NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1438
JOHN G. MARCHAND
vs.
JACLYN SANTORO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Attorney Joseph Provanzano formerly represented John G.
Marchand (plaintiff) in filing a negligence complaint against
Jaclyn Santoro (defendant). Three years after filing suit, the
plaintiff discharged Provanzano and obtained new counsel.
Thereafter, Provanzano filed a notice of attorney's lien and
requested a hearing. Provanzano now appeals from (1) the
judgment of dismissal, arguing that the matter should not have
been dismissed while there was a pending lien issue and (2)
orders entered November 4, 2024, denying the plaintiff's motion
to determine the attorney's lien and Provanzano's motion to
vacate the judgment of dismissal of the matter without granting a hearing to determine the amount of his attorney's lien. 1 We
affirm in part and reverse in part and remand for a hearing
consistent with this order.
Background. In November 2017, the plaintiff and defendant
were in a motor vehicle accident. The plaintiff retained
Provanzano, who drafted and in May 2019 filed a three-page
negligence complaint against the defendant. In June 2022, a
judge dismissed the complaint. The plaintiff then discharged
Provanzano and hired new counsel in October 2022. On October
11, 2022, Provanzano filed a notice of attorney's lien, notice
of request for a hearing, and motion to withdraw as counsel of
record. No action was taken on the attorney's lien.
Represented by new counsel, the plaintiff moved to vacate
the dismissal of the complaint, which a judge allowed. The
plaintiff and defendant then agreed to submit to binding
arbitration in June 2024. A ninety-day order of dismissal nisi
was entered on June 12, 2024, ordering the parties to file an
agreement for judgment or stipulation of dismissal by September
12, 2024, or a judgment dismissing "the Complaint, and all other
1 Both the plaintiff and defendant notified this court of their respective intentions to not file briefs in this appeal pursuant to Mass. R. A. P. 19 (e), as appearing in 481 Mass. 1642 (2019). The defendant also notified this court that "[t]he Defendant agrees with the appellee's position that the matter should be returned to the lower court for a hearing on the previously filed motions to determine [Provanzano's] fees."
2 claims, without prejudice" would be entered. 2 A binding
arbitration decision on August 12, 2024, awarded the plaintiff
$29,614.
On September 19, 2024, seven days after the nisi order
deadline, the plaintiff filed a motion for determination of
Provanzano's attorney's lien for attorney's fees due, "if any,"
and requested a hearing. A judge denied the plaintiff's motion
for a hearing on the attorney's lien on or around October 10,
2024. A judgment of dismissal also entered on October 10, 2024,
for failure to comply with the nisi order dated June 12, 2024.
On October 31, 2024, the plaintiff filed another motion to
determine Provanzano's attorney's lien, and Provanzano filed a
motion to vacate the judgment of dismissal. A judge denied both
motions. 3 This appeal followed.
Discussion. Provanzano contends that the judge abused his
discretion in declining to address the attorney's lien. We
agree. The attorney's lien statute, G. L. c. 221, § 50, 4 as set
2 It is not clear that Provanzano received notice of this order given an October 11, 2022 docket entry noting that he was "dismissed/withdrawn as Private Counsel."
3 On October 22, 2024, the plaintiff also filed an assented- to motion to vacate the judgment of dismissal, but it does not appear that the judge ruled on that specific motion.
4 General Laws c. 221, § 50, provides as follows:
"From the authorized commencement of an action, counterclaim or other proceeding in any court, or
3 forth in the margin, "was designed to protect, as a matter of
public policy, an attorney's right to compensation for the
rendering of legal services." Ropes & Gray LLP v. Jalbert, 454
Mass. 407, 413 (2009). To enforce a statutory attorney's lien,
an attorney must show that "(1) an action was commenced, (2) the
attorney appeared for the client in that action, (3) a court
entered a judgment, decree, or order in that action, (4) the
judgment, decree, or order was favorable to the attorney's
client, and (5) proceeds were derived from that judgment,
decree, or order" (citations omitted). Northeastern Avionics,
Inc. v. Westfield, 63 Mass. App. Ct. 509, 513 (2005). Here,
none of these conditions are contested. In fact, the plaintiff
agreed to a hearing on Provanzano's attorney's lien to determine
the validity of the lien and the amount due Provanzano.
appearance in any proceeding before any state or federal department, board or commission, the attorney who appears for a client in such proceeding shall have a lien for his reasonable fees and expenses upon his client's cause of action, counterclaim or claim, upon the judgment, decree or other order in his client's favor entered or made in such proceeding, and upon the proceeds derived therefrom. Upon request of the client or of the attorney, the court in which the proceeding is pending or, if the proceeding is not pending in a court, the superior court, may determine and enforce the lien; provided, that the provisions of this sentence shall not apply to any case where the method of the determination of attorneys' fees is otherwise expressly provided by statute."
4 Here, the judge's order denying the parties' requested
hearing on the determination of the attorney's lien is contrary
to the policy established by G. L. c. 221, § 50, to protect
attorneys from not being compensated for legal services
rendered. See Craft v. Kane, 51 Mass. App. Ct. 648, 652 (2001).
Provanzano's attorney's lien became choate and attached to the
nisi order. See id. at 651. Considering that his lien was
timely filed and accepted by the court, Provanzano was entitled
to a hearing on the lien, and the fact that the underlying
matter was settled and dismissed did not extinguish his right to
be compensated for his work as prior counsel. See G. L. c. 221,
§ 50 ("attorney who appears for a client in such proceeding
shall have a lien for his reasonable fees and expenses"). See
also Craft, supra (holding that stipulation of dismissal
constitutes judgment within meaning of G. L. c. 221, § 50, and
that dismissal of suit did not affect attorney's lien).
Indeed, it was precisely after the case was reported
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1438
JOHN G. MARCHAND
vs.
JACLYN SANTORO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Attorney Joseph Provanzano formerly represented John G.
Marchand (plaintiff) in filing a negligence complaint against
Jaclyn Santoro (defendant). Three years after filing suit, the
plaintiff discharged Provanzano and obtained new counsel.
Thereafter, Provanzano filed a notice of attorney's lien and
requested a hearing. Provanzano now appeals from (1) the
judgment of dismissal, arguing that the matter should not have
been dismissed while there was a pending lien issue and (2)
orders entered November 4, 2024, denying the plaintiff's motion
to determine the attorney's lien and Provanzano's motion to
vacate the judgment of dismissal of the matter without granting a hearing to determine the amount of his attorney's lien. 1 We
affirm in part and reverse in part and remand for a hearing
consistent with this order.
Background. In November 2017, the plaintiff and defendant
were in a motor vehicle accident. The plaintiff retained
Provanzano, who drafted and in May 2019 filed a three-page
negligence complaint against the defendant. In June 2022, a
judge dismissed the complaint. The plaintiff then discharged
Provanzano and hired new counsel in October 2022. On October
11, 2022, Provanzano filed a notice of attorney's lien, notice
of request for a hearing, and motion to withdraw as counsel of
record. No action was taken on the attorney's lien.
Represented by new counsel, the plaintiff moved to vacate
the dismissal of the complaint, which a judge allowed. The
plaintiff and defendant then agreed to submit to binding
arbitration in June 2024. A ninety-day order of dismissal nisi
was entered on June 12, 2024, ordering the parties to file an
agreement for judgment or stipulation of dismissal by September
12, 2024, or a judgment dismissing "the Complaint, and all other
1 Both the plaintiff and defendant notified this court of their respective intentions to not file briefs in this appeal pursuant to Mass. R. A. P. 19 (e), as appearing in 481 Mass. 1642 (2019). The defendant also notified this court that "[t]he Defendant agrees with the appellee's position that the matter should be returned to the lower court for a hearing on the previously filed motions to determine [Provanzano's] fees."
2 claims, without prejudice" would be entered. 2 A binding
arbitration decision on August 12, 2024, awarded the plaintiff
$29,614.
On September 19, 2024, seven days after the nisi order
deadline, the plaintiff filed a motion for determination of
Provanzano's attorney's lien for attorney's fees due, "if any,"
and requested a hearing. A judge denied the plaintiff's motion
for a hearing on the attorney's lien on or around October 10,
2024. A judgment of dismissal also entered on October 10, 2024,
for failure to comply with the nisi order dated June 12, 2024.
On October 31, 2024, the plaintiff filed another motion to
determine Provanzano's attorney's lien, and Provanzano filed a
motion to vacate the judgment of dismissal. A judge denied both
motions. 3 This appeal followed.
Discussion. Provanzano contends that the judge abused his
discretion in declining to address the attorney's lien. We
agree. The attorney's lien statute, G. L. c. 221, § 50, 4 as set
2 It is not clear that Provanzano received notice of this order given an October 11, 2022 docket entry noting that he was "dismissed/withdrawn as Private Counsel."
3 On October 22, 2024, the plaintiff also filed an assented- to motion to vacate the judgment of dismissal, but it does not appear that the judge ruled on that specific motion.
4 General Laws c. 221, § 50, provides as follows:
"From the authorized commencement of an action, counterclaim or other proceeding in any court, or
3 forth in the margin, "was designed to protect, as a matter of
public policy, an attorney's right to compensation for the
rendering of legal services." Ropes & Gray LLP v. Jalbert, 454
Mass. 407, 413 (2009). To enforce a statutory attorney's lien,
an attorney must show that "(1) an action was commenced, (2) the
attorney appeared for the client in that action, (3) a court
entered a judgment, decree, or order in that action, (4) the
judgment, decree, or order was favorable to the attorney's
client, and (5) proceeds were derived from that judgment,
decree, or order" (citations omitted). Northeastern Avionics,
Inc. v. Westfield, 63 Mass. App. Ct. 509, 513 (2005). Here,
none of these conditions are contested. In fact, the plaintiff
agreed to a hearing on Provanzano's attorney's lien to determine
the validity of the lien and the amount due Provanzano.
appearance in any proceeding before any state or federal department, board or commission, the attorney who appears for a client in such proceeding shall have a lien for his reasonable fees and expenses upon his client's cause of action, counterclaim or claim, upon the judgment, decree or other order in his client's favor entered or made in such proceeding, and upon the proceeds derived therefrom. Upon request of the client or of the attorney, the court in which the proceeding is pending or, if the proceeding is not pending in a court, the superior court, may determine and enforce the lien; provided, that the provisions of this sentence shall not apply to any case where the method of the determination of attorneys' fees is otherwise expressly provided by statute."
4 Here, the judge's order denying the parties' requested
hearing on the determination of the attorney's lien is contrary
to the policy established by G. L. c. 221, § 50, to protect
attorneys from not being compensated for legal services
rendered. See Craft v. Kane, 51 Mass. App. Ct. 648, 652 (2001).
Provanzano's attorney's lien became choate and attached to the
nisi order. See id. at 651. Considering that his lien was
timely filed and accepted by the court, Provanzano was entitled
to a hearing on the lien, and the fact that the underlying
matter was settled and dismissed did not extinguish his right to
be compensated for his work as prior counsel. See G. L. c. 221,
§ 50 ("attorney who appears for a client in such proceeding
shall have a lien for his reasonable fees and expenses"). See
also Craft, supra (holding that stipulation of dismissal
constitutes judgment within meaning of G. L. c. 221, § 50, and
that dismissal of suit did not affect attorney's lien).
Indeed, it was precisely after the case was reported
settled and an order entered, that Provanzano's lien matured and
was ripe for determination. See Cohen v. Lindsey, 38 Mass. App.
Ct. 1, 4 (1995) ("The sweep of [the attorney's lien] statute now
includes any type of court order obtained in a client's favor").
Further, it is unclear from the record whether Provanzano
received notice of the nisi order deadline. The record suggests
that Provanzano may have learned of the nisi order deadline when
5 he received the plaintiff's September 19, 2024 motion and
attached exhibits, including the case docket with an entry
noting the nisi order deadline. The docket entry does not,
however, include the full language of the nisi order and does
not state that failure to comply with the deadline would result
in dismissal of the complaint and "all other claims" without
prejudice.
Moreover, the nisi order pertained to the underlying
complaint and not to Provanzano's lien. Even if Provanzano did
receive the nisi order, there is no indication that the order
would apply to claims beyond those outside of the usual case
filings. The parties' initial request for the nisi order is
instructive, as it suggests that the parties' purpose in
requesting the order was tailored to resolve the underlying suit
after the parties agreed to binding arbitration. Specifically,
the parties requested the order "to allow time to complete the
arbitration, complete closing documents, and file a stipulation
of dismissal with the Court." There is no mention of
Provanzano's attorney's lien in the request.
Finally, it matters not that the underlying case was no
longer pending; the judge could still determine the lien: "Upon
request of the client or of the attorney, the court in which the
proceeding is pending or, if the proceeding is not pending in a
6 court, the superior court, may determine and enforce the lien."
G. L. c. 221, § 50.
Conclusion. The judgment of dismissal and the November 4,
2024 order denying the motion to vacate the judgment of
dismissal are affirmed. The November 4, 2024 order denying the
motion to determine the attorney's lien is reversed. We remand
the matter to the Superior Court for a hearing on the attorney's
lien.
So ordered.
By the Court (Grant, Brennan & Smyth, JJ. 5),
Clerk
Entered: May 11, 2026.
5 The panelists are listed in order of seniority.