Opinion
No. 12–P–1510.
2013-04-8
GUARDIANSHIP OF Kenneth E. SIMON, Sr. (No. 2).
By the Court (GRASSO, BROWN & GREEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Attorney E. James Veara (guardian) was appointed temporary guardian of Kenneth E. Simon, Sr. (ward); attorney Gerald L. Nissenbaum (attorney) represented the guardian. The guardian and the attorney appeal from a judgment of the Probate and Family Court entered in connection with an action to settle the first and final account of the guardian. The judgment settled the amount of fees and costs to which the guardian ($21,227.04) and the attorney ($115,517.72) were entitled and ordered them to return to Kenneth E. Simon, Jr., executor of the ward's estate, $328,770.97 in fees and costs improperly charged on behalf of the ward. As basis for the judgment, the judge explained his rationale in meticulous factual findings that are amply supported by the record. The judge concluded that during the eighty-three days of guardianship prior to the ward's death, the guardian and the attorney acted in concert, and in their own interest rather than that of the ward, to generate outrageous, excessive, and improper guardian's and attorney's fees. Although they challenge none of the judge's specific factual findings, the guardian and the attorney allege that multiple errors require reversal of the judgment. We discern no errors that warrant reversal and affirm. We address the parties' arguments. 1. The master's findings. Both the guardian and the attorney argue that the judge erred in not accepting as final the subsidiary factual findings of a master appointed to determine whether the fees charged by the guardian and the attorney were reasonable. We disagree for substantially the reasons set forth in the objectors' brief at pages 26–29. The judge fully considered and explained his reasons for not accepting the master's subsidiary findings. The master only considered evidence presented to him by the guardian and the attorney; he never spoke with the objectors because he believed the information they sought to provide was outside the ambit of his appointment. The judge concluded that the proceedings had become adversarial when the objectors withdrew their assent to the account during the period of the master's investigation, and the master's failure to examine the evidence presented by the objectors amounted to an error of law that warranted not accepting the master's findings. See Mass.R.Civ.P. 53( h )(1) & (4), as amended, 386 Mass. 1237 (1982). We discern no error. See Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159, 169 (1979).
The children of the ward (objectors) filed an objection to the guardian's first and final account.
In particular, the judgment ordered the guardian individually to return $107,741.75; the attorney individually to return $199,859.64; and the guardian and attorney to return $10,584.64 each (collectively $21,169.28) in expenses incurred unreasonably.
We note as well that in arguing for reference to a master, the attorney specifically stated that the master's findings would be “non-binding,” and that if any party disagreed with the findings, the case would be subject to trial.
2. Authority to order disgorgement. There is no merit to the attorney's contention that the judge lacked authority and subject matter jurisdiction to order him to disgorge monies paid because he was not a party to the action. The pretrial order specifically identified the issues to be tried as including the “reasonableness of the fees and costs of [the attorney].” A probate judge has the power when “settling an account of any ... guardian or other fiduciary ... [to] require him ... to replace any moneys ... that have been improperly applied or disposed of....” G .L.c. 206, § 4, inserted by St.1915, c. 151, § 3. As well, under G.L.c. 215, § 39, inserted by St.1915, c. 151, § 6, “Probate courts may ascertain and determine the amount due any person for services ... rendered in connection with the administration of any ... guardianship....” On the facts found, it was well within the judge's broad equitable discretion to order the guardian and the attorney, who acted in concert, to return fees taken that were in excess of those to which they were lawfully entitled. See Matter of Moe, 385 Mass. 555, 561 (1982); Cox v. Cox, 56 Mass.App.Ct. 864, 869 (2002). The judge did not err in concluding that the concerted actions of the attorney and the guardian rendered them both fiduciaries who could be required to return to the estate the monies beyond those to which they were lawfully entitled. Nor did the judge err in resolving the amounts that were reasonable and necessary or in requiring the attorney and the guardian to return to the estate monies paid that were beyond those to which they were reasonably entitled. See Matter of Moe, supra (noting Probate Court's “broad and flexible” powers, beyond statutory authorization, “to afford any relief in the best interests” of the ward).
For the reasons stated in the objectors' brief at pages 19–24, we reject the guardian's suggestion (which was “adopted” by the attorney) that his fees were justified because he was acting in accordance with the wishes of the objectors. See King v. Dolan, 255 Mass. 236, 237 (1926) (guardian's appointment “to be exercised with an eye single to the welfare of the ward.... The desires of the next of kin are not controlling”); Wiley v. Fuller, 310 Mass. 597, 602 (1942) (guardian's actions must not be “disadvantageous to the ward”).
Also without merit is the attorney's contention that he did not receive proper notice and an opportunity to be heard on the question of disgorgement. The attorney examined the witnesses, reviewed the exhibits, and argued extensively at trial. As set forth in the objectors' brief on pages thirty-nine to forty, the attorney was well aware that what was at stake during the trial was the reasonableness of the fees charged during the guardianship, as to which the attorney had already received payment (and had assured himself by constantly replenishing his retainer). At no point in the proceedings did the attorney request to testify or present his other evidence as to the reasonableness or necessity of the fees charged or the propriety of an order of disgorgement.
Expert witness. We reject the attorney's contention that the judge erred in denying his motion to strike the objectors' expert's testimony because the expert allegedly testified pursuant to an oral contingent fee agreement. The contention rests entirely upon a mischaracterization of the expert's testimony regarding his compensation arrangement with the objectors' attorneys. The expert testified without equivocation that his fee agreement was with the attorneys for the objectors and that he was to be paid at an hourly rate for his time expended, not based on the success of the objectors. That a recovery from the attorney and the guardian might provide a source for the payment of the expert's fees by the attorneys for the objectors did not render the expert's compensation a contingent fee arrangement. “[T]he essential question is not whether there was a contingent fee arrangement but whether [the expert] thought there was.” New England Tel. & Tel. Co. v. Board of Assessors of Boston, 392 Mass. 865, 872 (1984).
For substantially the reasons set forth in the objectors' brief at pages 41–45, we discern no abuse of discretion or other error of law in the admission of the objectors' expert's testimony. The qualification of an expert lies within the discretion of the trial judge. See Adoption of Hugo, 428 Mass. 219, 232 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). “Whether an expert determined to be qualified in one subject is also qualified to testify in another, related subject will depend on the circumstances of each case, and where an expert has been determined to be qualified, questions or criticisms as to whether the basis of the expert's opinion is reliable go to the weight, and not the admissibility, of the testimony.” Commonwealth v. Crouse, 447 Mass. 558, 569–570 (2006). Here, the judge carefully sifted those matters as to which the expert was qualified to render an opinion and those as to which he was not. See Moncy v. Planning Bd. of Scituate, 50 Mass.App.Ct. 715, 718–719 (2001).
The objectors' expert's survey of Barnstable County attorneys' rates clearly falls within the historically accepted method of determining local rates. See Linthicum v. Archambault, 379 Mass. 381, 388–389 (1979). See also Darmetko v. Boston Hous. Authy., 378 Mass. 758, 764 (1979). The judge did not err in rejecting the attorney's contention that the expert used an improper methodology in valuing the work performed by the attorney and the guardian because he used a “ballpark estimate” to arrive at a valuation. The expert testified that he arrived at his valuation by reviewing the bills submitted by the attorney and the guardian and excluded work performed that was not done to protect the ward's estate. Nor did the judge explicitly accept the expert's valuation. See Spenlinhauer v. Spencer Press, Inc., 81 Mass.App.Ct. 56, 64 (2011) (judge may accept or reject expert's valuation method). Instead, the expert and the judge properly relied upon the lode-star method of calculating a reasonable fee by multiplying hours reasonably spent by a reasonable hourly rate. See Haddad v. Wal–Mart Stores, Inc. (No. 2), 455 Mass. 1024, 1025–1026 (2010).
Finally, the attorney's argument that acceptance of the expert's testimony stifles competition in violation of the interstate commerce clause as enforced by the Sherman Antitrust Act fails for the reason, if no other, that it was not raised below, and thus is waived. See R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 74 (2001).
3. Motion to recuse. There is no merit to the contention that an alleged improper ex parte communication as well as expressions of bias required the judge to recuse himself. See Haddad v. Gonzalez, 410 Mass. 855, 862 (1991). The communication in question occurred during the trial, when counsel for the Board of Bar Overseers (bar counsel), who was investigating a complaint against the attorney and the guardian, telephoned the judge's chambers and requested that he be sent a copy of the trial transcript and the judge's decision when the trial was finished. Bar counsel spoke with the judge's case manager; he did not speak with the judge. Indeed, the judge was already aware of the bar counsel's investigation from testimony at trial. Similarly, the judge's expression of some preliminary thoughts on the case in response to the attorney's request for a lobby conference to advance settlement did not require recusal. Our examination of the entire record indicates that throughout this highly contentious litigation the judge conducted himself in an exemplary and even-handed manner, without bias, prejudice, or the appearance of partiality. See Masingill v. EMC Corp., 449 Mass. 532, 548–549 (2007).
Rule 63 motion. Subsequent to the trial judge's retirement, and after the proper time for filing postjudgment motions, the attorney filed a motion for a new trial pursuant to Mass.R.Civ.P. 63, 365 Mass. 831 (1974). He now complains that the judge who denied the motion ruled precipitously, without familiarizing herself with the extensive record and without making specific factual findings. For substantially the reasons in the objectors' brief at pages 48–50, there was no error. Rule 63 does not entitle litigants to a new trial, and the judge did not err in so ruling. ,
We have considered and reject the attorney's argument that his motion to file a late notice of appeal from a decree ordering him and the guardian to pay attorney's fees and costs to the objectors should have been allowed.
The objectors' request for fees and costs is denied.
Judgment affirmed.