Opinion
19-P-285
08-24-2020
JACQUELINE C. EBONE & another v. BMI SURPLUS, INC., & another.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, BMI Surplus, Inc. (company), and Robert Brams, appeal from an amended judgment, after a jury verdict, in favor of plaintiff Jacqueline C. Ebone on claims for retaliation for complaining about sexual harassment by an employee of the company, in violation of G. L. c. 151B. Concluding that there was sufficient evidence to support the jury verdict and that the judge acted within her discretion in the amount of attorney's fees awarded, we affirm.
The defendants have not appealed the amended judgment in favor of plaintiff Diane Robin Smith on claims of sexual harassment and retaliation.
The defendants filed a notice of appeal within thirty days of the amended judgment, which included the attorney's fees award, but did not file a notice of appeal within thirty days of the original judgment after the jury verdict. It is unsettled whether such a notice of appeal is adequate to obtain review of the jury verdict. See Ross v. Continental Resources, Inc., 73 Mass. App. Ct. 497, 507 n.12 (2009). Because we affirm, we pretermit this issue. See id.
1. Sufficiency of the evidence. The defendants argue that the verdict must be reversed because the evidence is insufficient to prove that Brams and the company both retaliated against Ebone, as they engaged in "the same conduct, the result of one mind and one actor." So far as we can discern, the defendants raise this argument for the first time on appeal, thus waiving the argument. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) ("An issue not raised or argued below may not be argued for the first time on appeal"). There was no mention of this issue in the discussion of the defendants' motions for directed verdicts at trial, and the three motions provided in the record appendix do not relate to the counts appealed. See Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 125 (1986) ("To challenge the sufficiency of the evidence underlying a jury verdict on appeal, a party must have moved for a directed verdict on those grounds at trial").
The record reflects that the defendants filed eight different motions for directed verdicts (two of which were allowed). We need not consider any documents the defendants failed to include in the record appendix. See Mass. R. A. P. 8 (c), as appearing in 481 Mass. 1611 (2019). See also Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) (appellants have "obligation to include in the record appendix any documents on which [they] rel[y]" and, "when a party fails to include a document in the record appendix, an appellate court is not required to look beyond that appendix to consider the missing document").
In any event, the evidence was sufficient to support liability for both Brams personally and the company based on Brams's actions as manager and the sole shareholder and director of the company. See Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 490-491 (2000) (corporate officer may be directly responsible for own sexual harassment, even without aiding and abetting). There is "no legal or logical reason" why Brams cannot be found personally liable for acts of retaliation against Ebone and why the company cannot also be held liable for "actionable wrongs committed by responsible officers." Id. at 494-495. We see no reason to set aside the jury verdict. See Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 594-595 (2007) ("An appellate court will not set aside a jury verdict on any material fact found by a jury unless the jury verdict or fact has no rational basis in the evidence").
2. Attorney's fees. We review a trial judge's determination of an award of attorney's fees for abuse of discretion, and a "judge's decision will be reversed only if it is clearly erroneous." Beninati v. Borghi, 90 Mass. App. Ct. 556, 568 (2016), quoting WHTR Real Estate Ltd. Partnership v. Venture Distrib., Inc., 63 Mass. App. Ct. 229, 235 (2005). "The amount of a reasonable attorney's fees, awarded on the basis of statutory authority . . . is largely discretionary with the judge, who is in the best position to determine how much was reasonably spent on a case, and the fair value of the attorney's services." Hyannis Anglers Club, Inc. v. Harris Warren Commercial Kitchens, LLC, 91 Mass. App. Ct. 555, 563 (2017), quoting Siegel v. Berkshire Life Ins. Co., 64 Mass. App. Ct. 698, 704-705 (2005), S.C., 70 Mass. App. Ct. 318 (2007).
Based on her review of the record and her extensive experience with this case as the trial judge, the judge was in the best position to determine reasonable attorney's fees. See Hyannis Anglers Club, Inc., 91 Mass. App. Ct. at 563. In a thorough memorandum, the judge detailed her rationale for (1) finding the time expended on drafting the complaint and interoffice conferences not excessive; (2) declining to reduce the attorney's fees where Ebone's "unsuccessful claims were necessary and central to the successful claims"; (3) finding the time expended preparing the attorney's fee petition to be "recoverable, and reasonable"; (4) declining to reduce the fee award for block billing which occurred only shortly before and during trial; and (5) declining to reduce the fee award for attorney Jonathan Margolis's time spent at the pretrial hearing or at the trial. Among other reductions, the judge reduced a junior attorney's hours spent working on an opposition to a motion for summary judgment by one-third, to the defendants' benefit, to account for time spent working on Ebone's harassment claims, Smith's wage act claims, and claims against the harassing employee. Cognizant of the judge's superior vantage point, we discern no basis to disturb her judgment.
Pursuant to G. L. c. 151B, § 9, Ebone's request for appellate attorney's fees is allowed. In accordance with the procedure specified in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), Ebone may, within fourteen days of the issuance of this memorandum and order, submit an application for attorney's fees with the appropriate supporting materials. The defendants shall have fourteen days thereafter to file a response to that application. Although we find the defendants' arguments unpersuasive, we cannot say the appeal was frivolous. See Avery v. Steele, 414 Mass. 450, 455 (1993). Accordingly, Ebone's request for damages and double costs is denied. See Cablevision Sys. Corp. v. Department of Telecomm. & Energy, 428 Mass. 436, 439 (1998).
Amended judgment affirmed.
By the Court (Wolohojian, Neyman & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 24, 2020.