Opinion
13-P-586
03-05-2014
O'BRIEN HOMES, INC. v. PHILIP M. STONE.
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
These are cross appeals from a decision of the single justice (1) affirming the trial judge's G. L. c. 231, § 6F, award to the defendant, Attorney Philip Stone, in the amount of $29,110.91 in attorney's fees and costs, and (2) awarding Stone his appellate attorney's fees and costs of defending against the single justice appeal.
Briefly, the plaintiff, O'Brien Homes, Inc. (O'Brien), contracted to purchase certain property from John and Judith Aro for development purposes and eventually deposited $80,000 into an escrow account overseen by counsel for the Aros. The agreement was extended twice at O'Brien's request. The contract between the parties specified that upon such extensions all deposited funds became nonrefundable (although the amount of the deposit would be credited to O'Brien against the $2.7 million purchase price). After the extensions, the Aros' attorney, Stone, who held the escrow account, began distributing the deposited funds to the Aros' creditors. Unfortunately, the sale did not close. O'Brien then brought a claim against Stone for, essentially, mishandling the escrow funds. After granting summary judgment to Stone, the Superior Court judge, based on the underlying contract's explicit language and on certain deposition testimony from O'Brien's principal (to the effect that he knew that none of the deposited funds were refundable to him), further found that O'Brien's claims were wholly insubstantial, frivolous, and not in good faith, and awarded Stone his attorney's fees and costs. The single justice affirmed the award. O'Brien here argues that the single justice (and the Superior Court judge) improperly concluded that O'Brien's claims were wholly insubstantial, frivolous, and not brought in good faith. One aspect of the argument is the assertion that Stone, as escrow agent, bore both parties a fiduciary duty. What is lacking in the argument is any coherent explanation of how Stone breached those duties to O'Brien or otherwise caused O'Brien any loss by distributing funds to which O'Brien had no conceivable claim.
The order of the single justice is affirmed. Like those before us, and for the reasons put forth by the prior justices, we also find O'Brien's claims (and associated appeals) to be frivolous. No more need be said, other than that we also award appellate fees and costs to Stone. Stone shall have fourteen days from the date of the rescript to forward his request to us with supporting documentation. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). O'Brien shall have fourteen days thereafter to file a response.
In his cross appeal, Stone claims entitlement to an additional $4,494.64 in the § 6F award. Since the argument essentially claims a clerical error or miscalculation, we are puzzled why redress was not sought where the error presumably occurred, in the trial court. Regardless, for the reasons cited by the single justice, we decline to grant Stone the relief requested.
So ordered.
By the Court (Kantrowitz, Vuono & Sullivan, JJ.),