Batishchev v. Cote

27 Mass. L. Rptr. 150
CourtMassachusetts Superior Court
DecidedJune 10, 2010
DocketNo. 054074E
StatusPublished

This text of 27 Mass. L. Rptr. 150 (Batishchev v. Cote) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Batishchev v. Cote, 27 Mass. L. Rptr. 150 (Mass. Ct. App. 2010).

Opinion

Fremont-Smith, Thayer, J.

In my “Memorandum and Order on Pending Motions and Order for Judgment” docketed on February 25, 2008 (the “Order for Judgment”) [23 Mass. L. Rptr. 541] I ruled that the defendants Brenda Cote and NRT New England Incorporated d/b/a Coldwell Banker Residential Brokerage (the “Cote defendants") were responsible for $488,829 in attorneys fees pursuant to G.L.c. 93A, and explained:

The following orders on the pending post-trial motions and the order for judgment are the end result of a preposterous fraud committed on the plaintiffs. The plaintiffs, who are Russian-born scientists, were shown a condominium on the right hand side of the building, which the broker described to them as Unit A. When they asked for a floor plan, the broker (defendant Cote) provided them a floor plan, which likewise showed Unit A on the right side. Later, the building owner’s manager confirmed the plan, which had been intentionally altered. Plaintiffs were also assured by Cote that the building had no water infiltration problems. Based on those assurances, plaintiffs signed the purchase and sale agreement, after which Perception’s counsel (defendant Lanz) also confirmed the erroneous location of Unit A. They were then given the keys to the right hand unit (which was actually Unit B) and moved in on Christmas Eve, 2004. On December 28, 2004 two other participants in the fraudulent scheme appeared at their door-step and told them that they were occupying what was actually Unit B which one of them already owned, and that they must move into the unfinished left-hand unit (Unit A), which they had actually purchased.

At the close of the liability trial, which ended on April 4, 2007, the jury found Sabrina Lanz and her law firm (the “Lanz defendants”) and Natasha Amitan (who was plaintiffs’ counsel at the real estate closing) liable, and found that Cote, acting as an agent of Coldwell Banker, had intentionally misrepresented to the plain[151]*151tiffs that there was no water infiltration problem in the building with the intention that plaintiffs rely thereon to their detriment. The jury also found, however, that it was not proven that plaintiffs had reasonably relied therein to their detriment, and awarded no damages.1

As the jury had found the Cote defendants not liable. for compensatory damages, and as the Lanz defendants settled with the plaintiffs on October 2, 2007, the only remaining defendant in the trial on damages (which occurred from January 9, 2008 to February 14, 2008), was plaintiffs’ closing attorney, Amitan. Accordingly, the Cote defendants requested to be excused from attending the damage trial, and absented themselves from that trial.

The jury, although finding that plaintiffs had not reasonably relied thereon, found that the Cote defendants had made intentional misrepresentations to the plaintiffs. Accordingly, I found that the Cote defendants as well as the Lanz defendants had violated c. 93A and assessed nominal damages of $25 against the Cote defendants. I also ruled that the Cote and Lanz defendants, who had together defrauded the plaintiffs, were jointly liable for plaintiffs’ reasonable attorney fees under c. 93A.2.

In my “Memorandum of Decision and Order” docketed on February 25, 2008,1 ruled:

Plaintiffs, in their Request for Attorney Fees and in their supporting Affidavit of Counsel, have requested attorney fees of $586,595. Applying the lodestar method approved by the Supreme Judicial Court, the Court finds that this amount is reasonable. In consideration of the factors set forth in Stowe v. Bologna, 417 Mass. 199, 203-04 (1994), and Linthicum v. Archambault, 379 Mass. 381, 388-89 (1979), the Court finds that each of the factors weighs in favor of awarding the entire requested amount. Not only have defendants’ actions necessitated two lengthy trials, but the issues have been complex and difficult, and have been ably handled by experienced counsel. Accordingly, the Court awards 5/6 of the total reasonable attorney fees of $586,594 or $488,829 to the plaintiffs against the Cote defendants.

In its “Memorandum of Order Pursuant to Rule 1:28" dated February 25, 2010, the Appeals Court affirmed all of my rulings in this case except with respect to its award of attorney fees pursuant to G.L.c. 93A.3 In that regard, the Appeals Court ordered a remand to this Court, and said (at page 6):

In acting on the plaintiffs motion for attorneys fees, the judge was obliged to make appropriate findings, in applying the lodestar method, to justify an award. [FN9]
[FN 9 Among the guiding factors that a judge normally considers in determining such a fee award are: whether a given counsel’s work was efficient and effective in representing a prevailing party: whether counsel’s hourly rate was reasonable, measured by the skill, judgment, and professional experience that counsel (or a firm) brought to bear in litigating the dispute at hand; and whether the hours billed by counsel were in fact reasonable in the given circumstances. See Fontaine v. Ebtec Corp., 415 Mass. 309, 325-26 (1993).]
“A trial judge, who has had the benefit of appraising, close at hand, the work performed by counsel on behalf of a prevailing party, is obliged (unless excused by stipulation) to make such findings as are appropriate for determining a reasonable fee award, a litigation result not typical to our domestic judicial system. Accordingly, a remand is necessary to permit the trial judge to make and articulate such findings as are called for in these circumstances, in order to insure any final award is the product of exercised discretion conforming to governing legal principles. [FN 10]
[FN 10 We therefore do not opine whether the fee award was in fact outside the range of reasonableness.]
See Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 363 (1997); Berman v. Linnane, 434 Mass. 301, 302-03 (2001); Omar v. Sabbag, 72 Mass.App.Ct. 200, 202-03 (2008), and cases cited. Since a remand is necessary to allow a trial judge to do so, Ross v. Continental Resources, Inc., 73 Mass.App.Ct. 497, 515-16 (2009),FN11. the attorneys fee award memorialized in the judgment dated March 7, 2008, is hereby vacated, and the case is remanded to the Superior Court for further proceedings on that issue consistent with this memorandum.
[FN 11 These cautionary words are particularly apt here. There seems to be no shortage of attorneys who are prepared to litigate; however, attorneys who have the ability or inclination to engage in risk assessment and counsel their clients accordingly do seem to be in short supply . . . Careful and sagacious counseling should act as a prophylactic so that an overreaching and obdurate [party], as here, does not run the risk of a heavy loss that could have been avoided or mitigated by better work from counsel. Ross v. Continental Resources, Inc., 73 Mass.App.Ct. at 517 (Brown, J., concurring).]4

In their opposition to the plaintiffs’ renewed motion the Cote defendants make the following contentions:

1.

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Related

Margolies v. Hopkins
514 N.E.2d 1079 (Massachusetts Supreme Judicial Court, 1987)
Fontaine v. Ebtec Corp.
613 N.E.2d 881 (Massachusetts Supreme Judicial Court, 1993)
Linthicum v. Archambault
398 N.E.2d 482 (Massachusetts Supreme Judicial Court, 1979)
Bromfield v. Commonwealth
508 N.E.2d 842 (Massachusetts Supreme Judicial Court, 1987)
Stowe v. Bologna
629 N.E.2d 304 (Massachusetts Supreme Judicial Court, 1994)
Wasserman v. Agnastopoulos
497 N.E.2d 19 (Massachusetts Appeals Court, 1986)
Freitas v. Freitas
525 N.E.2d 438 (Massachusetts Appeals Court, 1988)
Cargill, Inc. v. Beaver Coal & Oil Co.
424 Mass. 356 (Massachusetts Supreme Judicial Court, 1997)
Berman v. Linnane
434 Mass. 301 (Massachusetts Supreme Judicial Court, 2001)
Office One, Inc. v. Lopez
437 Mass. 113 (Massachusetts Supreme Judicial Court, 2002)
Twin Fires Investment, LLC v. Morgan Stanley Dean Witter & Co.
445 Mass. 411 (Massachusetts Supreme Judicial Court, 2005)
Omar v. Sabbag
72 Mass. App. Ct. 200 (Massachusetts Appeals Court, 2008)
Ross v. Continental Resources, Inc.
899 N.E.2d 847 (Massachusetts Appeals Court, 2009)
Batishchev v. Cote
23 Mass. L. Rptr. 541 (Massachusetts Superior Court, 2008)

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Bluebook (online)
27 Mass. L. Rptr. 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/batishchev-v-cote-masssuperct-2010.