Home GERALD JONES v. GANGI PRINTING, INC. and another [Note 1]

2016 Mass. App. Div. 38

September 18, 2015 - April 1, 2016

Appellate Division Northern District

Court Below: District Court, Cambridge Division

Present: Swan, P.J., Singh & Nestor, JJ.

Raven Moeslinger and Nicholas F. Ortiz for the plaintiff.

John P. Regan for the defendants.

SINGH, J. This is an appeal from a judge’s attorney’s fee award, recoverable under the Massachusetts Wage Act, G.L. c. 149, § 150. Plaintiff Gerald Jones (“Jones”) brought a complaint against Gangi Printing, Inc. and Susan E. Gangi (collectively, “Gangi”) alleging that they owed him compensation for unused vacation and sick time. A few months after filing an answer, which denied the allegations, Gangi served upon Jones an offer of judgment for $1,860.00, pursuant to Mass. R. Civ. P. 68. Jones accepted the offer and then moved for attorney’s fees in the amount of $6,185.00 and costs in the amount of $287.65. The motion was supported by affidavits and time entries of three attorneys who worked on the case during the four-month period from the filing of the complaint through to the hearing on the motion for fees. [Note 2] After hearing, the judge approved the costs in the amount requested but fixed the attorney’s fee award in the amount of $1,500.00. Jones moved for reconsideration, asserting that the court impermissibly reduced the fee in order to make it proportional to the recovery, rather than properly calculating reasonable attorney’s fees using the lodestar method. Upon reconsideration, the judge reaffirmed his ruling, but added that he had done so “based on the standards set forth under Linthicum v. Archambault, 379 Mass. 381 (1979).” Jones appealed.

A plaintiff who prevails in a civil action under the Massachusetts Wage Act is entitled to recover, among other things, “reasonable attorneys’ fees.” G.L. c. 149, § 150. There is no question raised on appeal regarding Jones’s status as a prevailing party or his entitlement to fees. The question is whether the trial judge abused his

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discretion in determining that $1,500.00 constituted reasonable attorney’s fees under the circumstances presented to him. See Stowe v. Bologna, 417 Mass. 199, 203 (1994) (award of reasonable attorney’s fees largely discretionary with trial judge); Holland v. Jachmann, 85 Mass. App. Ct. 292, 299 (2014) (trial judge in best position to determine time reasonably spent on case and fair value of attorney’s services).

The basic measure of reasonable attorney’s fees is a fair market rate for time reasonably spent preparing and litigating a case, generally referred to as the “lodestar” method. Fontaine v. Ebtec Corp., 415 Mass. 309, 325-326 (1993); Killeen v. Westban Hotel Venture, LP, 69 Mass. App. Ct. 784, 790 (2007). The party requesting the fee award has the burden of establishing the reasonableness of the request. Stowe, supra at 204 (judge may depart from even uncontradicted submission if party fails to convince judge).

In evaluating a fee request pursuant to a statutory award, the judge should first review the time documented by the attorney and determine whether it was reasonably expended. Killeen, supra at 790-791, citing Stowe, supra at 203-204. The judge should consider not only the financial interests at stake, but also the other interests sought to be protected by the statute providing for attorney’s fees and the public interest in having persons with valid claims under the statute represented by competent counsel. Id. at 792, citing Stratos v. Department of Pub. Welfare, 387 Mass. 312, 323 (1982). When a litigant’s victory, although minor as to the extent of relief, represents a significant legal issue serving an important public purpose, the fee award need not be proportionate to the damages recovered. [Note 3] Id. At the same time, realistic assessment of actual benefits of litigation is always necessary when attempting to determine what litigation costs are appropriate, “for neither costs nor benefits are free-floating variables.” Id. The second component in determining an attorney’s fee award is the amount of a reasonable hourly rate. This amount should be the average rate in the community for similar work by attorneys with the same years’ experience. Stratos, supra at 323-324.

Thus, when determining a reasonable attorney’s fee, the focus is not on the bill submitted or the amount in controversy. Berman v. Linnane, 434 Mass. 301, 303 (2001). Rather, several factors are to be considered, including “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

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charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Id., quoting Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979). “No one factor is determinative, and a factor-by-factor analysis, although helpful, is not required.” Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 430 (2005), quoting Berman, supra at 303.

Here, the judge made a fee determination without any explanation as to how he arrived at the figure. While there is no rule requiring written findings supporting an attorney’s fee award, appellate review of such an award is certainly hampered without such findings. [Note 4] In order to evaluate properly a fee award, an appellate court must have some indication of the trial judge’s thought processes and how he structured the award. See T. Butera Auburn, LLC v. Williams, 83 Mass. App. Ct. 496, 504 (2013), citing Massachusetts Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 74 (1st Cir. 2009) (where trial court recited Linthicum factors but failed to provide any explanation of its evaluation under those factors, appellate court had “no principled choice but to vacate the fee award” and remand so that trial court could “provide a record supporting its decision”). We have no such indication here and are therefore unable to determine whether the judge properly exercised his discretion.

We reiterate that no rule requires written findings to support a fee determination and that findings need not be precise or detailed or even fully articulated, as long as they give some “insight . . . that permits divination of the basis for the award.” Massachusetts Eye & Ear Infirmary, supra, citing United States v. One Star Class Sloop Sailboat, 546 F.3d 26, 42 (1st Cir. 2008) (trial court’s reduction of requested fees on basis of over-litigation upheld, despite court’s failure to cite specific instances, where examples were apparent in record). In the ordinary course, no more than a simple statement referring to the lodestar method will suffice, viz., “Having applied the lodestar formulation of Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993), the Court finds that a reasonable attorney’s fee to be awarded is $ _____.” Such indeed may be the case here. On the basis of such a statement, the judge is presumed to have properly instructed himself or herself on the law. Cummings v. Nat’l Shawmut Bank of Boston, 284 Mass. 563, 568 (1933). See Commonwealth v. Ortiz, 431 Mass. 134, 141 (2000); Goddard v. Goucher, 89 Mass. App. Ct. 41, 49 (2016); Commonwealth v. Gurney, 13 Mass. App. Ct. 391, 394-395 n.5 (1982).

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There are indeed exceptional cases that would require more extensive findings. See, for example, T. Butera Auburn, LLC, supra at 504 (judge initially awarded attorney’s fee of $80,000 and then, without explanation, reduced it to $33,120); Killeen, supra at 785 (award of $153,717.77 attorney’s fee in case involving $1.26 in actual damages). Even in a case where the judge does not consider the matter to be exceptional, where the parties have expressed concern over the basis of the award by requesting further findings or moving for reconsideration, additional findings may allow the parties to determine whether an appeal lies and would certainly aid an appellate court in any appeal. We return the case for such further findings or reevaluation, consistent with this opinion.

So ordered.


[Note 1] Susan Gangi.

[Note 2] One attorney with an hourly rate of $400 worked on the case for a total of one hour, a second attorney with an hourly rate of $350 worked on the case for 2.9 hours, and a third attorney with an hourly rate of $225 worked on the case for 21.2 hours. The records reflect time spent reviewing client documents, researching, drafting the complaint, and preparing discovery prior to the offer of judgment. Subsequent to the offer, additional time was spent preparing and defending the request for attorney’s fees and costs. See Stratos v. Department of Pub. Welfare, 387 Mass. 312, 325 (1982) (time spent in establishing and defending attorney’s fees, or objecting to unduly small award, should be included in final calculation of award).

[Note 3] Although perhaps appearing to be a windfall for lawyers, the statutory provision for attorney’s fees aims to attract competent legal counsel for those with meritorious claims. Stratos, supra at 322. In varying contexts, the Legislature has provided for the recovery of attorney’s fees in situations where litigation is necessitated to vindicate an important interest, however the amount sought to be recovered would generally be too small to justify an expenditure of attorney’s fees for the average person. See, for example, G.L. c. 90, § 34M (attorney’s fees provided to insured forced to litigate in order to recover personal injury protection benefits); G.L. c. 149, § 150 (attorney’s fees provided to employee forced to litigate in order to recover earned wages); G.L. c. 186, § 15B (attorney’s fees provided to tenant forced to litigate in order to recover security deposit from landlord). Failure to compensate adequately attorneys willing to take on these cases would undermine the legislative intent behind statutory fee awards. Stratos, supra at 325 (failure to compensate fully counsel for their efforts would “dilute the value of the award, and so frustrate the purpose of the act authorizing fees”).

[Note 4] Given that an appellate court is likely to remand a case for findings if it cannot determine the basis for an attorney’s fee determination, it may be prudent practice to issue findings in the first instance, no matter how brief. See Ross v. Continental Resources, Inc., 73 Mass. App. Ct. 497, 516 (2009) (where trial court made no findings indicating how and why she made the attorney’s fee award, appellate court remanded case, noting that “[t]he amount of a reasonable attorney’s fee is a fact that should be supported by some statement of reasons illuminating the judge’s fact-finding process.”). See also Stacy v. Zhao, 2013 Mass. App. Div. 59, 63; Board of Trustees of Sea Grass Village Condominium v. Bergquist, 2009 Mass. App. Div. 132, 137-138. “Written findings not only manifest that the judge properly exercised discretion by making explicit the reasons that lie inchoate in the record, but also inspire public confidence in the decision and its underpinnings.” Commonwealth v. Davis, 56 Mass. App. Ct. 410, 417 (2002), citing Commonwealth v. Grandison, 433 Mass. 135, 137 (2001).