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
23-P-262 23-P-264
MICHELLE STEWARDSON, trustee,1
vs.
EDWARD P. HARRINGTON, personal representative,2 & another3 (and four consolidated cases4 and a companion case5).
1 Of the Greenspring Realty Trust.
2 Of the estate of Leonard S. French.
3Julie A. Evans, as trustee of the Norwood Park South IV Trust. The lead appeal pertains to Superior Court Docket No. 1482CV940.
4Michelle Stewardson, trustee, & another vs. Edward P. Harrington, personal representative, & another (Docket No. 1482CV941); Michelle Stewardson, trustee, vs. Edward P. Harrington, personal representative, & others (Docket No. 1482CV942); Michelle Stewardson, trustee, vs. Edward P. Harrington, personal representative, & others (Docket No. 1482CV943); Michelle Stewardson, trustee, vs. Sally J. Winters, trustee, & another (Docket No. 1482CV944).
5The companion case is a consolidated appeal from judgments of contempt addressing multiple contempt complaints in Docket Nos. 1482CV940, 1482CV941, 1482CV942, and 1482CV943. MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This matter arises from a dispute regarding the amount of
distributions owed to Joseph Verna from five joint real estate
ventures: Norwood Park South IV Associates (NPS IV), Norwood
Park South VI Associates (NPS VI), Silver Maple Associates
(Silver Maple), PAR Associates (PAR), and Franklin South Realty
Associates (Franklin South).6 In July 2014, Verna brought a
separate action for each joint venture, claiming that he had not
received his full distributions and seeking accountings and
damages (merits actions).7 Subsequently, Verna filed contempt
complaints in four of the merits actions -- the NPS IV, NPS VI,
Silver Maple, and PAR actions -- claiming that the managers of
those joint ventures did not comply with consent orders entered
in the corresponding merits actions requiring them to provide
accountings and produce books and records (contempt actions).
6 Verna held his interests in the joint ventures through two trusts: the Greenspring Realty Trust, of which he was the trustee, and the JIVE Family Trust 2008, of which his attorney, David Hern, Jr., was the trustee.
7 As a technical matter, Verna commenced the NPS IV, Silver Maple, PAR, and Franklin South actions as the trustee of the Greenspring Realty Trust, and Verna and Hern commenced the NPS VI action as the trustees of the Greenspring Realty Trust and the JIVE Family Trust 2008. See note 6, supra. Since bringing the merits actions, Verna has passed away, and a successor trustee has been substituted in his place. For ease of reference, we refer to the successor trustee as Verna.
2 Judgments on the merits actions entered on July 15, 2022.
Those judgments awarded Verna damages in four of the merits
actions -- the NPS IV, NPS VI, PAR, and Franklin South actions -
- plus costs and statutory interest running from the date of the
complaints, provided that interest was tolled for the period
from January 1, 2019, to May 31, 2021. However, the judgments
did not award Verna precomplaint interest or attorney's fees.
The judgments also awarded Verna damages and attorney's fees in
the contempt actions, plus costs and statutory interest running
from the date of the judgments. Verna appeals. With respect to
the merits actions, we affirm. With respect to the contempt
actions, we affirm in part, vacate in part, and remand for
reconsideration of attorney's fees.
Background. Before we turn to the facts underlying these
appeals, we note that Verna filed a sixth action pertaining to
another joint venture. The sixth action, referred to as the
Motel Realty action, was tried separately as a bellwether case
and was the subject of a prior appeal.8 See Stewardson v.
Winters, 101 Mass. App. Ct. 1119 (2022). The Motel Realty case,
8 The judge who presided over the bench trial of the Motel Realty action also presided over the bench trial of the merits actions currently on appeal. The same judge also decided the merits of the contempt actions, although different judges heard some preliminary matters related to the contempt actions.
3 including our discussion of the issues in the appeal, are
relevant to the conclusions we reach here, and we rely, in part,
on the analysis set forth in the unpublished memorandum and
order.
Verna participated in the joint ventures with Leonard S.
French.9 Verna and Leonard structured each joint venture
similarly. For each joint venture, Verna and Leonard created a
separate trust solely to hold the joint venture's assets.
Leonard was a manager of NPS IV, NPS VI, Silver Maple, PAR, and
Franklin South, as well as the trustee of the corresponding
trusts for NPS IV, NPS VI, Silver Maple, and PAR. Leonard's
wife, Shirley A. French, was a comanager of Silver Maple and
PAR, although her role was limited to occasionally writing
checks at Leonard's request. Leonard's daughter, Sally J.
Winters, was the trustee of the Franklin South trust. However,
Leonard effectively served as the manager of all the joint
ventures, with Verna's full knowledge and consent. In addition,
despite the legal distinctions between the joint ventures and
the trusts, Verna and Leonard treated each joint venture and its
corresponding trust as a single financial entity. Leonard kept
9 As we discuss, Leonard French's wife, Shirley A. French, is also a party to this case. Accordingly, we refer to them individually by their first names and collectively as French.
4 accounts and records for the trusts but not the joint ventures
themselves. Verna held a 12.5 percent interest in each joint
venture.
As noted, Verna brought the merits actions in July 2014.10
The requests for relief included (1) accountings of the joint
ventures and trusts and (2) damages. In September 2014, consent
orders entered in the NPS IV, NPS VI, Silver Maple, and PAR
actions requiring French to provide accountings and produce
books and records for the joint ventures and trusts. It is
undisputed that French did not provide accountings in a timely
fashion or produce all books and records in his possession or
control.11 As a result, Verna was required to obtain missing
records from various third parties through the issuance of
10Verna brought the NPS IV, NPS VI, Silver Maple, and PAR actions against Leonard, individually and as trustee of the NPS IV, NPS VI, Silver Maple, and PAR trusts. Verna also named Shirley as a defendant in the Silver Maple and PAR actions. Separately, Verna brought the Franklin South action against Leonard, individually, and Winters, as trustee of the Franklin South trust. Leonard has since passed away, and a successor personal representative and successor trustees have been substituted in his place. For ease of reference, we refer to the successor personal representative and successor trustees as Leonard.
11We reserve for later discussion the background pertinent to the contempt actions, infra.
5 keeper of the record subpoenas.12 However, some records still
remained missing. For example, with respect to Silver Maple,
Verna was able to obtain bank statements but not copies of
canceled checks for the years prior to 2009. After Verna
collected the available records, French hired a financial expert
to prepare accountings, which French provided to Verna on March
3, 2017. It is also undisputed that the expert relied, at least
in part, on the records obtained by Verna.
Shortly thereafter, Leonard passed away, and the trial on
the merits actions was delayed until June 2021. French's expert
testified at trial, as did a financial expert retained by
Verna.13 The experts offered very different views of the books
and records. French's expert treated each joint venture and its
corresponding trust as a single financial entity, whereas
Verna's expert calculated revenue for each joint venture and its
corresponding trust separately. The experts also disagreed, at
least in some respects, on the amount of certain expenses and
the value of certain assets.
12As mentioned, there were no records for the joint ventures, themselves; the records that were obtained were all for the trusts.
13While Verna's expert testified regarding his opinion on the amount of money due to Verna, he explicitly stated that he did not prepare accountings of the joint ventures or trusts.
6 The trial judge adopted the methodology and calculations of
French's expert. The judge found that Leonard managed the joint
ventures at the trust level "with the full knowledge and consent
of . . . Verna over a period of decades," and that it was
therefore "fair and logical" to treat the joint ventures and
their corresponding trusts as single financial entities. The
judge also found that Verna's expert "frequently ignored
relevant financial information that was available to him in
conducting his analysis." For example, Verna's expert "did not
include expenses for mortgage payments on the Silver Maple
[p]roperty after 2014, even though copies of the relevant
mortgage documents were available to him and regular mortgage
payments in and after 2014 were reflected in the Silver Maple
monthly bank account statements." Based on the testimony of
French's expert, the judge found that Verna was owed
distributions in the following amounts: $96,745.75 for NPS IV;
$37,032.40 for NPS VI; nothing for Silver Maple; $136 for PAR;
and $60,035.75 for Franklin South.14
14In the NPS IV, NPS VI, and PAR actions, the judgments entered against Leonard's estate. In the Franklin South action, the judgment entered against Leonard's estate and Winters, as trustee of the Franklin South trust. The trial judge did not find Shirley individually liable in the Silver Maple and PAR actions.
7 Discussion. 1. Merits actions. a. Accountings. Verna
raises several arguments challenging the trial judge's
calculations of the distributions owed to him. Primarily, Verna
argues that the judge's methodology was flawed. In addition,
Verna argues that the judge erred in determining the trusts'
legitimate expenses and the value of assets. We address each
argument in turn.
i. Methodology. Verna's primary argument on appeal is
that the trial judge was required to consider the account of
each joint venture and the account of its corresponding trust
separately. Verna relies, in part, on the fact that his prayers
for relief requested separate accountings. As an initial
matter, Verna does not explain how the amount of damages would
have been any different had the judge proceeded in the manner he
requested. Verna also does not point us to any analogous cases
requiring separate accountings where the parties, themselves,
treated separate entities as a single financial entity.
Accordingly, we conclude that Verna has not met his burden on
appeal of establishing grounds to vacate and remand for separate
accountings. See, e.g., Krasne v. Tedeschi & Grasso, 436 Mass.
103, 108 (2002).
ii. Expenses. Verna's argument regarding expenses stems
from the fact that some records remained missing at trial.
8 Verna argues that (1) French's expert used public accounting
concepts to fill in some of the missing information and (2) the
trial judge erroneously relied on the expert's conclusions
regarding the missing information to find allowable expenses
that were not documented in the available books and records.15
The argument is unavailing. The Supreme Judicial Court has
"recognize[d] that even a corporate officer who has acted with
scrupulous propriety may be faced with very serious practical
problems when called upon to account for expenditures made over
a period of years and periodically drawn or reimbursed in
accordance with current practice in the particular corporation"
and that there may be times when "an officer may be able to meet
his obligation to account by showing in general terms the
nature, purpose, and extent of such expenditures." Samia v.
Central Oil Co. of Worcester, 339 Mass. 101, 127 (1959).16 That
is what French did here. He presented an expert who reviewed
the available books and records and used her knowledge of public
15Verna does not identify the specific expenses he believes were found in error but says that they total in the "tens of thousands of dollars."
16In Samia, 339 Mass. at 127 & n.11, the Supreme Judicial Court was "not called upon to consider to what extent such an officer may be able to meet his obligation to account" through something other than direct documentation in the books and records but noted several scenarios where the evidence would be sufficient.
9 accounting concepts to fill in some of the missing information.
The judge permissibly credited the expert's testimony.17 See The
Woodward Sch. For Girls, Inc. v. Quincy, 469 Mass. 151, 170 n.29
(2014) ("judge is entitled to credit any properly admitted
expert testimony he or she deems credible").
iii. Assets. As to the assets, Verna makes two arguments.
His first argument pertains to PAR and whether PAR was the
beneficial owner of one or two parcels of land. We briefly
describe the background underlying this argument. There is no
dispute that PAR was the beneficial owner of the first parcel of
land. As to the second parcel, Leonard executed two deeds on
November 13, 2012 that had the effect of conveying the parcel to
PAR: (1) as trustee of the French Realty Trust and the Baver-
Norwood Trust, Leonard executed a corrective quitclaim deed
conveying the parcel to NPS IV and (2) as trustee of the NPS IV
trust, Leonard executed a confirmatory quitclaim deed conveying
the parcel to PAR. The same day, PAR sold both parcels to a
third party. Leonard testified at his deposition, a transcript
Verna relies on the broad proposition that all allowable 17
expenses had to be documented in the books and records. Notably, he does not argue that the testimony of French's expert regarding the nature, purpose, and extent of any specific expense was insufficient. See note 15, supra. Accordingly, we do not address whether the expert's testimony as to any specific expense was sufficient.
10 of which was admitted in evidence, that he conveyed the second
parcel to PAR for the sole purpose of consummating the sale and
that the French Realty Trust and the Baver-Norwood Trust were
the beneficial owners of the second parcel. The trial judge
appears to have credited this evidence and found that the French
[Realty] Trust and the Baver-Norwood Trust, as opposed to PAR,
were the beneficial owners of the second parcel. Verna argues
that this finding was unsupported by the evidence and was
"foreclosed by operation of statute," citing G. L. c. 183,
§§ 11, 17.18 However, the evidence discussed above supports the
judge's finding. As to Verna's statutory argument, which is
made without further explanation or support, the argument does
not rise to the level of appellate argument and is waived. See
Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628
(2019).
Verna also argues that certain payments made to Leonard,
his family, or their businesses were assets in the form of
income-generating loans and that the trial judge erred in
18General Laws c. 183, § 11, sets forth the covenants and warranties that come with quitclaim deeds; G. L. c. 183, § 17, provides that, in conveyances of real estate, the words "quitclaim covenants" and "limited covenants," have a specific meaning, as set forth in the statute.
11 finding that the payments were instead distributions.19 On this
point, there was contradictory evidence. For example, some
ledger entries for checks written against the trusts to Leonard,
his family, or their other businesses stated that the funds were
loans. However, other evidence showed that the funds were not
loans, including the fact that no promissory notes or other
formal documentation memorialized the transactions as loans. In
addition, French's expert offered opinion testimony that the
transactions were not loans and that members of closely held
family businesses sometimes label distributions as loans to
avoid tax consequences.20 It was within the judge's province to
weigh this conflicting evidence and conclude that the
transactions were distributions, not loans. See Goddard v.
Goucher, 89 Mass. App. Ct. 41, 49-50 (2016).
b. Interest and attorney's fees. Verna also argues that
he was entitled to precomplaint interest and attorney's fees in
the merits actions, and that the trial judge abused his
discretion in tolling the accrual of postcomplaint interest.
19The characterization of the transactions mattered because Verna sought imputed interest on loans.
20That is what the trial judge found occurred here. While Verna argues that the judge's finding "condon[ed] attempted criminality," we disagree. The judge found the facts based on the evidence. Whether Leonard should face any tax penalties for his actions was not before the judge.
12 Verna's arguments regarding precomplaint interest and
attorney's fees are based on the unfounded premise that he was
pursuing the merits actions to protect the trusts' assets for
all the trusts' beneficiaries. Verna argues that precomplaint
interest was necessary to restore the trusts' assets to what
they would have been had the trusts been properly administered,
see Berish v. Bornstein, 437 Mass. 252, 270-271 (2002), and that
he was entitled to attorney's fees for bringing a successful
action to protect common funds, see Coggins v. New England
Patriots Football Club, Inc., 406 Mass. 666, 669 (1990). Verna
made the same arguments in the Motel Realty action, and they
fail for the same reason here as they did in that action. In
sum, Verna brought the merits actions to obtain damages for
himself, individually, not to protect the trusts' assets for all
the trust's beneficiaries.21
As to the tolling of the accrual of postcomplaint interest,
Verna has ignored the fact that the trial judge also tolled the
accrual of postcomplaint interest in the Motel Realty action and
that the judge's reasoning for doing so was the same as his
reasoning in the merits actions currently on appeal. And, more
21As Verna testified, he only wanted the 12.5 percent due to him, and it did not matter to him what happened to the other 87.5 percent.
13 importantly, a panel of this court affirmed the judge's decision
in the Motel Realty action. Where Verna does not offer any
reason why we should reach a different result here, we refer the
parties to the analysis of the issue as set forth in the Motel
Realty decision and reject the claim.
c. Shirley's liability. Verna's final argument regarding
the merits actions is that Shirley committed gross negligence in
her comanagement of Silver Maple and PAR and that the trial
judge erred in not holding her individually liable in those
actions.22 See note 14, supra. In arguing that Shirley
committed gross negligence, Verna asserts that (1) Shirley, as a
comanager, was contractually required to manage the joint
ventures' assets, maintain accurate books and records, and keep
each joint venture's money in an account in the name of the
joint venture and (2) Shirley acted in dereliction of these
obligations. The argument disregards that Leonard effectively
served as the manager of the joint ventures, that he did so with
22While, normally, Shirley would have been held to a fiduciary obligation of utmost good faith and loyalty, see Cardullo v. Landau, 329 Mass. 5, 8 (1952), the pertinent joint venture agreements expressly provided that "[n]o member of the Management Committee shall be liable to the Venturers or to the Venture by reason of his acts or decision as such, except in the case of his gross negligence or actual fraudulent or dishonest conduct." Verna does not dispute that the joint venture agreements control.
14 Verna's full knowledge and consent, and that Shirley's role was
limited to occasionally writing checks at Leonard's request.
Where Verna consented to this arrangement, he cannot complain
now that Shirley should have been held responsible.
2. Contempt actions. On September 15, 2014, Verna filed
civil contempt complaints in the NPS IV, NPS VI, Silver Maple,
and PAR actions alleging noncompliance with the consent orders
that required French to provide accountings and produce books
and records. At a September 30, 2014 hearing, a Superior Court
judge (first motion judge) gave French until October 28, 2014,
to comply on the condition that if he did not do so, he would be
assessed a daily sanction of $200.
On November 24, 2014, Verna filed a second set of contempt
complaints, along with requests for attorney's fees incurred in
connection with the first set of contempt complaints. At a
December 23, 2014 hearing, another Superior Court judge (second
motion judge) gave French until January 15, 2015, to comply and
denied Verna's requests for fees. The second motion judge
relied on affidavits filed by Leonard attesting that he had
produced the books and records in his possession or control. On
January 6, 2015, the first motion judge allowed Verna's requests
for fees, apparently not realizing that the second motion judge
had denied them.
15 Following a dispute over whether Verna's requests for fees
incurred in connection with the first set of contempt complaints
had been allowed, the trial judge issued an order on October 3,
2016, in which he ruled that the second motion judge's denial
controlled and also stated that "[n]o attorney's fees or costs
are awarded to [Verna] on his [s]econd [set of contempt
complaints]." At the time, however, Verna had not made a
request for fees incurred in connection with his second set of
contempt complaints. The trial judge's October 3, 2016 order
also increased the amount of the daily sanctions in the Silver
Maple action to $250.
In December 2015 and November 2016, Verna filed a third set
of contempt complaints.23 Then, on June 23, 2017, Verna filed a
fourth and final contempt complaint in the NPS IV action.24 On
April 20, 2022, the trial judge issued an order outlining how he
planned to address the remaining issues pertaining to the
contempt actions. The judge stated that the first and second
sets of contempt complaints were fully resolved and limited the
issues to (1) whether French failed to produce, "in a timely
fashion, documents or information that he eventually provided
23Verna filed the third contempt complaint in the Silver Maple action on December 1, 2015. He filed the remainder of the third set of contempt complaints on November 16, 2016.
24 The judgments all entered against Leonard's estate.
16 to, or made available to [the parties' experts]" and (2) "[i]f
so, what [were] the actual, demonstrable damages that [Verna]
incurred." The judge also limited the hearing to two hours.
Following the hearing, the judge found that Verna's damages
equaled the costs and attorney's fees incurred to obtain records
from third parties. The judge also awarded Verna attorney's
fees incurred in connection with the third set of contempt
complaints and the fourth NPS IV contempt complaint, although he
found that much of the work across the contempt complaints was
duplicative and reduced the requested fees by eighty percent.
a. No trial on second set of contempt complaints. Verna
argues that he was entitled to a trial on the second set of
contempt complaints and was not afforded one. However, all the
contempt complaints went to the same underlying issue: whether
French provided accountings and produced all books and records
in his possession or control. The trial judge adjudicated this
issue in addressing the third set of contempt complaints and the
fourth NPS IV contempt complaint. Verna also argues that the
relief awarded by the judge did not fully compensate him for the
harm resulting from French's noncompliance. We address that
argument below.
b. Attorney's fees on the first and second sets of
contempt complaints. Verna raises a number of arguments in
17 support of his position that he should have been awarded
attorney's fees incurred in connection with the first and second
sets of contempt complaints.25 While a trial judge has broad
discretion to award attorney's fees against a contumacious
party, see Passatempo v. McMenimen, 461 Mass. 279, 304 (2012),
it appears from the record that the decisions not to award
attorney's fees incurred in connection with the first and second
sets of contempt complaints were based on facts that were later
found not to be true. The second motion judge's December 23,
2014 denial was grounded in Leonard's affidavits attesting that
he had produced the books and records in his possession or
control, but it is now undisputed that French did not do so.
The trial judge then relied on the second motion judge's
December 23, 2014 decision to conclude that Verna was not
entitled to attorney's fees incurred in connection with his
second set of contempt complaints. On this record, and in light
of the facts that were eventually found, we conclude that the
second motion judge and trial judge may have "made a clear error
25In particular, Verna argues that (1) the second motion judge abused his discretion in denying Verna's requests for fees incurred in connection with the first set of contempt complaints, (2) on October 3, 2016, the trial judge erred in denying requests for fees that Verna had not yet made, and (3) on April 20, 2022, the trial judge erred in concluding that the first and second sets of contempt complaints were fully resolved.
18 of judgment in weighing the factors relevant to the decision"
(quotation and citation omitted). L.L. v. Commonwealth, 470
Mass. 169, 185, n.27 (2012). Accordingly, we remand for
reconsideration of whether Verna is entitled to attorney's fees
incurred in connection with the first and second sets of
contempt complaints.
c. Scope of final hearing on contempt actions. Verna also
argues that the trial judge's April 20, 2022 order improperly
restricted the parameters of the final hearing on the contempt
actions. Verna argues both that (1) the judge placed an
unreasonable two-hour time limitation on the hearing and (2) the
judge limited the substantive scope of the hearing too narrowly.
With respect to the time limitation, Verna argues that the
trial judge's decision was motivated by "judicial fatigue"
rather than "an informed analysis of case-specific
circumstances, including but not limited to the complexity of a
case and the parties' representations of their needs."
Babaletos v. Demoulas Super Mkts., Inc., 493 Mass. 460, 466
(2024). We are not persuaded. Having reviewed the transcript
of the hearing, we conclude that the judge's deep familiarity
with the case enabled him to conduct an efficient hearing on the
contempt actions. Regardless, we note that Verna did not come
19 to the hearing prepared to present any witnesses, and he has not
shown what he would have done differently with more time.
With respect to the substantive scope of the hearing, Verna
argues that he did not have an opportunity to show that French
failed to provide accountings in a timely fashion, and that the
judge therefore did not have the opportunity to consider whether
to award Verna damages or sanctions. However, a review of the
hearing transcript reveals that Verna did raise this issue. At
the hearing, the parties' attorneys argued whether Verna would
have incurred the expense of having his attorney and expert
review the financial records had French provided the accountings
in a timely fashion, and the judge engaged with Verna's attorney
and asked him questions on this point. The judge's decision on
the contempt actions, which did not award damages or sanctions
in connection with French's failure to provide accountings in a
timely fashion, implicitly reflects that the judge did not find
Verna's argument persuasive. Cf. Jones v. Clark, 272 Mass. 146,
149 (1930) (judge's ultimate findings of fact can import
requisite subsidiary findings necessary to support ultimate
finding).
d. Reduction to attorney's fees on the third set of
contempt complaints and the fourth NPS IV contempt complaint.
Lastly, Verna argues abuse of discretion in the trial judge's
20 decision to reduce by eighty percent the amount of attorney's
fees that Verna requested on the third set of contempt
complaints and the fourth NPS IV contempt complaint. We are not
persuaded. Determination of the amount of reasonable attorney's
fees rests within the sound discretion of the trial judge. See
Tatar v. Schuker, 70 Mass. App. Ct. 436, 451 (2007). Here, the
judge had reason to reduce the amount of the fee request where,
as the judge found, much of the work across the contempt
complaints was duplicative. There was no abuse of discretion.26
Conclusion. So much of the judgments as denied an award of
attorney's fees on the first and second sets of contempt
complaints is vacated, and the matter is remanded to the
Superior Court for reconsideration of that narrow issue. In all
other respects, the judgments are affirmed.
So ordered.
By the Court (Vuono, Englander & Hodgens, JJ.27),
Clerk
Entered: January 24, 2025.
26 The parties' requests for appellate attorney's fees are denied.
27 The panelists are listed in order of seniority.