Opinion
11-P-143
12-13-2011
OLEG BATISHCHEV & another [FN1] v. BRENDA COTE & another. [FN2]
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 case arises out of the sale of a Cambridge condominium unit to the plaintiffs, Oleg Batishchev and Alla Batishcheva, that was undertaken on the basis of deception and misrepresentations by the owners and their agents. The defendants are Brenda Cote, the real estate broker who served as an agent to the corporate seller of the condominium, and the brokerage firm with which Cote is associated, NRT New England Incorporated, doing business as Coldwell Banker Residential Brokerage (collectively Coldwell Banker). This case was before the Appeals Court previously and the facts of the case are thoroughly set out in an unpublished memorandum and order pursuant to our rule 1:28. See Batishchev v. Cote, 76 Mass. App. Ct. 1114 (2010). In that decision, we remanded solely for further findings on the issue of the appropriate amount of attorney's fees under the lodestar method. The trial judge made such findings, and Coldwell Banker brought the present appeal challenging various aspects of that ruling. We affirm.
While other defendants were involved in this case, they are not parties to this appeal.
The lodestar method involves 'multiplying the number of hours reasonably spent on the case [by] a reasonable hourly rate.' Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993).
Discussion. 1. Availability of attorney's fees. Coldwell Banker first argues that attorney's fees could not be awarded pursuant to G. L. c. 93A because there was no proof that Coldwell Banker's misrepresentations caused the plaintiffs an actual injury. See Hershenow v. Enterprise Rent-A-Car Co. of Boston, Inc., 445 Mass. 790, 791 (2006). However, this argument is precluded by the law of the case, see City Coal Co. of Springfield, Inc. v. Noonan, 434 Mass. 709, 711-712 (2001), as this court has already found that the judge did not err in his determination that there was 'a causal connection between the proven unlawful and purposeful conduct engaged in by [Coldwell Banker] and the losses suffered by the plaintiffs.' Batishchev, supra (emphasis original).
The judge found that, for the purposes of G. L. c. 93A, the plaintiffs suffered losses associated with buying a condominium unit that they otherwise would not have bought due to Coldwell Banker's actions. The causal relationship between Coldwell Banker and this loss is not affected by the fact that the judge chose to assess only nominal damages against Coldwell Banker.
2. Amount of attorney's fees award. Coldwell Banker also asserts a variety of objections to the amount of attorney's fees assessed on remand. While the amount of a reasonable attorney's fee is largely discretionary, a 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).
a. Inclusion of hours expended on other claims. Coldwell Banker primarily argues that the judge should have excluded the hours expended by the plaintiffs' attorneys that were either against other defendants or involved the claim regarding the misrepresentation of the location of the condominium unit sold to the plaintiffs. In doing so, Coldwell Banker challenges the judge's determination that the plaintiffs' c. 93A claims and common law claims were 'inextricably intertwined.' That determination, if valid, supports the attorney's fees award, because apportionment of legal efforts between two claims is not necessary where common law claims and c. 93A claims are based on a 'single chain of events' or a 'common core of facts.' Hanover Ins. Co. v. Sutton, 46 Mass. App. Ct. 153, 177 (1999). See Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 430 (2005).
In support of their challenge to the judge's finding, Coldwell Banker points to facts that are relevant to the plaintiffs' claims against other defendants but are not relevant to their claims against Coldwell Banker and facts that were relevant to the plaintiffs' claims regarding misrepresentation of the location of the condominium unit but not relevant to their claims regarding misrepresentation of the water damage to the condominium unit. These differences are not substantial enough to raise an inference that the plaintiffs' claims were not based on a 'common core of facts,' namely the fraudulent sale of a defective condominium to the plaintiffs. They certainly do not render the judge's determination that Coldwell Banker was joint and severally liable for substantially all of the attorney's fees an abuse of discretion.
Because the judge properly found that all of the plaintiffs' claims arose from a common core of facts, Coldwell Banker's suggestion that the judge should have performed a line by line analysis of the court docket, the plaintiffs' complaint, and the plaintiffs' legal bills, to determine what portions of the plaintiffs' counsel's legal work are attributable to the water damage claim against Coldwell Banker, is without merit. See Berman v. Linnane, 434 Mass. 301, 303 (2001).
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b. Reasonableness of attorney's fees. Coldwell Banker further argues that the plaintiffs' attorney's fees were unreasonable because the plaintiffs employed two attorneys instead of one and those attorneys charged overhead costs. Coldwell Banker's arguments on this point are conclusory and do not indicate that the judge's determinations were incorrect, let alone an abuse of discretion.
c. Proportionality of attorney's fees. Coldwell Banker additionally argues that the plaintiffs' attorney's fees are unreasonable because the amount of the fee award, $511,595, is substantially greater than the amount of damages assessed against Coldwell Banker, $25. However, as noted, supra, the judge properly determined that the claims against Coldwell Banker are inextricably intertwined with the other claims in the case, from which the plaintiffs recovered $576,385.32 in damages. Thus, the proper measure of damages with which the attorney's fee award should be compared is $576,385.32, especially given that the judge found Coldwell Banker's actions to be a cause of those damages. Accordingly, the amount of attorney's fees awarded to the plaintiffs was reasonable and in proportion with the amount of damages recovered.
3. Further arguments. Finally, Coldwell Banker raises several arguments for the first time in its reply brief. Such arguments are waived and we need not address them. See Boxford v. Massachusetts Hy. Dept., 458 Mass. 596, 605 n.21 (2010).
4. Appellate attorney's fees. The plaintiffs' request for appellate attorney's fees and costs is allowed. The plaintiffs shall have fourteen days from the date of the rescript to submit to this court an application for fees and costs, together with supporting documentation. Coldwell Banker shall have fourteen days thereafter to respond. See Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989); Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
Judgment affirmed.
By the Court (Milkey, Hanlon, & Agnes, JJ.),