IRA STEPANIAN and JACQUELYNNE STEPANIAN v. INGEBORG E. SARACENO.

In 1985, Daniel Tully subdivided his waterfront property in the Osterville section of Barnstable and sold the resulting vacant lot next to his existing home, reserving for his remaining land a driveway easement, a right of way over a private way, and restricting the use of a portion of the new vacant lot. This set in motion a dispute between his two successors-in-interest over the restricted area and the right of way that is before the court today.

The plaintiffs, Ira and Jacquelynne Stepanian, the owners of the former Tully property, seek enforcement of restrictions in a forty-foot wide “buffer zone” on the portion of the defendant Ingeborg E. Saraceno’s land abutting the Stepanian property. The Stepanians also seek damages for past violation of the restrictions. The defendant, Ingeborg E. Saraceno, in a counterclaim, seeks damages for violation by the Stepanians of an agreement not to enforce the restrictions.

The Stepanians commenced this action on November 23, 2010. Mrs. Saraceno’s motion for partial summary judgment seeking a determination that the restrictions that are the subject of this action would expire on December 9, 2015 was allowed, and Mrs. Saraceno’s motion for summary judgment seeking a determination that this action was barred by the statute of limitations was denied by the court (Grossman, J.), both on March 18, 2013. Two pre-trial conferences were held before me, on April 9, 2015 and August 27, 2015 respectively, at each of which I discussed with the parties that, given Judge Grossman’s decision that the restrictions would expire on December 9, 2015, the major part of this case appeared to be moot. Mr. Stepanian, appearing pro se, stated his intention to go forward notwithstanding Judge Grossman’s decision, in order to prove damages for past violations of the restrictions pursuant to G. L. c. 184, §30. A trial was held before me on September 9, 2015 and September 10, 2015, at which the Stepanians, who were previously represented by counsel in this action, appeared pro se. Upon the filing of post-trial memoranda and requests for findings of fact and rulings of law by both sides, I took the matter under advisement on November 25, 2015.

For the reasons stated below, I find and rule that the restrictions that form the basis of the plaintiffs’ complaint cannot be enforced because they have expired (as Judge Grossman has ruled); the plaintiffs are estopped from enforcement of the restrictions even if the restrictions had not expired; they are not entitled to damages for the same reason; and they have not in any event proven any damages as a result of past violations of the restrictions. I further find and rule that the plaintiffs have failed to prove that two stone columns at the end of Bayberry Way overburden any easement of which the plaintiffs have the benefit. The defendant has similarly failed to prove any cognizable damages for the plaintiffs’ breach of the agreement not to enforce the restrictions.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, and my assessment as the trier of fact of the credibility, weight and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:

1. Daniel Tully and Rose Tully subdivided their land in the Osterville section of Barnstable by an “Approval Not Required” plan signed by the Barnstable Planning Board on September 9, 1985, and recorded with the Barnstable Registry District of the Land Court (“Registry”) as Land Court Plan no. 2664-119 on October 23, 1985. The subdivision divided the Tullys’ property into two lots: Lot 243, containing 1.94 acres of land, on which the Tullys’ house stood; and Lot 244, a vacant parcel with 5.98 acres of land.

2. Lot 243, with the Tully house, has a street address of 175 Bayberry Way, and the vacant parcel has a street address of 255 Bayberry Way. Bayberry Way is a private way ending at Lot 244.

3. By a deed dated December 9, 1985, the Tullys sold the vacant parcel, Lot 244, to Dominic Saraceno. The deed was recorded with the Registry on December 10, 1985 as Document no. 381518. [Note 1]

4. The deed from the Tullys to Dominic Saraceno reserved to the Tullys and their successors the right to continued use of a circular driveway serving the Tully home on Lot 243, a portion of which was now on Lot 244. (the “driveway easement”)

5. Lot 244 was also conveyed “subject to and with the benefit of” a right of way over Bayberry Lane, the twenty-foot wide way leading to the nearest public way.

6. Finally, Lot 244 was conveyed subject to a restriction (the “buffer zone restriction”), for the benefit of Lot 243, the remaining land of the Tullys. The restriction was to “remain in full force and effect for a period of thirty (30) years from the date of the deed (December 9, 1985) conveying the same and may be extended for successive periods of twenty (20) years in accordance with the provisions of the General Laws.” The restriction provided in relevant part that, “No buildings, additions, structures, fences, planting, or improvements shall be placed, maintained, erected, or caused to be allowed within the southerly forty (40’) feet of the premises conveyed in this deed,…the forty (40’) foot- wide buffer zone is to be forever kept open and unimproved and substantially in its natural vegetative state.” This area will be referred to as the “buffer zone”.

7. Mr. Saraceno promptly commenced building a house on Lot 244, in 1986. The house was completed in the summer of 1987. [Note 2]

8. In conjunction with the construction of the house, by the summer of 1987 Mr. Saraceno had constructed, in the buffer zone, a gravel-surfaced parking lot for four vehicles, with railroad-tie retaining walls to level the parking lot, a gravel and railroad-tie staircase from the parking lot to the garage, and two lamp posts. [Note 3] [Note 4]

9. Mr. Saraceno also installed two stone columns on either side of the built portion of the end of the Bayberry Lane right of way near where it meets the boundary of Lot 244. The date the columns were installed is not clear, and may have been as late as 1999, with an earlier pair of wooden columns installed about 1987. [Note 5]

10. Mr. Tully, in an August 24, 1987 letter to Mr. Saraceno, objected to Mr. Saraceno’s “construction of a parking lot” in the buffer zone, which was “in violation of and absolutely contradicts the language of the deed restrictions.” Mr. Tully demanded that Mr. Saraceno “restore the area to its natural vegetative state”, but took no further action, and the parking lot and related improvements remained. [Note 6]

11. In 1993, the Tullys sold their house at 175 Bayberry Lane, on Lot 243, to Ira Stepanian and Jacquelynne Stepanian, by a deed dated April 15, 1993, and recorded with the Registry on the same day as Document no. 579831. [Note 7]

12. By a letter dated April 26, 1994, Mr. Stepanian complained to Mr. Saraceno that the buffer zone restriction was being violated by the alteration of the buffer zone to allow the parking of cars and by the stairs from the parking lot to the rest of the Saraceno property. Mr. Stepanian asked Mr. Saraceno to “honor the terms of the Deed and refrain from using any part of the forty foot strip of land in question for parking.” [Note 8]

13. Mr. Saraceno, responding by letter dated May 5, 1994, denied that the buffer zone restriction was violated by the alterations to the buffer zone, but acknowledged that “there were initial differences of opinion with the Tullys”, and asserted that these were resolved amicably by Mr. Saraceno spending in excess of $20,000 on plantings in the buffer zone. [Note 9]

14. There followed a series of conversations and correspondence during the summer of 1994 in which Mr. Saraceno offered to reconfigure the Stepanians’ circular driveway so that it would be located entirely on their property and would no longer use the driveway easement on the Saraceno property. Mr. Saraceno also offered to install additional plantings in the buffer zone to screen the two properties from each other. [Note 10]

15. Perhaps as a result of these communications, the Stepanians took no immediate action with respect to the parking lot and other improvements in the buffer zone.

16. By 1996, the Stepanians planned to raze the house they had purchased from the Tullys, and construct a new, larger house. Apparently concerned that the new house would require zoning relief, or that the Saracenos would otherwise object, Mr. Stepanian approached the Seracenos to secure their agreement not to object to the construction of the new house. The result of their conversations was memorialized in a letter dated September 13, 1996. The letter consists of two pages, the first of which was on Mr. Stepanian’s personal letterhead and was signed by Mr. Stepanian, but was drafted by Mr. Stepanian’s attorney for presentation to the Seracenos. The second page was handwritten at a meeting between Mr. Stepanian and the Saracenos. [Note 11]

17. In the September 13, 1996 letter, Mr. Stepanian wrote, in language drafted by his attorney, that, “As I understand it, you have no objection to our development plans, provided that any new house be located no closer to our joint lot line than the existing dwelling house on our lot. Further this is to confirm that we have no objection to your utilization of the four existing parking spaces within the forty foot easement area, as it is our intent to build a driveway to access the new house outside said easement area.” The letter was signed by Mr. Stepanian, and it was signed as “acknowledged” by both Mr. and Mrs. Sareceno., The second, handwritten page, with further details about the use of the parking spaces, was dated September 15, 1996, and was signed as well by Mr. Stepanian and both Mr. and Mrs. Saraceno. Mrs. Stepanian did not sign either page of the document.

18. Mr. Stepanian’s understanding of the import of the September 13, 1996 letter was that it was an agreement that if the Saracenos did not object to the construction of his new house, he would not object to their continued use of the four existing parking spaces in the buffer zone. [Note 12]

19. Mr. Stepanian gave conflicting testimony regarding whether his wife knew of the September 13, 1996 letter agreement, whether she agreed to be bound by it, and whether he intended her to be bound by it. I do not credit his testimony to the effect that the letter agreement was not an “agreement”, but something less, that he called a “letter of accommodation”, or that he signed it without actual or apparent authority from his wife. I do credit his deposition testimony, used for impeachment purposes at trial, that Mrs. Stepanian agreed to be bound by the letter agreement, and I so find. [Note 13] (I note that Mrs. Stepanian was present at trial but did not testify or otherwise disavow this testimony.)

20. I also find that the Saracenos reasonably believed that Mr. Stepanian had apparent or actual authority to bind his wife to the terms of the letter agreement. The terms of the agreement as proposed by Mr. Stepanian were for the benefit of both him and his wife, the letter referred to “our development plans” (emphasis supplied), indicating that the agreement was being proposed on behalf of both Stepanians, Mr. Stepanian testified that Mrs. Stepanian was aware of the agreement, and she took no steps to disavow the agreement at any time, and thus benefitted from it as did Mr. Stepanian. Accordingly, I find that Mr. Stepanian had actual or apparent authority to bind Mrs. Stepanian to the letter agreement.

21. The Saracenos, in keeping with the letter agreement, did not object to the construction of the new Stepanian house. The Stepanians began construction of their new home on Lot 243 shortly thereafter and the new home was completed in 1998. [Note 14]

22. Until the new home was completed, the Stepanians continued to use the circular driveway that utilized the driveway easement on the Saraceno property, but since then have used a new driveway that was constructed entirely on their own property. [Note 15] By the time the Stepanians filed their complaint in this case in 2010, they were no longer using the driveway easement. [Note 16]

23. Following the execution of the September 13, 1996 letter agreement, the Stepanians took no further action to enforce the buffer zone restrictions until the filing of the complaint in this action in November, 2010.

24. Since 1996, the Saracenos have continued to install plantings in the buffer zone, and have made improvements to the parking area and related facilities in the buffer zone by replacing the railroad ties used as a retaining wall for the parking lot, and by replacing the original lamp posts. I credit the testimony that the dimensions and improvements of the parking lot and related improvements were substantially the same at the time of trial as they were when the Stepanians purchased their property in 1993, and in particular that the parking lot has not been enlarged.

25. In 1999, the Saracenos installed two stone columns on either side of the built portion of the Bayberry Lane right of way near the northern end of Bayberry Lane where it meets both parties’ driveways. [Note 17] Bayberry Lane is a twenty-foot wide perpetual right of way for the benefit of the Stepanian property and the Saraceno property. There was insufficient admissible evidence for me to find whether the two columns are within the twenty-foot right of way or outside its boundaries. The Saracenos claim the present columns replaced wooden posts previously in the same location. There was also insufficient evidence upon which I could find whether the previously installed wooden posts were within the boundaries of the right of way.

26. Bayberry Lane is not located on either Lot 243 or Lot 244, no part of Bayberry Lane is within the buffer zone, and the Bayberry Lane right of way is not a subject of any provision in the September 13, 1996 letter agreement.

DISCUSSION

I. The Restrictions Have Expired.

It is the law of the case in this action that the buffer zone restrictions the plaintiffs seek to enforce, and which the defendant claims the plaintiffs agreed not to enforce, have expired as of the date of this decision. Judge Grossman, in his Order dated March 18, 2013, ruled that the buffer zone restrictions were restrictions “unlimited as to time”, and therefore were as a matter of law limited to a term of thirty years pursuant to G. L. c. 184, §23. Specifically, Judge Grossman ruled that, “The restriction will cease to be enforceable as of December 9, 2015, thirty years from the date of its creation. It may not be extended thereafter.”

This ruling is binding in this case, and even if it were not binding, I would decline to revisit this issue. The doctrine of the law of the case provides that, “once a final judgment is entered, the court may not rule differently on ‘an issue or a question of fact or law.’” Kendall v. Hyannis Restorations, Inc., 81 Mass. App. Ct. 1118 (2012) (Rule 1:28 unpublished opinion), quoting Catalano v. First Essex Savings Bank, 37 Mass. App. Ct. 377 , 384 (1994). Judge Grossman’s ruling granting partial summary judgment was a final ruling on an issue of law in this case. “[E]ven in the absence of a final judgment, ‘a court or judge is not bound to reconsider a case, an issue, or a question of fact or law, once decided.’” Kendall v. Hyannis Restorations, Inc., supra, quoting Peterson v. Hopson, 306 Mass. 597 , 599 (1940). To the extent the doctrine allows me to revisit the issue as a matter of discretion, I decline to do so, for reasons including my conclusion that Judge Grossman’s ruling was correct, and I would reach the same conclusion.

II. Violations of the Restrictions.

It is hardly even a matter of dispute that practically before the ink was dry on the December 9, 1985 deed from Tully to Dominic Saraceno, Mr. Saraceno commenced to violate the restrictions imposed in the deed, subject to which he took ownership of his property. By the time his new house was completed in the summer of 1987, Mr. Saraceno had constructed a parking lot for four vehicles, supported by railroad-tie retaining walls, a staircase from the parking lot to his garage, and installed lighting, all within the forty-foot buffer zone, which was supposed to have been “forever kept open and unimproved and substantially in its natural vegetative state.” [Note 18] These improvements violated the buffer zone restrictions in the December 9, 1985 deed.

That Mr. Saraceno apparently placated Mr. Tully, and convinced him not to enforce the restrictions after Mr. Tully’s first complaints about the violations in August, 1987, does not make the improvements in the buffer zone any less a violation. Mr. Tully’s forbearance, not otherwise documented, was not binding on the Stepanians when they purchased the Tully property in 1993 and they in turn complained to Mr. Saraceno about the violations in April, 1994. Mr. Saraceno similarly placated the Stepanians, convincing them not to seek judicial enforcement of the violations after the Stepanians correctly complained in April, 1994 that the parking lot violated the buffer zone restrictions. This “cold peace” held for the next sixteen years, and outlived Mr. Saraceno, who died in 2005, until the Stepanians filed the present action in 2010.

Notwithstanding the violation of the buffer zone restrictions, which continued until the restrictions expired, (and regardless of the effect of the letter agreement, as to which, see infra) the restrictions may not be enforced in equity. G. L. c. 184, §30, provides in relevant part as follows:

No restriction shall in any proceeding be enforced or declared to be enforceable, whether or not the time for recording a notice or extension under section twenty-seven or twenty-eight has occurred, or such a notice or extension has been recorded, unless it is determined that the restriction is at the time of the proceeding of actual and substantial benefit to a person claiming rights of enforcement.

By the time this matter was taken under advisement on November 25, 2015, the buffer zone restrictions were exactly two weeks away from their expiration on December 9, 2015, and as of the date of this decision they have expired. Accordingly, I find and rule that “at the time of the proceeding”, the restrictions are not “of actual and substantial benefit to a person claiming rights of enforcement”, and therefore the restrictions shall not be enforced.

Taking into account the Stepanians’ agreement in the September 13, 1996 letter agreement not to object to the Saracenos’ use of the parking lot, the violations of the restrictions by the Saracenos’ should not be enforced for an additional reason. Section 30 of G. L. c 184, in addition to the language quoted above, provides, “No restriction…shall be enforced or declared to be enforceable…if…conduct of persons from time to time entitled to enforce the restriction has rendered it inequitable to enforce…” The breach by the Stepanians of their agreement in the September 13, 1996 letter agreement not to seek enforcement of the restrictions, in combination with the Saracenos’ reliance on the agreement by not objecting to the construction of the Stepanians’ new house, more fully described below, makes enforcement of the restrictions inequitable.

III. The Agreement Not to Enforce the Restrictions.

In 1996, the Stepanians planned to tear down the house they had purchased in 1993 from the Tullys, and build a new house in its place. Mr. Stepanian had his lawyer draft a letter, which Mr. Stepanian put on his own letterhead and signed. He then presented the letter to the Saracenos for their agreement and signatures. In the letter, Mr. Stepanian proposed that in return for the Saracenos agreeing not to raise any objections to the construction of the Stepanians’ new house, the Stepanians would agree not to raise objections to “your utilization of the four existing parking spaces within the forty foot easement area…” [Note 19] Mr. Stepanian met with the Saracenos to present the letter to them. Together they drafted handwritten additions to the letter, the Saracenos signed the letter, and Mr. Stepanian and the Saracenos signed the handwritten additions on a second page.

Despite Mr. Stepanian’s insistence during the trial on calling this letter something less than an “agreement”, he acknowledged that it was an agreement whereby the Saracenos agreed not to object to his construction of a new home in return for his and his wife’s agreement not to object to the continued use of the four existing parking spaces. [Note 20]

The Saracenos kept their part of the bargain: the new Stepanian home was completed without objection from the Saracenos, and was occupied by the summer of 1998. There having been sufficient consideration for the promises contained in the September 13, 1996 letter signed by the parties, I find and rule that it was a binding agreement.

I also find and rule that the letter agreement was binding on Mrs. Stepanian as well as Mr. Stepanian, since I have found as a factual matter that Mr. Stepanian had actual or apparent authority to bind Mrs. Stepanian. “The existence of an agency relationship is ordinarily a question of fact…” Shear v. Gabovitch, 43 Mass. App. Ct. 650 , 670 (1997). “The test for apparent authority is how the person dealing with the agent reasonably interprets the agent’s authority.” Greenstein v. Flatley, 19 Mass. App. Ct. 351 , 355 (1985). Given Mr. Stepanian’s representations in writing that he was acting for both he and Mrs. Stepanian, given Mr. Stepanian’s testimony that Mrs. Stepanian knew about the agreement, given that she benefitted from the failure of the Saracenos to object to the construction of the new house, and given her failure to disavow Mr. Stepanian’s authority at any time, the Saracenos were reasonably justified in believing that Mrs. Stepanian had agreed to be bound not to object to the continued use of the parking lot and appurtenant improvements, so long as the Saracenos did not object to the construction of the new Stepanian house, and that Mr. Stepanian had authority to bind Mrs. Stepanian.

Whether under a contract theory, or on principles of promissory estoppel, the Stepanians have waived enforcement of the restrictions, are estopped from denying the agreement and are estopped from seeking enforcement or from claiming damages for violations of the restrictions for the period after the signing of the September, 1996 letter agreement. Even if no complete contract were present, the principle of promissory estoppel “affords recovery based on ‘a manifestation of intention to act ... in a specified way, so made as to justify a promisee in understanding that a commitment has been made,’…, ‘which the promisor [i.e., the party who does the manifesting] should reasonably expect to induce action or forbearance on the part of the promisee... and which does induce such action or forbearance.’” Greenstein v. Flatley, supra, at 357, quoting in part, Restatement (Second) of Contracts, §§2 and 90 (1981). The Saracenos, in agreeing not to object to the Stepanians’ proposed new construction, reasonably relied on the Stepanians’ promise in return not to enforce the restrictions with respect to the existing parking lot and its appurtenant improvements.

The Stepanians argue that they are not bound by the letter agreement because the Saracenos, since 1996, have substantially enlarged the parking lot and its appurtenances. There is no credible factual support for the Stepanians’ assertion in this regard. Other than Mr. Stepanian, all other witnesses testified that the parking lot and its appurtenances have not changed in any appreciable way since 1996 or earlier, except for replacement of worn out components. I do not credit Mr. Stepanian’s testimony that the parking area has been enlarged or that any other substantial changes have been made to the improvements in the buffer zone.

IV. The Bayberry Lane Right of Way Overburdening Claim.

The Stepanians claim, in addition to their claims for enforcement of the buffer zone restrictions, that two stone columns on either side of the Bayberry Lane right of way (which has not expired, and is not within the buffer zone) overburden the right of way. The Stepanians offered no admissible evidence in support of this claim. There was no evidence admitted at trial from which it could be concluded that the two columns are actually within the twenty-foot wide easement. [Note 21] I do not reach the question whether, if the columns were shown to be within the boundaries of the right of way, they interfered with the Stepanians’ reasonable use of the right of way and thus overburdened the right of way. See, generally, Hodgkins v. Bianchini, 323 Mass. 169 (1948) (discussion of limits of rights of servient estate holder in right of way). However, I note that the Stepanians offered no evidence that the columns interfere with their exercise of their rights in the right of way.

Having failed to show that the columns are within the boundaries of the right of way, the Stepanians did not meet their burden with respect to their claim of overburdening of the right of way.

V. The Stepanians’ Claim for Damages for Violation of the Buffer Zone Restrictions.

Although the Stepanians insisted at two pre-trial conferences that their reason for going forward with this action on the eve of the expiration of the buffer zone restrictions was their claim for damages for past violations of the buffer zone restrictions, at trial they offered no evidence whatsoever on the subject of their damages attributable to past violation of the restrictions. Since I have found that the Saracenos did indeed violate the buffer zone restrictions, the Stepanians would ordinarily be entitled at least to an award of nominal damages. “[I]n the absence of a showing of pecuniary loss, the plaintiff[s] [would be] entitled only to nominal damages.” Page v. New England Tel. & Tel. Co., 383 Mass. 250 , 251 (1981).

However, the Stepanians agreed, in the September, 13, 1996 letter agreement, not to seek enforcement of the buffer zone restrictions, and therefore they are not entitled to even nominal damages for a violation as to which they agreed not to object. For this reason, they would be barred from an award of damages even if they had presented evidence of actual damages, which in fact they failed to do.

VI. Mrs. Saraceno’s Claim for Damages for Breach of the Agreement Not to Enforce the Restrictions.

a. The Land Court has jurisdiction over the breach of contract claim.

Mrs. Saraceno, asserts a counterclaim for breach of contract, alleging that the September 13, 1996 letter agreement was a contract that was breached by the Stepanians, and for which she is entitled to an award of damages. As this breach of contract claim is inextricably linked with the parties’ claims over rights of enforcement of the buffer zone restrictions, I may adjudicate this counterclaim notwithstanding the fact that the Land Court does not have jurisdiction generally over breach of contract actions. “Absent statutory provisions that repose exclusive original jurisdiction over a claim in another court, ‘[w]here the parties have been brought before a court of competent jurisdiction, their controversy so far as practicable ought to be completely and finally disposed of.’” Ritter v. Bergmann, 72 Mass. App. Ct. 296 , 301-302 (2008). In Ritter, the Appeals Court held that the Land Court had jurisdiction to award damages on a tort-based theory “where such damages are ancillary to claims related to any right, title, or interest in land…” Id., at 302. In the present action, the parties have brought claims and counterclaims seeking declaratory judgment and equitable enforcement with respect to the buffer zone restrictions. The breach of contract counterclaim is ancillary to those claims, and proof of the letter agreement is, even absent the breach of contract claim, relevant to Mrs. Saraceno’s defense to the Stepanians’ enforcement claims. Accordingly, I am satisfied that I have jurisdiction to decide the breach of contract counterclaim.

b. Attorneys’ fees are not recoverable as damages as a matter of law.

The only monetary damages claimed by Mrs. Saraceno for the Stepanians’ breach of the letter agreement not to enforce the buffer zone restrictions are the attorneys’ fees she incurred in defending this action. The familiar rule in Massachusetts is that attorneys’ fees generally are not recoverable by the successful litigant as an element of costs. “Taxable costs are deemed full compensation to the prevailing party for the expense of conducting litigation, even though in fact such costs do not cover his legal or other expense.” Chartrand v. Riley, 354 Mass. 242 , 243-244 (1968), quoting Goldberg v. Curhan, 332 Mass. 310 , 311-312 (1955). Nor are attorneys’ fees generally available as an element of damages, except where allowed by specific statutory provisions or court rules; where there is an express or implied provision in a contract for the payment of attorneys’ fees; or as damages in other very limited circumstances not present here. See Bournewood Hospital, Inc. v. Massachusetts Comm. Against Discrimination, 371 Mass. 303 , 311-312 (1976); Doherty v. School Committee of Boston, 363 Mass. 885 (1973). This rule that each litigant is generally expected to bear his or her own legal expenses is “broadly known as the ‘American Rule.’” Waldman v American Honda Motor Co., Inc., 413 Mass. 320 , 322 (1992). As to attorneys’ fees recoverable as damages in a breach of contract action, “the general principle has become firmly established in this Commonwealth that no recovery may be had for counsel fees in the very action to redress a plaintiff’s wrong, as distinguished from other counsel fees which the plaintiff has been compelled to pay.” United Tool and Industrial Supply Co., v. Torrisi, 359 Mass. 197 (1971).

Mrs. Saraceno, citing cases from other jurisdictions, argues that attorneys’ fees are recoverable under an exception to the American Rule where a party breaches an agreement not to sue, or signs a release, since in those situations attorneys’ fees incurred by the victim of the breach are the direct result of the breach of the agreement. However, this is not a recognized exception to the American Rule in Massachusetts. The letter agreement between the Stepanians and the Saracenos was in the nature of a covenant not to sue. It obligated the Saracenos not to object to the construction of the new Stepanian house, an obligation the breach of which ultimately would have involved appealing the issuance of a building permit or the granting of zoning relief, and it obligated the Stepanians not to enforce the buffer zone restrictions, the breach of which would involve the Stepanians filing (as they in fact did), an action to enforce the restrictions. Under the American Rule, as in effect in a majority of states, “attorney’s fees are not awardable where there has been a breach of a release and covenant not to sue unless attorney’s fees were provided for in that release”. Bukuras v. Mueller Group, LLC, 592 F.3d 255, 267 (1st Cir. 2010), quoting Gruver v. Midas Int’l Corp., 925 F.2d 280, 284 (9th Cir. 1991). Holding that attorneys’ fees are not recoverable as damages for breach of a covenant not to sue, the Bukaras court opined, “We conclude that Massachusetts courts would also take this view.” Bukaras v. Mueller Group, LLC, supra, at 267. I agree that this is the law in Massachusetts, and accordingly I find and rule that attorneys’ fees are not recoverable as an element of contract damages in this action.

c. Mrs. Saraceno has failed to prove the reasonableness of her attorneys’ fees.

Even if attorneys’ fees were recoverable as an element of damages, Mrs. Saraceno has failed to prove the reasonableness of the attorneys’ fees she incurred, and is not entitled to recover fees for this additional reason. The standards governing the award of reasonable attorneys’ fees are well-established:

In determining what is a fair and reasonable charge to be made by an attorney for his services many considerations are pertinent, including the ability and reputation of the attorney, the demand for his services by others, the amount and importance of the matter involved, the time spent, the prices usually charged for similar services by other attorneys in the same neighborhood, the amount of money or the value of the property affected by controversy, and the results secured. Neither the time spent nor any other single factor is necessarily decisive of what is to be considered as a fair and reasonable charge for such services.

Cummings v. National Shawmut Bank of Boston, 284 Mass. 563 , 569 (1934); see also, Northern Assocs., Inc. v. Kiley, 57 Mass. App. Ct. 874 , 882 n. 17 (2003). Proof of these factors requires, at least to some extent, expert testimony. See, Mulhern v. Roach, 398 Mass. 18 , 25 (1986) (expert testimony by an eminent domain attorney to establish ability and reputation of eminent domain attorney). “It is essential, however, for a judge to evaluate the pertinent factors in the context of examining the attorney's description of the services actually provided, the hours spent, and the hourly rate charged.” In re Estate of King, 455 Mass. 796 , 808 (2010).

The only witness to testify with respect to attorneys’ fees incurred by Mrs. Saraceno was her son Kurt Saraceno, a real estate developer, who is not a lawyer. [Note 22] Mr. Saraceno testified that his mother incurred legal fees in the present action in the total amount of $187,186.50; that he personally oversaw the payment of those legal fees; that he was involved in the preparation of the defense of the present action; that he has experience paying “millions of dollars of legal fees over the years” in other litigation with which he has been involved; and that in his opinion, the $187,186.50 legal fees incurred in this action by his mother were “fair, reasonable and necessary fees”. [Note 23]

No testimony or documentary evidence was offered with respect to an itemization of the work performed, the number of hours spent by the attorneys representing Mrs. Saraceno, or the hourly rate charged by her attorneys; nor did Mr. Saraceno, even if he had been qualified to testify as an expert, which he was not, purport to have considered these factors in formulating his opinion as to the reasonableness of the fees. In the absence of any evidence of these required factors, and in the absence of qualified testimony on the other Cummings factors, Mrs. Saraceno has failed to prove the reasonableness of her attorneys’ fees damages.

CONCLUSION

For the reasons stated above, I find and rule that the buffer zone restrictions have expired and may not be enforced, that the Stepanians were in any event estopped from enforcing the restrictions while they were still in effect, that the Stepanians are not entitled to any damages for past violations of the buffer zone restrictions, and that Mrs. Saraceno may not recover damages for breach of the September 13, 1996 letter agreement.

Judgment accordingly.