2017 Mass. App. Div. 154

August 18, 2017 - October 30, 2017

Appellate Division Northern District

Court Below: District Court, Framingham Division

Present: Coven, P.J., Crane & Nestor, JJ.

Richard Pareles for the plaintiff.

Jean Lee, pro se.

NESTOR, J. This case is a suit brought by an attorney against his former client for unpaid attorney's fees. The underlying case has a long and tortured history that is not wholly relevant to the issue presented on appeal. Suffice to say, the original case was filed on June 1, 2011 in Middlesex Superior Court; the Superior Court dismissed the case without prejudice on January 27, 2012 for plaintiff's failure to meet the procedural threshold under G.L. c. 212, § 3 [Note 1]; the plaintiff refiled the action in Waltham District Court on February 28, 2012 pursuant to c. 212, § 3A [Note 2]; and the case was ultimately transferred and concluded with a jury trial on May 20, 2015 in Framingham District Court.

The jury awarded the plaintiff, Attorney Richard Pareles ("Pareles"), $5,806.00 in damages for unpaid attorney's fees. Counsel for the defendant, Jean Lee ("Lee"), brought an oral motion for sanctions pursuant to G.L. c. 231, § 6F.

The trial judge allowed the motion and reduced the verdict by $1,700.00. The trial judge noted in his written findings, "Both sides came to Court with unclean hands. This Court does find that [Lee] probably misled her lawyer and the Probate Judge in the earlier trial and that [Lee's] Counsel threatened [Pareles] with a huge counterclaim threat of six times or greater. This Court also finds that [Pareles] didn't need to travel to three different courts, causing far greater att[orne]y's fees for [Lee] than was necessary. This is a classic case of both sides taking a $5,800.00 case and turning it into a case like Exxon Mobil v. Chevron." The judge also reduced the plaintiff's entitlement to prejudgment interest to eight months, finding, "[T]his Court is not permitting interest on the judgment from 2012. The bulk of the delay was attributable to court transfers, court congestion, and both sides over litigating the case."

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Attorney Pareles's appeal is based solely on the trial judge allowing a motion to reduce the verdict by $1,700.00 and his entitlement to prejudgment interest pursuant to G.L. c. 231, § 6F. Section 6F reads, in part, as follows:

"Upon motion of any party in any civil action in which a finding, verdict, decision, award, order or judgment has been made by a judge or justice or by a jury, auditor, master or other finder of fact, the court may determine, after a hearing, as a separate and distinct finding, that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith. . . . If such a finding is made with respect to a party's claims, the court shall award to each party against whom such claims were asserted an amount representing the reasonable counsel fees and other costs and expenses incurred in defending against such claims."

Section 6F must be read, however, in conjunction with G.L. c. 231, § 6E, which states:

"As used in sections 6E to 6G inclusive, the following words shall have the following meanings: 'Court', the supreme judicial court, the appeals court, the superior court, the land court, any probate court and any housing court, and any judge or justice thereof . . . ."

The Appellate Division has previously held that G.L. c. 231, § 6F does not, in fact, apply to the District Court. "As a practical matter, the plaintiff's assertion that G.L. c. 231, § 6F, is not applicable to District Court appears to be correct due to the fact that the District Court is not included within the definition of 'court' as set forth in § 6E." Mullen v. Connolly, 1989 Mass. App. Div. 164 , 165. See also Nissenbaum v. McGovern, 1995 Mass. App. Div. 153 , 154 (§ 6F not extended to District Court); Brentwood Nursing Home v. Goldstein, 1986 Mass. App. Div. 8 , 9 (excluding District Court from § 6E as "clear expression of legislative intent" that District Court not "proper forum" for § 6F motion).

The trial court's allowance of the motion for sanctions is reversed. This case is returned to the trial court for entry of judgment on the jury's verdict. The trial court clerk shall calculate prejudgment interest from the date of the commencement of this action, February 28, 2012, [Note 3] and shall add that interest, plus $355.00 in costs, to the $5,806.00 in damages awarded by the jury.


[Note 1] General Laws c. 212, § 3 grants to the Superior Court "original jurisdiction of civil actions for money damages," but permits such actions to proceed in the Superior Court "only if there is no reasonable likelihood that recovery by the plaintiff will be less than or equal to $25,000."

[Note 2] General Laws c. 212, § 3A(d) states that "in a civil action under this section in which a plaintiff's case has been dismissed as provided in this section, the plaintiff shall be given 30 days after the date of receipt of the notice of dismissal . . . to file the case in the appropriate court." Section 3A(b) states that the "filing fee in the dismissed actions shall be retained by the [superior] court; but the recommencement of the same action in the district court or Boston municipal court departments of the trial court shall not require the payment of a filing fee."

[Note 3] For actions based on a contract, G.L. c. 231, § 6C provides that prejudgment interest is awarded "from the date of the breach or demand," if established, but otherwise from the date of the commencement of the action. Establishing the date of the breach or demand is for the trier of fact. Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118 , 125 (1986). Where no date of breach or demand is established, prejudgment interest is calculated from the commencement of the action. Starr v. Fordham, 420 Mass. 178 , 194-195 (1995). On this record, there is no evidence of the date of demand or breach. The plaintiff requests in his appellate brief statutory interest from the date of the commencement of the Superior Court action. We disagree, construing the language in G.L. c. 212, § 3A(b), (d) of the plaintiff's obligation, following dismissal, to "file the case in the appropriate court" and the "recommencement of the same action" to mean that, for purposes of G.L. c. 231, § 6C, the commencement of this action began with the filing in Waltham District Court on February 28, 2012.