Craft v. Kane

839 N.E.2d 854, 65 Mass. App. Ct. 322, 2005 Mass. App. LEXIS 1237
CourtMassachusetts Appeals Court
DecidedDecember 22, 2005
DocketNo. 04-P-1301
StatusPublished
Cited by9 cases

This text of 839 N.E.2d 854 (Craft v. Kane) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Craft v. Kane, 839 N.E.2d 854, 65 Mass. App. Ct. 322, 2005 Mass. App. LEXIS 1237 (Mass. Ct. App. 2005).

Opinion

Greenberg, J.

For four years (1993 to 1997), during which he represented Frances Craft under two contingent fee agreements, [323]*323Attorney Carlo Cellai negotiated and litigated Craft’s claims against Irving Kane, as executor of the estate of William E. Kelly, Jr. (executor). The genesis of Craft’s claims was the conflagration of the house she shared with Kelly, who died as a result of injuries received in the fire in January of 1993. Kelly died testate, devising the house to Craft and naming Jeanne P. Louizos as the residuary legatee.

Kelly’s fire insurer paid the executor $48,732.38 (fire insurance proceeds). In October, 1993, Cellai brought the underlying Superior Court action against Kelly’s estate on behalf of Craft, seeking, inter alla, money damages for Craft’s injuries sustained during the fire, and declaratory relief that Craft was entitled to the fire insurance proceeds because the specific devise of the house had not been adeemed.2 On June 23, 1994, a Superior Court judge ordered that the fire insurance proceeds be put in a constructive trust to be held by the executor for Craft’s benefit. The case dragged on without resolution until April, 1997, when Craft, now disheartened with the process, discharged Cellai as her attorney. She negotiated a settlement of all her claims against Kelly’s estate in the amount of $7,500 (settlement proceeds), which was paid by the Massachusetts Insurers Insolvency Fund (Fund) for Kelly’s insurer. The Fund’s check was made payable to Craft, as well as to “Comm of Social Services County of Dutchess & Mass. Dept Pub Welfare & Carlo Cellai.”3 After the check was issued, a stipulation of dismissal with prejudice was filed in the Superior Court on October 14, 1997, and the case dismissed on January 2, 1998.

As might be predicted, a dispute arose over Cellai’s legal fee for work done on the case prior to his discharge. Upon Cellai’s motion to establish and enforce an attorney’s lien pursuant to G. L. c. 221, § 50,4 a second Superior Court judge denied him relief, holding that the constructive trust had been dissolved by [324]*324the settlement and that the settlement proceeds did not fall within the statute. Cellai appealed, and on May 24, 2001, this court held that under the attorney’s lien statute, an inchoate lien for attorney’s fees and expenses arose as of the commencement of the underlying action in October, 1993, and matured on June 23, 1994, when a Superior Court judge entered an interlocutory order, ordering the executor to hold the fire insurance proceeds in a constructive trust until the amount due to Craft could be determined. Craft v. Kane, 51 Mass. App. Ct. 648, 650-652 (2001) (Craft I). We remanded the case “to the Superior Court for further proceedings under Cellai’s motion to establish and enforce his lien, including a final determination of the amount received by the executor and held by him under a constructive trust, to the extent that such amount constitutes the net proceeds of the fire insurance applicable to the damage to the real estate.” Id. at 653-654.

On remand, another Superior Court judge (remand judge) conducted a nonevidentiary hearing on the particular issues. She ruled that Craft was entitled to a payment of $14,489.03 from the constructive trust of the fire insurance proceeds to which Cellai’s lien could attach. To this, she added the $7,500 settlement proceeds for a total covered by the lien of $21,989.03. She also determined that Cellai was entitled to interest on this amount from December 22, 1997, the date on which the executor violated the interlocutory order establishing the constructive trust by disbursing all of the fire insurance proceeds to Kelly’s residuary legatee. Subsequent to a further hearing occasioned by the executor’s motion for reconsideration, she vacated part of her original ruling and ordered that “Cellai’s lien is limited to the amount recovered in good faith by [Craft], that his lien is limited to $7,500 which has already been paid to him and which hopefully he can have the [Fund] reissue its [check] to him if in fact, he has lost that check.”

Cellai raises a plethora of issues, only two of which are [325]*325pertinent to resolving this second appeal: (1) a determination of the total amount of money held in the constructive trust by the executor and subject to Cellai’s lien; and (2) whether Cellai is entitled to interest on the amount to which the lien attaches and, if so, from what date.

1. Assessment of the attorney’s fees under the lien. After we remanded the case in Craft I for further proceedings on the attorney’s lien issues, additional written materials, including correspondence between Craft and Cellai, became part of the record. The remand judge found that Craft’s discharge of Cellai was not done in bad faith or motivated by any of the other factors described in Salem Realty Co. v. Matera, 384 Mass. 803, 804 (1981). Rather, the record reflects that Craft was frustrated by the lengthy litigation process and had lost patience with the whole case. The remand judge found that Craft’s letter discharging Cellai was “thoughtful and reflects a decision-making process that had taken her several months.” As a result, the remand judge correctly applied the general rule in Massachusetts that a “client’s discharge of an attorney ends the attorney’s right to recover on the contract of employment and, thereafter, an attorney can recover only for the reasonable value of his services on the basis of quantum meruit.” Opert v. Mellios, 415 Mass. 634, 636 (1993). Cellai has no quarrel with this aspect of the remand judge’s decision.

In determining the reasonableness of the fee and costs, the remand judge did not consider the usual factors such as the dollar value of the case, the value of the services, the fees usually charged, time spent, and the success achieved, see Phelps Steel, Inc. v. Von Deak, 24 Mass. App. Ct. 592, 595 (1987), because Cellai’s total bill exceeded the “amount” covered by the lien. With respect to that amount, she found as follows: Of the total payment of $48,732.38 from Kelly’s fire insurer for the damage to the house and to the personal property within, $26,115.97 was for damage to the house and thus payable to Craft. From that figure, she deducted $2,626.94, which represented Craft’s pro rata share of the fire adjuster’s fee. She also deducted $9,000 paid by the estate to the town of Somerset to discharge a lien for nonpayment of taxes, and then added the $7,500 settlement received by Craft. As a result, in her initial order, she found that [326]*326there remained a net amount of $21,989.03 to which Cellai’s lien could attach.5 Acting on the executor’s motion for reconsideration, she limited, we think erroneously, Cellai’s lien to the $7,500 settlement that Craft had received from the Fund.

The core issue argued by Cellai is that the remand judge was initially correct in enforcing the lien against both the fire insurance proceeds and the settlement proceeds, and that she should not have revoked her original order and limited the amount of the lien to $7,500. The executor takes the position that the remand judge properly applied the principles articulated in Craft I and that Cellai’s lien covers only the $7,500 payment because Craft settled all of her claims for that amount.

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Cite This Page — Counsel Stack

Bluebook (online)
839 N.E.2d 854, 65 Mass. App. Ct. 322, 2005 Mass. App. LEXIS 1237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/craft-v-kane-massappct-2005.