Howe v. Tarvezian

894 N.E.2d 1173, 73 Mass. App. Ct. 10
CourtMassachusetts Appeals Court
DecidedOctober 21, 2008
DocketNo. 07-P-202
StatusPublished
Cited by8 cases

This text of 894 N.E.2d 1173 (Howe v. Tarvezian) 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
Howe v. Tarvezian, 894 N.E.2d 1173, 73 Mass. App. Ct. 10 (Mass. Ct. App. 2008).

Opinion

Sikora, J.

In the second episode, George recorded mortgage instruments clouding title to the property. Howe brought a separate equity suit in the Probate Court resulting in a declaratory judgment invalidating the mortgages and in an order permanently enjoining George from interference with Howe’s sale of the property. This court summarily affirmed. Howe v. Tarvezian, 63 Mass. App. Ct. 1103 (2005).

In the third chapter, George brought an action in the Land Court claiming title to the property by adverse possession and seeking to enjoin the sale. A judge of that court dismissed the action, found it frivolous within the meaning of G. L. c. 231, § 6F, and awarded Richard attorney’s fees. The same judge later found George in contempt and ordered payment of additional attorney’s fees. This court summarily affirmed the judgment of contempt and awarded appellate attorney’s fees to Richard. Tarvezian v. Tarvezian, 65 Mass. App. Ct. 1112 (2006).

By close of 2005, Howe had collected all rent and sold the property. He reported net proceeds of $429,489.09, placed that money in escrow, and filed an account and a complaint for instructions in the Probate Court. George objected to the account. After a conference, a judge terminated the appointment of Howe [12]*12as commissioner and appointed attorney John G. Dugan as successor commissioner. The judge directed Dugan to conduct any further appropriate litigation (the complaint for instructions, the resolution of accounts, the inclusion of any residual grievances of the brothers), and scheduled a trial of remaining issues.

After the two-day trial, the judge allowed the accounts submitted by each commissioner, and entered judgments inter alia (1) awarding Howe the sums of $28,668.75 and $13,062.90 predominantly for fees and incidentally for expenses; and (2) awarding Dugan $12,705 as fees and expenses, apportioned to George in the amount of $6,710 and to Richard in the amount of $5,995. The judge added a number of adjustments to the distribution of the remaining proceeds between the brothers. These comprised the transfer of sums from George to Richard in the aggregate amount of $82,575.97 largely as reimbursement for Richard’s payment of property taxes, his entitlement to interest, and his assumption of attorney’s fees, costs, and other losses caused by George’s litigation campaign.

Our appeal relates primarily to the entitlements to fees. George has not formally appealed from the judgments. Richard has appealed. He challenges (1) the award to each commissioner as excessive; and (2) the award to his attorney, Albert Auburn, as inadequate. Finally, in their appellees’ briefs, the commissioners have requested awards of appellate fees and costs under authority of G. L. c. 241, § 22, and G. L. c. 215, § 45.

Discussion. 1. Inadequate argument. At the outset we must observe the insufficiency of Richard’s analysis of the designated issues. While he has identified his objections to the probate judge’s findings and rulings in a conclusory manner, he has not pursued them with coherent reasoning or authority.4 Contentions lacking legal authority or reasoned explanation fall short of argument required under Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). The court need not consider them. See Zora v. State Ethics Commn., 415 Mass. 640, 642 n.3 (1993); Cameron v. Corelli, 39 Mass. App. Ct. 81, 85-86 (1995); Morgan v. Laboratory Corp. of America, 65 Mass. App. Ct. 816, 821 n.6 (2006). In [13]*13an abundance of fairness we have examined the record and the commissioners’ briefs for evaluation of the merits.

2. The Probate Court awards to the commissioners. General Laws c. 241, § 22, provides in pertinent part that the “reasonable expenses and charges of partition proceedings, including ... the fees of counsel [and] of the commissioners, . . . shall be determined by the court, and in case of sale paid by the commissioners out of the proceeds . . . .’’In this instance the judge assessed the value of the services of two experienced attorneys in the role of partition commissioners. The commissioners proposed an hourly rate of $275 to be multiplied by the reasonably necessary number of hours for their work. The judge accepted their proposals without change.

The computation of fees rests in the sound discretion of the trial judge. See McGrath v. Mishara, 386 Mass. 74, 87 (1982); Berman v. Linnane, 434 Mass. 301, 302-303 (2001). The Supreme Judicial Court has approved of the lodestar method for the calculation of reasonable amounts: the multiplication of a fair market hourly rate by the amount of reasonably spent time. Stratos v. Department of Pub. Welfare, 387 Mass. 312, 321-322 (1982). That computation should determine fee entitlements unless special reasons call for a departure. Ibid. “The lodestar approach has the advantage of producing generally consistent results from case to case.” Fontaine v. Ebtec Corp., 415 Mass. 309, 325 (1993). The trial judge “is in the best position to determine how much time was reasonably spent on a case, and the fair value of the attorney’s services.” Id. at 324.

The lodestar value may encompass a number of practical factors.5 Here the judge could consider the experience and specialization of the commissioners (for Howe, fifty-two years of prac[14]*14tice, thirty in probate work; for Dugan, thirty years of practice, twenty-five in probate matters); the substantial reputations of both in the probate law community; their testimony of the going rates for such work in the eastern Massachusetts market (in Howe’s view, $275 per hour; in Dugan’s, $225 to $375 per hour); the accomplishment of net sale proceeds of $429,489 by the aggregate work of the commissioners against various obstacles posed by George over six years; the itemization of services in their time sheets; and the directly observable quality of their written and court room work.

Upon these factors we cannot say that the judge’s awards to the commissioners constituted an abuse of discretion. See McGrath v. Mishara, supra at 87; Berman v. Linnane, supra at 302-303. The judge’s determination did not go outside the range of reasonable alternatives, Davis v. Boston Elevated Ry., 235 Mass. 482, 496 (1920); nor did it consist of arbitrary or idiosyncratic notions. See Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 642 (1986); Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999).* 6

3. The award to Attorney Auburn.

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Bluebook (online)
894 N.E.2d 1173, 73 Mass. App. Ct. 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howe-v-tarvezian-massappct-2008.