Opinion
10-P-1851
09-07-2011
PETER W. LANE v. CAROL J. LESLIE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal by the defendant, Carol J. Leslie, follows a partition action filed by the plaintiff, Peter W. Lane, on February 10, 2009, and a subsequent equity action filed by Leslie against Lane, both in the Probate and Family Court. After trial of the consolidated action, a probate judge entered findings and orders on the partition, and dismissed Leslie's equity complaint. In a subsequent amended order, the judge awarded $10,000 in counsel fees to Lane to be paid from Leslie's share of the sale proceeds in the partition. Leslie appeals solely from the award of attorney's fees, asserting that neither Lane nor the judge cited any authority for the award.
Discussion. Lane's motion for attorney's fees and costs referred to a provision in the judge's pretrial order:
'Prior to the commencement of trial, counsel shall exchange final written offers of settlement. Following the Court's issuance of the eventual judgment, a hearing on counsel fees may be afforded each of the parties upon either party filing a Motion to Alter and Amend the Judgment within the prescribed (ten day) time. This shall be the only way to address the issue of counsel fees post-judgment. If either party wishes to pursue an award of counsel fees, the Court, as part of the hearing, shall then review the written offers of settlement.'Lane attached to his motion an affidavit of his counsel stating that counsel had charged Lane a total of $37,444.76 for representing him in both the partition and the equity actions. In opposition, Leslie asserted that there was no basis in Lane's motion for counsel fees. The judge awarded Lane $10,000 in counsel fees. Subsequently, the judge denied Leslie's motion for reconsideration and motion to amend and vacate the portion of the order awarding Lane attorney's fees.
Both parties submitted the written settlement information requested by the judge, including the amount of expenses to be shared for operating the property until it is sold.
Leslie's argument on appeal is that the judge cited no authority in support of his award of attorney's fees; she claims there is no statute that authorizes the award of attorney's fees solely on the basis of the provision stated in the judge's pretrial order. She acknowledges, however, that '[a]n award of fees is proper if '(1) a statute permits awards of costs, . . . or (2) a valid contract or stipulation provides for costs, or (3) rules concerning damages permit recovery of costs." Connolly v. Sullivan, 76 Mass. App. Ct. 316, 318 (2010), quoting from Fuss v. Fuss, 372 Mass. 64, 70 (1977). We think Leslie overlooks the significance of the provision in the judge's pretrial order. Because she did not object to that provision, and because Lane requested attorney's fees and costs under the provision, the parties effectively agreed on a procedure to provide for fees and costs. Moreover, the judge properly acted under statutory authority. See Howe v. Tarvezian, 73 Mass. App. Ct. 10, 15-19 (2008) (interpreting G. L. c. 241, § 22, and G. L. c. 215, § 45, and concluding that counsel fees may be determined in judge's discretion and awarded to either party from proceeds of partition in contested case). Here the contested case was created by the consolidation of the partition action with the equity action.
Leslie asserts that the judge failed to examine the request for fees in detail, and that the affidavit of Lane's counsel was lacking in detail. While the judge reduced the requested amount of $37,444.76 to $10,000 without explanation, it is apparent that he took into consideration the information on settlement offers he requested, and was thoroughly familiar with both the partition and the equity proceedings. Leslie has not argued that the judge failed to consider the time spent on the case or the fair value of the attorney's services, Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993); she therefore failed to meet her burden to show the judge abused his discretion. See Howe v. Tarvezian, supra at 15.
We deny Lane's request for appellate attorney's fees.
Amended orders dated June 23, 2010, affirmed.
Order denying motion for reconsideration affirmed.
Order denying motion to amend and vacate affirmed.
By the Court (Rapoza, C.J., Cypher & Hanlon, JJ.),