MILLER FENCE COMPANY v. GORDON DAVIS

MELIKIAN, J. This appeal arises from an action commenced by Miller Fence Company ("Miller Fence") seeking monetary damages against Gordon Davis ("Davis") for breach of contract and conversion. Judgment was entered on behalf of Miller Fence, including an award of attorney's fees. Miller Fence appealed the amount of the award of attorney's fees. For the reasons set forth below, we affirm. [Note 1]

Miller Fence initiated an action against Davis seeking monetary damages alleging breach of contract and conversion. On August 19, 2019, the parties entered a contract under which Miller Fence was to erect a fence on Davis's property. The contract called for cancellation and restocking fees in the event of cancellation. It further provided for payment of attorney's fees and costs of collection in the event of an action for enforcement of its terms. Davis canceled the contract before the fence was installed pursuant to its terms and received a credit from his credit card services provider. Consequently, Miller Fence filed suit for the cancellation and restocking fees. After conducting discovery, Miller Fence moved for summary judgment seeking the cancellation and restocking fees and $9,910.04 in attorney's fees. After hearing, the motion was allowed on August 17, 2020. Judgment was entered on behalf of Miller Fence in the amount of $2,412.27, together with interest, costs, and attorney's fees. Although Miller Fence sought $9,910.04 in attorney's fees, the judge awarded a reduced amount of $800.00.

Miller Fence thereafter moved for clarification of the amount of the award. Miller Fence contended that the judge's reduction of the attorney's fees was improper because the word "reasonable" was intentionally omitted in reference to attorney's fees from its contract. Therefore, Davis was obligated to pay the entire amount. By order dated September 1, 2020, the judge found that the award of $800.00 in attorney's fees was reasonable and confirmed said amount. Miller filed this timely appeal.

Attorney's fees "'as between opposing parties in litigation' are only allowed in 'limited instances,' including 'pursuant to a valid contractual provision.'" Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 218 (2018). The contract in the present matter called for the payment of attorney's fees, making this one of the limited

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instances where attorney's fees are available. Miller Fence contends only that it is entitled to all of its attorney's fees, whether reasonable or not, simply because the contract omits the term "reasonable" and that the judge had no discretion to reduce the amount. The general rule in Massachusetts is that a party may be liable for reasonable attorney's fees if the contract or agreement provides for them. See Trustees of Tufts College v. Ramsdell, 28 Mass. App. Ct. 584, 585 (1990). The caveat, however, is that the award of attorney's fees is limited to an amount that is found to be fair and reasonable. Id. The reasonableness standard is applied notwithstanding that the contract provided for the debtor to pay attorney's fees without provision that the amount be fair and reasonable. See Citizens Bank of Mass. v. Travers, 69 Mass. App. Ct. 174, 176-177 (2007); Rockland Trust Co. v. Langone, No. 09-P-52 (Mass. App. Ct. Dec. 7, 2009) (unpublished 1:28 decision). The party claiming attorney's fees must show that the amount sought is reasonable, even where the claim is contract based. Citizens Bank of Mass., supra.

Generally, we review the judge's award of attorney's fees for abuse of discretion. Global Investors Agent Corp. v. National Fire Ins. Co. of Hartford, 76 Mass. App. Ct. 812, 828 (2010), and such an award will be reversed only if it is clearly erroneous. WHTR Real Estate Ltd. Partnership v. Venture Distrib., Inc., 63 Mass. App. Ct. 229, 235 (2005). Deference is given to the trial judge due to his or her "firsthand knowledge of the services performed," Foley v. Foley, 27 Mass. App. Ct. 221, 225 (1989), and the "firsthand observation of the quality and necessary quantity of the parties' preparation and performance." Union v. Bloomberg, 88 Mass. App. Ct. 671, 679 (2015), quoting City Rentals, LLC v. BBC Co., 79 Mass. App. Ct. 559, 566-567 (2011). The trial judge is therefore "uniquely situated to assess the reasonable value of those services." City Rentals, LLC, supra at 567. Here, the trial judge made the determination, and clarified that determination upon motion of Miller Fence, that the award of $800.00 in attorney's fees was reasonable.

Miller Fence argues in its brief only that "[t]he Court had no discretion to interpose its own determination of what was reasonable in terms of fees in light of clear and unambiguous contractual language." Concluding that the trial court did not err by exercising its discretion to calculate a reasonable attorney's fees award, we affirm the court's order.