Opinion
No. 11–P–1373.
2012-11-26
Shirley B. PIERCE v. Oliver A. SPALDING, trustee, & another.
A Probate Court judge has broad discretion to award fees and costs under G.L. c. 215, § 45, and such a decision is “presumed to be right and ordinarily ought not to be disturbed.” Matter of the Estate of King, 455 Mass. 796, 805 (2010), quoting from Smith v. Smith, 361 Mass. 733, 738 (1972).
By the Court (CYPHER, BERRY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In a first appeal, by a memorandum and order pursuant to rule 1:28, this court reversed a prior ruling of the Probate and Family Court (Probate Court) and held that the trustee of the subject trust had discretion to distribute principal to the plaintiff. See Pierce v. Spalding, 77 Mass.App.Ct. 1123 (2010) ( Pierce I ). After the rescript in Pierce I entered in the Probate Court, the plaintiff moved for attorney's fees and costs for the trial and appellate work. See G.L. c. c. 215, § 45.
The Probate Court judge, who had presided over the original proceedings in Pierce I, denied the motion. The plaintiff filed this appeal. We affirm the denial of attorney's fees and costs.
.General Laws c. 215, § 45, states as follows:
“In contested cases before a probate court or before the supreme judicial court on appeal, costs and expenses in the discretion of the court may be awarded to either party, to be paid by the other, or may be awarded to either or both parties to be paid out of the estate which is the subject of the controversy, as justice and equity may require. In any case wherein costs and expenses, or either, may be awarded hereunder to a party, they may be awarded to his counsel or may be apportioned between them. Execution may issue for costs awarded hereunder.”
In denying fees, the motion judge found as follows:
“This is not a case where justice or equity require an award of costs or fees. The parties had a good faith, reasonable dispute over the proper interpretation to be given certain inconsistent language in a Trust document. In addition, a review of the exchange of correspondence attached, ... raises a significant question as to the ‘necessity’ of many of the services rendered where it may reasonably be inferred that the relief ultimately obtained through the Appeals Court was, in essence, offered to plaintiff in the Spring of 2009.”
A Probate Court judge has broad discretion to award fees and costs under G.L. c. 215, § 45, and such a decision is “presumed to be right and ordinarily ought not to be disturbed.” Matter of the Estate of King, 455 Mass. 796, 805 (2010), quoting from Smith v. Smith, 361 Mass. 733, 738 (1972).
In this appeal, the plaintiff argues that the Probate Court judge abused his discretion by denying fees based on the judge's finding that the litigation in Pierce I involved a “ good faith, reasonable dispute.” The plaintiff says consideration of the defendant's good faith is not a relevant factor under Matter of the Estate of King. While Matter of the Estate of King, supra, states that the standard under G.L. c. 215, § 45, is a “broad” one that “reaches beyond bad faith or wrongful conduct,” it affirms that “just as the standard is broad, so is the judge's degree of discretion.” Ibid. We will not disturb that discretion here.
The plaintiff also challenges the judge's finding that the dispute was reasonable in light of this court's reversal of the original judgment and our reference to interpretation of the trust language by the Probate Court judge as “somewhat inexplicabl[e].” Pierce I, supra. But, this singular reference cannot be construed to mean that there was not a substantial trust question at issue. The point, as the Probate Court judge and this court determined, was that there were inconsistent trust provisions, giving rise to an ambiguity. See Hershman–Tcherepnin v. Tcherepnin, 452 Mass. 77, 85–86 (2008) (ambiguity results when provision of a will is susceptible to two or more meanings). Resolution of this ambiguity had significant financial consequences for the beneficiaries and, moreover, could have exposed the trustee to potential liability for breach of duty. There was no abuse of discretion.
The plaintiff's further contention that the judge's finding that the relief granted by the Appeals Court was “in essence” the same relief that was offered to the plaintiff in prior settlement was clearly erroneous does not advance her position.
For the foregoing reasons, we affirm the denial of attorney's fees and costs.
We also deny the plaintiff's request for attorney's fees related to this appeal.
Fees for work performed at the appellate level may not be awarded by the trial court. See Nardone v. Patrick Motor Sales, Inc., 46 Mass.App.Ct. 452, 454 (1999). As noted in the Probate Court judge's order, the plaintiff conceded that she failed to request such fees before this court in Pierce I. Accordingly, any request for such appellate fees in the Pierce I appeal would have been waived. See Beal Bank, SSB v. Eurich, 448 Mass. 9, 12 (2006).
Judgment affirmed.