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-203
MILLER FENCE CO.
vs.
GORDON DAVIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In connection with a cancelled contract, Miller Fence Co.
(Miller Fence), the plaintiff, sought $2,412.27 in damages and
attorney's fees of $9,910.04 against Gordon Davis (Davis), the
defendant. A District Court judge entered summary judgment in
favor of Miller Fence on the damages claim but only awarded $800
in attorney's fees. Miller Fence appealed the amount of
attorney's fees awarded, and a panel of the Appellate Division
of the District Court affirmed. Miller Fence appeals from that
decision, and we now affirm.
Background. On August 20, 2019, the parties executed a
one-page contract for the construction of 112 feet of fencing at
a cost of $13,727 (materials, tax, and labor included), with a completion date in ten to twelve weeks. The contract contained
additional potential charges to be borne by Davis including a
fifty-dollar cancellation fee, a twenty-percent restocking fee
for "[o]rdered material," and "legal fees and costs of
collection." Eight days later, Davis cancelled the contract and
mailed a fifty-dollar check to cover the cancellation fee.
Miller Fence returned the check, and indicated a restocking fee
had to be paid as well. Through a credit card transaction,
Miller Fence deducted the cancellation fee and what it deemed to
be the restocking fee from Davis's deposit and returned the
remainder of the deposit to Davis. Davis disputed the credit
card transaction and on November 22, 2019, obtained a chargeback
from the card issuer for his entire deposit (plus an extra
$248.87).
Represented by counsel, Miller Fence filed a complaint in
the District Court on January 16, 2020, seeking to recover the
$2,412.27 credit card chargeback as well as "legal fees and
costs of collection." On April 2, 2020, Miller Fence filed a
motion for summary judgment, and Davis, representing himself,
filed an opposition two weeks later. On August 11, 2020,
counsel for Miller Fence filed an affidavit identifying legal
fees in the amount of $9,910.04. The affidavit noted that,
despite a discounted hourly rate, Davis's "aggressive
litigation" had been "the sole driver of costs and fees." A
2 week later, a judge allowed Miller Fence's motion, and on August
21, 2020, a judgment entered for Miller Fence on its underlying
damages claim, with an additional $800 for attorney's fees.
Dissatisfied with the amount awarded for attorney's fees,
Miller Fence filed a motion for clarification on August 27,
2020. The motion asserted that Miller Fence was entitled to its
"actual fees and costs" and that the judge could not "rewrite
the contract" to provide otherwise. The judge issued a two-page
clarification and explained his rationale for the $800 award of
attorney's fees. He reasoned that the "issue in dispute was not
complex and involved only a small amount in controversy." He
also noted that counsel for Miller Fence acknowledged "that this
is a very small case in which the evidence was clear." The
judge concluded that $800 was a "reasonable award" in light of
the nature of the case, the issues presented, and the amount of
damages involved.
Miller Fence appealed the award of attorney's fees to the
Appellate Division of the District Court. In its brief, Miller
Fence argued only that the judge had no discretion to determine
and award a "reasonable" fee but instead was required to award
Miller Fence its "actual attorney's fees and costs incurred."
On March 15, 2023, a panel of the Appellate Division issued a
decision affirming the award of attorney's fees. The panel
rejected Miller Fence's argument and concluded that the judge
3 did not abuse his discretion in determining a reasonable amount
of attorney's fees.
Discussion. "Attorney's fees 'as between opposing parties
in litigation' are only allowed in 'limited instances,'
including 'pursuant to a valid contractual provision.'" Sea
Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 218
(2018), quoting Bournewood Hosp., Inc. v. Massachusetts Comm'n
Against Discrimination, 371 Mass. 303, 311-312 (1976). "The
party seeking attorney's fees bears the burden of showing that
the amount sought is reasonable." WHTR Real Estate Ltd.
Partnership v. Venture Distrib., Inc., 63 Mass. App. Ct. 229,
235 (2005). A party claiming attorney's fees must show that the
amount sought is "fair and reasonable," even where the claim is
contract-based. Citizens Bank of Mass. v. Travers, 69 Mass.
App. Ct. 174, 177 (2007), quoting First Natl. Bank v. Brink, 372
Mass. 257, 263-264 (1977). The panel of the Appellate Division
correctly rejected Miller Fence's contrary argument that it was
categorically entitled to recover all of the fees and costs it
had incurred.
That categorical argument was the only argument Miller
Fence made to the Appellate Division and thus appears to be the
only one preserved for the present appeal. Miller Fence's
effort to claim otherwise in its brief in this court, and to
suggest that it has preserved the question whether the fee the
4 judge awarded was reasonable, is unsupported by any record
citation. We could thus resolve this appeal on the basis that
the argument is waived. See Albert v. Municipal Court of
Boston, 388 Mass. 491, 493-494 (1983) (argument not made by
appellant in lower court is waived on appeal).
Nevertheless, assuming in Miller Fence's favor that the
argument is properly before us, we reject it. "What constitutes
a reasonable fee is a question that is committed to the sound
discretion of the judge." Berman v. Linnane, 434 Mass. 301,
302-303 (2001). We agree with the panel of the Appellate
Division that the record does not evince an abuse of discretion
by the judge.
As the judge noted, the "issue in dispute was not complex
and involved only a small amount in controversy." Assuming
without deciding that a restocking fee for "[o]rdered material"
was due and properly calculated on a contract that was only days
old and not expected to be completed for ten to twelve weeks, we
agree that the question of Davis's liability was not
complicated, and the amount in controversy was not substantial.
Indeed, Davis never disputed that he cancelled the contract, and
he paid the cancellation fee only to have it returned with a
demand for the restocking fee.
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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-203
MILLER FENCE CO.
vs.
GORDON DAVIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In connection with a cancelled contract, Miller Fence Co.
(Miller Fence), the plaintiff, sought $2,412.27 in damages and
attorney's fees of $9,910.04 against Gordon Davis (Davis), the
defendant. A District Court judge entered summary judgment in
favor of Miller Fence on the damages claim but only awarded $800
in attorney's fees. Miller Fence appealed the amount of
attorney's fees awarded, and a panel of the Appellate Division
of the District Court affirmed. Miller Fence appeals from that
decision, and we now affirm.
Background. On August 20, 2019, the parties executed a
one-page contract for the construction of 112 feet of fencing at
a cost of $13,727 (materials, tax, and labor included), with a completion date in ten to twelve weeks. The contract contained
additional potential charges to be borne by Davis including a
fifty-dollar cancellation fee, a twenty-percent restocking fee
for "[o]rdered material," and "legal fees and costs of
collection." Eight days later, Davis cancelled the contract and
mailed a fifty-dollar check to cover the cancellation fee.
Miller Fence returned the check, and indicated a restocking fee
had to be paid as well. Through a credit card transaction,
Miller Fence deducted the cancellation fee and what it deemed to
be the restocking fee from Davis's deposit and returned the
remainder of the deposit to Davis. Davis disputed the credit
card transaction and on November 22, 2019, obtained a chargeback
from the card issuer for his entire deposit (plus an extra
$248.87).
Represented by counsel, Miller Fence filed a complaint in
the District Court on January 16, 2020, seeking to recover the
$2,412.27 credit card chargeback as well as "legal fees and
costs of collection." On April 2, 2020, Miller Fence filed a
motion for summary judgment, and Davis, representing himself,
filed an opposition two weeks later. On August 11, 2020,
counsel for Miller Fence filed an affidavit identifying legal
fees in the amount of $9,910.04. The affidavit noted that,
despite a discounted hourly rate, Davis's "aggressive
litigation" had been "the sole driver of costs and fees." A
2 week later, a judge allowed Miller Fence's motion, and on August
21, 2020, a judgment entered for Miller Fence on its underlying
damages claim, with an additional $800 for attorney's fees.
Dissatisfied with the amount awarded for attorney's fees,
Miller Fence filed a motion for clarification on August 27,
2020. The motion asserted that Miller Fence was entitled to its
"actual fees and costs" and that the judge could not "rewrite
the contract" to provide otherwise. The judge issued a two-page
clarification and explained his rationale for the $800 award of
attorney's fees. He reasoned that the "issue in dispute was not
complex and involved only a small amount in controversy." He
also noted that counsel for Miller Fence acknowledged "that this
is a very small case in which the evidence was clear." The
judge concluded that $800 was a "reasonable award" in light of
the nature of the case, the issues presented, and the amount of
damages involved.
Miller Fence appealed the award of attorney's fees to the
Appellate Division of the District Court. In its brief, Miller
Fence argued only that the judge had no discretion to determine
and award a "reasonable" fee but instead was required to award
Miller Fence its "actual attorney's fees and costs incurred."
On March 15, 2023, a panel of the Appellate Division issued a
decision affirming the award of attorney's fees. The panel
rejected Miller Fence's argument and concluded that the judge
3 did not abuse his discretion in determining a reasonable amount
of attorney's fees.
Discussion. "Attorney's fees 'as between opposing parties
in litigation' are only allowed in 'limited instances,'
including 'pursuant to a valid contractual provision.'" Sea
Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 218
(2018), quoting Bournewood Hosp., Inc. v. Massachusetts Comm'n
Against Discrimination, 371 Mass. 303, 311-312 (1976). "The
party seeking attorney's fees bears the burden of showing that
the amount sought is reasonable." WHTR Real Estate Ltd.
Partnership v. Venture Distrib., Inc., 63 Mass. App. Ct. 229,
235 (2005). A party claiming attorney's fees must show that the
amount sought is "fair and reasonable," even where the claim is
contract-based. Citizens Bank of Mass. v. Travers, 69 Mass.
App. Ct. 174, 177 (2007), quoting First Natl. Bank v. Brink, 372
Mass. 257, 263-264 (1977). The panel of the Appellate Division
correctly rejected Miller Fence's contrary argument that it was
categorically entitled to recover all of the fees and costs it
had incurred.
That categorical argument was the only argument Miller
Fence made to the Appellate Division and thus appears to be the
only one preserved for the present appeal. Miller Fence's
effort to claim otherwise in its brief in this court, and to
suggest that it has preserved the question whether the fee the
4 judge awarded was reasonable, is unsupported by any record
citation. We could thus resolve this appeal on the basis that
the argument is waived. See Albert v. Municipal Court of
Boston, 388 Mass. 491, 493-494 (1983) (argument not made by
appellant in lower court is waived on appeal).
Nevertheless, assuming in Miller Fence's favor that the
argument is properly before us, we reject it. "What constitutes
a reasonable fee is a question that is committed to the sound
discretion of the judge." Berman v. Linnane, 434 Mass. 301,
302-303 (2001). We agree with the panel of the Appellate
Division that the record does not evince an abuse of discretion
by the judge.
As the judge noted, the "issue in dispute was not complex
and involved only a small amount in controversy." Assuming
without deciding that a restocking fee for "[o]rdered material"
was due and properly calculated on a contract that was only days
old and not expected to be completed for ten to twelve weeks, we
agree that the question of Davis's liability was not
complicated, and the amount in controversy was not substantial.
Indeed, Davis never disputed that he cancelled the contract, and
he paid the cancellation fee only to have it returned with a
demand for the restocking fee. In its brief, Miller Fence
agrees that it was a "small lawsuit" and was "easily proven."
Given these circumstances, it is unsurprising that this case
5 moved expeditiously from complaint to judgment in just seven
months (even with pandemic continuances) with a favorable
disposition for Miller Fence on its motion for summary judgment.
"[T]he nature of the case and the issues presented, the time and
labor required, the amount of damages involved, [and] the result
obtained" amply supported the judge's exercise of discretion.
Berman, 434 Mass. at 303, quoting Linthicum v. Archambault, 379
Mass. 381, 388-389 (1979).
We disagree with Miller Fence's contention that the judge
and the Appellate Division "utterly failed to consider the
actions of [Davis] in driving up costs, and attempts by [Miller
Fence] to mitigate costs by seeking a protective order." When
considering the reasonableness of attorney's fees, a judge may
consider numerous factors with no single factor being
determinative, and "a factor-by-factor analysis, although
helpful, is not required." Berman, 434 Mass. at 303. As
previously discussed, the judge considered the pertinent factors
as illuminated by his own experience in dealing directly with
the parties in court. See id. Contrary to the suggestions made
by Miller Fence, the judge was not required to review "each and
every [legal] invoice" or "provide an explanation of [why] more
than $9000 in time wasted by [Davis's] antics was not
reasonable." It was not the judge who had the burden of
articulating why the fees were unreasonable; it was Miller Fence
6 that had the "burden of showing that the amount sought [was]
reasonable." WHTR Real Estate Ltd. Partnership, 63 Mass. App.
Ct. at 235.
We also do not view the $800 figure chosen by the judge to
be "utterly arbitrary" as Miller Fence maintains. While another
judge reviewing the same facts could have found a different
amount to be reasonable, a "judge's decision . . . is plainly
not an abuse of discretion simply because a reviewing court
would have reached a different result." L.L. v. Commonwealth,
470 Mass. 169, 185 n.27 (2014). Even if Davis's strategy
crossed the line from a vigorous defense to vexatious maneuvers
that unnecessarily drove up the cost of litigation as Miller
Fence insists, the judge was not required to assess these costs
against Davis in the reasonableness determination. See, e.g.,
Harrington v. Richter, 562 U.S. 86, 111 (2011) (attorneys are
not bound by "Newton's third law" requiring "an equal and
opposite" response to every action taken by opposing party).
Finally, we reject Miller Fence's contention that the judge
"had no discretion to interpose its own determination of what
was contractually reasonable in terms of fees in light of clear
and unambiguous contractual language." We have consistently
rejected similar claims. See, e.g., Citizens Bank of Mass., 69
Mass. App. Ct. at 175 (despite borrower agreeing to pay bank's
attorney's fees, judge still obliged to determine "whether the
7 fees requested were reasonable and should be awarded"); Trustees
of Tufts College v. Ramsdell, 28 Mass. App. Ct. 584, 585 (1990)
(contract providing for payment of attorney's fees "limited to
an amount that is found to be fair and reasonable"). "The
Massachusetts rule limiting attorney's fees to what is fair and
reasonable, particularly when they are being imposed against an
unwilling party who did not engage the services of the attorney,
is one of significance to the administration of justice."
Trustees of Tufts College, supra at 585-586. Thus, the
contractual provision requiring payment of "legal fees and costs
of collection" did not obligate Davis to pay attorney's fees for
Miller Fence come what may.
We do not address Davis's various arguments that we should
order relief for him going beyond what the judge ordered. No
cross-appeal by Davis is before us, and "failure to take a
cross-appeal precludes a party from obtaining a judgment more
favorable to it than the judgment entered below." Boston Edison
8 Co. v. Boston Redev. Auth., 374 Mass. 37, 43 n.5 (1977). We
also decline Davis's request for appellate attorney's fees.
Decision and order of the Appellate Division affirmed.
By the Court (Meade, Sacks & Hodgens, JJ.1),
Clerk
Entered: April 3, 2025.
1 The panelists are listed in order of seniority.