Heard: December 14, 2016.
action commenced in the Superior Court Department on
September 22, 2014.
case was heard by Shannon Frison, J., on a motion for summary
Camille F. Sarrouf for the defendants.
J. Miller (Roy A. Bourgeois also present) for the plaintiff.
Present: Kafker, C.J., Grainger, & Sullivan, JJ.
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plaintiff extended and then rescinded, plus prejudgment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. 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.
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.
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] . "
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. 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
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."
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."
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. 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
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." That work, Bourgeois
explained, was "now free of charge." ...