W. NANCY BRADY, executrix,  & another
CITIZENS UNION SAVINGS BANK & another.
Heard: December 6, 2016.
in equity filed in the Bristol Division of the Probate and
Family Court Department on July 13, 2011.
review by this court, 88 Mass.App.Ct. 416 (2015), an award of
attorney's fees, costs, and compensation for professional
services was entered by Virginia M. Ward, J.
L. Ricker for Dale Eggers.
F. Landers, Jr., for W. Nancy Brady.
Dunlap for Edwin J. Haznar, Jr.
Present: Green, Agnes, & Desmond, JJ.
remand following our decision in a previous appeal in this
case, see Brady v. Citizens Union Sav.
Bank, 88 Mass.App.Ct. 416 (2015) (Brady I), the
Probate and Family Court judge entered a thorough and
detailed written memorandum of decision, in which she reduced
from $457, 902.09 to $350, 680.80 the amount the plaintiffs
could recover as reimbursement for fees and costs their
decedents incurred in defense of a lawsuit brought against
them by the defendant Dale Eggers and her daughter. Eggers
has again appealed, contending that (1) the amount of fees is
unreasonable in light of the nature and complexity of the
underlying litigation; (2) the amount of fees represents an
unreasonable proportion of the value of assets held by the
Wilson 0. Smith Trust (trust); and (3) the judge failed
adequately to consider the availability of insurance proceeds
as an alternative source of reimbursement. We affirm,
addressing Eggers's arguments in turn.
determining the amount of a reasonable fee, we consider
"the nature of the case and the issues presented, the
time and labor required, the amount of damages involved, the
result obtained, the experience, reputation and ability of
the attorney, the usual price charged for similar services by
other attorneys in the same area, and the amount of awards in
similar cases." Linthicum v.
Archambault, 379 Mass. 381, 388-389 (1979).
Determination of a reasonable fee is in the first instance
largely committed to the sound discretion of the trial judge,
who is in the best position to evaluate the nature of the
case, the conduct of the litigation, the amount of time
reasonably required to litigate it, and the fair value of the
attorney's services. See Fontaine v. Ebtec
Corp., 415 Mass. 309, 324 (1993). We review a trial
judge's determination of a reasonable attorney's fee
for abuse of discretion. WHTR Real Estate Ltd.
Partnership v. Venture
Distrib., Inc., 63 Mass.App.Ct. 229, 235
discern no abuse of discretion in the present case. The
judge's written memorandum reflects that she reviewed the
hourly billing details carefully, and she excluded time she
viewed as duplicative or unnecessary. Though, as the judge
acknowledged, the underlying litigation ultimately involved
no dispute of material fact, the judge observed that the
manner in which Eggers prosecuted her claims caused the
litigation to span four and one-half years, during which she
filed two amended complaints reflecting evolving claims.
Ultimately, the summary judgment rested on a conclusion that
the claims were barred by the statute of limitations, based
on Eggers's knowledge in May, 2003, of the 1994 property
transfer that formed the basis of her December, 2006,
complaint against the plaintiffs' decedents. See
Brady I, 88 Mass.App.Ct. at 417. Eggers's
knowledge was demonstrated by a letter she withheld until
February 3, 2010, more than three years after she filed her
initial complaint. The judge also evaluated the hourly rates
charged by the various attorneys involved, and we discern no
abuse of discretion in her determination that the rates are
Size of the estate.
separately contends that, even if the hourly rate and time
spent are considered reasonable under the lodestar method,
the resulting fee award is excessive in relation to the size
of the trust estate. To be sure, "[a]n important factor
in assessing the reasonableness of fees awarded in probate
cases is the size of the estate." C1ymerv.Mayo, 393 Mass. 754, 772 (1985).
Accordingly, in assessing a request for an award of
attorney's fees in such cases the judge is to "take
into consideration . . . the amount in controversy, and . . .
prevent the fund from being either entirely or in great part
absorbed by counsel fees, " and apply "strictly
conservative principles." Id. at 772-773,
quoting from Frostv.Belmont, 6
Allen 152, 165 (1863), and Holyoke Natl. Bankv.Wilson, 350 Mass. 223, 230 (1966). The
rationale stems, at least in part, from a recognition that
"[a]n excessive fee award may itself defeat the
decedent's intent by depleting her estate, "
C1ymer, supra ...