Opinion
No. 12–P–642.
2013-11-6
Jennifer GALLANT v. Joseph CARIGLIA & others.
By the Court (MEADE, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants appeal
from the Worcester Superior Court's grant of summary judgment on a G.L. c. 93A claim brought by the plaintiff, Jennifer Gallant. We address each of the defendants' arguments in turn.
During the pendency of this appeal, Joseph Cariglia's counsel filed a suggestion of death. Subsequently, we allowed counsel's motion to substitute Diane Marie Cariglia and Cherele L. Gentile as appellants, in their capacity as personal representatives of the estate of Joseph J. Cariglia.
1. General Laws c. 93A claim. The trial court judge could have found that attorney Joseph Cariglia (Cariglia) committed at least two acts, either of which independently amounted to an unfair or deceptive act causing injury to Gallant. This is sufficient to support the judgment under G.L. c. 93A. Hershenow v. Enterprise Rent–A–Car Co., 445 Mass. 790, 802 (2006) (“If any person invades a consumer's legally protected interests, and if that invasion causes the consumer a loss—whether that loss be economic or noneconomic—the consumer is entitled to redress under our consumer protection statute”). First, the judge could have found that Cariglia wrongly and knowingly placed a statutory lien upon the settlement that successor counsel had obtained for Gallant. Cariglia did not release any of the settlement funds to Gallant until he had obtained the signature of successor counsel on a purported “Escrow Agreement,” under which $6,667, one-third of the total $20,000 settlement, was placed in escrow. This resulted in the wrongful denial of funds to the plaintiff for the period of time it took for this escrow agreement to be negotiated. This is an injury cognizable under the statute.
Second, Cariglia never presented Gallant with a bill for his services. As a matter of law, after Cariglia was discharged as counsel, he was entitled to be paid the fair value of the services he had provided. His failure to indicate what he thought this value to be left uncertainty for Gallant as to her liability, which was not resolved until at least the end of the arbitration that eventually ensued. This, too, is an injury cognizable under the statute.
Cariglia's offer of settlement in response to Gallant's demand letter was not reasonable. See G.L. c. 93A, § 9(3), (4) (limiting recovery of damages and attorney's fees if the plaintiff rejects a reasonable offer of settlement from the defendant). Rather than providing her with a bill for the fair value of his services, he offered either to have the fee determined through arbitration or to settle the case for one-third of the fee that had been put in escrow. The arbitration provision of the contingent fee agreement between Cariglia and Gallant was, by its terms, supposed to be used only in case of a fee dispute. Because Cariglia never provided a bill to Gallant, nor even asserted what he believed to be the fair value of his services, there was no basis to claim a dispute about the fee warranting arbitration. An offer of arbitration therefore was not a reasonable response to the demand letter.
Likewise, since there was no source of law that required successor counsel to split his contingent fee with prior counsel, nor any fee-splitting agreement between counsel, the offer to receive one-third of successor counsel's fee was not reasonable.
We agree with the Superior Court judge that the escrow agreement was not a fee-splitting agreement. To the extent it is ambiguous, it was drafted by Cariglia and must be construed against him. We also disagree with defense counsel's reading of Malonis v.. Harrington, 442 Mass. 692 (2004), put forward at argument, that there is an ordinary rule that a prior counsel's fee is to be paid out of successor counsel's contingent fee. In that case, there were facts from which it was indisputable that successor counsel had agreed to take upon himself the burden of paying prior counsel's fee.
2. Materials outside the summary judgment record. We see no abuse of discretion in the judge's failure to disregard either Gallant's testimony before the special hearing officer or the affidavit of Gallant's counsel. Gallant's testimony was included in the summary judgment record, and Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974), explicitly permits the submission of affidavits in support of motions for summary judgment. In any event, these materials were not essential to the outcome of the case or to our determination of this appeal. Nor do we find an abuse of discretion in the trial court's refusal to sanction Gallant for alleged violations of Superior Court Rule 9A(b)(5) (2009). See Bartle v. Berry, 80 Mass.App.Ct. 372, 388 (2011) (trial court judge did not err in refusing to sanction a violation of rule 9A[b][5] when the violation did not undermine the rule's goal of facilitating case management).
3. Motion to strike. We see no abuse of discretion in the judge's allowance of Gallant's “Motion to Strike Reference to Fee Splitting Dispute Between Lawyers.” Furthermore, because the defendants concede that the exclusion of the phrasing “was not particularly harmful by itself,” they have not demonstrated the prejudice required for a grant of relief. See DeJesus v. Vogel, 404 Mass. 44, 47–48 (1989).
4. Attorney's fees. Finally, we think the amount of fees awarded was appropriate. The motion judge noted the size of the underlying dispute and reduced the fee award from the amount sought in light of this, among other reasons. Although the attorney's fees are substantial, the policy underlying the attorney fee provision of c. 93A is to encourage counsel to litigate c. 93A cases in order to deter the use of unfair and deceptive acts and practices. We do agree with the defendants, however, that the $25 nominal damages award should not have been multiplied. See Leardi v. Brown, 394 Mass. 151, 162–163 (1985). Therefore, the judgment itself will be reduced to the statutory maximum amount of $25 from the $75 awarded below.
Gallant's request for reasonable attorney's fees and costs on appeal is allowed.
She may submit a petition for fees and costs, together with supporting materials, within fourteen days of the date of the rescript of this decision. The defendants shall have fourteen days thereafter to respond. See Fabre v. Walton, 441 Mass. 9, 10–11 (2004). Except insofar as it tripled the $25 nominal damages award, the June 22, 2011, judgment is affirmed. The order denying the motion for reconsideration is affirmed, as is the judgment on attorney's fees.
We decline to consider Gallant's request as to attorney's fees related to the motion for reconsideration. The motion judge apparently incorporated that request in his memorandum and order on attorney's fees. In any event, Gallant has not filed a cross appeal in this court, and therefore is not entitled to any more than she received below. See Marshall v. Stratus Pharmaceuticals, Inc., 51 Mass.App.Ct. 667, 669–670 (2001), and cases cited.
So ordered.