime Fitness's arguments

are nearly identical to those raised in their prior appeal, see

note 5, supra, and the issue is still moot. See Branch v.

Commonwealth Employment Relations Bd., 481 Mass. 810, 817

(2019), cert. denied, 140 S. Ct. 858 (2020) ("A moot case is one

where a court can order 'no further effective relief'" [citation

omitted]).

In any event, Prime Fitness's challenge to the preliminary

injunction and COVID-19 orders on due process and nondelegation

grounds is foreclosed by the Supreme Judicial Court's (SJC)

decision in Desrosiers v. Governor, 486 Mass. 369 (2020). In

Desrosiers, the SJC held that the Governor's COVID-19 orders

were within his authority under the CDA, and that the orders did

not violate the separation of powers under art. 30 of the

Massachusetts Declaration of Rights, or Federal and State

constitutional rights to procedural and substantive due process

or free assembly. Id. at 371-372, 392-393. We are not

persuaded by Prime Fitness's argument that the issues they raise

are distinguishable from those decided in Desrosiers. Prime

Fitness's claim that the Governor exercised "prolonged

legislative dominance" in violation of art. 5 and art. 30 is, in

essence, a nondelegation argument.8 Article 5 is not the proper

8 Article 5 provides: "[a]ll power residing originally in
the people, and being derived from them, the several magistrates

5
vehicle for that argument, as "the doctrine of nondelegation

derives rather from art. 30." Arlington v. Board of

Conciliation & Arbitration, 370 Mass. 769, 775 (1976). Further,

Desrosiers rejected an identical due process argument. See

Desrosiers, supra at 390 ("Although some businesses and

organizations bear a larger burden than others . . . this alone

does not render arbitrary the restrictions imposed by the

emergency orders"). Thus, Prime Fitness's challenge to the

validity of the preliminary injunction and COVID-19 orders

fails.9

2. Counterclaims and cross claims. "We review the

allowance of a motion to dismiss de novo." Curtis v. Herb

Chambers I-95, Inc., 458 Mass. 674, 676 (2011). We accept as

true well-pleaded factual allegations and reasonable inferences

drawn therefrom. See Schaer v. Brandeis Univ., 432 Mass. 474,

and officers of government, vested with authority, whether
legislative, executive, or judicial, are their substitutes and
agents, and are at all times accountable to them."

9 Prime Fitness also claims that the Governor's
classification of gyms and fitness centers in phase three of the
reopening plan, contrasted with his classification of facilities
serving "professional sports teams" in phase two of the
reopening plan, violated the equal protection clause of art. 10
of the Massachusetts Declaration of Rights and the Fourteenth
Amendment to the United States Constitution. We disagree, as
the classification satisfies rational basis review. See
Desrosiers, 486 Mass. at 390 ("The emergency orders as a whole
were informed by public health recommendations and serve the
State interest of slowing the spread of COVID-19, which is a
legitimate State interest").

6
477-478 (2000). "The ultimate inquiry is whether the

[claimants] alleged such facts, adequately detailed, so as to

plausibly suggest an entitlement to relief." Greenleaf Arms

Reality Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct.

282, 288 (2012). The claimants must plead more than "subjective

characterizations or conclusory descriptions of a general

scenario which could be dominated by unpleaded facts"

(quotations and citation omitted). Schaer, supra at 478.

a. General Laws c. 79. Prime Fitness alleges that the

Commonwealth and the town committed a taking under G. L. c. 79

and the Fifth Amendment by issuing and enforcing the emergency

orders that temporarily closed its gym and restricted

operations. "Article 10 of the Massachusetts Declaration of

Rights and the Fifth and Fourteenth Amendments to the United

States Constitution prohibit the taking of private property for

public use without just or reasonable compensation." Fitchburg

Gas & Elec. Light Co. v. Department of Pub. Utils., 467 Mass.

768, 775 (2014). A compensable taking occurs when "a property

interest is taken from the owner and applied to the public use

because such use is beneficial to the public," whereas an

exercise of police power occurs when "an owner's property

interest is restricted or infringed upon to prevent its use in a

manner detrimental to the public interest." Davidson v.

Commonwealth, 8 Mass. App. Ct. 541, 548 (1979).

7
In Davidson, we concluded that the Commonwealth's action of

taking over the operation of a nursing home during a declared

public health emergency constituted a lawful exercise of police

power for which no compensation was required. See Davidson, 8

Mass. App. Ct. at 545-548. The government action at issue in

Davidson occurred after the nursing home was unable to pay its

staff and had asked certain patients to leave. Id. at 542-543.

Due to the lack of nursing homes in the area and the danger that

transferring patients would pose to their health, the

Commonwealth assumed operation of the facility and "exercis[ed]

its sovereign powers to maintain the public health." Id. at

549.

Here, the Governor's COVID-19 orders requiring businesses

like Prime Fitness to close temporarily likewise constituted "an

exercise of the State's police power" and a "restriction upon

the [Prime Fitness's] use of its property to prevent the use

thereof in a manner that is detrimental to the public interest"

(quotation and citation omitted). Davidson, 8 Mass. App. Ct. at

549. Prime Fitness's allegations fail to show that the

Commonwealth or the town "appropriated" Prime Fitness's gym "for

[their] own use or exploitation." See id. at 548-549. Rather,

as in Davidson, the allegations show that the Governor "acted

under authority of State law" in issuing emergency orders and

that the town then enforced those orders to "maintain the public

8
health." Id. at 549. In short, Davidson compels the conclusion

that the actions alleged by Prime Fitness did not amount to a

compensable taking. Thus, Prime Fitness's counterclaims and

cross claims under G. L. c. 79 fail as a matter of law.10

b. Civil Defense Act. Prime Fitness also fails to

establish a plausible claim for damages under section 5 of the

CDA. Section 5 (b) of the CDA authorizes the Governor to

"seize[]" and "take possession" of personal and real property

after proclaiming a state of emergency pursuant to the act. See

St. 1950, c. 639, § 5 (b). Section 5 (c) allows "[a]ny owner of

property of which possession has been taken" under the act to

"file a petition in the superior court" for compensation. St.

1950, c. 639, § 5 (c).

Prime Fitness alleges that the Commonwealth and the town

"took possession" of the property when they "issu[ed] orders

preventing its further use as a health club facility" and when

they "caus[ed] the locks to be changed and the utilities to the

facility to be terminated[,]" entitling them to relief under

section 5 (c) of the CDA. Prime Fitness has acknowledged,

however, that they do not own the property and that they hold

only a "leasehold interest." Because they are not an "owner of

Prime Fitness's regulatory taking argument under Penn
10

Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978), is
likewise unavailing for the reasons discussed in the briefs of
the Commonwealth and the town.

9
property," they are not entitled to seek relief under the CDA.

See St. 1950, c. 639, § 5 (c). Moreover, Prime Fitness does not

allege facts that plausibly show that the town or the

Commonwealth "seized" or "took possession" of the property.

Neither the Commonwealth nor the town took physical possession

of the gym, and Prime Fitness retained their leasehold interest.

As a result, Prime Fitness's counterclaims and cross claims

under the CDA fall short.

3. Attorney's fees, costs, and fines. Finally, although

Prime Fitness has filed an appeal from the judge's order

awarding the town attorney's fees, costs, and fines, they have

failed to make any appellate argument on that issue or cite to

authority supporting this claim. See Mass. R. A. P.

16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019)

("appellate court need not pass upon questions or issues not

argued in the brief"). Even assuming, arguendo, that the issue

is not waived, we discern no abuse of discretion in the judge's

decision to award attorney's fees, costs, and fines to the town

after a successful civil contempt proceeding.11 See Labor

11Prime Fitness asks that we vacate the contempt order but
fails to make any arguments about the finding of contempt.
Therefore, we need not consider the issue. See Zora v. State
Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993) ("bald assertions
of error, lacking legal argument and authority" do not rise to
level of appellate argument).

10
Relations Comm'n v. Fall River Educators' Ass'n, 382 Mass. 465,

476 (1981) (judge may impose fines for each day of continued

contempt of court's order); Martinez v. Lynn Housing Auth., 94

Mass. App. Ct. 702, 708 (2019).

Conclusion. For the foregoing reasons, we affirm the

Superior Court final judgment dated March 17, 2023, dismissing

Prime Fitness's counterclaims and cross claims and awarding to

the town a total of $15,279 in attorney's fees, costs, and

fines.12

Judgment affirmed.

By the Court (Vuono, Neyman &
D'Angelo, JJ.13),

Clerk

Entered: November 15, 2024.

12The town's request for an award of appellate attorney's
fees and costs is denied.

13 The panelists are listed in order of seniority.

11