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Brady v. Citizens Union Savings Bank

Appeals Court of Massachusetts, Bristol

March 9, 2017

W. NANCY BRADY, executrix, [1] & another[2]

          Heard: December 6, 2016.

         Complaint in equity filed in the Bristol Division of the Probate and Family Court Department on July 13, 2011.

         Following 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.

          Carol L. Ricker for Dale Eggers.

          Edwin F. Landers, Jr., for W. Nancy Brady.

          Ben N. Dunlap for Edwin J. Haznar, Jr.

          Present: Green, Agnes, & Desmond, JJ.

          GREEN, J.

         On 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[5] 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.[6]

         1. Lodestar method.[7]

         In 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 (2005).

         We 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.[8] 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 reasonable.

         2. Size of the estate.

         Eggers 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 ...

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