March 11, 2020

Housing Court, Southeast Division

Donna Salvidio, First Justice


This matter was before the court on March 2, 2020 with respect to the status of the defendants' compliance with the Court's January 28, 2020 Findings and Order on Contempt (the "Contempt Order") and for an award of attorneys' fees and costs. The Court previously entered the Contempt Order in favor of the plaintiff Town of Westport (the "Plaintiff") against defendants David W. Cabral and Sharon M. Cabral (the "Defendants") after a hearing on Plaintiff's complaint for contempt.

At the hearing on March 2, 2020, Plaintiff acknowledged that Defendants had generally complied with the Contempt Order by obtaining necessary permits, cleaning the interior and exterior of the subject property and repairing the deck. At issue was the payment of the Plaintiff's costs and reasonable attorneys' fees incurred in preparing and prosecuting Plaintiff's complaint for contempt. Defendants testified that they do not have the financial means to pay anything.

The Contempt Order requires Defendants to pay Plaintiff within 14 days of the Court's award of fees and costs. At the hearing on March 2, 2020, the Court requested that Plaintiff file a supplemental affidavit in support of its request for an order of attorneys' fees and costs. After review of the Affidavit of Counsel and Supplemental Affidavit of Counsel, each submitted by Plaintiff's counsel, Attorney Nicole J. Costanzo, in support of the Contempt Order (the "Affidavits"), the Court finds, rules and orders as follows:

1. Legal Standard for Award of Statutory Attorney's Fees. The Court should normally use the "lodestar" method to calculate the award of attorneys' fees. Under the "lodestar" method, "[a] fair market rate for time reasonably spent in litigating a case is the basic measure of a reasonable attorney's fee under State law as well as Federal law." Fontaine v. Ebtec Corp., 415 Mass. 309 , 325-26 (1993). However, the actual amount of the attorney's fee is largely discretionary with the trial court judge. Linthicum v. Archambault, 379 Mass. 381 , 388 (1979). An evidentiary hearing is not required. Heller v. Silverbranch Const. Corp., 376 Mass. 621 , 630-631 (1978). In determining an award of attorney's fees, the court must "consider the nature of the case and the issues presented, the time and labor required, the amount of the 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, supra. at 388. See Heller v. Silverbranch Const. Corp., supra. at 629 ("where the award is . . . assessed against the party having no contractual relationship with the attorney involved, the standard of reasonableness depends not on what the attorney usually charges but, rather, on what his services were objectively worth . . . Absent specific direction from the Legislature, the crucial factors in making such a determination are (1) how long the trial lasted, (2) the difficulty of the legal and factual issues involved, and (3) the degree of competence demonstrated by the attorney"). The prevailing party is entitled to recover fees and costs for the claims on which he or she was successful. Time spent on unnecessary work, duplicative work, or claims on which the party did not prevail should be excluded. Simon v. Solomon, 385 Mass. 91 , 113 (1982).

As the prevailing party on its claim, Plaintiff is entitled to recover its reasonable attorneys' fees and costs. This is particularly true here, where Defendants received in-hand service of the underlying action on November 26, 2019, and on the complaint for contempt on January 10, 2020. It took the Contempt Order for the Defendants to comply with the Court's original order issued on December 2, 2019 (the "Original Order"), which Original Order issued after Defendants failed to appear after notice. Had Defendants responded earlier, they could have eliminated the need for Plaintiff to bring the complaint for contempt and avoided the assessment of attorneys' fees and costs altogether.

2. Hourly Rate and Number of Hours. The Court reviewed the Affidavits submitted by Attorney Costanzo seeking attorney's fees and costs totaling $4,040.07 at an hourly rate of $185.00. [Note 1] These fees and costs were all incurred in prosecuting Plaintiff's complaint for contempt after Defendants failed to comply with the Original Order. The Defendants did not file an opposition challenging Attorney Costanzo's expertise, her hourly rate or the time spent. Attorney Costanzo represented Plaintiff with skill and professionalism. The Court finds that had Defendants undertaken to comply with the Court's Original Order, they could have avoided the Contempt Order. For these reasons, the Court finds Attorney Costanzo's hourly rate and the time spent to be reasonable and appropriate.

3. Costs. Included in the amount sought are costs Plaintiff incurred in service and express mail fees, travel, and copy costs for documents obtained from the registry of deeds. Such costs and fees total $655.82 in the aggregate. These are reasonable costs related to Plaintiff's successful complaint made necessary by Defendants' failure to respond to the Contempt Order and shall be compensated.

4. Award of Attorney's Fees and Costs.

After considering all of the factors above, the Court awards Plaintiff reasonable attorneys' fees and costs in the amount of $4,040.07. The award of attorney's fees and expenses is without interest. See Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270 , 272 (1985). In recognition of Defendants' ongoing efforts to remedy the violations at the subject premises and their financial circumstances, the Court extends the time for payment of such amount from 14 days to six (6) months from the date of this Order.


In accordance with the above, as well as the Court's findings, rulings and Contempt Order dated January 28, 2020, it is ORDERED that the following final judgment enter in favor of Plaintiff on an award of reasonable attorneys' fees and costs:

1. Final judgment in the amount of $4,040.07 for reasonable attorneys' fees and costs shall enter for Plaintiff nunc pro tunc to January 28, 2020, the date of the Contempt Order.

2. Defendants shall have six (6) months from the date of this Order to pay such award of reasonable attorneys' fees and costs.

3. Execution shall issue in the usual course.


[Note 1] The hourly rate is the same for all counsel and litigation services charged to Plaintiff, which rate is generally established as a result of a competitive bidding process. (Supplemental Affidavit, ΒΆ3).