2017 Mass. App. Div. 142

May 26, 2017 - August 29, 2017

Appellate Division Northern District

Court Below: District Court, Woburn Division

Present: Coven, P.J., Singh & Flynn, JJ. [Note 1]

Appealed from a decision entered in Worburn District Court by Crane, J. [Note 2]

Marc D. Padellaro for the plaintiff.

Dustin F. Hecker for the defendant.

COVEN, P.J. In this appeal on the record of the proceedings in a jury-waived trial, the defendant challenges the finding by the trial judge that (a) the promissory note at issue was not paid, and (b) the amount that was not paid was $7,000.00. The defendant also argues that the award of legal fees was error because the note, which allowed for reasonable attorney's fees for collection on the note, was paid and, in any event, was "wildly excessive." We affirm.

The first part of the defendant's argument is essentially this: the trial judge should have found for the defendant because, by her account, the debt was satisfied. Even if that theory were not adopted, the defendant argues that it was error for the judge to find in favor of the plaintiff for $7,000.00 when the plaintiff was claiming that the amount owed on the promissory note was over $10,000.00.

Pursuant to Mass. R. Civ. P. 52(c), the defendant filed proposed findings of fact and rulings of law. Under the rule, "the court does not rule on each request but prepares its own findings and rulings, without a requirement to reference the findings and rulings so proposed" by the parties. B. Thomas Heinzer Assoc. v. Xarras, 2010 Mass. App. Div. 218, 219. Appellate review under Rule 52 focuses on the "correctness of any rulings and whether the findings are supported by the evidence." Id. The rule envisions findings that are "clear, complete, and accurate." Lindsey v. Ogden, 10 Mass. App. Ct. 142, 155 (1980). Although a judge must "articulat[e] essential grounds of his decision, Schrottman v. Barnicle, 386 Mass. 627, 638 (1982); he is not required to itemize every component of that decision." Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 483 (1991). [Note 3]

Page 143

We begin with axioms that need no citation. First, the trial judge is in the best position to assess credibility. And second, cases are legion where neither party is entirely successful in their claim. We turn to whether the judge's finding that $7,000.00 remained due is supported by the evidence and not clearly erroneous.

In summarizing the trial judge's findings, the defendant, who is the plaintiff's former lawyer, borrowed $100,000.00 from the plaintiff on May 22, 2002. The defendant signed a promissory note that provided for 5% interest per year, monthly payments to include principal and interest, and a balloon payment due on May 22, 2007. The defendant defaulted on the balloon payment date and informed the plaintiff that the plaintiff would receive full payment when a Florida case settled.

Although no contemporaneous payment records were created, the defendant, shortly before a September, 2008 meeting with the plaintiff, created an amortization schedule indicating what payments were made and the balance owed. The schedule included an offset for legal services performed. At the meeting, the defendant tendered the plaintiff a check for $55,455.39, representing the purported balance.

The plaintiff testified that she never received any cash payments from the defendant. Conversely, the defendant testified to having paid the plaintiff $7,000.00 in cash and offered testimony from her receptionist as to these cash payments.

We plainly do not see any error in the trial judge's finding that $7,000.00 of the loan, paid in cash, was not made. Clearly, the evidence supported the trial judge's finding. The issue was credibility, and on that equation, the trial judge accepted the plaintiff's version.

Nevertheless, the defendant argues that the submitted chalk clearly demonstrates error in that it conclusively establishes the full payment of the loan without taking into account the cash payments. First, the chalk is submitted as part of her brief, but that chalk was submitted only as a chalk and carries no evidentiary weight. Second, we observe that what evidence was submitted would not compel such a finding. Not all checks have been submitted and not all of those submitted bear the copy of the check negotiation endorsement on the back side. Though many copies of checks were submitted, there was evidence of others. Moreover, the exhibits introduced without limitation present a question of checks were received by the plaintiff. See Exhibits 7 and 8. Again, on the record presented to us, the version represented by the chalk was an issue of credibility that was determined in favor of the plaintiff.

As to the attorney's fees awarded, assuming that there exists a disproportionate award of attorney's fees to the result achieved, our review would stand on the principle of whether "the judge . . . focus[ed] with precision on the relationship between the time invested and the results achieved in order to insure that the ‘time spent was [not] wholly disproportionate to the interests at stake.'" Board of Trustees of the Sea Grass Village Condominium v. Bergquist, 2009 Mass. App. Div. 132, 138, quoting Killeen v. Westban Hotel Venture, L.P., 69 Mass. App. Ct. 784, 796 (2007). The trial judge made detailed findings, reduced the amount of collectable hours by 50%, and awarded $17,728.75 based upon 54.55 hours at a rate of $325.00. There was no error.

Page 144

In this appeal, the plaintiff has requested attorney's fees. Within fourteen days of the issuance of this opinion, the plaintiff shall submit her request for appellate attorney's fees to this Division in the manner described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The defendant may file any opposition within fourteen days of service of the plaintiff's request. [Note 4]


[Note 1] The Honorable Sabita Singh participated in the hearing, review, and decision of this case, but was appointed to the Appeals Court prior to the issuance of this opinion.

[Note 2] The Honorable Daniel C. Crane recused himself from this appeal, and did not participate in its hearing, review, or decision.

[Note 3] With the exception of attorney's fees, discussed infra, there is in this appeal no issue as to the correctness of the judge's conclusion based upon the findings. This appeal involves the judge's findings that support his conclusion.

[Note 4] There is no dispute that the promissory note provides for the award of attorney's fees.