Opinion
14-P-1288
06-11-2015
MARK CORBIN & another v. CECILIA SEDERMAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the award, by a Superior Court judge, of attorney's fees and costs associated with the plaintiffs' enforcement of the 2003 easement and restrictive easements (2003 easement) across their property. The merits of this dispute were previously before us when we reversed, in part, a judgment entered in the Superior Court. See 82 Mass. App. Ct. 1108 (2012). At that time, we agreed with the plaintiffs that "the grant of the easement to [the defendant's predecessor in interest] . . . provided the requisite privity of estate for the restrictive covenants to run with the land and that [the] signature [of another neighbor who also benefited from the easement] was not required." Ibid. The matter was remanded for entry of an amended judgment. Upon remand, a judge (who was not the trial judge) awarded attorney's fees and costs as part of the amended judgment. We affirm.
The defendant maintains that the plaintiffs are entitled to attorney's fees only upon a finding that the 2003 easement has been violated. We disagree.
Paragraph 11 of the 2003 easement reads in pertinent part:
"Enforcement of these covenants, either to restrain their violation or to seek damages for their violation, or both, shall be by legal proceedings in a court of competent jurisdiction, against any person or persons violating or attempting to violate them. Any judgment by a court of law finding a violation of these covenants shall award to the prevailing party damages, attorney's fees and court costs."
In addition, paragraph 14 of the 2003 easement provides that "[a]ny costs and expenses incurred by any party to enforce any of the provisions of this Declaration shall be paid by the offending party pursuant to Paragraph 11." This language clearly applies to the defendant's challenge to the validity of the 2003 easement. Once we upheld the validity and applicability of the 2003 easement, its express terms govern the award of attorney's fees.
The defendant also argues that the plaintiffs waived their right to request attorney's fees because they did not specifically request such fees in their complaint, and in any event, the fees awarded were excessive. Here, however, the plaintiffs requested attorney's fees on numerous occasions during the proceedings below.
We are unable to determine the reasonableness of the fees awarded on the record before us. The judge made no findings on the reasons for his award, but neither were any requested. In addition, we have none of the relevant transcripts of the proceedings below. On this record we must assume that the judge considered the factors for fee setting established by Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979), and made the award according to his sound discretion. We decline, however, to award appellate attorney's fees.
Judgment dated July 14, 2014, affirmed.
By the Court (Cypher, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 11, 2015.