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BourgeoisWhite, LLP v. Sterling Lion, LLC

Appeals Court of Massachusetts, Worcester

March 3, 2017

STERLING LION, LLC, & another.[1]

          Heard: December 14, 2016.

         Civil action commenced in the Superior Court Department on September 22, 2014.

         The case was heard by Shannon Frison, J., on a motion for summary judgment.

          Camille F. Sarrouf for the defendants.

          Samuel J. Miller (Roy A. Bourgeois also present) for the plaintiff.

          Present: Kafker, C.J., Grainger, & Sullivan, JJ.

          KAFKER, C.J.

         This appeal arises from a fee dispute between a law firm and its former clients. The plaintiff law firm, BourgeoisWhite, LLP, brought this action against the defendants, Sterling Lion, LLC, and its owner, David G. Massad, alleging breach of contract and unjust enrichment following the plaintiff's representation of the defendants in an employment dispute. The judge granted the plaintiff's motion for summary judgment, determining that the plaintiff was owed the $83, 681.84 amount sought in the complaint, including $29, 944.45 in "professional courtesy credits" that the plaintiff extended and then rescinded, plus prejudgment interest.[2] We conclude that the undisputed facts establish that the $29, 944.45 in credits was written off by the plaintiff law firm and thus waived. Summary judgment therefore should have been granted in favor of the defendants with respect to the credits. We further conclude that the defendants have failed to identify any factual disputes as to the reasonableness of the remaining fees, because they rely solely on unsupported and conclusory assertions about the representation. We therefore remand for the entry of summary judgment in favor of the plaintiff in the amount of the fees sought, less the credits.


         The following undisputed facts are set forth in the summary judgment record. Massad owns Sterling Lion, an Internet-based company that helps homeowners sell their homes without a broker. Roy Bourgeois, one of the plaintiff's partners, had known Massad for many years and previously represented him in unrelated matters.

         In January, 2012, a former business associate, Dennis Craig, sued Massad and Sterling Lion for alleged violations of the Massachusetts Wage Act, G. L. c. 149, § 148. Massad hired Bourgeois to represent them in the matter. Bourgeois sent Massad an engagement letter listing the hourly rates for the plaintiff law firm, which ranged from $125 to $330 per hour, and specified that Massad would receive monthly bills. Bourgeois drafted an answer and asserted several counterclaims relating to unpaid promissory notes by Craig. Bourgeois noted that he did not "pull any punches" in the pleadings because he believed Craig was "caught red-handed" and had fabricated the theory that he was an employee "solely as a basis to not pay his promissory note [s] . "

         The plaintiff's first bill, dated February 8, 2012, contained a twenty percent "professional courtesy credit." Over the next year, Massad received and paid subsequent bills without any discounts.[3] In April, 2013, Massad received another "professional courtesy credit" of $2, 330. Bourgeois stated in a letter accompanying the bill, "I know you hate getting these bills (and frankly I hate sending them to you), but I did issue a fairly substantial discount simply because I think the case is really unfair to you."

         Massad's next bill contained a similar discount of $3, 486. Bourgeois stated that the bill, which totaled $8, 250, would "hopefully" be "the last of the big bills" on the matter. He explained that he gave the "very substantial" credit "[s]imply because [Massad] w[as] spending so much money on th[e] problem."

         Massad also received discounts on his September and October, 2013, bills. In a letter accompanying the October bill, Bourgeois stated, "I gave you a twenty percent courtesy credit discount simply because I am bothered by the amount of money you are spending on this case, and I am trying to be fair to both of us." In another letter, Bourgeois noted, "Obviously, we are not going to pay [Craig] a dime, but the likelihood that we would ever recover the amount that he owes you is virtually nil."

         When Massad received his January, 2014, bill, he was "upset" with how much time an associate at the plaintiff law firm had spent on the case and the lack of specificity as to what the associate was doing.[4] Bourgeois told Massad to "throw away" that bill. Massad testified that he did not dispute any other bill up until this point, but may have expressed concern with how expensive the case was getting at various points throughout the representation.

         The employment dispute went to trial on March 10, 2014, and resulted in a verdict unfavorable to Massad and Sterling Lion. Massad's next bill, dated March 26, 2014 (March bill), contained a credit in the amount of $7, 944.45, which represented "all of the lawyers' time (including [his] own)" on the January bill, which Bourgeois had told him to "throw away."[5] That work, Bourgeois explained, was "now free of charge." ...

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