Lee v. Scotia Prince Cruises Ltd.

• Court: Superior Court of Maine
• Decided: May 11, 2004
• Docket: CUMcv-01-359
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION a DOCKET NO. CV-01-359 - A @ Y3 77 CUM SLfpeo4 GASTON C. S. LEE, ag wy i AS 13 RE CL Plaintiff v. ORDER ON SECOND SUPPLEMENTAL SUBMISSION FOR ATTORNEY’S FEFS. COSTS AND EXPENSES DOMALB LT bad SCOTIA PRINCE CRUISES LIMITED, LAr ee Defendant MAY 21 2004

The counterclaim defendant, Gaston C.S. Lee seeks an award of attorney’s fees and expenses in the amount of $34,387.95 for the period from August 1, 2003 through March 16, 2004. The fees claimed arise out of opposition to Scotia Prince’s appeal to the Law Court of this court’s Second Allowance of Fees and Costs (“Lee IT”) and preparation of and support for this Second Supplemental Submission (third Submission).

The counterclaim defendant substantially prevailed in the Law Court in Lee I, where $58,637.69 of the trial court award of $60,813.69 was affirmed. That case was decided on briefs without oral argument and the only issue on appeal was the propriety of the fee award.

Although the Law Court in Lee IJ did not expressly remand the matter to this court for a determination of attorney fees as it did in Lee I, this court is authorized to consider the request pursuant to M.R.Civ.P. 54(b)(3).

The counterclaim defendant’s entitlement to fees arises from Scotia’s Bye-Law 125 which the Law Court held covered “expenses Lee incurred while defending against

Scotia’s counterclaim, but not to cover expenses incurred while prosecuting his complaint”. This Bye-Law provision does not allow for costs incurred in establishing

the right to indemnity Chadwick-Ba Ross, Inc. v. Martin Marietta Corp., 483 A.2d 711,

717 (Me. 1984) which was established by the Law Court's decision in Lee I.

Where there is an entitlement to the recovery of attorney fees, the further award of additional fees incurred on appeal in defending fees awarded or in preparing a fee application is justified. Any fees awarded must be reasonable in light of the factors

enunciated by the Law Court in Villas by the Sea Owners Association v. Garrity, 2001

ME 93, 774 A.2d 1115, 1117.

In this case, the issue on appeal was finite, focused and straightforward. The record was limited and there was no oral argument. The questions presented were neither novel nor difficult. The records presented to support the fees claimed are records maintained in the ordinary course of counsel’s practice and ought to be readily accessible. The legal support for the fee award under the Garrity factors is well understood by counsel and the courts.

Under these circumstances, the court awards fees and expenses to the defendant counterclaimant as follows:

Attorney fees $15,000.00

Costs and Expenses $ 429.95 $15,429.95 Total

Dated: May 11, 2004 KML

Robert E. Crowley Justice, Superior Court

Date Filed 6-29-01

CUMBERLAND

Action CONTRACT

County

GASTONC.S. LEE

vs.

Docket No. CVO1L-359

SCOTIA PRINCE CRUISES LTD d/b/a PRINCE OF FUNDY CRUISES PRINCE OF FUNDY CRUISES LTD

Plaintiff's Attorney

Seth Brewster, Esq. P.O. Box 586 Portland ME 04112

Date of Entry

Defendant’s Attorney

Frederick Finberg Esq. 773-4775 121 Middle Street, Suite 300

PO BOX 7799

Portland ME 04112

PETER BENNETT, ESQ. _

121 MIDDLE STREET.

P.O. BOX 7799

PORTLAND, MAINE 04112-7799 207-773-4775