Opinion
11-P-559
04-27-2012
JAMES T. MURPHY, administrator, v. MARGUERITE PRESCOTT & others.
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 is an appeal from a judgment of the Probate and Family Court allowing the first account of James T. Murphy, the administrator of the estate of Robert E. Bourassa (Bourassa). At issue is the reasonableness of certain fees paid to the administrator, an attorney, and an accountant in connection with settling the estate.
Bourassa was seventy-nine years old when he died on October 4, 2005. At the time of his death, Bourassa did not have a valid will. Bourassa's friend, Murphy, was appointed administrator of his estate with the consent of all of the heirs. The estate, which exceeded three million dollars in value, was comprised of (over 400) stocks and bonds, retirement accounts, savings accounts, and checking accounts. Marshaling the assets was particularly difficult because Bourassa did not maintain any records of his assets. In addition, Bourassa's apartment, where he lived alone for a number of years before he died, was in deplorable condition. Identifying Bourassa's heirs was also difficult because Bourassa's immediate family had predeceased him. Eventually, thirty-three heirs were located.
A holographic 'will' naming Murphy as executor was found in Bourassa's apartment, but it did not comply with the statutory requirements pursuant to G. L. c. 191, § 1.
The apartment was in such unsanitary condition that it was condemned by the city of Boston.
Murphy, in his role as administrator, hired an accountant, Gary McDonough, and an attorney, Daniel McDevitt, to assist him in settling the estate. Murphy and McDevitt entered into a fee agreement, the terms of which provided McDevitt with an hourly rate of $350. McDevitt ultimately was paid $86,000 for his legal work. In addition, Murphy paid himself a fee of $20,000, and McDonough was paid $10,500.
Eight heirs filed twenty objections to Murphy's first account. By the time of trial, only three objections remained, all of which concerned the reasonableness of the fees paid by the estate. The judge heard evidence from Murphy, McDevitt, and McDonough, and one of the objectors (Marguerite Prescott), and concluded that the fees paid were reasonable given the relative complexity of the estate, the number of heirs, and the absence of record-keeping by Bourassa. Seven of the original eight objectors have appealed from the judgment dated December 3, 2010.
Discussion. '[A] calculation of attorney's fees requires an exercise of judgment involving the application of many factors, and . . . any award made will be entitled to considerable respect on review.' Cooper v. Cooper, 62 Mass. App. Ct. 130, 141 (2004), quoting from Robbins v. Robbins, 16 Mass. App. Ct. 576, 582 (1983).
Here, the judge considered the appropriate factors as set forth in Cummings v. National Shawmut Bank of Boston, 284 Mass. 563, 569 (1933), made findings relative to those factors, and concluded that the attorney's fees charged (less than three percent of the value of the estate) were reasonable. The thrust of the objectors' arguments is that McDevitt did not maintain contemporaneous time records. While it would not have been unreasonable to impose a reduction in the fee where the attorney failed to keep such records, Handy v. Penal Institutions Commr. of Boston, 412 Mass. 759, 768-769 (1992), such a reduction is not required. See Arlington Trust Co. v. Caimi, 414 Mass. 839, 849 (1993) ('While contemporaneous time records go a long way to document a claim for attorney's fees, it cannot be said that such time records are, as a matter of law, a condition precedent to such an award'). McDevitt testified as to his extensive work connected to the settling of the estate, and the judge was entitled to credit his testimony. There was no abuse of discretion.
The judge applied a similar analysis to the fees paid to Murphy and McDonough and, similarly, it has not been shown that the judge abused her discretion in determining that their fees were reasonable.
The objectors also claim that the judge erred when she approved the first account. However, this issue has not been properly preserved. The judge stated in her memorandum that the objectors' initial twenty objections had been reduced to three (the reasonableness of the fees paid to Murphy, McDevitt, and McDonough). The record discloses no objection to the judge's ruling, nor was a motion for reconsideration filed. Accordingly, this issue is waived. See Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 674 (2000) ('Objections, issues, or claims -- however meritorious -- that have not been raised in the trial court are deemed to have been waived on appeal').
The objectors' attorney stated at the outset of trial, '[W]e have narrowed down the objections to just three things. Well, there's the objection to the account in general, but the uncontested, the agreed-upon exhibits show that that accounting isn't proper . . . . I don't think that's really an issue. The issue is Mr. Murphy, Mr. McDevitt and Mr. McDonough's fees are objected to. That's it. . . . They just have to prove their fees, and that's the whole crux of this case at this point. That's all that remains.'
Finally, we discern no abuse of discretion in the judge's denial of the objectors' request for attorney's fees and costs, see G. L. c. 215, §§ 39A, 39B, 45, and we likewise deny their request for appellate attorney's fees and costs.
Judgment affirmed.
By the Court (Vuono, Grainger & Carhart, JJ.),